In the Matter of the Complaint Against

STANDARD RESEARCH LABS,
Post Office Box 9667 at
Ft. Lauderdale, Florida 33310

and

STANDARD RESEARCH LABS,
Post Office Box 9547 at
Ft. Lauderdale, Florida 33310

P.S. Docket No. 7/78; P.S. Docket No. 7/86

December 18, 1979

Quentin E. Grant Administrative Law Judge

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

APPEARANCE FOR RESPONDENT:
Jack Paller, Esq.
Katz, Paller & Land
470 East Paces Ferry Road Suite 2000
Atlanta, GA 30305

INITIAL DECISION

Hearings in these matters were held together in Miami, Florida, on October 11, 1979. By stipulation of the parties (Tr. 38, 39) some of the expert testimony and other evidence is applicable in both cases. Therefore, it is appropriate for the decisions to be combined.

In both matters, Complainant alleges that Respondent is violating 39 U.S.C. 3005 by engaging in the conduct of a scheme or device for obtaining money or property through the mails by means of false representation and asks for the issuance of an order pursuant to that statute.

In Docket No. 7/78 the product involved is called JOJOBA EXTRACT. The complaint alleges that by means of certain advertising materials (Exhibits A, B, & C annexed hereto) Respondent falsely represents that:

"(a) Several applications of JOJOBA EXTRACT will cut the rate of hair loss in half;

(b) The application of JOJOBA EXTRACT will stop hair loss completely in about two and a half weeks;

(c) The major cause of hair loss and baldness is the excess accumulation of sebum and not hereditary factors as once believed;

(d) JOJOBA EXTRACT, unlike ordinary shampoos, soaps, or scalp preparations, will penetrate beneath the scalp and remove hardened, growth-inhibiting sebum accumulations; and

(e) The efficacy of JOJOBA EXTRACT is proved conclusively by independent clinical tests in Mexico and the United States."

The product involved in Docket No. 7/86 is called NUCLEIC HAIR RE-GENERATOR (hereinafter sometimes called NHR). The complaint alleges that by means of certain advertising materials (Exhibits D & E annexed hereto) Respondent falsely represents that:

"(a) The topical application of NUCLEIC HAIR RE-GENERATOR (NHR) will reverse the balding process by revitalizing and regenerating hair growth activity;

(b) NHR will convert a thinning, balding scalp to a revitalized head of thick, healthy hair;

(c) NHR is effective in the alleviation, treatment or cure of at least 70% of the cases of male pattern baldness; and

(d) The advertising claims made for NHR have been substantiated by up-to-date laboratory research and competent clinical tests."

Respondent filed answers admitting the use of the advertisements attached to the Complaint for promoting the sale of the products involved but denying the other material allegations of the Complaints.

On Respondent's motion a hearing at which both parties introduced evidence was held in Miami, Florida.

Both parties have filed proposed findings of fact and conclusions of law all of which have been considered and have been adopted to the extent indicated and otherwise rejected as not supported by, or contrary to, the evidence or because they are irrelevant or immaterial to the decision.

FINDINGS OF FACT

1. Respondent's advertising materials solicit the remittance of money through the mails for the products involved in these proceedings (CX-1, 2, 3 in 7/78; CX-1, 2 in 7/86).

2. Respondent's advertising materials make, directly or indirectly, in substance and effect, whether by affirmative statements, omissions or implication, the representations alleged in paragraph 3 of the Complaints. These representations are made by the text of Respondent's advertisements in the following manner:

P.S. Docket 7/78 (JOJOBA EXTRACT)

(a) Several applications of JOJOBA EXTRACT will cut the rate of hair loss in half.

"After several applications my personal hair loss dropped in half." (CX-1)

(b) The application of JOJOBA EXTRACT will stop hair loss completely in about two and a half weeks.

