In the Matter of the Complaint Against

SEAN MICHAELS
1210 - 66th Street North at
St. Petersburg, Florida 33710

P.S. Docket No. 5/16

06/29/79

Cowden, Joseph M.

APPEARANCE FOR COMPLAINANT:
Thomas A. Ziebarth, Esq.
Consumer Protection Division,
Law Department
United States Postal Service
Washington, DC 20260

APPEARANCE FOR RESPONDENT:
Jack Paller, Esq.
Katz, Paller & Land,
400 Colony Square, Suite 1633,
1201 Peachtree Street,
NE, Atlanta, GA 30361

OPINION ON ALLEGED BREACH OF CONSENT AGREEMENT

Complainant, the United States Postal Service, alleges that respondent has breached a Consent Agreement entered into by the parties by continuing to make false representations which, under the terms of the Agreement, it agreed to discontinue.

FINDINGS OF FACT

Background

Respondent markets a "Bust Expander" which consists of an elastic loop which runs through two handles. It is to be used in conjunction with a group of exercises which are described in a pamphlet that accompanies the product (Exhibit R-3, Tr. 7).

In an Initial Decision dated November 5, 1976, it was found that in connection with the sale of its product, respondent was engaged in a scheme for obtaining money through the mails by means of false representations.

The representations which were found to be false were:

"The SEAN MICHAELS BUST EXPANDER will increase the size of the female user's breasts;

"The SEAN MICHAELS BUST EXPANDER will cause an average increase in the female user's bustline measurements of 3 1/2 inches in 14 days . . . 5 inches in 21 days;

"The SEAN MICHAELS BUST EXPANDER is a new invention utilizing a principle called 'pectoral isolation' which 'more or less isolates the bustline areas that most need improving' and which differs substantially from other so-called bust developers; and

"The advertised results described above will be achieved by using the SEAN MICHAELS BUST EXPANDER for three minutes per day or less."

On Appeal, by Postal Service Decision of December 22, 1977, the Judicial Officer affirmed the findings and conclusions in the Initial Decision and issued Order No. 77-69 which directed the Postmaster at St. Petersburg, Florida to detain respondent's mail and to take other related actions.

On March 6, 1978 the parties entered into a Consent Agreement which, among other things, included a commitment by the respondent that it would permanently discontinue the promotional activities which had been found to be false. The Agreement also provided that if a breach was found, issuance of an order pursuant to 39 U.S.C. Section 3005 would be warranted.

In consideration of the Consent Agreement entered into by the parties, by Order of March 16, 1978, Postal Service Order No. 77-69 was revoked.

On February 1, 1979, the complainant filed a petition alleging breach of the Consent Agreement. Complainant stated:

"Respondent's current advertisements feature "before" and "after" photos of several young women who appear to have achieved an extraordinary increase in the size of their breasts in a short period of time. The captions accompanying these photos repeat these pictorial representations in words. The caption under Marlo Stepp's pictures quote her as saying, "I really got big in just 14 days."

During the "interview" with SEAN MICHAELS, she states:

SEAN: Why do you think my Bustline Expander worked for you?

MARLO: Well I don't really know the technical reasons. I just know my bustline increased like mad.

The caption with Mary Pointe's pictures states:

"My busts became rounder, firmer, fuller and had more lift."

Her experience with the SEAN MICHAELS device is reported in the following exchange:

SEAN: Didn't you find the results happen unusually fast?

MARY: Fast? I thought it was impossible. I was so amazed, I can't tell you. But there I was . . . . Now with firmer, fuller, more beautiful breasts that other people notice (especially men), the way I feel about myself has completely changed.

Nancy Parker's pictures are captioned with the quotation:

"My breasts went from hopeless to fantastic in less than 15 days."

The ensuing "interview" reports, in part, as follows:

SEAN: After being so disappointed with others, why did you try my Sean Michaels Bust Expander?

NANCY: Well, you were the only one that talked about the bust becoming rounder, firmer and fuller. . . . I guess you could say with the Sean Michaels Bust Expander it's what's up front that counts and I fully agree with that.

* * * *

SEAN: After reading thousands of letters from gals I can honestly say you are not alone in your opinion. How soon after using the Bust Expander did you notice a difference?

NANCY: Almost immediately after the first day I could feel myself becoming rounder, fuller and firmer and I never felt that before. I was really excited. Then after a few days I knew I was on the right track, my cup started to runneth over, if you know what I mean]

* * * *

There's something about using padded bras to make yourself look good that totally destroys your self confidence. Not only don't I need padding, I don't even have to wear a bra if I don't want to.

* * * *

I feel no matter what a girl has to begin with your Sean Michaels Bust Expander can help.

* * * *

SEAN: The doctors used a new type of X-Ray method to take pictures of muscles and tissues in the bust and after the 14 day test the results were astonishing. The busts themselves became rounder, firmer, fuller and had more life in every case.

The banner headline across the top of one of respondent's current advertisements announces:

"MEDICAL TEST PROVES BUST EXPANSION POSSIBLE."

Respondent's current advertising also states:

. . . Now I would like to ask you a question -- why does yours work for me while others didn't?

SEAN: Because it uses a method we call pectoral isolation. The Sean Michaels Bust Expander has been issued a patent from the U.S. Patent Office and has been designed to increase the roundness, firmness and fullness of your busts.

* * * *

The Sean Michaels Bust Expander is a patented bust exerciser that approaches the problem in almost the exact opposite direction of competitive products.

In general, the arguments expressed in complainant's Petition are that respondent's present advertising represents that respondent's product is a special device which, when used for a short period of time each day will, in less than 15 days result in a substantial increase in the size of the female user's breasts. It contends that these representations are essentially the same as those previously found to be false.

