In the Matter of the Complaint Against

ORIENTAL NURSERIES
P. O. Box 370030
Miami, FL 33137

and

P. O. Box 520995
Miami, FL 33152

P.S. Docket No. 8/24;

Cohen, James A.

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

APPEARANCE FOR RESPONDENT:
Tyler Abell, Esq.
David Simon, Esq.
Bregman, Abell, Solter & Kay
1900 L Street, N.W.
Washington, D.C. 20036

POSTAL SERVICE DECISION

Respondent has appealed from an Initial Decision of an Administrative Law Judge which holds that with regard to the sale of the Paulownia tomentosa or "Chinese Empress" tree, 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 March 25, 1980, the Consumer Protection Division, Law Department, United States Postal Service, filed a Complaint alleging that Respondent, in connection with the sale of the "Chinese Empress" tree or Paulownia tomentosa, is engaged in a scheme for obtaining money through the mail in violation of 39 U.S.C. § 3005. Specifically, in paragraphs III and IV, the Complaint alleges:

III

By means of such materials Respondent's advertisement and others similar thereto, Respondent represents, directly or indirectly, in substance and effect, whether by affirmative statements, omissions or implication that the FLOWERING "CHINESE EMPRESS", or Paulownia tomentosa

(a) will grow to be 14 feet in height the first season after planting, and will be 23 feet tall within 2 years after planting;

(b) leaves may be expected to be 2 1/2 feet across;

(c) will produce flowers throughout the spring and summer;

(d) will produce flowers once each in spring and summer;

(e) will thrive in climates with temperatures as low as 25 degrees below zero.

IV

The aforesaid representations are materially false as a matter of fact.

At a hearing held to take evidence on the allegations of the Complaint both parties presented the testimony of experts possessing degrees in either Horticulture, Forestry or Agriculture, all of whom had personal experience relating to the tree being sold by Respondent. As stated in the Initial Decision, "A striking and somewhat unusual feature of this proceeding was the great extent of agreement that was present in the testimony of the expert witnesses testifying for both sides." (FF 9 - see Tr. 175).^1/

On the basis of the testimony presented and exhibits received into evidence, it was concluded in the Initial Decision that Respondent makes most, but not all, of the representations alleged, that the representations made are material and that they are false. Accordingly, it was 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 several exceptions to the Initial Decision, each of which is addressed below.

I. Exceptions to Procedural Irregularities And Evidentiary Rulings.

A. The Postal Service Failed to Provide Respondent With A Copy Of Its Expert's Cirriculum Vitae In A Timely Fashion.

On April 11, 1980, the parties were ordered to exchange witness lists, cirriculum vitae for experts and other data. The exchange was to take place on or before April 25, 1980. This date was later extended to April 30, 1980. Complainant did not furnish its data to Respondent by April 30, 1980. The data was furnished to Respondent on May 2, 1980. On the same date Respondent filed a "Motion to Prohibit Expert Testimony By Witness For United States Postal Service." Respondent's motion was denied on May 5, 1980, because Complainant had made a good faith effort to supply the information to Respondent, and Respondent did not show that it was prejudiced by the failure to receive the data on April 30, 1980. At the commencement of the hearing Respondent requested that it be permitted to reserve the right to reassert its motion at such time as it appeared that it was prejudiced by Complainant's failure to timely provide the expert's cirriculum vitae (Tr. 11-12). This request was granted by the presiding Administrative Law Judge (Tr. 120). The matter was not raised again during the hearing and Respondent examined Complainant's expert in some detail (Tr. 17-26, 70-92, 98-100).

In its brief on appeal Respondent argues that it was not afforded adequate time to obtain and study any of the 74 writings listed in the cirriculum vitae of Complainant's expert. It contends that it was precluded from adequately cross-examining the witness and that Respondent was prejudiced thereby. For these reasons Respondent requests that the testimony of Complainant's expert, Dr. Dirr, be stricken from the record.

Complainant's explanation for its failure to provide the curriculum vitae to Respondent within the time allowed was that it was not available even to Complainant and that Complainant provided it to Respondent as soon as it was obtained. Complainant points out that the presiding officer did exclude testimony by Dr. Dirr relating to an article he wrote pertaining to the cold hardiness of the tree because a copy of that article had not previously been made available to Respondent (Tr. 72-77).

The failure to comply with orders appropriately issued by an Administrative Law Judge may, and frequently should, result in the exclusion of evidence or other appropriate sanctions.