"And the most unbelievable thing occurred in about two and a half weeks, one day while cleaning my hair, I lost no hair. Not one in the drain." (CX-1)

[read together with]

"ZERO HAIR LOSS." (CX-1)

(Banner headline)

". . . jojoba, which many people have attested not only put a half to balding but has stopped hair fall out completely during the hair cleansing process." (CX-2)

"Now my hair isn't falling out."

"Jojoba works great, I've stopped losing hair . . ." (CX-3)

(c) The major cause of hair loss and baldness is the excess accumulation of sebum and not hereditary factors as once believed.

"A fact of interest is that heredity is not the major cause of baldness as once believed."

. . .

"As JOJOBA [eliminates] a major cause of hair loss (sebum encrustation from around hair follicles)." (CX-2)

(d) JOJOBA EXTRACT, unlike ordinary shampoos, soaps or scalp preparations, will penetrate beneath the scalp and remove hardened, growth-inhibiting sebum accumulations.

"Obviously, my problem was a matter of finding a way to penetrate beneath the scalp to remove the sebum that was responsible for my accelerated hair loss. I had known all along that medicated shampoos weren't the answer. This new formula was."

". . . my problem of too much sebum is being brought under control. No medicated shampoo does that, either]" (CX-1)

". . . is better than even the best of medicated shampoos." (CX-3)

(e) The efficacy of JOJOBA EXTRACT is proved conclusively by independent clinical tests in Mexico and the United States.

"A Mexican Doctor Discovers A Secret to Baldness."

". . . Dr. Gomez conducted what was to become 20 years of clinical and scientific tests on the hair-growing properties of jojoba. And the results of this lifetime endeavor have virtually revolutionized the hair care industry." (CX-2)

"Independent tests in Mexico and the United States proved conclusively that jojoba (taken from the jojoba plant) is better than even the best of medicated shampoos and safely fights hair loss..." (CX-3)

P.S. Docket 7/86 (NUCLEIC HAIR RE-GENERATOR)

(a) The topical application of NUCLEIC HAIR RE-GENERATOR (NHR) will reverse the balding process by revitalizing and regenerating hair growth activity.

"Turn back the clock."

"Nucleic acids proven to bring hair back to life]"

". . . As they enter the hair roots they regenerate hair growth activity]"

". . . nucleic acids applied to the scalp can mean the difference between a thinning, balding scalp or a revitalized head of thick, healthy hair]" (CX-1)

"The nucleic acid can be absorbed through the skin and underlying scalp tissues into the hair roots to revitalize hair growing activity." (CX-2, p. 1)

(b) NHR will convert a thinning, balding scalp to a revitalized head of thick, healthy hair.

"Turn back the clock."

"Nucleic acids proven to bring hair back to life]"

". . . nucleic acids applied to the scalp can mean the difference between a thinning, balding scalp or a revitalized head of thick, healthy hair." (CX-1)

". . . give your hair what it needs to grow." (CX-2, p. 2)

(c) NHR is effective in the alleviation, treatment or cure of at least 70% of the cases of male pattern baldness.

"Many doctors and researchers estimate that at least 70% of all baldness cases are not hereditary. That means more than two-thirds of all 'male pattern baldness' cases are treatable." (CX-2, p. 1)

(d) The advertising claims made for NHR have been substantiated by up-to-date laboratory research and competent clinical tests.

"Nucleic acids proven to bring hair back to life]"

"Now, through laboratory research and clinical testing comes the NUCLEIC HAIR RE-GENERATOR]"

"Recently, nationally prominent doctors and aging researchers have made a startling breakthrough]" (CX-1)

"Based on this research, Standard Research Labs has developed the Nucleic Hair Re-Generator." (CX-2, p. 1)

3. Karl Jules Kramer, a well-qualified doctor of medicine, board certified in internal medicine and dermatology, testified for Complainant. (CX-5 in 7/78; CX-4 in 7/86). An important part of Dr. Kramer's practice involves baldness and scalp problems (Tr. 30).

