In the Matter of the Complaint Against

STANDARD RESEARCH LABORATORIES
Post Office Box 9547 at
Fort Lauderdale, Florida 33310

In the Matter of the Complaint Against

RUSH INDUSTRIES, INC.
300 Park Avenue, South at
New York, NY 10010

P.S. Docket No. 7/48; P.S. Docket No. 7/50;

Cohen, James A.Cohen, James A.

APPEARANCE FOR COMPLAINANT:
Thomas A. Ziebarth, Esq.
Consumer Protection Division
Law Department
475 L'Enfant Plaza, S.W.
U. S. Postal Service
Washington, DC 20260

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

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

APPEARANCE FOR RESPONDENT:
Robert Ullman, Esq.
Bass, Ullman & Lustigman
747 Third Avenue
New York, NY 10017

POSTAL SERVICE DECISION POSTAL SERVICE DECISION

Respondent has appealed from the Initial Decision of Administrative Law Judge Quentin E. Grant in which Judge Grant recommends the issuance of an order under 39 U.S.C. § 3005 based on his conclusion that Respondent by means of advertisements for its product "Biotin Solution Hair Restoration Gel" is engaged in a scheme for obtaining money through the mail by means of false representations.

BACKGROUND

On April 11, 1979, the Consumer Protection Division, Law Department United States Postal Service, filed a complaint alleging that Respondent is engaged in conducting a scheme for obtaining money through the mail in violation of 39 U.S.C. § 3005. Specifically the complaint alleges in paragraph 3 that by means of advertisements for its product "Biotin Solution Hair Restoration Gel" Respondent represents that:

"(a) Baldness and excessive hair loss is due to an accumulation of the hormone androgen (testosterone);

"(b) The use of BIOTINE SOLUTION HAIR RESTORATION GEL will combat testosterone buildup and enable hair to grow again;

"(c) The use of BIOTIN SOLUTION HAIR RESTORATION GEL will prevent excessive hair loss and baldness in 9 out of 10 cases; and

"(d) The use of BIOTIN SOLUTION HAIR RESTORATION GEL will reactivate dormant hair roots and cause hair to grow again."

The complaint further alleges that these representations are materially false.

By stipulation of the parties, paragraph 3 (a) of the complaint was dismissed and is no longer in dispute.

At the hearing held on the complaint each side presented the testimony of a medical doctor. Both sides also introduced various exhibits which they claim support their position.

Judge Grant found the evidence presented by the Postal Service persuasive and issued his decision holding that Complainant had established that Respondent makes the representations alleged in the complaint and that those representations are materially false and in violation of 39 U.S.C. § 3005. Respondent filed a timely appeal from that decision.

RESPONDENT'S EXCEPTIONS

Basic Issue

In its initial appeal brief (p. 14) Respondent succinctly and correctly characterizes the heart of this matter as follows:

"This case obviously boiled down to a question of which expert to believe - Dr. Kramer or Dr. Lubowe? Since their testimony was diametrically opposed, Dr. Kramer stating that biotin cannot work, Dr. Lubowe stating it has worked and does work, the issue then became which testimony was entitled to the greater weight. More particularly, the issue became: was the evidence of Dr. Lubowe of sufficient quality and and reliability to preclude a determination that, as against such evidence, the testimony of Dr. Kramer established by a preponderance that the three contested allegations were materially false as a matter of fact."

Respondent argues that in determining the weight to be given to conflicting expert testimony, consideration must be given to the expert witness' experience, knowledge, credentials, qualifications, related research projects and personal observations with regard to the subject matter of the testimony. Respondent cites numerous Federal Court decisions which address the essentials of expert testimony and then concludes:

"The logical extension of this reasoning would be that if expert testimony is not well-reasoned, is not based on what is known and uncontradicted by empirical evidence, then it cannot be considered as substantial evidence." (Res. Brief p. 15)

I also argues that in the case of conflicting expert testimony it is extremely difficult for a proponent to meet its burden of proof.

