In the Matter of the Complaint Against

DAVINOL PRODUCTS
Box 530-745 at
Miami Shores, FL 33153

P.S. Docket No. 7/22;

11/14/79

Cohen, James A.

APPEARANCE FOR COMPLAINANT:
Sandra C.McFeeley, Esq.
Consumer Protection Division
Law Department
U.S. Postal Service
Washington, D. C. 20260

APPEARANCE FOR RESPONDENT:
Lewis W. Miles II, Esq.
245 S.E. First Street
The Plaza Building - Suite 238
Miami, Florida 33131

POSTAL SERVICE DECISION

Respondent has appealed from the Initial Decision of Administrative Law Judge Quentin E. Grant holding that Respondent is engaged in the conduct of a scheme for obtaining remittances of money through the mail by means of representations materially false in fact in violation of 39 U.S.C Section 3005. Respondent's products which are the subject of this proceeding are tablets and a diet program which are represented in advertisements as causing weight reduction without strenuous exercise or dieting.

On appeal, Respondent takes two exceptions to the conclusions reached in the Initial Decision. Under Exception 1, it contends that the presiding Administrative Law Judge erried in reaching any conclusion on the effect of its advertisements on the average mind because there is no evidence in the record on which this conclusion can be based. Exception 2 challenges the conclusion that the representations made in Respondent's advertisements are materially false.

Exception 1

In the Initial Decision the presiding Administrative Law Judge concluded that the meaning of Respondent's advertising is to be judged from a consideration of its advertisements in their tota the it And the impression they would most probably create in ordinary minds (I.D. COL 1). The presiding Administrative Law Judge then concluded that the average person reading Respondent's advertisements would interpret them substantially as characterized in paragraphs III and V of the complaint (I.D. COL 2).

Respondent correctly points out that there is no testimony in the record concerning the effect of its advertisements on the average mind. In the absence of such evidence it argues that the presiding Administrative Law Judge has taken the witness chair, silently testified, denied Respondent the right of cross-examination and formulated a conclusion. Relying on Richardson v. Perales, 402 U.S. 389 (1971) and Goldberg v. Kelly, 397 U.S. 254 (1970), and attempting to distinguish Vibra Brush v. Schaffer, 152 F.Supp. 461, (S.D.N.Y. 1957), Respondent claims that such conduct on the part of the Administrative Law Judge constitutes a patent denial of substantive and procedural due process.

Neither Richardson nor Goldberg support Respondent's position. In Richardson the Court was asked to consider the admissibility and effect of hearsay evidence. Goldberg involved the right to an evidentiary hearing prior to the termination of benefits under a federally assisted program of aid to families with dependent children. The factual circumstances and the issues raised in the two cited cases clearly distinguish them from the present case and leave no doubt that they do not serve as precedent for the contention advanced by Respondent in this appeal. Vibra Brush Corp., on the other hand, involved the interpretation of an advertisement and the only evidence of its impression on the ordinary mind was the advertisement itself. The Court upheld the administrative determination that the impression derived by the ordinary reader from the advertisement was the false impression charged in the complaint. The Court rejected the need for testimony, albeit proferred expert opinion testimony, regarding the effect of the advertisement on the consumer. In this regard the Court stated:

The advertisement contained nothing of a scientific or technical nature which required explanation or the assistance of an expert for an understanding of its meaning or contents. The advertisement was aimed at the ordinary consumer and was published in media purchased by the lay public. The question at issue was the impression which the advertisement as a whole, made upon the average man. This was a matter for the trier of the facts who clearly was in a position, without assistance of expert testimony, to make his finding. The hearing examiner in rejecting the proferred evidence stated he needed no aid in interpreting the advertisement. There was no error in refusing to receive the testimony of the so-called experts. An expert's view of what he deems to be the phychological impact of the contents of an advertisement upon the reader, while it may be of help to those of the advertising world who write copy and advise the advertiser of a potential effective sales appeal, is of little help to an examiner who is called upon to decided sic from the advertisement as a whole the impression it is likely to make upon the general population--the proverbial man in the street. Donaldson v. Read Magazine, 333 U.S. 178, 68 S.Ct. 591, 91 L.Ed 628." 152 F.Supp. 461 at 468.

The position taken by the Court in Vibra Brush Corp. has been consistently followed in administrative proceedings under 39 U.S.C. Section 3005. Manuel Garcia Imports, P.S. Docket No. 5/127 (P.S. Dec. 1977); Beauty Originals, Inc., P.S. Docket No. 3/24 (P.S. Dec. 1975); Mamlab5 inc., P.S. Docket No. 1/32 (I.D. 1953); Anapax Products, Inc., P.O.D. Docket No. 3/53 (I.D. 1971). A similar position has been taken in Federal Trade Commission proceedings and upheld by the Courts. See E. F. Drew & Co., Inc. v. FTC 235 F.2d 735, 741 (1957).

Respondent's arguments are not persuasive that the Court and administrative decisions are incorrect or that in this case the presiding Administrative Law Judge erred in reaching a conclusion on the effect of Respondent's advertisements on the average mind. As trier of fact the presiding Administrative Law Judge acted properly in reaching his conclusion on the basis of the advertisements in the record and without the aid of testimony. Accordingly, Respondent's exception 1 is denied.

Exception 2

Respondent argues its advertisement makes adequate and frequent reference to a "method" and that the overall effect of its advertisement, and the booklet sent with its pills, is not so substantially and materially false as to take it beyond exaggeration, puffing, or exuberance.

As pointed out by Complainant in its reply brief, and as is clear from the advertisements (CX 1, 2; RX 3; I.D. FOF 2), the principal emphasis of Respondent's advertisements is the efficacy of its tablets. The results represented in Respondent's advertisements will not be achieved through use of Respondent's tablets (COL 3). Although reference is made to a "method", the method is precisely what the advertisements promised it would not be -- a strenuous diet and exercise program (I.D. FOF 9). Thus, Respondent's advertisements falsely represent its products and the results which can be achieved from their use. These false representations are not merely puffing or exaggeration. As found in the Initial Decision, the false representations are material and substantial inducements to buy Respondent's product. See FTC v. Colgate Palmolive Co., 380 U.S. 374, 386-88 (1965). Any reference in the advertisement to a consultation with a doctor does not dispel the falseness or materiality of the representations.

Conclusion

Having considered Respondent's exceptions on appeal in light of the entire record, it is concluded that the findings and conclusions of the Initial Decision are correct as a matter of fact and law. Accordingly, Respondent's exceptions are denied and a remedial order under 39 U.S.C. Section 3005 is being issued contemporaneously with this decision.