On February 6, 1979, pursuant to authority granted in the Consent Agreement, the Judicial Officer issued an Order directing the Postmaster at St. Petersburg, Florida to detain respondent's mail subject to certain conditions set forth in the Order and the Consent Agreement.

On February 21, 1979, respondent forwarded a Motion requesting release of the detained mail. By Order of March 9, 1979, the Judicial Officer denied that Motion. Respondent subsequently filed a request for limitation of scope of any section 3005 Orders, a request for reconsideration of the order denying the motion to release the detained mail and a request for a hearing. Pursuant to the latter request, a hearing was held in Atlanta, Georgia on April 4, 1979.

ADDITIONAL FINDINGS OF FACT BASED ON EVIDENCE SUBMITTED BY THE PARTIES AND THE HEARING OF APRIL 4, 1979

At the hearing the parties stipulated that Exhibit 1 to complainant's Petition was a copy of the advertisement which was the subject matter of the initial complaint. They further stipulated that Exhibits 2 and 3 to the Petition were copies of respondent's advertisements in use subsequent to the Initial Decision (Tr. 6, 8). The parties agreed that the Initial Decision, Final Decision and Consent Agreement and the Exhibits to Complainant's Petition would constitute part of the evidentiary record of this proceeding (Tr. 8, 12).

Complainant based its case solely on the documentation entered into the record by stipulation (Tr. 10).

Respondent called Mr. Joseph S. Haraka, a consultant in marketing research (Tr. 15). He holds bachelor's and master's degrees in business administration (Tr. 16). He has been employed by several corporations in connection with marketing and marketing research (Tr. 16-18).

Mr. Haraka expressed several views with regard to how females would respond to respondent's advertisements (e.g. Tr. 24, 29, 30, 32, 33). When queried with regard to the basis of these views he advised that he possessed no special qualifications in connection with advertisements pertaining to the bust or similar matters (Tr. 25). He had not conducted or participated in any studies or surveys pertaining to advertising similar to respondent's advertising (Tr. 25, 62, 68). He stated that his testimony was based on a general knowledge of information published in the marketing community but he was unable to identify any specific study, article or other information upon which his testimony was based (Tr. 27, 68, 70). He acknowledged that he could not comment on the effectiveness of respondent's advertising or other types of advertising pertaining to the female bust without conducting a specific study in that area (Tr. 76).

Mr. Haraka was familiar with the terms of the Consent Agreement (Tr. 18). He believed that respondent's advertisements (Exhibits 2 and 3 to Complainant's Petition) conformed to the requirements set forth in the Consent Agreement (Tr. 20, 36). He was of the view that respondent's present advertising dealt with quality not quantity (Tr. 22). Mr. Haraka correctly pointed out that respondent's present advertising makes no reference to any particular number of inches by which respondent's product would increase the bust (Tr. 38, 50).

When questioned with regard to terminology presently used by respondent such as "I really got big in just 14 days"; "My breast went from hopeless to fantastic in less than 15 days"; "bust expansion" and the effect of the accompanying before and after photographs, Mr. Haraka maintained that the advertisements did not convey the message that use of respondent's product would, in a relatively short period of time, make the bust larger (Tr. 38, 48, 50, 53, 54, 55, 57, 58, 60, 75).

Notwithstanding his education and marketing experience, Mr. Haraka did not demonstrate any degree of expertise in connection with the type of advertisements presently at issue. His testimony was slanted, apparently to be consistent with his understanding of what was necessary for respondent to conform to the terms of the Consent Agreement. Accordingly, it was nonpersuasive.

DECISION

The Initial Decision, as affirmed by the Postal Service Decision, held that the respondent had falsely represented its product as being a specially designed device which, when used for a brief period of time each day, would result in a substantial increase in the size of the user's breasts after a relatively short period of time. It is apparent that respondent has altered its advertising, presumably in an attempt to make it conform to the terms of the prior Decisions and the Consent Agreement. The most significant alteration was the elimination of any claim to a specific number of inches increase in the bustline. However, Respondent's present advertising through the use of before and after photographs and terminology such as "I really got big in just 14 days"; "My breast went from hopeless to fantastic in less than 15 days"; "After a few days . . . my cup started to runneth over"; "the Sean Michaels Bust Expander has been issued a patent from the U.S. Patent Office and has been designed to increase the roundness, firmness and fullness of your bust"; etc., continues to make the same basic false representations.

Under the terms of the Consent Agreement respondent agreed to discontinue making those representations which had been found to be false. It has not done so and therefore it is in violation of the Consent Agreement.

RESPONDENT'S MOTIONS

At the hearing on this matter counsel for respondent moved for a verdict in favor of the respondent, such motion based upon counsel's claim that the Exhibits in Evidence upon which Complainant rested its case did not prove a breach of the Consent Agreement (Tr. 11, 13). A ruling on that Motion was deferred. On the basis of the conclusion set forth above i.e. that respondent's current advertising continues to make those representations previously found to be false, respondent's Motion is denied.

There also is pending respondent's Request for Reconsideration of the Order of March 9, 1979, which denied respondent's Motion to Release Detained Mail. Respondent has presented nothing which warrants a conclusion that the Order of March 9, 1979, was in error. That Order is affirmed.

Respondent also filed a "Request for Limitation of Scope of Proposed Section 3005 Orders". In view of the United States District Court for the District of Columbia decision in Civil Action No. 79-690 of April 3, 1979 which denied Respondent's motions, this request is moot.

SUMMARY

Respondent has not discontinued the promotional activities and representations previously found to be false. Therefore, respondent has violated the terms of the Consent Agreement entered into by it and the U.S. Postal Service. Accordingly, under the terms of that Agreement, the attached Order is being issued to the Postmaster of St. Petersburg, Florida.