In the Matter of the Complaint Against

LAKELAND NURSERIES SALES
at Hanover, PA 17331

and

FERNDALE NURSERIES
Post Office Box 98
at Spring Grove, PA 17362

P.S. Docket No. 9/26;
P.S. Docket No. 9/31;

Duvall, William A.

APPEARANCES FOR COMPLAINANT:
Kris tin L. Malmberg, Esq.
James Harbin, Esq.
Hilda Rosenberg, Esq.
Law Department
United States Postal Service
Washington, D.C. 20260

APPEARANCES FOR RESPONDENT:
Ira Zuckerman, Esq.
Susan G. Kaufman, Esq.
Schupak, Rosenfeld, Fischbein,
Bernstein & Tannenhauser
555 Madison Avenue
New York, NY 10022

INITIAL DECISION

The Consumer Protection Division, Law Department, United States Postal Service (Complainant) filed Complaints on August 6, and August 8, 1980, in which it is charged that Lakeland Nurseries Sales, Hanover, PA 17331, and Ferndale Nurseries, Spring Grove, PA 17362 (hereinafter referred to collectively as Respondent) are engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations within the meaning of 39 U. S. Code 3005.

It is alleged that attention is attracted to the scheme by means of advertisements which are calculated to induce readers thereof to remit money or property through the mails.

A copy of an advertisement used by Respondent and said to be typical of those referred to above was attached to the Complaint, and a copy of the advertisement is attached hereto as Appendix A.

In paragraph III of the Complaint it is alleged that by means of such materials and others similar thereto, Respondent represents, directly or indirectly, in substance and effect, whether by affirmative statements, omissions or implication that the "TOPEPERATOE":

(a) Is a single plant that will produce tomatoes, peppers and potatoes;

(b) Will produce at least the size and profusion of tomatoes, peppers and potatoes that would be expected if each vegetable were planted and cultivated separately.

Lastly, it is charged that the aforesaid representations are materially false as a matter of fact.

In its Answer, Respondent denied the allegations in paragraphs I, II, III and IV of the Complaint, but admitted (1) that Respondent advertises its products; and (2) that Exhibit 1 to the Complaint is a copy of a recent advertisement used by Respondent. At the hearing, Respondent orally amended its Answer to include an affirmative defense of estoppel. This defense is based upon a memorandum dated November 27, 1979, to Howard J. Brooks from Allan K. Stoner reporting on unusual vegetables obtained from Lakeland Nurseries Sales. Respondent takes the position that because of the delay in filing the Complaints, Complainant is estopped from bringing this action 10 months after the receipt of the foregoing memorandum. This matter will be discussed later.

FINDINGS OF FACT

1. LAKELAND NURSERIES SALES ("Lakeland"), is located at 340 Poplar Street, Hanover, Pennsylvania (Tr. 105).

2. FERNDALE NURSERIES SALES ("Ferndale") was bought by Lakeland approximately four years ago (Tr. 107). Ferndale is located in Spring Grove, Pennsylvania.

3. Lakeland and Ferndale conduct their nursery business primarily through mail order sales (Tr. 106 and 107). Mail order catalogues are published once each year (Tr. 106).

4. Respondent solicits remittances of money through the mail for its products. (CX 2) ^1/

5. a. The representations alleged in paragraph III of the Complaint are made by Respondent, as shown below in the language of, and a description of, CX 1:

AMAZING GARDENING ACHIEVEMENT]

3 DIFFERENT VARIETIES --

'TOPEPERATOE'*

*pronounced Toe-pep-er-Atoe

Tomatoes..PEPpers..potATOES

--ALL IN ONE SMALL SPACE]]

We've done it again] Now you can grow these three popular vegetables in one economical, space-efficient planting. Plump, juicy tomatoes...crisp, green peppers...savory, full-bodied potatoes...in one single harvest] Garden fresh flavor. Inexpensive, too. A real grow-at-home vegetable market. All you need to grow 6 or more "Topeperatoes".