Complainant called Dr. Karl Jules Kramer, a medical doctor who received his A.B. in chemistry, summa cum laude, from Cornell University in 1965 and his M.D. from John Hopkins University in 1969. Dr. Kramer was licensed to practice in 1970 and was certified a diplomate of the American Board of Internal Medicine in 1973, a diplomate of the American Board of Dermatology in 1976 and a Fellow of the American Academy of Dermatology in 1976. Dr. Kramer has published several articles in various medical publications but has written no papers dealing with baldness or other hair conditions (Tr. 9, CX-7).

Dr. Kramer maintains a private practice in which he deals solely with dermatological problems. Firve to ten percent of his patients come to him in connection with hair and baldness problems (Tr. 10). Dr. Kramer testified that he was aware of two doctors who use biotin products for treatment of baldness problems (Tr. 41). No responsible medical journal has published any test results supporting the use of biotin for baldness. If a product had been developed which would grow hair, through such publications, the medical profession would know about it (Tr. 31, 32, 113). Dr. Kramer stated that in his opinion Respondent's product would not achieve the results represented (Tr. 35, 37, 51, 71) and that his views were consistent with the consensus of medical opinion (Tr. 37, 41). His training and experience support the validity of that belief.

Respondent called Dr. Erwin I. Lubowe, a medical doctor who received his degree from the New York Medical College in 1930. Dr. Lubowe is a diplomate of the American Board of Dermatology and a fellow and member of numerous other medical associations and societies. Dr. Lubowe has written books and numerous articles, several of which deal with scalp and hair disorders (RX-1). Dr. Lubowe maintains a private practice. Thirty to forty percent of his patients come to him in connection with hair and scalp problems (Tr. 79). On the basis of his pharmacological and dermatological background Dr. Lubowe had "a feeling" that the use of biotin gel would stop excessive hair loss (Tr. 90). However, although specifically and directly asked three different times, as to whether his views are consistent with the consensus of medical opinion, Dr. Lubowe avoided providing a direct or responsive answer (Tr. 96, 97, 99-100). He acknowledged that no papers on the subject had been published by the medical profession and that he did not know what the average physician thinks in this regard (Tr. 100, 113).

Respondent's witness, Dr. Lubowe possesses more experience, has been involved in more activities and has written extensively on subjects directly related to the issues at hand. Respondent argues that Dr. Lubowe's testimony, therefore, is more valuable, substantiated, and credible and therefore entitled to greater weight. However, such experience does not automatically provide superior knowledge and, except for the ultimate question, Respondent's witness identified no errors or inadequacies in Dr. Kramer's testimony and made no attempt to challenge Dr. Kramer's representation that his (Dr. Kramer's) opinion was in accord with the consensus of medical opinion.

It is concluded that the evidence presented by the Postal Service, i.e. that Respondent's product will not perform as represented, is consistent with and supported by the consensus of the medical profession.

Additional Evidence In Support

Of Respondent's Position

Respondent presented no evidence with regard to the actual use of its product Biotin Solution Hair Restoration Gel. Through the testimony of Dr. Lubowe Respondent did present evidence of two studies which involved the use of compounds similar in formulation which, according to Dr. Lubowe's "thought and prophesy", would have the same effect (Tr. 92).

Dr. Lubowe first learned about the use of biotin for the treatment of male pattern baldness from a paper given by a

Dr. Settel at the American Academy of Family Physicians (Tr. 81). A document which Dr. Lubowe identified as a copy of the paper delivered by Dr. Settel was received as Respondent's Exhibit No. 3 (Tr. 87). That Exhibit is a reprint from the October 1977 ediction of "Drug and Cosmetic Industry". The reprint states that it was "Presented at the Scientific Assembly of the American Academy of Family Physicians in Boston in October 1976". Respondent's Exhibit 3 provides general data concerning two studies, one of which included the use of a biotin compound applied daily in conjunction with a shampoo used three times weekly. The paper states that data on the biotin study was incomplete. It does not identify the author and, in the opinion of Dr. Kramer, is not one which would be accepted in the medical community. Dr. Kramer characterized the paper as being "kind of interesting but it really doesn't prove anything" (Tr. 123).

