In the Matter of the Complaint Against:

SARA MICHEALS,
Post Office Box 15607,
Post Office Box 33002 at
St. Petersburg, Florida 33733

P.S. Docket No. 5/95

08/23/77

Sobernheim, Rudolf; Administrative Law Judge

APPEARANCES:
Thomas A. Ziebarth, Esq.
Consumer Protection Office,
Law Department, U.S. Postal Service
Washington, D.C. 20260 for Complainant

Jack Paller, Esq.
Lee Harter, Esq.
Katz, Paller & Land,
400 Colony Square,
Atlanta, Georgia 30361 for Respondent

INITIAL DECISION

This is a proceeding by complainant against respondent under 39 USC 3005 which authorizes action against respondent on evidence satisfactory to the Postal Service that respondent is "engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations." Complainant alleges that respondent is engaged in such a scheme in the sale of SARA MICHEALS PROTEIN FOR THE BUSTLINE (hereinafter referred to as the "Protein"). Specifically complainant in paragraphs (2) and (3) of the complaint alleges that respondent through the use of advertisements (Compl. Ex. 1 and 2) makes representations, directly or indirectly, in substance and effect, whether by affirmative statements, omission or implication, as follows:

"(a) SARA MICHEALS PROTEIN FOR THE BUSTLINE (hereinafter referred to as SMP) contains a unique combination of amino acids not readily available in an ordinary balanced diet;

(b) SMP, when used in conjunction with the daily, one-minute exercise program, will cause the female user's bustline measurements to increase from 3 to 4-1/2 inches in 2 to 3 weeks;

(c) SMP, when used in conjunction with the daily, one-minute exercise program, will cause the female user's breasts to become larger, firmer and fuller, and reverse their tendency to sag;

(d) SMP is an integral and essential part of the SARA MICHEALS regimen and makes a material and substantial contribution to the claimed benefits."

Complainant further alleges in paragraph (4) of the complaint that these representations are false and materially so.

Respondent's answer admitted the use of the advertisements (Compl. Ex. 1 and 2) but denied making the representations set forth in paragraph (3) of the complaint and their material falsity.

Respondent also pleaded three defenses:

1. Violation of the equal protection guaranty of the Constitution of the United States in that 39 USC 3005 was not enforced by complainant "against a certain competitor" of respondent making advertising claims similar to those alleged to be false in this proceeding and in that complainant had entered into an agreement with this competitor to the detriment of respondent. To substantiate its defense respondent attached to its answer as exhibits 1 through 3 advertisements published in Glamour and Cosmopolitan magazines in the second half of 1976 by "Mark Eden", the alleged competitor.

2. Unconstitutionality of 39 USC 3005 in that it does not establish an ascertainable standard of liability.

3. Enforcement of 39 USC 3005 as interpreted and applied by complainant, in violation of due process for failure of setting a standard. Respondent, in explication of its position, alleged that in fashioning its advertisements it has relied on the language used in advertisements of its competitors which have not been subject to Postal Service action under 39 USC 3005. Copies of advertisements, published in second half of 1976 in Glamour and Cosmopolitan magazines by "Beauti Breast", and by "Firm and Full", were attached to the answer as exhibits 4, 5 and 6, respectively.

Complainant replied to the affirmative defenses that respondent's product in the instant proceeding and those advertised by respondent's alleged competitors were substantially different and denied selective use of 39 USC 3005 against respondent.

A hearing was held on 15 December 1976 at which both parties offered documentary and testimonial evidence. Respondent's motion to dismiss the false representation charge of paragraph (3)(a) of the complaint on the ground of insufficient evidence was denied (T 86-87).

As permitted at the hearing (T 167-168) affidavits of persons not called as witnesses at the hearing were filed thereafter by both parties. These included on respondent's behalf the affidavit of a physician practicing in Marietta, Ga., and the written sworn testimonials of three women as to the effectiveness of respondent's product. Under the rule laid down in 39 CFR 952.18(f) these testimonials are not admissible as proof of the efficacy or quality thereof.

In addition, respondent offered a letter by the president of Fillmore Foods, Inc. of Hayward, CA, addressed to the president of respondent at "Slender Magic", St. Petersburg, Fla., purporting to set forth the typical breakdown of the Protein's amino-acid content in milligrams and as a percentage. The document is acknowledged by Fillmore's president but is not verified nor is the basis of the statements made therein explained.

Complainant countered by submitting the affidavit of a well-qualified physician, employed as a medical officer by the federal Food and Drug Administration and assigned as Postal Liaison Medical Officer (PLMO), who attached thereto a table comparing the amino-acid content of respondent's product, as stated by Fillmore, and the amino-acid content of a number of standard foods.

Briefs were filed by both parties in mid-February 1977. To its brief respondent attached a copy of the Post Office Department Decision of the then Acting Judicial Officer "in the Matter of the Charges" against MARK EDEN at San Francisco, Cal., dated 30 April 1968 (P.O.D. Docket No. 2/204) and Appendix A thereto.

About six weeks later respondent gave Notice of Related Administrative Proceedings, in which it sought information under the Freedom of Information Act regarding complainant's actions in respect of advertising by its alleged principal competitor Mark Eden. In view of this notice time was allowed to respondent to obtain the information sought and to brief its point and to complainant to file a reply. The sixty days allowed therefor were slightly exceeded and the record was closed on 10 June 1977.

FINDINGS OF FACT

1. Sara Micheals, Inc., doing business under the name of Sara Micheals, the respondent herein, is engaged in the sale of Sara Micheals Protein for the Bustline by means of the advertisements copies of which are attached to the complaint (Answ. par. (2)) and receives money therefor from purchasers by means of remittances through the mails (Resp. Br., p. 1, 2d par.).

2. The advertisement (Compl. Ex. 1) is a direct mail flyer (T 8-9) and an advertisement of like content (Compl. Ex. 2) appeared in Capper's Weekly (T 7-8).

3. Respondent's advertisements run in three parallel vertical columns from left to right. The top of the left hand column shows a jar, labelled "Sara Micheals PROTEIN for the Bust" above and to the left of an oval picture of a smiling woman whose very low-cut dress partly reveals two full breasts and bares the cleft between them. Beneath the picture is the legend "Chocolate Net Wt. 10 ozs".

a. Next the advertisements describe Sara Micheals' "bustline" problems as follows:

"Believe me I had a problem with my bustline. With my husband being in the physical fitness business I became more and more ashamed of my bustline. I tried exercises that I thought could help with the moderate results of only 2 inches in a month. While I had seen other gals make fantastic bustline gains up to 6 full inches in two weeks with exercise, there seemed to be something lacking in me that made those fantastic results impossible for me to obtain. All of the women in my family had small bustlines so I just thought it was hereditary.