However, the determination of whether sanctions should apply requires case by case consideration of the necessity of maintaining an effective and orderly procedure, the desirability of developing a complete record, and any prejudice that may accrue. While in some cases a party's late action could seriously prejudice the ability of the other party to thoroughly and adequately examine an adverse witness, it has not been shown to have done so in this case. A review of the testimony establishes that there is no substantial disagreement between the experts presented by both parties. The testimony of the experts for both parties presents a consistent and mutually supporting description of the characteristics of the tree. In the absence of any diverse opinion with regard to the features of the tree in issue it is concluded that Complainant's two day delay in furnishing the data to Respondent did not prejudice Respondent. Accordingly, Respondent's first exception does not serve as a basis for sustaining its appeal.

B. The Administrative Law Judge Improperly Excluded Photographs And Actual Parts of Trees.

At the hearing Respondent sought to introduce into evidence photographic slides depicting various features and stages of growth of the tree. Complainant objected to their receipt on the basis that they had not been furnished to Complainant in response to its discovery request. The presiding Administrative Law Judge sustained Complainant's objection (Tr. 120-124). In a post hearing motion dated May 20, 1980, Respondent sought to reopen the record to have photographic prints of the excluded slides admitted into evidence. The photographs were enclosed with the motion and retained in the record even though Respondent's motion was denied by an order of the presiding Administrative Law Judge.

Respondent argues that the photographs should have been received into evidence because they were relevant to the matter in issue and their admission could in no way prejudice the position of Complainant. Complainant argues that the ruling at the hearing was correct and consistent with the Judge's ruling which excluded portions of the testimony of Complainant's expert witness because the witness's cirriculum vitae had not been provided to Respondent within the time specified in an order of the presiding Administrative Law Judge.

The photographs have been examined and it is concluded that their inclusion in the record would neither prejudice nor assist the position of either party but would provide a better understanding of the testimony presented. Accordingly, it is concluded that it would be beneficial to have the photographs included in the record. However, it is also concluded that their exclusion by the Administrative Law Judge was an appropriate exercise of discretion which had no effect on the findings and conclusions reached in the Initial Decision.

Respondent also argues in this exception that the presiding Administrative Law Judge erred when he failed to receive into evidence actual blossoms taken from Paulownia tomentosa (Tr. 146, 147). Respondent further contends that it was prepared to introduce sections of tree trunks of different ages but did not do so because of the presiding Administrative Law Judge's ruling on the tree blossoms.

While the basis for the presiding Administrative Law Judge's ruling on the blossoms is not altogether clear, it appears that he concluded that there was no issue which would be served by receipt of the blossoms into evidence (Tr. 146, 147). The issues relating to the blossoms pertain to the length of time and the frequency that the tree produces blossoms. Thus, the presiding Administrative Law Judge correctly excluded the blossoms since they would have no evidentiary value concerning the matters at issue. Since the tree trunk sections were never offered into evidence, it cannot now be persuasively argued that they should have been made a part of the record or that their exclusion serves as a proper basis for an appeal.

C. The Postal Service Was Improperly Permitted To Raise The Issue Of The Aesthetic Value Of Paulownia Tomentosa Although There Was No Suggestion Of This Issue In The Pleadings Or Prehearing Discovery.

In response to questions asked on direct examination, Complainant's expert witness testified without objection that he did not consider the tree to be a desirable home planting (Tr. 50, 51). Respondent argues that this testimony was outside the issues raised in the complaint and that it was prejudiced because it was not prepared to respond. Respondent also contends that the trier of fact was prejudiced by this testimony. The issues addressed in the Initial Decision are those which are raised by the allegations of the Complaint. As Respondent correctly recognizes the aesthetic value of the tree is not an issue raised by the Complaint or one which is addressed in the Findings of Fact and Conclusions of Law of the Initial Decision. Therefore no prejudice to Respondent's case has been shown as the result of this testimony. This exception is therefore without merit.

II. The Failure Of Complainant To Prove The Method Of Propagation Of The Plant Mailed By Respondent Precludes A Finding That A Violation of 39 U.S.C. § 3005 Occurred With Respect To Count III(a).

In Count III(a) of the Complaint Complainant alleges that Respondent misrepresents that the tree in issue will grow 14 feet in the first season and to 23 feet within two years. Respondent correctly points out that Complainant offered no proof as to what was being sold and that the evidence clearly establishes that the growth of the tree differs when grown from seed as opposed to root cutting or stump sprouts. Respondent argues that the record establishes that trees propagated from stump sprouts meet or exceed the advertised growth potential. Respondent's position that stump sprouts will grow to such heights is supported by the record (Tr. 33, 163).