Dr. Lubowe stated that 350 dermatological centers have been using Dr. Settel's formula for a number of years (Tr. 100). However, no details or specifics concerning these centers were provided.

Dr. Lubowe also described a test he conducted with a biotin gel formulated by him and used by three hundred of his patients (Tr. 82). In conjunction with his study Dr. Lubowe had his patients go on a low fat diet, use a protein shampoo and supplement their diet with a B complex vitamin (Tr. 82). He observed a significant reduction in hair loss in the persons following his program and had "a feeling" that the reduction in hair loss was due to the biotin gel (Tr. 89, 90).

In summary, the evidence presented by Respondent in its attempt to negate the consensus of medical opinion concerning the effect on hair loss of biotin compounds primarily consists of generalized representations made by Respondent's medical witness and an unsigned article printed in a publication of the drug and cosmetic industry. Although Respondent represents that hundreds of people have successfully been treated with products similar to Respondent's product the evidence in this regard is not persuasive. Accordingly, it was not improper for the Administrative Law Judge to conclude that the Complainant's evidence was reliable and credible and constituted a preponderance of the evidence.

The Burden of Proof

In its "Additional Brief On Appeal" (pp. 1, 2) Respondent specifically attacks that portion of Complainant's reply memorandum (p. 6) in which Complainant states:

"While Complainant has the ultimate sic of proof in proceedings under 39 U.S.C. § 3005 the burden of going forward can, and in this case did, shift to Respondent. In order to overcome such proof of the consensus of informed medical opinion, it would be necessary for Respondent to show, by means of valid, well-designed scientific studies that the consensus was somehow incorrect. This Respondent admittedly has not done."

Respondent attacks Complainant's position stating:

"No statutory, decisional, or regulatory authority is cited in support of this novel and not inconsequential position. Nor could there be, for there is no authority for such a proposition."

Respondent argues that the Complainant has the burden of proving its case and that it must do so by a preponderance of the evidence.

Respondent acknowledges that the burden of going forward may shift after a prima facie case has been established but notes that such a shift will not relieve Complainant of its ultimate burden of persuasion. Respondent also argues that Judge Grant appears to have held it to a higher standard of proof than he required of the Postal Service. Respondent considers that the presiding Judge accepted the Postal Service's opinion evidence without further support but indicated that to be credible the evidence of Respondent should be supported by a double blind test or other equally persuasive laboratory data.

Well established, but frequently overlooked, decisions and evidentiary writings have held that the rules of evidence do not place on a litigant the burden of establishing negative or other facts peculiarly within the knowledge of its adversary. In United States v. Denver & Rio Grande R.R. Co., 191 U.S. 84, 92 (1903) the Supreme Court stated:

"It is a general rule of evidence, noticed by the elementary writers upon that subject, 1 Green1. Ev. sec. 79, 'that where the subject matter of a negative averment lies peculiarly within the knowledge of the other party, the averment is taken as true unless disproved by that party.' When a negative is averred in pleading, or plaintiff's case depends upon the establishment of a negative, and the means of proving the fact are equally within the control of each party, then the burden of proof is upon the party averring the negative; but when the opposite party must, from the nature of the case, himself be in possession of full and plenary proof to disprove the negative averment, and the other party is not in possession of such proof, then it is manifestly just and reasonable that the party which is in possession of the proof should be required to adduce it; or, upon his failure

to do so, we must presume it does not exist, which of itself establishes a negative. Great Western R. R. Co. v. Bacon, 30 Illinois, 347; King v. Turner, 5 M. &S. 206. Familiar instances of this are where persons are prosecuted for doing a business, such, for instance, as selling liquor without a license. It might be extremely difficult for the prosecution in this class of cases to show that the defendant not only the burden of producing his license, but of showing that it was broad enough to authorize the acts complained of. Commonwealth v. Rafferty, 133 Massachusetts, 574; Commonwealth v. Towle, 138 Massachusetts, 490." (emphasis added)