A-007757E..'Topeperator'...1 for $5.79; 2 for $11.00

b. The illustration of the plan shows the tomatoes and peppers growing above ground and the potatoes are below ground. Even the potato roots appear to become part of the tomato and pepper stems. The tomatoes and peppers appear to be growing on the same vine since, because of the uniformity of the appearance of the foliage, there appears to be only one vine.

c. The name selected by Respondent for its product conveys the impression to the reader that three garden products have been grafted or blended in such a way as to produce all three products from one vine.

d. Furthermore, the illustration of the plant creates the impression that the abundance and size of the produce would be at least equal to that obtained if the individual plants were separately planted and grown. The language of the advertisement --"Plump, juicy tomatoes...crisp, green peppers...savory, full-bodied potatoes *** a real grow-at-home vegetable market ***" --leads one to believe that the size of the harvest and the size of the individual fruit or vegetable will be comparable to the results that would be obtained if the plants were separately planted and grown.

6. a. Dr. Allan K. Stoner testified for Complainant. Dr. Stoner received his bachelor and master degrees at Purdue University and his Ph.D. from the University of Illinois. All of his academic work was in the areas of plant breeding, genetics, and horti culture. He is employed at the Vegetable Laboratory, Agricultural Research Center, United States Department of Agriculture, Beltsville, Maryland.

b. Dr. Stoner has worked in the area of plant breeding, with emphasis on tomatoes and peppers. He is a member of the American Society for Horticultural Science and he has twice been Chairman of that society's Vegetable Breeding and Varieties Committee. For approximately eight years he has been the contact person in the Laboratory for answering questions on home gardening. He has supervised the preparation of, and he has contributed an article on growing fruits and vegetables in home garden situations to, the publication "Yearbook of Agriculture". (Tr. 17-20)

7. a. The requirements for growing any green plant include, first of all, moisture. Next, plants require nutrients which are available to be taken up from the soil. Finally, they require sunlight, which is necessary for photosynthesis. (Tr. 25) When plants are grown in close proximity to each other, there is competition between them for factors necessary for their growth. (Tr. 26, 27)

b. Tomatoes in a home garden should be spaced 18 to 48 inches apart in the row, with the rows being three to six feet apart. Potato pieces should be planted about 9 to 12 inches apart in the row and the rows should be about 30 to 42 inches apart. The spacing for peppers is about the same as that for potatoes, but may be 12 to 24 inches apart in the row, with approximately 18 to 36 inches between the rows. To get larger produce the plants are spaced farther apart.

8. Peppers are considered to be a warm season crop and should be planted only after all danger of frost has passed. Thus, planting time varies with different parts of the country. In the Washington, D.C. area, the planting time for peppers runs approximately from May 15 to June 10. The normal planting dates for tomatoes in this area run approximately from May 7 to June 10. Potatoes, being a cold season plant, can be planted from about March 20 to May 10. The optimum monthly average temperature for the growth of potatoes is 60-65 oF and the optimum monthly average temperature for tomatoes and peppers is about 75oF. (Tr. 27-31)

9. If the three vegetables were planted at the time for planting potatoes, in March, the potatoes would grow and flourish, and the tomatoes and peppers very likely would be killed by frost in this area. If they were planted at about May 10, with proper spacing as described above, the tomato plant is likely to flourish and grow normally, the pepper is not likely to do well. The temperature ranges from the growth of tomatoes and potatoes overlap slightly, but there is no such overlap for peppers and potatoes. The latest time for planting potatoes is earlier than the earliest time for planting peppers. (Tr. 31-33)

10. If three topeperatoe plants were planted and at the same time a tomato plant, a pepper plant and a potato plant were set out and grown under the same conditions, the individual plants would produce the highest yield. (Tr. 34)

11. Soil pH has a marked effect on plant growth. If the pH is out of the optimum for a given plant species, that plant will either not grow at all or it will grow very poorly. The pH range in which tomatoes and peppers will grow is 5.5 to 6.8, with the optimum being about 6.5. The pH range in which potatoes will grow is about 4.8 to 5.6, with the optimum being at about 4.8 to 5.2. If the pH of the soil is in the upper end of the range at which potatoes will grow, a disease called potato scab develops and becomes very serious, even to the point of being a limiting factor in the growth of potatoes. (Tr. 37)

12. If a plant gets less than optimum nutrition and sun, it is weakened and in this situation it is common for the plant not to set fruit. The flowers will develop but they will abort and drop off without fruit set being obtained. Further, even if fruit is set, the size of the fruit is not as great as it would have been if each plant specie were grown by itself. (Tr. 38)

13. In the Laboratory where Dr. Stoner is employed six topeperatoe plants were grown in the summer of 1979. In order to give the product a fair test, every effort was made to follow the specific instructions that accompanied the product. (Tr. 50, 52) Effort was made to provide ideal conditions for the plants in terms of soil fertility, (nutrients were added as indicated by soil test (Tr. 54, 63)), soil moisture (one inch of water per week (Tr. 64)), and soil pH (6.5, Tr. 54). Other vegetables were grown in the same general area, but for different purposes. The plants were started about 4 weeks prior to their being placed in the field (the instructions said 4-6 weeks); they were transplanted to the field on May 7th. Some photographs (CX 4 and 5) were taken of typical plants during the first week of the following June.

