In the Matter of the Complaint Against

ACU-VELOP, INC.,
P. O. Box 1356 at
Clearwater, FL 3351,

P.S. Docket No. 6/173

February 15, 1979

Quentin E. Grant Administrative Law Judge

Appearance for Complainant:
Daniel S. Greenberg, Esq.
Consumer Protection Office
Law Department U. S. Postal Service
Washington, D.C. 20260

Appearance for Respondent:
Charles B. Chernofsky, Esq.
Weiss, Rothfarb & Chernofsky
6 East 43rd Street
New York, New York 10017

INITIAL DECISION

On October 30, 1978, complainant filed a complaint alleging that respondent is engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations in violation of 39 U.S.C. 3005.

Specifically, complainant alleges that by means of advertisements seeking to induce readers thereof to remit money or property through the mails respondent falsely represents that its product, "Acu-Velop Technique," will increase breast size by "activating areas of your body which naturally encourage your breasts to enlarge."

In its answer to the complaint, respondent admitted publication of the advertisements but denied the remaining allegations.

In an amendment to its answer, respondent interposed an affirmative defense consisting of the argument that respondent is engaged in the mail order business of selling books; that the "Acu-Velop Technique" appears in a book sold, but not written, by respondent; that respondent's advertisements accurately represent the contents of the book; that application of 39 U.S.C. § 3005 to prohibit the sale of the book through the mails is a violation of the author's First Amendment right to free expression of his ideas and beliefs; and that if dissemination of the book itself is protected by the First Amendment, such protection extends to respondent's advertisements as long as they truthfully represent the ideas contained in the book.

At respondent's request a hearing was held in Clearwater, Florida, on January 5, 1979. Both parties have filed proposed findings of fact and conclusions of law.

DECISION ON THE FIRST AMENDMENT DEFENSE

Complainant argues that respondent's First Amendment defense is not well taken. Complainant says that in reality respondent is selling a treatment for a condition and the fact that the treatment is described in a book and that respondent's advertisements may accurately portray the false promises of the book is irrelevant.

Respondent cites Joseph Burstyn, Inc. v. Wilson, 33 U.S. 495 (1952), Bigelow v. Virginia, 421 U.S. 809 (1975) and Parker Publishing Co., P.O.D. No. 3/80 (1971), as supporting its position. Burstyn is obviously an incorrect volume citation. A search of the 1952 reports of Supreme Court decisions for such case has not disclosed it.

Bigelow furnishes no precedent for respondent's position. In that case Bigelow, the managing editor of a newspaper, was convicted of violating a Virginia statute making it a misdemeanor to encourage or prompt the procurement of an abortion by the sale or circulation of any publication. Bigelow's paper had run an advertisement of the availability of legal abortions in New York State. This gave rise to his prosecution. Bigelow claimed that as applied to him the Virginia statute infringed the right of free speech guaranteed by the First Amendment. The Supreme Court agreed, overturning the conviction. But the Court was careful to point out that it was not commenting on decisions of lower courts concerning the regulation of advertising in readily distinguishable fact situations. Also it said that advertising, like all public expression, may be subject to reasonable regulation that serves a legitimate public interest (p. 826). And, most significantly I think, it stated that no claim was made in Bigelow that the advertisement was deceptive or fraudulent (p. 828), thereby clearly implying that the First Amendment does not protect false or deceptive advertising. This implication is consistent with the position taken by the U. S. Circuit Court of Appeals the preceding year (1974) in Hollywood House International, Inc. v. Klassen et al., 508 F.2d 1276, a case involving a booklet containing a "grapefruit" diet. Rejecting appellant's argument that First Amendment protection should extend to representations made concerning the contents of a publication (literature) sold through the mails as distinguished from a product sold through the mails, the Court said it could perceive no difference and that "fraudulent commercial appeals are not a protected form of expression." The Court affirmed the District Court's decision upholding the decision of the Postal Service that a mail stop order should be issued.

The Parker decision cited by respondent was issued prior to Hollywood House which destroys its value as precedent for respondent's position.