The evidentiary rule expressed above has been consistently followed over the years. Selma Rome & Dalton R.R. Co. v. United States, 139 U.S. 560, 567 (1891); United States v. New York, New Haven & Hartford R.R. Co., 355 U.S. 253, 256 Note 5 (1957); Campbell v. United States, 365 U.S. 85, 96 (1961); Allstate Finance Corporation v. Zimmerman, 330 F.2d 740, 744 (5th Cir. 1964); Nader v. Allegheny Airlines, Inc., 512 F.2d 527 538 (DC Cir. 1975) reversed on other grounds, 426 U.S. 290 (1976); Kurzon v. United States Postal Service, 539 F.2d 788, 795 (1st Cir. 1976) 1 S. Gard, Jones on Evidence, ??5.8, 5.9 (6 Ed. 1972) IX Wigmore on Evidence § 2486 (3 Ed. 1940), 31A CJS § 113.

It is apparent that it is equally within the ability of the parties to establish the consensus of medical opinion with regard to any particular medical matter. However, when an organization makes representations concerning a product and those representations are not in accord with the consensus of authority, it is only reasonable to expect that organization to have data which will adequately support such representations. Accordingly, if Respondent takes the position that the medical consensus is incorrect because of new or recent developments which have not been reported in reliable medical literature and received acceptance by a significant body of the medical community, it cannot merely allege or present limited evidence concerning the existance of such developments and, in effect, challenge the Postal Service to prove it isn't so (e.g. see p.p. 11, 13, 20, 22 of Respondent's Appeal Brief where Respondent cites the absence of tests proving that its product will not perform as represented). It is incumbent on Respondent to present persuasive evidence in support of that position. If it does not do so, it may properly be concluded that such evidence does not exist.

The Postal Service has the burden of establishing a prima facie case and the ultimate burden of persuasion. It must prove its case by a preponderance of the evidence, not the "clear and convincing" or "beyond reasonable doubt" evidentiary standards applicable in other types of proceedings. Michigan Bulb Co., P.S. Docket No. 7/43 (P.S.D. 1979). In this case the Postal Service has established its prima facie case by the opinion testimony of Dr. Kramer and his testimony that a consensus of the medical profession believes that products like Respondent's will not have an effect on hair loss or growth. The evidence presented by Respondent with regard to possible beneficial effects of biotin products falls short of constituting a preponderance of the evidence and therefore does not warrant a conclusion that the Postal Service has failed to satisfy its ultimate burden of persuasion.

RESPONDENT'S ENUMERATIONS OF ERROR

In its appeal brief Respondent sets forth 18 claimed errors in the Initial Decision. Alleged errors 3 through 12 and 14 through 18 all relate to the testimony of the two experts, the weight to be given to such testimony, the burden of proof and evidentiary standards. The discussion above, on the basic issue and burden of proof, addresses these allegations and they are found to be without merit.

Respondent's first enumeration of error challenges the finding that Respondent is engaged in a "scheme or device" for obtaining monies through the mail. Respondent argues that it is engaged in a normal business activity which is neither a scheme nor device "which terms carry negative and fraudulent implications". As used in the statute the terminology "scheme or device" applies to innocent as well as intentional misrepresentations. Kurzon v. United States Postal Service, 539 F.2d 788, 795 (1st Cir. 1976); United States v. International Term Papers Inc., 477 F.2d 1277, 1280 (1973). A scheme or device exists if a business seeks remittances of money through the mail by means of a plan or program involving a misrepresentation. See Karfax & Karfax Industries, P.S. Docket No. 7/36 (P.S.D. 1979). Respondent's first enumeration of error is without merit.