"But when I got pregnant I developed a beautiful bustline. Then after pregnancy my bustline became even smaller than it was before. I even talked to my doctor about an implant, but the idea of surgery really frightened me and besides I knew my husband would never go for the idea. Anyway my vanity wouldn't let me give up. I had a good figure everywhere else so why not a beautiful bustline also. I started reading every book I could find on the subject of bust and muscles underneath the bust."

b. "Sara Micheals'" alleged disappointments led her into nutrition and to the discovery that "it is practically impossible to build any part of the body without proper nutrition." Her "hopes" were more and more "reinforced that it could be possible for me to have a beautiful bustline without the undue stress on exercise."

c. Great efforts were then made to create the protein supplement desired by "Sara Micheals." Her "husband" referred her to manufacturers of protein supplements:

"From the information I had gathered in the books I had read I had some very specific ideas of the formula of protein I required for my needs. With each manufacturer I received replies varying from impossible to crazy, they were no help at all. At that point I could have given up in frustration but decided to obtain all the separate ingredients and mix them myself. I must have visited over 100 health food stores until I found the ingredients I needed. Not being one that takes too well to eating or drinking anything that tastes bad, I also had the additional problem of making my formula into a good tasting drink."

d. Finally the great moment has arrived:

"After many months of experimentation I decided on one particular formula that seemed perfect for my needs. I was ready for the big test. I asked my husband to design one easy to do exercise that could be done in one minute or less with no exercise equipment and the minimum of effort, which he did for me. I started Monday morning in the shower. I did the exercise which only took 45 seconds, by the way. Then I mixed the protein formula in a 6 oz. glass of milk and drank it. It tasted like a milkshake. Before I did any exercising I drew a chart to see if I would get any results. I measured 33 inches with a deep breath and that was pushing it. Every morning I repeated the same routine, but I didn't measure again for a full week. Then the following Monday I remeasured myself an easy 35 inches. In one week my bustline became firmer, fuller, had more lift and increased a full 2 inches. Then I quickly gained another two inches over the next few weeks. It was fantastic] To say I was excited would be putting it mildly."

e. The advertisements then reach their conclusion: A marketable product has been created which "Sara Micheals" is eager to sell. Thus:

"At last after many months of frustration I had succeeded in achieving results I had dreamed about for years. Reinforced with the right successful formula I had Protein for the Bustline. Manufactured according to my exact specifications thereby making it available to other women with the same problem I had."

After a cautious disclaimer that everyone may not do as well with her product as she or others may have done and a promise of money back to the dissatisfied, the third column of the advertisement introduces the readers to a few gals and what they have to say. Purportedly bustlines increased 4 inches in 3 weeks, 3 inches in two weeks and 4 1/2 inches in an unspecified period or so these "gals" say.

f. The advertisements close with an ordering coupon for a 20-30 day supply at $6.85 plus a 75 cent handling and postage charge or a 40-60 day supply at $13.70. The prospective purchaser may order vanilla or chocolate flavor.

4. a. In respect of the allegation, set forth in paragraph (3)(a) of the complaint, respondent's advertisements emphasize that "Sara Micheals" started, when other means seemed to have failed, to read every book on "the subject of the bust and muscles underneath the bust" and was in her studies "pointed more and more to nutrition." The advertisements (Compl. Ex. 1, 2) refer to " m ajor nutritionalists" who report that protein with the right combination of amino-acids is "important for body and muscle tone" and to "studies" which indicate that "it is practically impossible to build any part of the body without proper nutrition." "Sara Micheals" then began to read "books regarding protein and its effects on the body and the bustline in specific." She was, however, allegedly unable to obtain the Protein according to her formula from protein supplement manufacturers. Assertedly, they thought her demands "impossible" or "crazy" and she had to visit over 100 health food stores to obtain the "needed" ingredients. She decided on her formula only " a fter many months of experimentation."

b. This story conveys to the mind of ordinary readers that they are being offered a product specially manufactured by or on behalf of, and which they must buy from, respondent because it is the only way to obtain the particular combination of protein and amino-acids if they wish to take it.

c. Respondent's advertisements state that "Sara Micheals" could not find a protein supplement of her composition as a shelf item from other protein food supplement manufacturers. Such a statement, literally read, is silent as to whether that alleged state of affairs actually continued to the date of the advertising. But what is borne in on the mind of the ordinary reader by respondent's advertisements is not that respondent's Protein is unique compared to the product of other protein food supplement manufacturers but that a unique combination of proteins and amino-acids can be obtained only from respondent's product.

d. It is to this aspect of respondent's advertising that complainant's charges are directed. In my view of the effect of respondent's advertisements on the mind of the ordinary reader there can be no doubt that respondent makes the representation charged to it in paragraph (3)(a) of the complaint and I so find.

5. a. In respondent's advertisements (Compl. Ex. 1, 2) "Sara Micheals" on her first use of the Protein with a 45-second exercise daily for one week gained 2 inches of bustline in the first week and two more "quickly" in the next few weeks and is now making her Protein available to other women.

b. The advertisements, purporting to speak through "Sara Micheals", continue:

"But don't just take my word for it. Let me introduce you to a few gals and let you hear what they have to say."

c. Thereupon follow four purported testimonials in which the attestants represent that they gained 4 inches in 3 weeks, 3 inches in two weeks and 4 1/2 inches in "a few short" weeks. One attestant claims to have gained four inches but without specifying time.

d. Sandwiched in between the parts of the advertisements quoted or referred to in paragraphs a. and b. of this Finding of Fact No. 5 is the following sentence:

"While I don't claim everyone that uses my Protein for the Bustline will obtain the same results I and others have the facts are some may do better and others not as well."

e. In the light of the sequence of the text of the advertisements, quoted hereinabove, and the express incorporation therein by reference of the results obtained by others, i.e., the testimonials subsequently printed as part of the advertisements, the testimonials have become an integral part thereof and the representations made therein respondent's own.

f. Respondent's mild disclaimer of corresponding results for all users, if noticed at all by ordinary readers, would in their mind be insufficient to overcome the aroused hope and expectation of easy success in bustline enlargement, especially when right afterward "Sara Micheals" directs her readers to examine the testimonials as respondent clinches its "hard sell" advertisements.

g. Respondent's advertisement does not tie the claimed 4 1/2 inch bustline gain to a three week period but to a "few short weeks."

h. In the exercise of the broad powers conferred upon me to conform pleadings to the proof and to treat pleadings as amended accordingly (39 CFR 952.12) I deem the allegations of paragraph (3)(b) of the complaint amended to read "cause ... to increase from 3 to 4 inches in 2 to 3 weeks."

i. Accordingly I find that respondent makes the representations, alleged in paragraph (3)(b) of the complaint as conformed to the proof.

j. The question whether I am barred by the Departmental Decision in Mark Eden, P.O.D. No. 2/204 (1968), from making the foregoing Finding of Fact No. 5 will be taken up later in this initial decision.