At the commencement of the hearing there was a discussion of the evidence to be introduced as it pertained to the product received in response to Respondent's advertisements. Respondent's Counsel stated:

We are prepared to stipulate that a person who sends money to Oriental Nurseries will receive in return a Paulownia Tomentosa seedling and the instructions for planting (Tr. 6).

At page 7 of the Transcript this offer to stipulate was repeated to which Postal Service Counsel responded:

With Mr. Simons' stipulation that the plant received in response for (sic) an order to (sic) the purchase of it is a Paulownia Tomentosa seedling I don't believe we need to offer the plant itself in evidence (Tr. 9).

This exchange and discussion between Counsel and the presiding Administrative Law Judge establishes that it was understood and agreed that the product being sold by Respondent was a seedling (Tr. 6-9).

The testimony of both Complainant's and Respondent's experts establishes that a normal seedling will grow from 6 to 10 feet the first year, less in succeeding years (Tr. 32, 125, 141, 162, 163, 196, 201). Accordingly the product sold by Respondent will not grow as represented. This exception is therefore without merit.

III. Exceptions to Findings Of Fact.

A. The Postal Service Failed to Meet Its Burden Of Proof Through Its Expert Witness.

Respondent contends that the qualifications of its experts were superior to those of Complainant's expert. Respondent further contends that its experts clearly and unequivocally stated that the claims in the advertisements are true and that their testimony should outweigh that of Complainant's expert. In support of this position Respondent relies primarily on the testimony of its experts set forth at pages 174 and 198 of the transcript.

Complainant argues that the presiding Administrative Law Judge appropriately exercised his discretion in determining how much weight should be given the testimony of the various experts. Complainant further argues that Respondent's evidence pertained to possibilities and not probabilities and that the statements and opinions upon which Respondent relies were overly broad answers given in response to skillfully framed questions.

Respondent is correct when it states that its witnesses testified that the claims made in Respondent's advertising are true. However, this testimony pertained only to isolated and unusual instances (Tr. 162, 163, 168, 196, 199, 201, 202). Other testimony of these same witnesses was in agreement with the testimony of Complainant's expert that growth of the magnitude represented would not be expected from a typical seedling (Tr. 149, 162, 163, 196, 201 also see Tr. 128, 148, 150, 155, 164, 165, 167, 170, 197, 198, 202, 203). The conclusions reached in the Initial Decision were properly based on evidence regarding the typical growth of the seedlings being sold and not isolated and unusual growth of seedlings. Accordingly, this exception is without merit.

B. Exceptions Regarding Paragraph III(a) Of The Complaint.

Respondent argues that the Initial Decision failed to give appropriate consideration to the limiting words "up to" in its advertising and therefore that it does not make the representation alleged in paragraph III(a) of the Complaint. In the alternative, Respondent argues that it is undisputed that the tree is an exceptionally fast growing tree that reaches unusual heights in a short period of time, that such growth would substantially satisfy purchasers and that any variance between represented and actual growth is mere puffing, not misrepresentation.

Complainant responds to these arguments stating:

First, whether the customers are satisfied or not is not relevant to liability in a § 3005 proceeding. Farley v. Heininger, 106 F.2d 79, 84 (D.C. Cir. 1939).^2/ See also Durland v. United States, 161 U.S. 306, 315 (1896). Second a 10 foot tall tree is not what Respondent represented. The Presiding Officer in Weider Distributors, Inc., P.S. 3/27 (1974) at 7, interpreted the words of limitation 'up to':

"The words 'up to' are deceptive. The person who is interested in losing weight will glide over these words consciously or otherwise, and what will catch his eye will be the higher weight losses that are promised. And, of course, the entire tenor of this ad is that persons who are taking this product will enjoy a striking loss of weight."