Respondent's second enumeration of error challenges Judge Grant's finding that the representations cited in the complaint were "expressly" made. The term "expressly" may reasonably be interpreted to mean explicit, definite or specific.

Respondent correctly points out that some of the claimed repre- sentations, (e.g. that Respondent's product will prevent baldness) were not specifically made and that the finding apparently involved the Judge's personal analysis and interpretation of the language. The Judge's choice of words was unfortunate. However, the language of the advertisements was clearly intended to, and does in fact, convey the representations cited in the complaint. Therefore, although technically correct, Respondent's exception has no effect on the result reached.

Respondent's enumeration of error thirteen is closely related to No. 2. Respondent cites the absence of any evidence whatsoever as to the effect of the advertisements on the ordinary mind or that the representations made were material. This enumeration of error is also without merit. A Judge is qualified to determine the effect of various representations on the minds of ordinary men and whether such representations are material. Vibra-Brush v. Schaffer, 152 F. Supp. 461, 468 (S.D.N.Y., 1957); reversed on other grounds, 256 F.2d 681, (2d Cir. 1957); Baslee Products Corp. v. United States Postal Service, 356 F. Supp. 841, 847-848 (D. N.J. 1973) Davinol Products, P.S. Docket No. 7/22 (P.S.D. 1979), and cases cited therein.

CONCLUSION

After consideration of the entire record and Respondent's enumerations of error, it is concluded that Respondent is engaged in a scheme for obtaining money through the mail by means of materially false representations. Accordingly, Respondent's appeal is denied and a remedial order under 39 U.S.C. § 3005 is being issued contemporaneously with this decision. However, pursuant to the request set forth in Respondent's appeal brief, the return portion of the order is being stayed for a period of 21 days in which Respondent may seek Judicial Review.

Respondent has appealed from the Initial Decision of Administrative Law Judge Quentin E. Grant which holds that, with regard to the sale of its product "Hair Plus," Respondent is engaged in a scheme for obtaining money through the mail by means of false representations in violation of 39 U.S.C. § 3005.

BACKGROUND

On April 12, 1979, the Consumer Protection Division, Law Department United States Postal Service, filed a complaint alleging that Respondent is engaged in conducting a scheme for obtaining money through the mail in violation of 39 U.S.C. § 3005. Specifically, the complaint alleges that Respondent's advertising represents:

"....directly or indirectly, by means of affirmative statement, implication, or omission, in substance and effect, that ingestion of Respondent's 'HAIR-PLUS' will, for most people, provide a significant benefit, over and above the user's daily diet, in:

(a) preventing thinning hair;

(b) preventing baldness;

(c) causing the growth of healthy,

beautiful hair;

(d) preventing dandruff;

(e) eliminating greying;

(f) treating exzema;"

The complaint further alleges that these representations are materially false.

At the hearing held on the complaint the only witness presented on behalf of either party was Dr. Gloria Troendle, a medical doctor called by the Postal Service. Respondent was represented by counsel who cross-examined Dr. Troendle and offered exhibits in support of Respondent's position.

In addition to its defense against the allegations set forth in the complaint, Respondent moved to have this action dismissed on the basis of a prior action taken by the Postal Service in connection with a Consent Agreement entered into with another party concerning a similar product. Respondent has indicated that it is willing to accept the same restraints as those applicable to the other product, and that the Postal Service's refusal to agree to such terms constitutes discriminatory and unfair enforcement of the law.

Judge Grant concluded that Respondent makes the representations alleged, that such representations are material and that they are false. He also concluded that there is no merit to Respondent's affirmative defense of discriminatory and unfair enforcement of the statute.

Accordingly, he concluded that Respondent is engaged in activities which are in violation of 39 U.S.C. § 3005.

RESPONDENT'S EXCEPTIONS TO THE INITIAL DECISION

Respondent has taken five exceptions to the Initial Decision.