6. a. As regards the representation set forth in paragraph (3)(c) of the complaint, "Sara Micheals" states in respondent's advertisements (Compl. Ex. 1, 2) that all the women in her family had small bustlines; that when she "got pregnant" she "developed a beautiful bustline" (Compl. Ex. 1, 2); and that after pregnancy her bustline became "even smaller than before." On the other hand, after testing her product and taking some exercise for a week her bustline "became fuller, firmer and had more lift" (ibid.).

b. The term "bustline" is used by pattern-makers for home-sewn or tailored clothing as the measurement of the body's circumference at the outwardmost point, across the nipples of the breast, high under the arms and across the back. It is an important measurement in determining the clothing and pattern size of the person who makes her own dress or similar garment. Millions of women making their own dresses presumably understand this measurement and the term which designates it (see Resp. Ex. 3, Testim. of Joel M. Goldhar in Sean Micheals, P.S. Docket No. 5/16, T 228-239). On the other hand, one of respondent's medical experts testified that he preferred photography to measurements to determine bustline development and that the elevation of the female breast cannot be measured circumferentially (T 135-136). See also the testimony of complainant's principal medical expert that body measurements should be made on bony points and not on soft tissue, like the nipples of the breast which constantly and noticeably change their position (T 32, 76). Hence, concepts of bustline measurement and the use of the word in regard to dress pattern sizes have no relevance to the determinations to be made in this proceeding.

c. In the mind of the ordinary reader of respondent's advertisements their language, although the word "breast" is strenuously avoided and the word "bustline" carefully used throughout, will be understood to refer to change in the breast itself. The reference to the increase in bustline after pregnancy obviously refers to the commonly known and observed fact that the breast of a pregnant woman swells in size during pregnancy and at least for some time after birth. The expectation of greater fullness and firmness, held out to users, does not refer to a measured line but to the "bust" itself and this is nothing other than the "bosom, especially of a woman." For "SYN. see breast." (See WEBSTER'S NEW WORLD DICTIONARY OF THE AMERICAN LANGUAGE (Coll. ed. 1962), s.v. bust.) Likewise, the expected "lift" is not that of an invisible line but of the real and visible breasts of the woman user. The picture of a full and partly barebreasted woman at the top of the advertisement's first column completes this scenario.

d. Complainant alleges that respondent claims as part of its false representation that its product and program reverses the tendency of the breasts to sag. I find no language which directly or by implication so represents and find that respondent does not make this representation.

e. Except as found otherwise in the preceding paragraph d. of this Finding of Fact No. 6, I find that respondent, notwithstanding the consistent use of the disguising word "bustline", in fact refers to the breasts and makes the representations alleged in paragraph (3)(c) of the complaint.

7. a. Respondent's program has two components, an exercise and the consumption of the Protein. Its advertisements (Compl. Ex. 1, 2) state that avoiding "undue stress of exercise" was a goal in developing the product. "Sara Micheals" asked her "husband" to design one easy exercise that could be done in one minute or less with no exercise equipment and "the minimum of effort" and the "exercise took only 45 seconds, by the way." These statements clearly negate any claim, based on the program outlined on the Protein label, that exercise alone or in the main is the gist of respondent's program or that use of the Protein is to be disregarded.

b. In its brief, respondent (Br., p. 16) now admits the correctness of the foregoing analysis and the representation that "SMP is an integral part of the SARA MICHEALS regimen" (Compl. par. (3)(d), first 2 lines) but continues to deny representing that the Protein "makes a material and substantial contribution to the claimed benefits" (id., last 7 lines). It further argues that the words "material and substantial" and "benefits" are so vague as to place the truth or falsity of such representation beyond the realm of proof.

c. As a matter of fact such claim is not well taken. What complainant alleges is that it is false to represent that taking the Protein produces an increase in the bustline when accompanied by an easy exercise of 45 seconds duration, as represented in the advertisements, within the time frame advertised of 2 to 4 inches in one to three weeks. The reference to "benefits" may be inartistic but clearly is shorthand for the bustline increases which respondent advertises (see Compl. Ex. 1, 2, FF No. 5).

d. Accordingly, I find that respondent makes the representation, as alleged in paragraph (3)(d) of the complaint.

8. The container in which respondent furnishes the Protein to purchasers bears a tripartite label a copy of which was admitted in evidence as complainant's exhibit 5 (T 11).

a. The left portion of the label is occupied by the picture, a reduced version of which heads the text of respondent's advertisements at the upper left (Compl. Ex. 1, 2).

b. (i) The center portion is entitled "EXERCISES" which the reader is admonished to perform regularly as directed, taking the Protein within 30 minutes after completing them.

(ii) Instead of the advertised single 45-second exercise the reader is told to repeat a basic, arm-gripping and -releasing exercise in three illustrated positions 15 to 20 times, trying to keep the chest muscles as tight as possible.

c. (i) The third section of the label, heavily framed is captioned "PROTEIN SHAKE". It advises the reader that body cells are largely composed of protein and water and that those who wish to increase their dietary protein may use respondent's product in fruit juice, milk, cream, salads, cereals or in cooked or baked foods.

(ii) A heaping tablespoon of the Protein is said to contain 60 calories or 5 grams of protein, 7 grams of carbohydrates and 1 gram of fat. Taken in a six-ounce glass of whole milk the intake is 180 calories, 11 grams of protein, 16 grams of carbohydrates and 8 grams of fat.

(iii) Isolated soy protein, dried whey, sugar, cocoa, soy oil and various other substances (not relevant to this proceeding) as well as natural and artificial flavors are listed as ingredients of the Protein.

(iv) The protein content of a tablespoon of respondent's product is said to constitute 8% of U.S. Recommended Daily Allowance of proteins in the diet (60 gr. per 1 kg of weight) without and 15% with a glass of milk.