Later Postal Service decisions confirm that there is no constitutional bar to the application of 39 U.S.C. § 3005 to publications sold by mail. See Cecily Vane, P.S. Docket No. 4/129 (P.S. Dec. 5 Apr. 76) and cases cited in the Initial Decision (12 Feb. 76) in the same case.

Respondent's motion to dismiss the complaint on constitutional grounds is denied.

I proceed to the merits of the controversy.

FINDINGS OF FACT

1. Based on respondent's admission that it publishes the advertisements in question and evidence of a test purchase by complainant of respondent's product, "The Acu-Velop Technique" (hereinafter sometimes referred to as the product) (CX-1 through CX-10), I find that respondent is engaged in a scheme to obtain money or property through the mails.

2. Respondent's advertisements promote the sale of a technique, called "The Acu-Velop Technique," for breast enlargement. Although the advertisements state, of course, that the technique is disclosed in a book entitled "The Acu-Velop Book," the advertisements stress the technique itself and tout its effectiveness as a means of breast enlargement. The book is merely the means of conveying the technique to interested members of the public. A copy of one of respondent's advertisements (CX-1) is annexed hereto as Exhibit A.

3. Respondent's advertisements are replete with wording and illustration conveying the representations alleged in the complaint. An example is the following wording appearing in Exhibit A attached hereto:

"A BREAST ENLARGEMENT BREAKTHROUGH"

"***the Acu-Velop Technique is a new and effective method to increase your breast size***"

"The Acu-Velop Technique works on activating areas of your body which naturally encourage your breasts to enlarge."

I find that the average reader of respondent's advertisements would interpret them as making the representations alleged in paragraph II of the complaint.

4. The Acu-Velop Technique as explained in the book (CX-10) may be summarized as follows:

(a) The user relaxes through posture and breathing.

(b) The user applies pressure with her fingers to designated points on the neck, shoulder and interscapular areas.

(c) The user kneads her breasts.

(d) The user massages an area on the top of the foot near the toes.

The technique is to be followed for 10 to 15 minutes each day.

5. Dr. Charlotte Kerr, a doctor of medicine board-certified in obstetrics and gynecology, testified for complainant. Dr. Kerr is a Fellow of the American College of Surgeons and has been Chairman of the FDA Panel on Obstetrics and Gynecological Advice. Dr. Kerr testified that the female breast is composed of mammary tissue, which includes acini (the actual breast glands), and ducts which collect the milk and lead to the nipple. The breasts are richly supplied with blood vessels, nerves, fat, and fascia (Tr. 8, 9). She stated that the determinants of breast size include the subject's hereditary background, her build (in regard to both fat buildup and muscular development), and hormonal activity (Tr. 10). Dr. Kerr explained that prior to menarchy (the first menstrual period of a young woman) the breasts begin to enlarge as a result of stimulation from estrogens, which are produced by the ovaries. Throughout the menstrual life of a woman the estrogens and, to a lesser extent, the progesterones, stimulate the breasts and cause cyclic changes in the breasts with the menstrual cycle (Tr. 9, 10). Additionally, breast size will be increased if a woman is taking oral contraceptives containing estrogen or progesterone (Tr. 10).

She further testified that the breasts frequently increase in size during pregnancy due to the influence of the estrogen and progesterone produced by the placenta, and also when estrogen is given during the menopause for relief of hot flashes (Tr. 10-11). She stated that the ovaries would be considered the areas that control breast size since they are the principal source of estrogen, although some estrogen is produced by the adrenal glands and some by the placenta in a pregnant woman (Tr. 11-12).

6. Dr. Kerr testified that oral contraceptives, pregnancy and estrogens are the only certain causes of breast enlargement that the medical profession accepts aside from tumors and injection of silicone or insertion of breast prostheses (Tr. 11).

7. Dr. Kerr testified that none of the suggestions contained in respondent's booklet (CX-10) could influence the ovaries, the adrenal glands, or the placenta so as to make the breasts grow larger (Tr. 12). Nor would those steps influence breast size in any other way (Tr. 17).