Each of these exceptions is addressed below:

Respondent's first exception is:

"1. Respondent excepts to the Administrative Law Judge's reliance upon the testimony of Dr. Troendle as substantial evidence in the absence of rebuttal testimony on the part of Respondent (I.D. p. 7, Finding No. 4; I.D. p. 11, Conclusion No. 3)."

Respondent argues that Complainant does not automatically meet its burden of proof by reliance on the testimony of one medical doctor. Respondent claims that Dr. Troendle's background, training and experience are inadequate to constitute substantial evidence relevant to the subject matter of the complaint. Respondent further argues that a decision in favor of Complainant must be based on substantial affirmative evidence presented by Complainant and not on a want of affirmative evidence on the part of Respondent.

Substantial evidence is generally defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion ... and it must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury." NLRB v. Columbian Enameling & Stamping Co., 306 U.S. 292, 299 (1939) and cases cited therein; See also Richardson v. Perales, 402 U.S. 389 (1971); U. S. Health Club, Inc. v. Major, 182 F. Supp. 759 (D. N.J. 1960); rev. on other grounds 292 F.2d 665 (3d Cir. 1961) cert. den. 368 U.S. 896 (1961). It is more than a mere scintilla of evidence but less than a preponderance of the evidence Marker v. Finch, 322 F. Supp. 905 (D. Del. 1971); Coleman v. Gardner, 264 F. Supp. 714 (S.D. W. Va. 1967); Steward v. Gardner, 270 F. Supp. 92 (S.D. W. Va. 1966) aff'd 379 F.2d 554 (4th Cir. 1967). In administrative proceedings it is, in effect, equivalent to that quantum of evidence necessary to establish a prima facie case and to shift the burden of going forward to the opposing party. See Otis & Company v. SEC., 176 F.2d 34 (D.C. Cir. 1949); Soberin Aids Company, P.S. Docket No. 2/36 (P.S.D. 1973).

In proceedings under 39 U.S.C. § 3005, Complainant has the initial burden of going forward with its evidence to establish a prima facie case. See Peak Laboratories, Inc. v. United States Postal Service 556 F.2d 1387, 1390 (5th Cir. 1970). Once Complainant has presented a prima facie case, the burden of going forward with rebuttal evidence shifts to Respondent. See Peak, supra. However, the ultimate burden of persuasion remains with Complainant and must be established by a preponderance of the evidence. See Michigan Bulb Company, P.S. Docket No. 7/43 (P.S.D. 1979); Wilmont Products, P.S. Docket No. 6/46 (P.S.D. 1979). Thus, the question presented is whether the testimony of Complainant's witness was sufficient to establish a prima facie case thereby shifting to Respondent the burden of going forward with rebuttal evidence.

Respondent's challenge of Dr. Troendle's qualifications with regard to the subject matter at issue is not without some merit. Doctor Troendle is a medical doctor, but not a specialist in dermatology or the treatment of hair conditions (Tr. 13, 115). In addition, since graduating from medical school in 1950, the doctor has at no time engaged in a practice or employment having a direct relationship to the treatment of hair conditions (Tr. 41-43, 46). The doctor had only one day to prepare for her testimony. She read some information in textbooks on dermatology and had discussions with three or four of her medical associates, one of whom had originally been scheduled to testify but was unable to do so because of illness, and one other who is a dermatologist (Tr. 56, 57).

Notwithstanding the foregoing, on both direct and cross-examination, the doctor's responses to counsel's questions demonstrated a substantial familiarity with the substances that make up Respondent's product and their effect on the body. The doctor's answers were straightforward, generally without qualification or reservation. The doctor did not hesitate to indicate a lack of knowledge or to respond to questions when such responses might appear to run counter to Complainant's position (e.g., Tr. 60, 104, 131). The doctor testified that if in fact it had been established that the results represented by Respondent could be achieved, she would know about it because of its importance to the medical community (Tr. 61). While subjected to extensive and probing cross-examination, the doctor testified without qualification that Respondent's product would not perform as represented (Tr. 36-39), 147, 148).