4. Dr. Kramer defined baldness as the "visible loss of hair" (Tr. 14). The vast majority of cases of baldness - 90 to 95% - are what have been described as "male pattern baldness" (Tr. 21). The underlying cause of male pattern baldness is genetic. It is an abiotrophic disease or condition (Tr. 16, 17). A prerequisite to male pattern baldness is the presence of circulatory androgens or, specifically, testosterone in the bloodstream. Thus, males castrated before puberty will not develop male pattern baldness nor will they have circulatory levels of testosterone in the bloodstream (Tr. 18). In addition to the testosterone requirement, the hair follicles themselves play an important role in male pattern-type baldness (Tr. 19). It is now known and has been shown that the hair follicles are capable of metabolizing or changing testosterone into another androgen known as dehydrotestosterone or simply DHT. DHT appears to be toxic or destructive to the hair follicles of the scalp. Hair follicles in different parts of the scalp produce different amounts of DHT thus explaining why different areas become bald while others never lose their hair. The hair follicles which are predestined to be lost produce more DHT (Tr. 19). There are substances - antiandrogens - having activity against male-type hormones which could prevent the development of male pattern baldness. Estrogen (a female hormone) is one. Other than estrogen or other similar hormonal substances, there is nothing known that will affect the development of male pattern baldness. Female hormones have, in fact, been used experimentally. However, they are absorbed through the scalp and may produce serious adverse side effects. Therefore, they are not used to treat hair loss or baldness (Tr. 19, 20). Based on Dr. Kramer's own experience as well as the figures published in the literature, 90% to 95% of baldness in the general population would be male pattern baldness (Tr. 21). Of the remaining 5% to 10%, there are many causes and types of hair loss. There are specific diseases of the scalp, one of the most common of which is alopecia areata. It produces bald patches which are clinically distinguishable from male pattern baldness. The cause is unknown. It is a non-scarring condition. Any disease that can occur on the skin and which produces scarring will produce hair loss on the scalp. An example would be a severe infection (Tr. 15). A common type of hair loss is telogen effluvium. This is a temporary hair loss which occurs after a shock to the body such as childbirth, severe illness or a high fever (Tr. 16).

THE JOJOBA EXTRACT CASE (7/78)

5. Dr. Kramer reviewed all of the ingredients contained in JOJOBA EXTRACT (CX-4) and described the effects of each as follows: (Tr. 23-26.)

Sulfonated Castor Oil - An oily material generally produced from castor beans. Sulfonated refers to the chemical process to alter the oil. It is used for its fat and oiliness.

PEG-50 Lanolin - An oily material produced in sheep. The PEG-50 refers to a modification of lanolin. It is used primarily as a cosmetic preparation.

Oleth-2 - An emulsifier used to keep the water and other ingredients mixed.

Jojoba - Another oily material. Dr. Kramer knew of no specific pharmacologic activity of jojoba.

Polysorbate-20 - An emulsifying agent used to make the preparation stable and cosmetically acceptable.

Stearalkonium Imidazolidinyl Urea - A formaldehyde-releasing chemical used as a preservative to prevent the buildup of harmful bacteria.

Methyl Paraben - A preservative.

Propyl Paraben - A preservative.

Fragrance - An odor-producing preparation.

Bitter Orange Oil - An essential oil used primarily as a source of fragrance.

Hydrolized Animal Protein - A common ingredient of shampoos.

Used to give it a feel of one sort or another. It also coats the hair and makes it appear thicker to many people and more cosmetically pleasing.

6. Except for the jojoba, Dr. Kramer said that the preparation is virtually the same as any shampoo that one can buy in a drug store or supermarket. It is a cosmetic preparation no better or worse than any other very similar product one could purchase. Like other shampoos, it would remove dirt from the scalp, smell nice and cause the hair to feel a bit thicker because of the protein (Tr. 26, 27). Dr. Kramer noted, however, that there is no way in which JOJOBA EXTRACT (or any other substance for that matter) could stop hair loss in two and a half weeks (Tr. 27, 28).