14. Dr. Stoner said that one would expect the tomato plants to be in the early stages of flowering, with possibly some very small tomatoes, at best. The pepper plants would not be expected to be flowering. Normally, by June 7 potato plants would have reached half of their expected total size insofar as the above ground vegetative state is concerned, and this vegetation normally could be expected to be 25 inches in diameter. (Tr. 39-43)

15. Insofar as yield was concerned, there were no peppers. The average yield of tomatoes was six per plant and these were small, averaging approximately one inches in diameter. The yield of potatoes was slightly over seven per plant, with the average size being about one and one-half inch to one and three-quarters of an inch in diameter. (Tr. 44) It takes eight tomatoes of 1 1/2 inch diameter to weigh four pounds, and it takes 12 potatoes of 2 inch diameter to weigh four pounds. (Tr. 149)

16. By contrast, an average yield per plant of potatoes in general is about eight to ten pounds per plant. Varieties can affect that figure, as can climatic conditions, the particular season, soil fertility and other factors. Variety of plants and weather conditions could alter the yield by 25 to 50 per cent. The average yield from pepper plants would be about one and one-half to two pounds of fruit per plant. Tomato plants will vary depending on the type of variety, but 10 to 14 pounds of fruit per plant would be an average figure. In general, Dr. Stoner said that there was no yield from the peppers, and in terms of size and numbers of potatoes and tomatoes were not good and they were not as great as he would expect to obtain. (Tr. 44-47)

17. If one knows the nutrient content of the soils he is using at the end of the growing season, but he does not know the nutrient content he started with, it is difficult, at best, to draw conclusions as to what happened in the season with respect to plant growth or production of a given crop. (Tr. 156)

18. The three plants sold by Respondent as a topeperatoe grow to different heights. The tomato plant tends to grow vertically, the pepper plant, even at maximum height, is a relatively small, stocky plant. The potato plant is more of a bushy plant which grows out more horizontally and near the soil surface. As the sun rises in the morning, and as it sets in the afternoon, the three different levels of the plant are exposed to the sun, but there is a significant part of the day when there is some real shading of the two plants, potatoes and peppers, that do not reach the greatest height of the overall planting. A pepper plant, in particular, if it is shaded for four to six hours during the middle part of the day, is adversely affected in its ability to grow. (Tr. 157-159)

19. Although a more controlled test of the topeperatoe could have been performed at the Vegetable Laboratory, that was not the purpose for which the six plantings were grown. The purpose of that exercise was to demonstrate what a home gardener would be likely to experience by following Respondent's instructions. In the same area in which Respondent's product was grown there were also grown cabbage, potatoes, tomatoes, peppers, radishes, beans and other crops, all of which were treated alike in terms of fertility and irrigation. The marglobe tomato, Green Acre cabbage, Red Lasoda potato, and Bell Boy pepper were not grown, but other varieties of these plant species were grown and they produced in a normal manner. (Tr. 171) The overall size of the topeperatoe plants was less than the size of the plants that had been put in an individual site. More importantly, the plants that were grown individually in the garden area produced good, average yields of fruits, both in size and numbers. The potatoes of the topeperatoe were not so far from what might be anticipated as were the yields of the tomatoes and peppers. The size of the potato part of the topeperatoe plant was not so greatly deficient as was the number of tubers produced. (Tr. 177, 178)

20. The opinions expressed by Dr. Stoner are in accord with the consensus of informed scientific opinion. (Tr. 48)

21. Mr. Kenneth Whaley, Godfrey, Illinois, was called as a witness for Respondent. Mr. Whaley is sales manager of an automobile dealership, and he and his wife own and operate the Ken Whaley Farm and Nursery in Godfrey. This Farm and Nursery is registered with the Illinois Department of Agriculture, and it has been in operation for over seven years. Including the home site and various other buildings, the farm and nursery occupy 23 acres of typical fertile Illinois loam soil. (Tr. 73, 74) The excellence of the soil in Illinois for agricultural purposes was noted later. (Tr. 155)