Dr. Troendle's testimony clearly establishes that her knowledge of the matters at issue is vastly superior to that of a layman. Although she does not possess a specialty in the field of medicine most closely related to the treatment of conditions for which Respondent's product is advertised, she is a medical doctor and does possess sufficient knowledge of the matters involved in this proceeding for her testimony to be admissible. See e.g., Carlson v. Jaurek, 526 F.2d 202 (8th Cir. 1975); Alvarado v. Weinberger, 511 F.2d 1046 (1st Cir. 1975); Harris v. SMith 372 F.2d 806 (8th Cir. 1967); Baerman v. Reisinger, 363 F.2d 309 (D.C. Cir. 1966); Sher v. DeHaven, 199 F.2d 777 (D.C. Cir. 1952); Research Laboratories, Inc. v. United States, 167 F.2d 410 (9th Cir. 1948); Frost v. Mayo Clinic, 304 F. Supp. 285 (D. Minn. 1969). Moreover her testimony was credible and persuasive and, therefore, constituted "substantial evidence" which established a prima facie case which Respondent made no attempt to rebut.

Respondent did offer into evidence certain exhibits, but they pertain to Respondent's claim of discrimination, not to the efficacy of its product, and therefore they do not rebut Complainant's medical evidence. Accordingly, Respondent's first exception is found to be without merit.

Respondent's second exception is:

"2. Respondent excepts to the Administrative Law Judge's reliance upon the 'consensus' testimony of Dr. Troendle as the basis for finding material falsity in Respondent's advertising representations (I.D. p. 7)."

Dr. Troendle was specifically questioned as to what she would do to establish a consensus of medical opinion and what she did to determine if the views which she expressed were in accordance with such a consensus (Tr. 39, 56, 60, 76). The doctor's testimony establishes unequivocally that she did not check the various sources she considered to be necessary in order to determine what is the consensus of medical opinion. The doctor's testimony indicates that she is of the opinion that her testimony is in conformance with the consensus of medical opinion. However, she is not engaged in an active practice in dermatology nor did she conduct a thorough review of the medical literature on the subject which would provide a basis for concluding that her testimony was in fact in accord with the consensus of medical opinion. Accordingly, there is insufficient evidence in the record to determine whether the witness' testimony is or is not in accord with the consensus of medical opinion. Therefore, Respondent's second exception has merit.

Respondent's third exception is:

"3. Respondent excepts to the Administrative Law Judge's findings that Respondent's representation that the ingredients in its product cause the growth of healthy, beautiful hair (Complaint ?II(c)) is false and that Respondent's product plays no role in achieving any of the representations alleged in the complaint (I.D. p. 10)."

Through the testimony of Dr. Troendle, Complainant presented a prima facie case which Respondent did not rebut. Complainant's presentation of a prima facie case consisted of the introduction of substantial evidence which the presiding Judge found to be truthful and credible. A review of the testimony presented indicates that this was a proper conclusion. Notwithstanding the absence of extensive experience of the witness with regard to hair conditions, there is nothing in the record which refutes the accuracy of the witness' unequivocally expressed opinion that Respondent's product will not perform as represented.

As previously stated, the appropriate standard of proof to be applied in actions brought under 39 U.S.C. § 3005 is the "preponderance of evidence" standard. See Michigan Bulb Company, P.S. Docket No. 7/43 (P.S.D. 1979). The preponderance of evidence standard requires the submission of evidence establishing "the more reasonable of probabilities 4 S. Gard, Jones on Evidence § 30.4 (6th Edition 1972) or "more likely so than not" Jones v. United States, 239 F.Supp. 474, 480 (E.D. La., 1965). The testimony of Dr. Troendle was the only evidence presented as to whether Respondent's product would perform as represented. If Respondent possessed contrary evidence which would rebut Complainant's evidence, it had a duty to present it. Michigan Bulb Company, supra; Standard Research Laboratories, P.S. Docket No. 7/48 (P.S.D. 1980) and the decisions cited therein. Respondent did not do so. Accordingly, as the only evidence, the doctor's testimony stands unrebutted and constitutes a preponderance of the evidence. Therefore, the result reached in the Initial Decision is supported by a preponderance of the evidence. Respondent's third exception is without merit.