9. Of the ingredients soy protein and dried whey are the purveyors of protein in respondent's product (T 22).

10. On the ultimate question of the falsity or truth of the representations found to have been made by respondent both parties adduced testimony, orally and by way of affidavits. The testimony is in sharp conflict on major points and is summarized without regard to the order in which it was received.

11. Complainant's first expert medical witness was the director of physical medicine at George Washington University Hospital, director of the Hospital's residency training program and professor of medicine at the University (T 17). He is also a consultant in physical medicine to the National Institutes of Health (T 18). His ample education and training, writings and outside professional activities are fully set forth in his curriculum vitae (Compl. Ex. 6). He is a specialist in the evaluation and management of the physically disabled and is familiar with those aspects of medical science which underlie his specialty (T 19). This includes a general familiarity with nutrition (T 20).

12. a. The witness, first asked about the nutrient character of the Protein, testified that amino-acids were both the constituents of protein (T 42-43) and the end product of protein consumption (T 21; cf. T 27). Amino-acids may be synthesized by the body but the "essential" ones must be taken into the body through food consumption (T 21, 44). Amino-acids are not eaten as such (T 44). The "essential" amino-acids are nine in number (T 21). The witness was unable to break down the amino-acid content of the standard daily protein consumption of 60 grams for a woman (T 47) but on the basis of the product label found nothing unique or distinct in the Protein (T 24). An excess of otherwise needed protein is eliminated from the body through the urine or in the stools (T 25).

b. Whatever the benefits of consuming the Protein, the witness denied that it had any specific effect on shape, contour or "even the strength" of the bustline. By themselves neither the ordinary diet nor protein supplements have any effect on muscle development, including the development of the chest muscles (T 27, 36).

c. The witness further testified that the exercises which form part of respondent's program, as stated on the label (Compl. Ex. 5), if performed for a long period of time, such as a year, would give the flat chest muscles, such as the pectoralis major, greater roundness. However, inhaling before the exercises (T 78) adds nothing to their effect and the prescribed position changes (arms above the head, at shoulder level, in front of the abdomen) have no physical effect except to relieve boredom (T 30-31; see also T 63). Only the exercise at shoulder level would tend to make all the muscles involved hypertrophied (T 68). As the chest muscles become hypertrophied, they expand and lift the breasts forward (T 57).

d. The result foreseen by the witness would be an increase of 1 inch in body circumference, of which perhaps 1/2" could be attributed to the hypertrophy of the chest (T 31, 35) and the other 1/2" to hypertrophy of the back muscles (T 35). Bustline increases of 3 to 4 or 4 1/2 inches in 2 to 3 weeks would be impossible (T 33-34). On the other hand, the discipline of regular exercises could improve the subject's posture and the appearance of her bustline (T 36, 60).

e. The breasts themselves will not become enlarged by the exercises (T 34), become fuller or firmer (T 35) or stop sagging (T 67).

f. Pulling together the two strands of his testimony, the witness stated that neither the exercises in respondent's program nor vigorous exercises deplete the protein content of the subject's body (T 33, 82, 83), while taken without exercise the Protein would have no effect (T 36).

g. At most the fat content of the Protein and of the milk, if taken in milk, would add fat to various parts of the body, such as the hips, waist, etc., and some fat may also be deposited on the already fatty tissue (T 59) of the breasts (T 34, 84).

h. The witness concluded that the views expressed by him were reflected in the medical literature and in accord with those of medical colleagues with whom he discussed the matter (T 38).

13. a. In his affidavit the Postal Liaison Medical Officer addressed the dietary patterns of the American people. Based on surveys, including one in 1959, published by the Nutrition Committee of the U.S. Department of Agriculture (Aff. PLMO, pars. 6, 7), he stated that the average American diet contained from two to five times the minimum amount of complete proteins needed as daily intake. "Complete" proteins are those containing all essential amino-acids (id., par. 7).

b. He gave a figure of only 48 grams or 1.6 ounces of protein as the daily allowance recommended by the National Academy of Sciences. Respondent's 5 grams "heaping Tbsp" serving of Protein would thus represent 10% of the recommended daily intake (See FF 8, c(iv)). He too stated that protein intake in excess of the body's need would be "wasted" and not synthesized into new protein tissue.

c. (i) The Protein contains no protein foods or resources of special value, unavailable in many common foods. The PLMO provided a comparison (Aff., Table A) between the amino-acid composition of the Protein and of the following quantities of routinely sold and consumed foods:

9    oz     whole milk
3.5   "      hamburger patty
2             medium eggs
2      "     -sized frankfurters
3.5 oz     chicken meat
1.75 "      processed cheddar cheese

(ii) All of these foods contain at least twice as much of nearly all the eight amino-acids, listed as "essential" in WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE UNABRIDGED, s.v. amino-acid, and in all instances a greater quantity than contained in the Protein. The same is true of two other amino-acids, called Cystine and Tyrosine, listed on Table A to the affidavit. There are 10 mg less cystine in the cheddar cheese, the sole instance where respondent's Protein contains more milligrams of a listed substance than any of the six food products shown for comparison. The record does not show any importance attaching to this datum.

(iii) There is no impropriety (see Resp. Br., p. 20) in complainant's submission of Table A. For only the Fillmore Foods letter, submitted first after the hearing, gave the amino-acid breakdown of the Protein in milligrams. Previously, complainant could not have fashioned the comparative aspect of Table A.

d. As had complainant's principal medical witness, the PLMO denied that respondent's exercises would significantly increase the subject's protein needs. He equated 45 seconds to 1 minute exercise (Compl. Ex. 1, 2) to the energy of walking once around the block (id., par. 11). At most such exercise requires a trivial amount of food energy - carbohydrates or fat (ibid.).

14. Respondent called as its first witness a physician and surgeon, practicing since 1970 in Olney, Maryland, who also acts as a consultant in physical and sports medicine (Resp. Ex. 2). Prior to 1970 his career appears to have been divided between positions in hospitals in neurology and neurosurgery and in industry (ibid.; T 88). He also was a founder of the American College of Sports Medicine (T 90).