8. Dr. Kerr testified that exercise number 5 would have some potential for increasing the secretion of the hormone prolactin, the function of which is to stimulate the milk ducts and prepare the breasts for lactation. She explained that this is the only known function of prolactin, and that its production is normally stimulated by the precipitous drop in the production of estrogen and progesterone following delivery by a pregnant woman.

She stated that there is some question as to whether there might be a temporary increase in breast size as a result of the action of prolactin. However, she testified that it is doubtful that prolactin would increase breast size in a nonpregnant woman, where secretion of progesterone has not increased (Tr. 15-16). She further stated if there were any enlargement it would be too small to measure, would last only a "matter of minutes," and would be similar in extent and duration to that which would normally result from foreplay (Tr. 17, 18, 30).

9. In Dr. Kerr's opinion respondent's Acu-Velop Technique will not increase breast size and will not activate areas of the body which naturally encourage permanent enlargement of the breast (Tr. 17, 18).

10. Dr. Kerr's opinions on the matters in issue conform to the consensus of medical opinion (Tr. 19).

11. Stephen Beke, Jr., a doctor of chiropractic, testified for respondent. Through Dr. Beke respondent introduced the results of studies made on nine female subjects employing The Acu-Velop Technique. One part of the study involved five subjects and took place over a period of 4 weeks. The second part involved four subjects and was run over a 2-week period. Dr. Beke testified that the same protocol was followed in both parts of the study. Briefly, the protocol involved checking the blood pressure, pulse, heart sounds, muscle tone, and eyes to ensure that each subject was in good health; establishing and marking on the skin in the breast area of each subject several points to be used for measurement; measuring four distances between the various points with fiberglass tape and flexible ruler. According to the written protocol (RX-1) "all measured subjects were sitting in an anatomically correct position, knees together, shoulders in mid-line with torso, and posture maintained and corrected whenever needed."

12. According to Dr. Beke on subsequent weekly visits the subjects performed The Acu-Velop Technique out of his presence but under the observation of the wife of respondent's promoter and another woman and were then measured. According to the doctor, the subjects also performed the technique daily between their visits for measurement (Tr. 49).

13. According to Dr. Beke and records of the study received in evidence his measurements of the subjects showed both increases and decreases in breast size during the period of the studies but with a net gain for each subject. Increases in the various measurements ranged from .5 cm. to 4.5 cm. or .4 inch.

14. Dr. Beke testified that he didn't know why the technique appeared to produce enlargement of the breast. Further, he stated that he did not know whether it was just a swelling or an actual enlargement of the breast and whether the apparent enlargement was permanent or temporary (Tr. 73).

15. Dr. Beke testified that the breasts are very difficult to measure and that he could not even hazard a guess as to whether there might have been as much as a 25% error factor involved in his measurements despite all the care he claimed to have taken to ensure accuracy (Tr. 85, 86). Such errors could have resulted from changes in posture of the subjects, in marking measurement points in the breast area, and as the result of difference in height of nipples and nipple deflection (Tr. 89-102).

16. Dr. Beke admitted that no determinations were made and no consideration was given to the effect of menstrual cycles and weight gains (Tr. 100, 102) although he admitted that both could affect breast size (Tr. 102, 104).

17. Dr. Kerr testified that there can be changes as great as one to two inches in breast size during the menstrual cycle and that changes in weight can influence significantly the apparent size and measurement of the breast. In Dr. Kerr's opinion, Dr. Beke's failure to take into account the menstrual cycle, variations in the length thereof, and weights of the subjects during the period of testing invalidates his studies as proof of increases in breast size (Tr. 110-112, 113).

CONCLUSIONS OF LAW

1. Respondent's advertisements expressly make the representations alleged in the complaint.

2. The average reader of such advertisements would interpret them as making such representations.

3. Based on the testimony and opinions of Dr. Kerr, all in conformity with the consensus of medical opinion, I find that such representations are materially false in fact.

4. The testing and other evidence presented by respondent concerning studies made of nine female users of respondent's product do not constitute valid scientific proof of the efficacy of the product to produce the promised result of breast enlargement.

5. Respondent is engaged in a scheme to obtain money or property through the mails by means of representations materially false in fact in violation of 39 U.S.C. § 3005.

6. An order should be issued pursuant to that statute in the form attached.