Respondent's fourth exception is:

"4. Respondent excepts to the Administrative Law Judge's dismissal of its defense based on P.S. Docket No. 2/137 and the recommendation that an order be entered which would not allow the same representations permitted by the Consent Agreement executed by the Postal Service in P.S. Docket No. 2/137 (I.D. p. 10, pp. 12-13)."

Respondent argues that the Administrative Law Judge was incorrect in finding material and substantial differences between the advertising and product in issue in Cosvetic Laboratories,

P.S. Docket No. 2/137 and the advertising and product in this case. It also argues that it is entitled to the same treatment received by the Respondent in the Cosvetic case. Respondent cites Mark Eden case dealt with the rights of a Respondent under a Consent Agreement executed between it and the Postal Service and is clearly distinguishable from, and has no application to, the present dispute in which Respondent claims some right under a Consent Agreement entered into between the Postal Service and a third party.

Legal proceedings must be and are decided on the facts introduced in each particular case. The issue in this proceeding is whether Respondent makes the representations alleged in the Complaint and whether those representations are materially false. On the record presented the Administrative Law Judge properly concluded that the Respondent makes the representations alleged in the Complaint and that those representations are materially false. Therefore, the issuance of a false representation order is proper even though the Postal Service elected to enter into a Consent Agreement with another advertiser. The execution of the Consent Agreement in the Cosvetic case and the failure to reach agreement here does not constitute a case of discriminatory enforcement of 39 U.S.C. § 3005. See Sara Michaels, P.S. Docket No. 5/95 (I.D. 1977, P.S.D. 1978); Iso-Tensor Plan, P.S. Docket No. 3/30 (P.S.D. 1975); Beauti-Breast of Paris, P.S. Docket No. 1/140 (P.S.D. 1975). In the latter case it was stated:

"...For whatever reasons there may have been to proceed no further with that case it is not the function of this administrative proceeding to decide whether others may properly be made the subject of complaints under 39 U.S.C. § 3005 but rather, once a complaint has been filed by proper authority (in the Postal Service, the Postal Service General Counsel or his designated representative), to decide whether the evidence produced in the course of the administrative hearing relating to the particular complaint warrants the conclusion that a statutory violation exists on the facts of the case...."

Thus, Respondent's attempt to bring itself within the terms of a Consent Agreement entered into between the Postal Service and a third party is without merit. However, in view of the Respondent's expressed desire to enter into a Consent Agreement, the parties were directed to attempt to negotiate an acceptable resolution of this matter but they were unable to do so.

Respondent's final exception is:

"5. Respondent excepts to the conclusion of the Administrative Law Judge that an order, pursuant to 39 U.S.C. § 3005, should issue against Respondent (I.D. p. 13)."

Respondent has correctly pointed out that the presiding Judge erred when he concluded that the testimony provided by the Postal Service witness established that it was in accord with the consensus of medical opinion. However, in order to prevail Complainant is required to establish its position by a preponderance of the evidence. This it can and has done in this case without establishing the consensus of medical opinion. Therefore, the erroneous finding concerning the consensus of medical opinion does not alter the result reached in the Initial Decision.

CONCLUSION

After consideration of the Respondent's exceptions and the record as a whole, it is concluded that the Initial Decision correctly holds that Respondent is engaged in a scheme for obtaining money through the mail by means of materially false representa- tions. Accordingly, Respondent's appeal is denied and a remedial order under 39 U.S.C. § 3005 is being issued contemporaneously with this decision.