The Judicial Officer in Weider also stated that it is not unusual to read a claim of weight loss 'up to 14 pounds' as conveying to the public that a loss of 14 pounds would be achieved. P.S. 3/27 (1974) at 3. In Peak Laboratories, supra, the court held that the Judicial Officer correctly found for the Postal Service in light of expert testimony by both sides that Respondent's 'Fat-Off' product will not reduce body cholesterol by as much as 30% as represented in the advertisements. See also Inso-tensor Plan, P.S. 3/30 (1975). Third, even if some customers would read the words 'up to' as expressing the outer limit of Paulownia's growth, the purpose of § 3005(a) is to protect the public generally, including the gullible, the stupid and the unwary. N. Van Dyne Advertising Agency v. United States Postal Service, 371 S. Supp. 1373 (S.D.N.Y. 1974); Gottlieb v. Schaffer, 141 F.Supp. 7 (S.D.N.Y. 1956); Charles of the Ritz v. Federal Trade Commission, 143 F.2d 676, 679 (2d Cir. 1044). (Complainant's Reply Brief pages 10, 11) Complainant's argument accurately states the law applicable to Respondent's arguments.

Respondent also contends that this and other representations challenged by Complainant are mere puffing and not material. Therefore, Respondent argues that they are not a proper basis for issuing a mail stop order. The presiding Administrative Law Judge found that the representations he found to be made were material (ID COL 5). It is well established that it is properly within the province of the Administrative Law Judges and Judicial Officer of the Postal Service to determine whether representations are material. Standard Research Labs, P.S. Docket Nos. 7/78, 7/86 (P.S. Decision 1980) and the decisions cited therein. A review of the record establishes that this and the other representations found to have been made are material. Rather than puffing, they specifically pertain to unusual features of the tree and obviously are intended to serve as an inducement to purchase. Accordingly, the presiding Administrative Law Judge's findings in this regard were correct.

It is concluded that this exception is without merit.

C. Exceptions To Findings Regarding Paragraph III(b) Of The Complaint.

Paragraph III(b) of the Complaint pertains to the representations in the advertising with regard to leaf size. It is undisputed that it is not unusual for the leaves of immature trees to be 2 1/2 feet across (Tr. 44, 164, 165, 167, 198, 202). It is also undisputed that as the tree matures the leaves become smaller, those of trees several years old being from 5 to 12 inches long (Tr. 27, 43, 128, 165, 203). Respondent succintly sets forth this factual agreement in its brief stating:

Therefore, there is no misrepresentation as to the leaf size insofar as the young tree is concerned, and the witnesses agree that on the mature tree, leaf size is smaller than on the young tree, from 5 to 12 inches long. (Respondent's Brief on Appeal page 30).

Accordingly, the only issue is whether the advertising misrepresents leaves on the mature tree.

Respondent argues that the drawing of the tree in the advertising shows a tree approximately four times the size of the man in the picture or, assuming a 6 foot man, a tree approximately 24 feet in height. Respondent points out that the leaves depicted on the tree are approximately the same size as the man's head and therefore, obviously represent leaves of approximately 10 to 12 inches in size, not 2 to 3 feet. Thus, Respondent argues:

The reader who seeks a curiosity or conversation piece is informed by the language of the ad that he can expect leaves up to 2 1/2 feet across. However, the fact that the picture in the ad shows a mature tree with much smaller leaves serves as a warning that this curiosity will be a temporary phenomenon." (Respondent's Brief on Appeal page 31).

The facts upon which Respondent bases its argument are correct. However, it is well established that factual statements and pictorial representations may, depending upon their manner of presentation, be as misleading as representations which are false. Donaldson v. Reed, 333 U.S. 178 (1948); Gottlieb v. Schaffer, 141 F.Supp. 7 (S.D.N.Y. 1956). Respondent's argument acknowledges that individuals may purchase the tree as a curiosity or conversation piece because of its large leaves. It is doubtful that the ordinary reader would perform the mathematical analysis necessary to conclude that the pictorial representation is in conflict with the specifically stated "2 1/2 feet" size of leaves stated in the advertising text. Even if such an analysis were made, it is reasonable to conclude that the reader would assume that the drawing was not to scale. There is nothing in the advertising which reasonably alerts the reader, regardless of how carefully the advertisement is scrutinized, to the fact that the leaves of mature trees are substantially smaller than those of immature trees. Accordingly, this exception is without merit.

E. Exceptions Regarding Paragraph III(d) Of The Complaint.

In paragraph III(d) of the Complaint it is alleged that Respondent represents that its tree will "produce flowers once each in spring and summer." In the Initial Decision it was found that Respondent makes the representation alleged in paragraph III(d). In this regard the Initial Decision states in Finding of Fact 4:

Charge III(d) of the Complaint is that the Chinese Empress will produce once each in spring and summer. This representation is made in the language of the second part of the sentence from the advertisement which was quoted in connection with charge III(c).