7. Dr. Kramer was specifically asked whether there are any ingredients in JOJOBA EXTRACT either individually or combination which would cut the rate of hair loss in half. He answered unequivocally, "No." (Tr. 23.) He saw no basis for the representation (Tr. 26). Dr. Kramer stated that he could see no way JOJOBA EXTRACT could stop hair loss of any causation within two and a half weeks when applied to the scalp (Tr. 27-28).

8. Sebum is an oily material produced in the sebaceous gland. Each hair follicle has a sebaceous gland attached to it. Thus, sebum is produced in every follicle all over the body (Tr. 21). The production of sebum is a normal condition of the human scalp. The over-production of sebum results in an oily scalp. This condition is called seborrhea (Tr. 22), a condition most people refer to as dandruff, i.e., a flaking of the scalp (Tr. 32).

A severe form of dandruff is described by dermatologists as seborrheic dermatitis which, on rare occasions, may be so severe as to cause the scalp to become infected with other germs. If one gets a severe infection of the scalp, one could conceivably get a hair loss (Tr. 32, 33). However, except in this rare instance, neither seborrheic dermatitis nor seborrhea nor excess sebum production is generally recognized as a cause of hair loss. (Tr. 21, 32, 98-99; CX-6.)

9. Dr. Kramer noted that except for the inclusion of jojoba Respondent's product is virtually the same as a number of ordinary shampoos which one can readily purchase in a drug store or supermarket (Tr. 27).

10. Dr. Kramer testified that he had searched the literature in preparing for this case and was unable to find anything relating to the use of jojoba in the treatment of hair loss or balding (Tr. 30). He noted that any substance or drug which would effectively eliminate excessive hair loss in a majority of his patients would be considered significant and would be so considered by his peers and associates. Moreover, information about any such drug would receive wide publicity through it would be treated with skepticism until confirmed and absolutely proven (Tr. 31). As Dr. Kramer put it,

If there were something that showed promise of preventing baldness, it would be truly hot stuff; and I would expect to see it both in lay journals and popular dermatologic - uncritical dermatologic - literature, and hopefully, further in the future, in respected medical journals. (Tr. 100-101.)

Dr. Kramer reads not only the respected medical journals in his area of expertise but uncritical news reports as well, "... whatever I can get my hands on that pertains to my areas of interest." (Tr. 101). He found nothing relating to the use of jojoba other than that contained in Respondent's advertising materials, and inferred from this that "there is just not much to it." (Tr. 102.)

11. On cross-examination Dr. Kramer stated that seborrhea is not a disease (Tr. 80) and that it is the consensus of modern dermatologic thought that seborrhea per se does not cause loss of hair (Tr. 81). He knew nothing about jojoba beyond the fact that it is an oily material which would add an oily feel to the preparation and perhaps be left as a residual on the scalp. He would classify it no differently than the PEG-50 lanolin also contained in the product (Tr. 90).

12. Robert B. Bradfield, Ph.D., a clinical nutritionist, testified for Respondent. His interest in hair arises from his belief that hair is an accurate indicator of a person's nutritional status (Tr. 106-112). Dr. Bradfield surveyed the scientific literature on the subject of jojoba and learned that jojoba is a very unique product "among vegetable oils." More accurately, it is a "liquid wax ester." He disagreed with Dr. Kramer's designation of jojoba as an oil. (Tr. 113.)

Dr. Bradfield explained that normal fatty oils have a molecule consisting of a chain of 18 carbon atoms while waxes (which are normally solids at room temperatures) have a molecule containing a carbon chain of 38-40 atoms (Tr.115). Sperm (whale) oil is one of the few liquid oils having a long carbon chain 36-38 carbon atoms). These long carbon chain oils are important industrially because they make excellent lubricants which retain their viscosity through a wide range of temperature variations. Jojoba has an extremely long carbon chain with 40-44 carbon atoms in its molecular structure (Tr. 116). As a result of its unique physical properties, the Federal Government is very interested in promoting the cultivation of jojoba for oil production (Tr. 117) since it shows promise of being a substitute for sperm oil (Tr. 118).