15. a. Based on his experience with patients the witness strongly expressed the view that many people are obsessed with diet foods, eat junk foods, use frozen orange juice and consume a diet that is on a large scale protein deficient (T 94 et seq. 97).

b. In the light of this view he considered that consuming respondent's Protein was helpful because of the insufficiency of the users' diet (T 111) and he preferred that a subject take the Protein in a glass of milk as respondent suggests on its label (Compl. Ex. 5) over obtaining the same protein consumption from two glasses of milk (T 117) because pasteurized milk contained fewer amino-acids (T 118).

c. Lysine, the main muscle-building amino-acid, was found in the "isolated" soy protein in respondent's product but the witness did not know what "isolated" meant, nor did he know, since respondent did not know, how much of the lysine was levolysine (T 119-120), vital to human skeletal development (T 121).

d. The witness testified that female breasts could not be enlarged by exercise but that the hypertrophy of underlying muscles could make them appear larger (T 110).

e. Turning to the exercises, he stated that exercise - with dietary reform and getting rid of machines - "is the greatest thing we need" (T 112; see also T 101-102) and that the performance of respondent's exercises (see Compl. Ex. 5) would increase the bustline by 1/2 inch per week, if the subject was "motivated" (T 106; and also T 102) and that a subject may gain 3 inches in two weeks, but he could not "be positive on that" (T 108) but that the average woman should be able to make such gain (T 109). However, he gave 3 inches as the maximum hypertrophy of the pectoralis major.

f. The witness considered the aforementioned bustline "gains" due to enlargement of the chest muscles on which the breasts rest as well as to more erect walk (T 107).

g. The witness also testified that the exercises made the breasts firmer and fuller (T 110).

h. Motivation to the witness seemed to have two sources: (i) a deep-seated interest in sports, exemplified by female gymnasts (T 104; see also T 109), and (ii) payment of money for treatment (T 103).

i. The witness, as becomes apparent even from a perusal of the transcript of his testimony, had some difficulty in concentrating on the questions which he was asked and often gave rambling, unfocused answers. However, the testimony stands and must be evaluated as part of the entire record.

16. a. Respondent's second expert witness was a professor of physical education at the University of Illinois and a founding fellow of the American College of Sports Medicine (T 125-6). He was a member of The Olympic Team Swimming Committee for twenty-five years since 1948 and had served for 10 years in the fifties and sixties on the President's Council on Physical Fitness and Sports (T 127).

b. The witness testified that his work was to "improve the humans", to find "any possible way to improve the appearance or the strength or the endurance or the cardiovascular fitness or the nutritional state of the person" (T 143).

17. a. He testified that he had examined and tried respondent's exercise program (T 130) and that its performance involved the muscles of the upper body, including the back and arm muscles (T 132-133). To do the exercises correctly, the subject must hold her breath (T 134) and the combination of exercising and holding one's breath will "increase the interthoracic tensions and in due time and even in a week or two" the observer "can measure changes in this" (T 135); the chest muscles would increase in volume.

b. The witness testified further that the exercises would cause a change in posture and improve the appearance of a woman's bustline (T 139). This would occur because the breasts rest on the frontal wall of the thorax and not because the breasts were getting larger. The breasts would only "appear" to be larger, fuller and firmer (T 139-140).

c. The witness testified that as a result of the exercises it was "entirely possible" for a subject to gain three inches in one week (T 138-139), but that it was "possible" (T 161) and " v ery possible - it could go over three inches" (T 164). He "wouldn't go to four and one half inches" (T 139), considered it "possible" (T 161) and said that " i t could be done" and that a "very flexible woman in her upper body" could enlarge her bustline by "five inches" (T 164).

d. Turning to the effect of consuming the Protein while engaged in the exercise program the witness testified that he looked upon protein somewhat differently from others (T 139) in that he considered the taking of protein to have "quite a psychological effect" (T 140) which would be reflected in the improvement of the subject's posture (ibid.). He conceded that the additional protein could be gained from drinking two glasses of milk (cf. Compl. Ex. 5) but added that women were "scared to death" of milk as fattening (T 154).

e. As to the actual need of a protein supplement in the diet of those performing respondent's exercise program, the witness suggested a doubling of the recommended protein intake from one gram per kilogram of weight to 2 grams (T 147-148) and stated that articles in the Encyclopedia of Sports Medicine (T 148) and eastern European medical authorities supported this view (T 149-150). They support the adjustment of diets for different amounts of physical training (T 150).

f. The witness attributed protein depletion to both physical and mental stress (T 153) but stated that in the United States only about 5% of the people get inadequate protein in their diet (T 144, 159).

18. a. The Marietta, Georgia, physician whose affidavit was submitted after the hearing, is a specialist in bariatrics, that branch of medicine specializing in weight control. His practice consists almost entirely of female patients and "thousands of women" have consulted him about figure problems. Most of his patients are obese and must lose large amounts of weight.

b. In almost all cases this physician found "dysnutrition", that is improper intake of "empty" calories and refined carbohydrates and a poor selection of protein foods. From these observations he formed the impression that the American diet was "woefully" deficient in "complete" proteins (Aff., par. II) and that ingestion of a protein food supplement is most helpful to patients with protein depletion or who are interested in muscle hypertrophy, such as bustline development. Respondent's Protein, taken in milk, provides one of the most complete protein food supplements which the witness had encountered and supplies 25% or more of the necessary daily amino-acid ration (Aff., par. IV).

c. It is this affiant's view that proper use of respondent's exercise program and the ingestion of the Protein as an integral part of the regimen will produce hypertrophy of the pectoralis major and desired increases in the bustline.

d. The likely resultant bustline gains will reach 3 to 4 1/2 inches in 2 to 3 weeks in some women. Many women should experience bustline gains of 1 to 2 1/2 inches in the same period.

e. This witness also noted likely improvement in posture as a result of the exercise and claimed that the outward pressure of the hypertrophied chest muscles will "firm" the breasts and cause them to appear larger, more erect and less sagging (Aff., par. VI).

f. He concluded that his views represented the consensus of informed medical opinion and that there should be little argument that the average American diet is not only deficient in protein but also in the mixture of amino-acids and the quality of protein consumed. He asserted that his - otherwise undescribed and undocumented - "better than good results" (Aff., par. VII, line 10) - bore out the validity of his theories on protein needs, muscle hypertrophy and bustline enlargement (Aff., par. VII).

19. The parties have ranged far and wide in presenting their respective side of the case and the expert testimony adduced by them not only covers matters hardly involved in this proceeding but is conflicting in many respects.

20. a. In determining the weight to be given to the testimony of respondent's experts their obvious special viewpoints and interests must be taken into account. All three consider themselves nutrition experts and strongly champion the view that the ordinary women to whom respondent's advertisements are addressed suffer from a lack of "complete" protein food in their diets and need or are helped physically or psychologically by any protein intake, including that of respondent's Protein. This is especially so if they perform the exercises in its program (Compl. Ex. 5).

b. Such opinions are not only in conflict with the expert testimony adduced by complainant but with the undisputed testimony of respondent's second witness that no more than about 5% of the U.S. population suffer from protein deficiencies. This testimony makes the opinions of respondent's witness regarding widespread dietary protein or amino-acid deficiency wholly unacceptable.

c. Respondent's expert witnesses adduced no supporting data, such as reports of tests, examination of patients or diets actually observed among them and the area of their protein or amino-acid deficiency. Complainant, on the other hand, showed that a number of ordinary, widely available and consumed foods provide more essential amino-acids than respondent's Protein and ample amounts to supply all recommended daily needs.