22. Mr. Whaley developed the topeperatoe and there are patents pending on it. Mr. Whaley had worked with peppers, tomatoes, and potatoes and he said that it has been successfully grown. The plant was especially developed for people who have small garden spaces to enable them to grow larger amounts of food in smaller spaces. Mr. Whaley consulted with various seed growers and afterward he looked for vegetables that are hearty, heavy producers and widely used. (Tr. 74-76)

23. The package sold by Respondent includes a package of Marglobe Supreme tomato seedlings and a package of Bell Boy Hybrid pepper seedlings. The Marglobe matures in about 73 days and the Bell Boy Hybrid matures in approximately 70 days. A potato seed cup is prepared by putting a hole through a round potato with a one inch, stainless steel pipe. The potato is then cut into two cups into which the tomato and the pepper seedlings are put after they have reached the height of four to seven inches. The planting is then set so that the tops of the pepper and tomato seedlings are exposed and the potato seed cup is under the surface of the ground. After this has been done, the gardener keeps the dirt pulled up to the plants and keeps them weed-free. (Tr. 77-78) Mr. Whaley prepared planting instructions and circulated them among friends and to some nursery people to see if the instructions were clear. Mr. Whaley also gave out some samples of his packages for people to try. The recipients were asked to report any trouble they encountered in raising the plants, but he received no complaints. (Tr. 89-91)

24. Mr. Whaley identified a series of pictures which he said were taken of topeperatoe plants grown by him on his farm and nursery. The date of the photographs is not certain, but Mr. Whaley identified his daughter in one picture as a sophomore in high school and he stated that as of the date of his testimony his daughter was in her second year of college. (Tr. 82-89; RX B through I) The pictures that were taken in 1980 were taken in the month of August, but the record does not clearly indicate which ones they are.^2/ RX H and I probably would have been taken in July or August. Mr. Whaley said that tomatoes had been taken from the vine shown in at least one of those two pictures, in addition to those shown in the photograph. (RX I) So far as he knew, neither a representative of the University of Illinois nor a county agent had seen topeperatoes growing on his farm. He does not know the pH of the soil and he did not know how much fertilizer he added to the soil in 1980. Of the pictures that were taken in 1980, all were of the same plant. The reason for this was that it was the only one he had in his garden. He stated that the yield he got from the topeperatoe plants was comparable to that obtained from individual plantings by the Vegetable Laboratory at the Department of Agriculture's establish ment at Beltsville, Maryland. He also stated that the yield that he obtained from some of the five other topeperatoes was better than from the one in the photographs because they were farther out in the garden and got more water. It was not explained how it occurred that the other five plants got more water. (Tr. 90-102)

25. Respondent's next witness was Mr. Jack Young, Vice President of Hanover House Industries and Manager, Lakeland Nurseries Sales, a division of Hanover House. Mr. Young has been in the nursery business for over 30 years, having been with Wayside Gardens Company in Menlo, Ohio, for 21 years, with Burpee Seed Company, Philadelphia, PA, for six years, and Hanover House/Lakeland Nurseries, 6 years. In all of these firms he was, as catalogue manager, very much involved with catalogue descriptions and the like. (Tr. 105)

26. Lakeland has been in the nursery business at least 12 years inasmuch as it was acquired as a division of Hanover in 1968. Lake land publishes an annual catalogue and its sales are made primarily by mail order. The catalogues are sent to regular customers and to a mailing list. Lists are exchanged with other nurseries and Lakeland obtains horticulturally related lists. Its sales effort is directed primarily to the individual homeowner and gardener, the customer who wants to put in a little time for pleasure rather than as a task or a full time occupation. Lakeland has sold the topeperatoe for about two years at the rate of about 4,500 per year. (Tr. 106-107)

27. About four years ago Lakeland bought a firm known as Ferndale Nurseries, of Spring Grove, PA. Ferndale has a separate catalogue through which it, also, sells the topeperatoe by mail order on the basis of the same advertisement as the one used by Lakeland. Mr. Young learned of the topeperatoe and the cabatoe from Mr. Whaley, from whom Mr. Young ordered the product. (Tr. 107-108)