13. Dr. Bradfield stated that jojoba reputedly has medicinal virtues and is used in small quantities in the manufacture of hair oil (Tr. 119). It has been used experimentally by a Dr. Miwa in the treatment of Acne Vulgaris (Tr. 121-122). Dr. Bradfield stated that jojoba wax resembles sebum in many respects. It is entirely edible but indigestable. Dr. Bradfield testified that it is said to be effective in the treatment of dandruff and to promote a luxuriant growth of hair (Tr. 122). He stated that Dr. Miwa feels one effect of jojoba when applied to the scalp would be to coat thin hairs, thus providing a pliability which might prevent the hairs from fracturing and breaking off and that the stopping of hair loss is related not so much to the growing cycle of the hair as it is to stopping the breakage of hairs which occurs during the growing phase (Tr. 124).

14. Dr. Bradfield reviewed the hair growth cycles and pointed out that approximately 85% of the hairs on the human scalp are in the anagen or growing phase. Typically, a hair has a life-span of about three years after which it briefly goes into the catagen or "resting" phase for about 14 days. About one-half of one percent of the hairs are in the catagen or "resting" phase at any one time after which they go into the telogen phase during which a new hair is formed in the follicle. This phase lasts about 90 days and, at any one time, involves approximately 15% of the hairs on the scalp. The new hair pushes out the old telogen hair which falls and the new hair remains in place for about three years (Tr. 125-126).

15. As a result of discussing the use of jojoba with Dr. Miwa, Dr. Bradfield testified that when jojoba is first used on the hair it will probably cause a large initial fall-out of hairs which were in the resting phase and destined to fall out anyway (Tr. 133). This would probably be due to friction and the lubricating aspects of the jojoba. Thereafter, the hair loss should drop sharply after a few days (Tr. 134).

16. Dr. Bradfield was asked about the relationship between the production of sebum and hair loss. He replied that there is a tremendous variance in clinical opinion as to the function of sebum and that no one seems to really know the role of sebum. He stated that there is a belief, of unknown prevalency, that infection or scaling associated with sebum can produce hair loss (Tr. 143-145). This is called the "underbrush" theory. This is a condition where sebum accumulations crust over the pilary canal. This could, in some cases, cause an irritation or infection and, in some cases, loss of hair in the follicle involved (Tr. 145).

17. Dr. Bradfield stated that he personally uses a jojoba preparation similar to that involved in this proceeding. He agreed with Dr. Kramer that it tended to thicken the hair by coating it with protein. He found it a very effective scalp cleaner (Tr. 146).

18. On cross-examination Dr. Bradfield agreed with Dr. Kramer that jojoba has only a "superficial effect" (Tr. 170) and that it will not effect a change in the hair cycle. The total number of hairs lost will remain the same (Tr. 172).

19. Like Dr. Kramer, Dr. Bradfield was unable to find any pharmacological effect of jojoba on the physiology of the hair as distinguished from its cosmetic or superficial effects (Tr. 173). He also agreed with Dr. Kramer that JOJOBA EXTRACT is a good shampoo which also has jojoba. He did not know if jojoba penetrates the scalp any better than other ingredients (Tr. 174). He pointed out that there is very little in the literature on jojoba oil (Tr. 175) and emphasized that his work with hair is mainly as a "barometer" to measure nutritional deficiencies and metabolic disorders (Tr. 176-177). His interest in hair is not that of the dermatologist to prevent baldness, "... certainly not the baldness area" (Tr. 177, 178).

20. Dr. Bradfield knows nothing about the pharmacological properties of jojoba. He stated that chemically it resembled sebum (Tr. 180). It is not a hormone or steroid since "there are no ring structures that would be typical of a steroid." (Tr. 181.) Dr. Bradfield testified that there is nothing in JOJOBA EXTRACT that would lead him to believe that the use of the product would reverse the balding process and restore hair that has been lost (Tr. 190).