21. I find no relevant deficiencies in any of the testimony as to the relationship between amino-acids and proteins. The relationship shifts from building block to metabolized product of the originally ingested and back to component of newly-constituted proteins in the body. See 18 ENCYCLOPEDIA BRITANNICA (1971), s.v. Proteins, for a simple description. Nothing in the testimony leads me to disregard any expert opinion on this account.

22. As to the effectiveness of the exercises to produce chest muscle hypertrophy, respondent's two witnesses who testified at the hearing were deeply involved in so-called sports medicine and dealing with persons highly motivated in performing physical exercises prescribed for them, such as the women gymnasts and swimmers mentioned in their testimony. No such devotion to or care in performing exercises can be assumed for the ordinary women to whom respondent advertises its product and the results reached by the gymnasts and others similarly inspired will not be equalled. The third of respondent's expert witnesses is engaged in treating obesity and his practice would seem to confront him with the opposite problem to the one here: reducing rather than increasing the bustline.

23. a. Taking into account the estimates previously summarized I would consider that complainant's principal expert may underestimate to some degree the effect of performing the exercises outlined in respondent's program (Compl. Ex. 5). However, estimates of three or four inches in two to three weeks, as to which the witness could not be positive (see FF No. 15e.) or variously called entirely, very or merely plain "possible" (see FF No. 17c.) seem to be exaggerated or fulfillable only by unusually athletic women who are a small exception rather than the rule. Besides, this testimony seems to disregard that some of the hypertrophy occurs in muscles other than the pectoralis major and does not have the effect of pushing out the breasts.

b. Moreover, much of the expert testimony disregards the fact that the exercises prescribed in respondent's program are far more strenuous, if conscientiously performed, and of much longer duration than the exercise of respondent's advertisements (Compl. Ex. 1 and 2, 2d col.), "easy to do", "without undue stress", designed for "one minute or less" but done in "45 seconds" and "in the shower." That such minimal exercise should produce the results testified to by respondent's witnesses in 2 to 3 weeks simply beggars description.

24. Based on the foregoing detailed findings of fact, the evaluation of the evidence and the record as a whole, I find:

a. If complainant had charged that respondent's Protein was uniquely distinct from other manufactured protein food supplements the charge would fail for lack of proof. But the charge is and respondent's representation has been found (FF No. 4) to be broader. Respondent's Protein is nothing but an amount equal to 8 or 10% of the recommended daily protein and about 25% of the essential amino-acid intake and such a combination of proteins and essential amino-acids exists in many foods which form a regular part of the diet consumed by Americans, including hamburgers and hot dogs. So viewed respondent's representation, as alleged in paragraph (3)(a) of the complaint, is false.

b. It is not necessary to determine what degree of pectoralis major hypertrophy is attained and in what time, if the three-position arm-gripping and -releasing exercise were performed daily 15 to 20 times. For respondent represented that the advertised results would follow not from such exercise program but from the single daily performance of a 45-second, easy-to-do exercise without undue stress. The weight of the evidence even at its reading most favorable to respondent, does not support the representations made by it in its advertisement. Hence, the representation, as alleged in paragraph (3)(b) of the complaint, is false.

c. The testimony is clear that respondent's program of exercises plus Protein will not make the breasts of female users to become larger, firmer or fuller, although the hypertrophy of the pectoralis major, pushing the breasts forward is said to make them look so. While respondent and its witnesses were careful to speak only of an increase in the subject's "bustline", the expressions "bust" and "bustline", as used by respondent, are mere code words or disguising language for references to women's breasts. It is greater beauty of the breasts not hypertrophy of the pectoralis major which women seek and which, as has already been found (FF No. 6), respondent holds out to them. The word "bustline" may have different meanings in different contexts. Here, the appeal is to women's desire for physical beauty, large, firm and full bosoms matching those of female entertainment figures or models, in order to attract or retain the interest of men (Cf. Sean Michaels, P.S. Docket No. 5/16 (Init. Dec.), FF No. 11). Read in context, respondent's representation, as alleged in paragraph (3)(c) of the complaint, is false.

d. (i) The Protein, providing a minor supplement of proteins and amino-acids, found amply and readily in the foods which compose the ordinary American diet, does not make any material and substantial contribution to the enlargement of the bustline which is to follow from respondent's program of exercises plus Protein ingestion. There is no basis for accepting the viewpoint of respondent's expert witnesses that practically everyone needs and benefits from protein food supplements, such as respondent's Protein. If only 5% of the people suffer from protein depletion, such testimony cannot be correct. But in any event respondent's Protein is not advertised for such purpose.

(ii) Moreover, respondent addresses ordinary women, not women athletes. For the latter, requiring something like doubled protein intake, respondent's Protein would be wholly insufficient. For the former it is unnecessary as the testimony of complainant's expert witnesses persuasively establishes.

(iii) Hence, respondent's representation, as alleged in paragraph (3)(d) of the complaint, is false.

25. Respondent's false representations relate to its product's basic qualities because of which prospective purchasers are solicited to, and will, buy it. Hence, the representations of respondent, as alleged in paragraph (3) of the complaint, are also materially false.

FINDINGS OF FACT ON RESPONDENT'S DEFENSES

26. The three Mark Eden advertisements, published in the second half of 1976:

a. all show pictures of one or more women claiming bustline gains of several inches in one to three weeks. They also contain a four column chart, purporting to show that if the subject starts on the first of a particular month and her "bust" size is from 32 to 35 inches, she will gain from 2 3/4 to 4 1/2 inches in from one to three weeks, depending on the original bust size (Resp. Answ. Ex. 1, 3). In one instance the chart shows gains of from 3 to 5 inches (id., Ex. 2).

b. all contain in the text the following language:

"Not every woman may achieve these results; gains will vary according to individual application and physical response. But remember this: No matter what your rate of physical response, no matter how difficult, stubborn or discouraging your bustline problem is, you must gain 1 to 3 inches on your bustline in just one week or your money will be refunded."

c. The text of the Mark Eden advertisements is much shorter than respondent's. Consequently the disclaimer of results plus money back guaranty in the Mark Eden advertisements can be more readily noted by an ordinary reader than the similar but less formal and less typographically emphasized language in respondent's advertisements.

d. The Mark Eden product bears no resemblance to respondent's.