The meaning of the language of this portion of the advertisement is perfectly clear, namely that under normal circumstances, there will be bouquets of delicate flowers both in the spring and in the summer of each year. Therefore, this representation is made by Respondent. (FF 4, p. 6)

Respondent challenges the finding that its advertising represents there would be two separate periods of bloom in a year.

The language of Respondent's advertisement which served as the basis for the finding in the Initial Decision is:

The CHINESE EMPRESS tree not only drapes it's branches with lush green foliage from Easter to Labor Day...but smothers itself with brilliant bouquets of delicate flowers in Spring and Summer.

Respondent contends that the plainest interpretation of this language is "that a single flowering will occur and that such a flowering may extend from Spring into Summer." Complainant counters Respondent's position stating:

...It is not necessary, as argued by Respondent, to insert the adverbal phrase 'again in' or 'once each in' in between 'spring' and 'summer' in order to convey the idea of two separate bloomings. The mere mentioning of two seasons, spring and summer, is enough to leave the ordinary reader to infer that the Paulownia blooms twice each year.

The language of Respondent's advertising "but smothers itself with brilliant bouquets of delicate flowers in spring and summer" merely by mentioning two seasons would not lead the ordinary reader to infer that Respondent's tree will bloom twice each year. While this language would most likely lead the ordinary reader to believe that flowering would continue throughout the spring and the summer, this is not the charge alleged in the Complaint. Accordingly, it is concluded that the allegation of paragraph III(d) of the Complaint that there would be two separate and distinct periods of blooming, once in the spring and once in the summer, has not been established.

Neither party has challenged the findings in the Initial Decision with respect to paragraph III(c) of the Complaint. However the representation alleged in that paragraph and the language of Respondent's advertising on which it is based is closely related to the representation alleged in paragraph III(d). In view of the conclusion that the Initial Decision erroneously found that the representation alleged in paragraph III(d) is made in Respondent's advertising, it is appropriate to consider the representation in paragraph III(c).

In paragraph III(c) of the Complaint it is alleged that the "FLOWERING 'CHINESE EMPRESS' or Paulownia tomentosa ... (c) will produce flowers throughout the spring and summer." With regard to this allegation it was found in the Initial Decision: Allegation (c) is that the Respondent represents that the Paulownia Tomentosa will produce flowers throughout spring and summer. This charge apparently is based on language appearing in the right-hand column, second paragraph, as follows:

"but it smothers itself with brilliant BOUQUETS OF DELICATE FLOWERS in Spring and Summer."

The language in the first part of the same sentence to the effect that the Chinese Empress produces 'lush green foliage from EASTER TO LABOR DAY' is so obviously related to leaves as opposed to blossoms and flowers that one must conclude that the first part of the sentence clearly does not form the basis for the charge in paragraph III(c) of the Complaint.

It is unrealistic to expect anyone to believe that any plant would be smothered with bouquets of delicate flowers throughout the entire spring and summer of the year. The emphasis on the presence in the tree of the lush green foliage from Easter to Labor Day is inconsistent with the presence on that same tree of bouquets of delicate flowers for that same extended period of time.

Therefore, I find that the charge set forth in paragraph III(c) of the Complaint is overbroad in its scope and I find that the Respondent does not make that representation. (FOF 4, pp 5 & 6)

The language of Respondent's advertisement clearly and unequivocally states that its trees will be smothered with flowers throughout the spring and summer. Although it may be unrealistic to expect that most trees would be smothered with bouquets of delicate flowers throughout the entire spring and summer, nonetheless that is exactly what is represented. Moreover even though the combination of lush green foliage and delicate flowers over the same extended period of time may not appear consistent, it is what is represented in Respondent's advertising. In view of such representations and the representation that the tree possesses unusual characteristics it cannot be concluded that ordinary minds would not believe that Respondent's tree will produce flowers throughout spring and summer. See Gottlieb v. Schaffer, 141 F.Supp. 7 (S.D.N.Y. 1956); Charles of the Ritz v. F.T.C., 143 F.2d 676 (2d Cir. 1944). Thus it is concluded that Respondent makes the representation alleged in paragraph III(c) of the Complaint. Because the evidence establishes the actual blooming period for the Paulownia tomentosa is relatively short, approximately two weeks, (Tr. 27, 43, 147-48) it is also concluded that representation III(c) of the Complaint is false.

Accordingly, Respondent's exception with regard to paragraph III(d) is sustained. However, the representation alleged in paragraph III(c) is found to be made and to be false.