THE NUCLEIC HAIR RE-GENERATOR CASE (7/86)

21. Dr. Kramer was asked to state the pharmacological activity and usual use of each of the ingredients contained in Respondent's product, NUCLEIC HAIR RE-GENERATOR (CX-3). Besides water, which is self-explanatory, he replied that the product contains: (Tr. 40-41)

Triethanolamine - Primarily an emulsifying agent which also gives texture and feel to the product. It is used in many cosmetic preparations.

Panthenol - A vitamin-like substance related to pantothenic acid.

Carbomer-940 - A substance which gives feel or texture to a product.

Propylene Glycol - An ingredient which gives a feel plus helps the penetration of certain materials into the skin.

Citric Acid - Primarily used as a preservative.

Hydrolized Animal Protein - Used primarily to give feel to the product and as a cosmetic agent to coat the hair.

Ribonucleic Acid (RNA) and Desoxyribonucleic Acid (DNA) - Substances that are ubiquitous in animal cells individually. Dr. Kramer knew of no direct pharmacological effect of these substances.

Methyl Paraben - A preservative.

Immidazolidinyl Urea - A preservative.

Propyl Paraben - A preservative.

Vitamins A and D - Pharmacologically active only as vitamins.

F.D. and C. Yellow No. 5 - Adds color.

22. Dr. Kramer testified that this product would probably produce a pleasing sensation when applied to the scalp. Because of the protein, it would thicken the hair. While there are pharmacologically active ingredients in the preparation, specifically the panthenol and vitamins A and D, Dr. Kramer perceived no reason why they would have a pharmacologic effect when applied to the scalp. Similarly, he saw no reason why the application of RNA and DNA would have any effect whatsoever on the cells when applied to the scalp in this preparation in this manner (Tr. 42).

23. Dr. Kramer testified that he saw no reason why the combination of ingredients contained in NUCLEIC HAIR RE-GENERATOR would have any effect on regenerating hair growth activity which is lost or diminished as a result of the progress of male pattern baldness (Tr. 43). Except for its cosmetic effect (Tr. 42), NHR contains nothing which will revitalize the hair on a thinning, balding scalp (Tr. 44).

24. Male pattern baldness is, by definition, an hereditary condition (Tr. 16, 163). Ninety to ninety-five percent of all baldness is of the hereditary or male pattern variety (Tr. 15, 21). Since NHR contains no hormonal or antiandrogenic substance, it follows that it is totally ineffective in treating or reversing male pattern baldness (Tr. 43, 191-192).

25. Dr. Kramer searched the literature and found no indication that this type of preparation would have any effect whatever on hair loss of any kind (Tr. 45, 46). Dr. Kramer was asked, (Tr. 47, 48)

Q. If there were laboratory research and competent clinical tests to establish that seventy percent of male pattern baldness subjects treated with this material enjoyed a return or a reversal of their condition, do you have an opinion as to whether this would be reportable in the literature?

His answer was,

A. Well, that would be a very exciting and significant event, and it would certainly be reported and would demand confirmation.

26. Dr. Bradfield also did a preliminary search of the literature. He was not aware of any up-to-date laboratory research or competent clinical tests that have been made of this product or products containing nucleic acids in connection with treatment for baldness (Tr. 194).

27. Dr. Bradfield claims no expertise in the balding area. However, he did not expect RNA or DNA to have an antiandrogenic effect (Tr. 191). They are not hormones (Tr. 192). In fact, DNA and RNA are not nutrients in the sense that they must be eaten or consumed in order to support life. They are adjusted in the body from the things we eat (Tr. 192, 193).

He testified that the nucleic acids (RNA/DNA) are fundamental structures for the production of protein and absolutely essential both in their manufacture and type of manufacture (Tr. 152). They are important in the manufacture of hair in the follicle since this is one of the most active centers of mitosis (cell division) in the human body (Tr. 153). The follicle is a kind of "protein factory." (Tr. 154.) He does not know whether protein can be formed or produced if there is a deficiency of nucleic acids (Tr. 157). In fact, he has never dealt with a situation where there would be a deficiency of nucleic acids (Tr. 158).