27. The two advertisements of "Beauti Breast" and one of "Firm and Full" advertise products for bustline development substantially different from respondent's (Resp. Answ., Ex. 4 to 6). They do not contain the kind of specific result disclaimer inserted into the text of the Mark Eden (id., Ex. 1 to 3) and of respondent's advertisements (Compl. Ex. 1, 2) and make many representations comparable to those in respondent's advertisements.

28. Respondent attached to its post-hearing brief a copy of the Department Decision on Complaint Alleging Violation of Discontinuance in a proceeding against Mark Eden as respondent, P.O.D. Docket No. 2/204 (30 April 1968), together with a copy of respondent Mark Eden's Affidavit of Discontinuance of 30 January 1967 and copies of 1967 and 1968 advertisements of Mark Eden.

29. a. The 1967 advertisements show "before and after" pictures of women who allegedly have followed the Mark Eden course for eight weeks and attained bustline increases of from 2 to 4 inches.

b. All 1967 advertisements contain THE MARK EDEN EXCLUSIVE GUARANTEE OF SATISFACTION, which reads in part:

"The degree of effectiveness of the Mark Eden Developer turns in part upon physical factors which vary among individuals. If the Mark Eden Developer does not produce for you the results which have delighted so many of our customers, this guarantee is your protection: refund if dissatisfied after two weeks use "

c. The 1968 advertisement shows the "before and after" picture of one woman who is quoted as having attained a 3 1/2 inch bustline gain after following the Mark Eden course for 8 weeks.

d. The disclaimer of specific result and the refund guarantee are stated separately in captioned paragraphs. The disclaimer of specific result reads as follows:

"IS EVERY WOMAN ASSURED SOME RESULTS WITH THE MARK EDEN DEVELOPER? No, it would be impossible to assure every woman that she will achieve specific proportions, measurement increases, or results. However, hundreds of women have been thrilled beyond their expectations and are proudly reporting outstanding gains on their bustlines, often in just a matter of weeks, with this remarkable developer."

e. Current advertisements of Mark Eden (FF 25b) have abandoned this separately stated, very explicit disclaimer of specific result and have returned to language close to the 1967 form.

30. In its Affidavit of Discontinuance of 30 January 1967 Mark Eden agreed, among other things, not to represent in its advertising:

"(a) Every female user of the 'Mark Eden' device and exercise program is assured some degree of development or enlargement of the female breasts; * * * *

(c) The use of aforesaid product will assure the female user of results in breast development or enlargement to the extent of specifically stated proportions or measurements;

(d) The use of aforesaid product will assure the female user of results in the development or enlargement of her breasts equivalent to that depicted by any illustration, model, or other demonstration;" (Aff. of Discont., par. 3)

31. a. The antecedents of the foregoing document are as follows: a fraud order against Mark Eden was issued on 4 November 1966 and shortly afterwards the U.S. District Court for the Northern District of California enjoined its enforcement. Thereafter Complainant and Mark Eden agreed on the discontinuance of certain Mark Eden advertisements and Mark Eden further agreed not to make the advertising claims as set forth in Finding of Fact No. 30 (see P.O.D. Dec., P.O.D. Docket No. 2/204, pp. 2-5).

b. In December 1967 complainant initiated a supplemental proceeding charging Mark Eden with breach of its obligations under the Affidavit of Discontinuance in respect of the advertising claims recited in Finding of Fact No. 30.

c. In his Departmental Decision of 30 April 1968 the Acting Judicial Officer found that the 1967 advertisements (FF No. 29a, b) contravened Mark Eden's obligations under paragraph 3(a) of the Affidavit of Discontinuance but that the reference to variation in results in these advertisements avoided a violation of respondent's obligations under paragraph 3(c) and (d) of the Affidavit (see FF No. 30, supra, for its terms).

d. The Acting Judicial Officer further found that the disclaimer of specific results in the 1968 advertisements (FF No. 29c) cured the violation of paragraph 3(a) of the Affidavit of Discontinuance.

e. In a Comment, attached to his Summary of Findings of Fact, the Acting Judicial Officer stated that his decision was not intended to pass on the truth or falsity of any representations used or to be used by Mark Eden in the sale of its device and program. He added that his decision was limited to the question of the alleged breach of the Affidavit of Discontinuance.

32. Accepting solely arguendo respondent's contention that the Departmental Decision of 30 April 1968 (P.O.D. Docket No. 2/204) lays down a rule that a reference to variations in results among users avoids a representation that the stated results will be attained by all users, I find that the 1967 and 1968 Mark Eden advertisements and respondent's advertisements differ so materially in their texts and typographical set-up that the hypothetical Mark Eden "rule" could not as a matter of fact be applied in this case.

a. The Mark Eden 1967 and 1968 advertisements (FF No. 29) sharply separate the verbal and pictorial statements by individuals of the bustline increases allegedly experienced by them from a disclaimer of specific results. The disclaimer is set forth in a separate paragraph with an underlined heading in capital letters. It stands out sufficiently in the rather brief and clearly subdivided text to make the disclaimer of specific results attainable by all users seem reasonably effective.

b. Respondent's advertisements not only bury rather than emphasize the disclaimer of specific results but in effect strive to destroy its effectiveness for those who may have noticed it by adding:

"But don't just take my word for it. Let me introduce you to a few gals and let you hear what they have to say:" followed by glowing testimonials asserting specific results. It is obvious and I find as a fact that in the mind of ordinary readers the effect of the preceding modest disclaimer (see FF No. 5) is destroyed by the quoted language. Semantically and factually, respondent's advertisements (Compl. Ex. 1, 2) are outside any supposed rule on disclaimers of specific results laid down in the "Mark Eden" Departmental Decision of 30 April 1968.