COMPLAINANT'S EXCEPTION

In the Initial Decision it was held that Respondent's advertising does not make the representation alleged in paragraph III(e) of the Complaint (FF4). Paragraph III(e) alleges that the Paulownia tomentosa "will thrive in climates with temperatures as low as 25 degrees below zero." Complainant contends that the finding in the Initial Decision that this representation is not made in Respondent's advertising is in error.

The basis for the holding in the Initial Decision is stated in Finding of Fact 4 as follows:

The last charge set forth in paragraph III of the Complaint is in subparagraph (e) to the effect that the Chinese Empress will thrive in climates with temperatures as low asd 25 degrees below zero. The language of this charge is not in conformity with the plain language of the advertisement. The charge goes beyond what the Respondent represents. The way the charge is stated causes it to convey the idea that the plant will thrive in areas where there frequently or regularly is temperature as low as 25 degrees below zero for a lengthy and extended period of time. The language actually used by the Respondent in Appendix A reads as follows:

"The amazing 'CHINESE EMPRESS' even thrives in shaded or sheltered areas...in climates where temperatures can drop as low as 25 degrees below zero."

The actual language of this advertisement on this point suggests that such an occurrence as a drop in the temperature as low as 25 degrees below zero is an occurrence that happens quickly; is probably of short duration; and probably does not occur with great frequency.

I find that the Respondent does not make the representation which is set forth in paragraph III(e) of the Complaint.

Complainant argues that the presiding officer did not interpret Respondent's advertisement according to the impression it would create upon persons of ordinary mind. According to Complainant, the Initial Decision improperly reflects a precise reading of "even thrives...in climates where temperatures can drop as low as 25 degrees below zero" with an eye for fine spun distinctions. Respondent, on the other hand, contends that the decision was proper in light of the law and the facts in evidence. Respondent argues that the presiding Administrative Law Judge was not overly liberal or analytic and that the cold-hardiness claim of the advertisement is sufficiently qualified to make even the gullible reader appreciate that there are definite limitations as to the tree's cold hardiness.

The representation upon which the allegation in paragraph III(e) is based in:

The amazing CHINESE EMPRESS even thrives in shaded or sheltered areas...in climates where temperatures can drop as low as 25 degrees below zero.

Paragraph III(e) of the Complaint alleges that Respondent represents that the CHINESE EMPRESS:

Will thrive in climates with temperatures as low as 25 degrees below zero.

A comparison of the language of the advertisement with the allegation of the Complaint leads to the conclusion that the advertisement makes the representation alleged. The impression created by Respondent's advertisement on the ordinary mind is that Respondent's tree will thrive in cold climates where temperatures may be as low as 25 degrees below zero. This is precisely what was alleged in the Complaint. Neither the advertisement nor the allegation addresses the frequency or duration of the occurrence of the temperature reaching 25 degrees below zero.

While Complainant asks that this matter be remanded for a determination of the falsity of this representation, no remand appears necessary since sufficient evidence regarding this allegation has already been presented. It is undisputed that the tree will survive in climates with temperatures as low as 25 degrees below zero (Tr. 46, 162, 197). However, the testimony establishes that the tree will not thrive (grow vigorously or flourish) under such conditions. The expert witnesses agreed that in cold climates the tree would not bloom and that the above ground portion might die, only to resprout in the spring and exhibit its exceptional growth characteristics from the roots and stump of the previous year (Tr. 45, 46, 49, 158, 162, 197).

Accordingly, it is concluded that Respondent does represent that the tree will thrive in climates having temperatures as low as 25 degrees below zero and that this representation is false.

CONCLUSION

After consideration of the entire record and the exceptions of the parties, it is concluded that the Initial Decision was in error in its holding that Respondent makes the representations set forth in paragraph III(d) of the Complaint. It is further concluded that the Initial Decision was in error in its holding that Respondent does not make the representations in paragraphs III(c) and (e) of the Complaint. These representations are made and they are false. It is further concluded that Respondent is engaged in a scheme or device for obtaining money through the mails by means of materially false representations. Accordingly, a remedial order under 39 U.S.C. § 3005 is being issued contemporaneously with this decision.

1/ While Respondent takes issue with this statement, it is clearly supported by the record.

2/ The decision factor...is not whether "any one complains of fraud, or was in fact defrauded", but whether the mails are being used to project a scheme which may result in obtaining money from members of the public by means of false and fraudulent statement.