GENERAL

28. Dr. Kramer testified that his views in both 7/78 and 7/86 are consistent with the informed medical consensus (Tr. 47). Dr. Bradfield's answer to the question whether his testimony was consistent with the scientific consensus was not responsive (Tr. 195, 196).

29. Ninety to 95% of all baldness is hereditary or of the male pattern variety.

30. Except for estrogen hormones and similar antiandrogenic substances (which produce serious adverse side effects), there are no known substances which will arrest or reverse the progress of male pattern baldness.

31. Neither JOJOBA EXTRACT nor NUCLEIC HAIR RE-GENERATOR are antiandrogenic in nature. Thus, they could have no effect on the mechanism which produces male pattern baldness, namely, the conversion of testosterone into DHT in the hair follicle (Tr. 18, 56).

32. The products are essentially cosmetics which have no effect on the underlying causes of hair loss and baldness.

CONCLUSIONS OF LAW

1. The meaning of advertising representations is to be judged from a consideration of an advertisement in its totality and the impression it would most probably create in ordinary minds. Donaldson v. Read Magazine , 333 U.S. 178 (1948); Vibra-Brush Corp. v. Schaffer , 152 F. Supp. 461 (S.D.N.Y., 1957); Borg-Johnson Electronics v. Christenberry , 169 F. Supp. 746 (S.D.N.Y., 1959). Express representations are not required. It is the net impression which the advertisement is likely to make upon purchasers to whom it is directed which is important, and even if an advertisement is so worded as not to make an express representation, if it is artfully designed to mislead those responding to it the mail fraud statutes are applicable. G. J. Howard v. Cassidy , 162 F. Supp. 568. See also Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council , 425 U.S. 748 (1976).

"Advertisements as a whole may be completely misleading although every sentence separately considered is literally true. This may be because things are omitted that should be said, or because advertisements are composed or purposefully printed in such way as to mislead." Donaldson v. Read Magazine , supra , p. 188.

2. Applying the foregoing tests to the advertisements for the two products involved in this proceeding I conclude that they make representations substantially as characterized in the Complaints.

3. Complainant has established the falsity of these representations by a preponderance of the reliable, probative and persuasive evidence of record. Dr. Kramer's testimony represents the informed medical consensus on the falsity issues. Dr. Bradfield did not purport to express any contrary consensus. He in fact denied having the necessary expertise to testify on some of the falsity issues.

4. Expert opinion testimony need not be based upon tests of the particular product in issue to constitute sufficient evidence of false advertising representations. Reilly v. Pinkus , 338 U.S. 269, 274 (1949); Original Cosmetics Products, Inc. v. Strachan , No. 78-6165 (2d Cir., 4/30/79); Skinny Suit , P.S. Docket No. 3/44 (P.S. Decision, 2/19/76, p. 6); K. Davis, Administrative Law Treatise , 14.13 (1958).

5. These false representations are material because their natural effect is to induce purchasers to buy the products. See F.T.C. v. Colgate-Palmolive Co. , 380 U.S. 374, 387 (1965).

6. Respondent has requested that I take judicial notice of my initial decision in Scientific International , P.S. Docket No. 6/82 and find in this case a fact found in that matter, i.e., that male pattern baldness represents as little as 30% of all cases of male baldness. That fact finding was based on the expert testimony and other evidence received in that particular case. Findings of fact as to similar issues can and do vary from case to case because with rare exceptions they are based on the evidence received in the individual case. Since medicine is not an exact science, opinions of experts in different cases as to identical matters of fact often vary. It is not difficult to imagine the chaos which would result if litigants were allowed to pick and choose from decisions in earlier cases facts most favorable to their positions in later cases. Respondent has not backed its request with persuasive argument, the cases it cites not being in point.

7. Respondent is engaged in the conduct of schemes for obtaining remittances of money through the mails by means of materially false representations in violation of 39 U.S.C. 3005.

8. Orders pursuant to 39 U.S.C. 3005 in the forms attached should be issued against Respondent.