33. To its Memorandum Based Upon Freedom of Information Act Materials respondent attached a number of documents furnished by the Postal Service and identified by case numbers. The first two of the five cases identified in the letter of the Assistant General Counsel, Legal Affairs, of the U.S. Postal Service, dated 9 May 1977, deal with the proceeding that culminated in the Departmental Decision of 30 April 1968 and the decision of the U.S. Circuit Court of Appeals for the Ninth Circuit of 3 November 1970 in Mark Eden v. Lee, 433 F.2d 1077. Two investigations stated in 1973 came to naught. The Postal Inspection Service in memoranda of 5 June and 6 September 1973 concluded that a violation of 39 USC 3005 could not be shown. The memoranda regarding these investigations include a memorandum of 3 June 1974, signed by the Assistant General Counsel, Consumer Protection Office, U.S. Postal Service, which deems success in proceedings against Mark Eden under 39 USC 3005 unlikely because the latter has discontinued the more objectionable of two advertisements and because of the continued impact of the Affidavit of Discontinuance and settlement litigation, previously summarized (FF Nos. 28, 29, 30). The fifth file involves a new investigation of Mark Eden, commenced in April 1977. Respondent's memorandum produces no documents relating to this still open investigation.

CONCLUSIONS OF LAW

1. Advertising matter is to be interpreted as a whole and is deemed to make the representations which the mind of the ordinary reader could find therein. Donaldson v. Read Magazine, 333 U.S. 178 (1948). So construed respondent's advertisements make as a matter of law the representations alleged in paragraph (3) of the complaint, with the two very minor emendations noted in the Findings of Fact (see FF 5, 6).

2. In particular, the studied use of the word "bustline" and avoidance of the words "breast" or "breasts" cannot conceal the fact that the women who read respondent's advertisements seek larger, fuller and firmer breasts and not a bustline enlargement through the indirect effect of hypertrophy of the pectoralis major muscle which is all that respondent offers.

3. a. The Departmental Decision of 30 April 1968 in Mark Eden (P.O.D. Docket No. 2/204) does not invalidate the foregoing conclusions as they uphold the charge of false representations made in paragraph (3)(b) of the complaint. Factual distinctions between Mark Eden advertising, there before the Acting Judicial Officer, and the advertising of respondent which I must here evaluate in the light of 39 USC 3005 are sufficient to make the Mark Eden decision inapplicable.

b. The Mark Eden decision, supra, does not, however, lay down any general rule of law. All it determined was that Mark Eden had not violated a specific obligation undertaken by it in an agreement to terminate Post Office proceedings under 39 USC 3005 against it. This narrow scope of the issue before the Acting Judicial Officer under a former version of the statute, requiring scienter, deprives the Departmental Decision of 30 April 1968 of the broad precedential value which respondent claims for it. See also Mark Eden v. Lee, 433 F.2d 1077, 1084 et seq. (9th Cir., 1970), emphasizing the narrow technical scope of the Mark Eden litigation. See also in the same sense the Postal Service decision in Beauti-Breast of Paris, P.S. Docket No. 1/140 (1975).

4. Respondent is engaged in a scheme or device for obtaining money through the mails by means of false representations, contrary to 39 USC 3005.

5. The constitutionality of the statute, contested by respondent in its second defense, has been repeatedly upheld. Lynch v. Blount, 330 F. Supp. 689 (S.D.N.Y. 1971), aff'd. 404 U.S. 1007 (1972); United States v. Outpost Development Company, 369 F. Supp. 399 (C.D. Cal.), aff'd. 414 U.S. 1105 (1973). Constitutional attacks on the statute no longer raise, if they ever did, substantial constitutional questions. Hollywood House International, Inc. v. Klassen, 508 F.2d 1276 (9th Cir. 1974). Faced with arguments of unconstitutionality in other cases, the Administrative Law Judges of the Postal Service have rejected them. Omega, P.S. Docket Nos. 5/61 and 5/62 (init. dec. 1976); Sean Michaels, P.S. Docket No. 5/16 (init. dec. 1976). The foregoing applies to objections to the case-by-case technique of resolving false representation cases as well as to other types of constitutional argument.

6. a. Respondent's first defense is likewise not well taken. There is no proof in the record that advertising claims made by respondent are not deemed objectionable when made by its competitor Mark Eden. The fact that at this moment no proceeding is pending before the Administrative Law Judges of the U.S. Postal Service against Mark Eden under 39 USC 3005 is hardly proof that the advertising of this company meets with Postal Service approval. In fact, it is respondent who has adduced evidence that the Postal Inspection Service is currently engaged in an investigation of this company.

b. Nor is it true that respondent has entered into an agreement with Mark Eden to respondent's detriment. The settlement agreement of 1967 was entered long before respondent nationally advertised a bust developing product (Resp. Memo. based upon FOIA Mat'ls, p. 9). Moreover, it is open to respondent to settle the present proceeding by a consent agreement acceptable to complainant as Mark Eden did in 1967.

c. Accordingly, respondent has not established as a matter of fact and law the discriminatory enforcement of 39 USC 3005 which its first defense asserts. For like conclusions see the Postal Service decisions in Beauti-Breast of Paris, supra, and Iso-Tensor Plan and/or Iso-Tensor and/or Betty Weider's Dept., Beauty and Figure Aids, P.S. Docket No. 3/30 (1975).

7. Respondent's final defense that 39 USC 3005 is being enforced in a manner violative of due process is likewise without any basis in fact or law.

a. Factually respondent has failed to prove that it has patterned its advertisements (Compl. Ex. 1, 2) on the advertisements of "beauti Breast" and "Full and Firm" (a Betty Weider operation) or that it has done so in the belief that these advertisements had respondent's approval because respondent had not proceeded against these advertisers under 39 USC 3005.

b. In fact, respondent has proceeded in the last ten years against several bustline developers and the published decisions of the Administrative Law Judges and the Judicial Officer of the Postal Service give many examples in respect of what representations are deemed false and what language is subject to criticism under 39 USC 3005. See Mark Eden, P.O.D. Docket No. 2/204 (1968); B-Beautiful Method, P.S. Docket No. 1/181 (init. dec. 1974; P.S. dec. 1975); Beauti-Breast of Paris, P.S. Docket No. 1/140 (init. dec. 1974; P.S. dec. 1975); Iso-Tensor Plan, et al., P.S. Docket No. 3/30 (init. dec. 1974; P.S. dec. 1975).

8. It is well-established that proceedings under 39 USC 3005 must be conducted on a case-by-case basis. Given the great volume of mail-order selling and advertising in the United States, it is obviously impossible to proceed against all sellers whose advertising may be shown to contain false representations or to proceed against all sellers of a particular product line at once. How the Postal Service should allocate available manpower to the enforcement of 39 USC 3005 is obviously a matter outside my jurisdiction. The record developed in this proceeding establishes to my mind conscientious enforcement of 39 USC 3005 against the false representations of so-called bustline developers over a period of time and shows nothing deserving of the due process strictures of respondent's defenses and arguments.

9. Accordingly, an order as provided in 39 USC 3005 and in the form annexed should be issued against respondent.