28. Respondent called as its last witness, Mr. Robert W. Esch, Edwardsville, Illinois. Mr. Esch's principal occupation is that of pilot of both airplanes and hot air balloons. He has, also, a hor ticultural consulting business. In 1971 he was awarded the B.S. degree in agriculture by the University of Illinois. His major was in ornamental horticulture. Since then he has acquired extensive experience in the nursery field. He went to work shortly after graduation with the Home Nursery Corporation of Edwardsville, an organization with several retail garden centers. He soon became the manager of the company's retail operation. His major function was assisting gardeners with their plant problems. He acted as a troubleshooter, giving people advice on such matters as plant diseases, insects and general growing problems. (Tr. 114-115)

29. Later, Mr. Esch started his own nursery and garden center in which he performed the same functions in addition to the admin istrative and business duties. He did not name any professional societies of which he is a member, but he said that each of the nurseries with which he has been connected was a member of the American Association of Nurserymen, a trade association. Most of his work at the present consists of estimating damages arising out of accidents or losses of trees or in a garden area, but he still gives advice in matters involving plant disease or insects. (Tr. 116-117)

30. Mr. Esch visited Mr. Whaley's farm and nursery approxi mately two and one-half weeks before the hearing began on October 27, 1980. The purpose of the visit was to consider and give an opinion concerning the topeperatoe. He saw what he described as a mature tomato plant with which was growing a pepper plant and both plants looked as one would expect them to look at that time of the year. Some of the vegetables were there, overgrown by foliage which had been damaged by a couple of light frosts. Prior to his testifying Mr. Esch had seen the photographs which had been introduced into evidence in this proceeding. Based upon his seeing the photographs and the plants on Mr. Whaley's farm, it is Mr. Esch's opinion that the combination plant has an excellent chance of producing vegetables of edible size and quality, with very few problems, so long as the area is given normal and proper fertilization by a rational process, keeping the weeds down, and an initial site selection with good, proper sunlight and so forth. (Tr. 118-120)

31. With regard to the yield, Mr. Esch expressed the view that one could expect from the topeperatoe about the same yield in potatoes, tomatoes and peppers that could be expected from separate plantings of the individual species. Commenting on Dr. Stoner's experience and testimony about the viability of the topeperatoe plant, Mr. Esch said, first, that competition exists only when there are not enough nutrients, water and sunlight to support the planting. Shortages will result in the survival of the strongest and the rest will suffer. He said that in the plant or plants that he had seen at the Whaley farm, no evidence of shortage was apparent. The water seemed to be adequate, he said, despite a very dry summer. he unearthed some potatoes which he found to be firm, full and full of water. The foliage seemed to have had a healthy and vigorous growth cycle, and it seemed to have grown with normal distances between the sets of leaves. He added that if the sunlight to the peppers is restricted, the pepper will outgrow the potato foliage. (Tr. 122)

32. Referring to the photograph which is RX H, Mr. Esch said that it shows scarcely any tomato foliage at all, and that the small amount of pepper foliage in the first foot and a half above ground is weak and mild and not of characteristic quality. He said that the reason for this situation is that this is where the potato foliage would be. It is not evident in the photograph because potato foliage does not grow in the part of the year in which Mr. Esch had seen it. He said that the pepper has stretched a little bit and produced an excellent crop of foliage above the level where the potato foliage had been, and it had produced the peppers. The tomato is a vine by nature, he said, and it produces tomatoes on a set of foliage above the peppers. He concluded that there was evidence that sunlight reached all three crops. He summarized by saying that he feels that competition is a very limited factor in this particular planting --all three crops will grow together quite compatibly and they will produce excellent crops. If adequate sunlight, water and nutrients for all are provided, and that can readily be done, each plant will receive its necessary amount of all ingredients. (Tr. 120-123)

33. Mr. Esch took two soil samples, one from underneath the root structure of the topeperatoe, and the other from the edge of the garden but in good garden soil and about six feet away from any growing plant. The pH level of the soil sample from under the plant was 7.4 while that of the other sample was 7.3. He stated that if the growth of the plant were to affect the pH level, that fact would be reflected in the tests of the samples he took. Tests for phosphorous and potassium showed results well above the minimum levels required for plant fertilization. There was, therefore, in his view, no excessive nutrient drain because of the planting of the three plants in one site. Similarly, he said that the fact that the plants were grown in soil having a pH level higher than the optimum for each plant produced no deleterious results. In particular, the potatoes were unaffected and there was no evidence of potato scab. (Tr. 124-127)

34. While there are optimum planting times for particular plants, it is not inconceivable, and Mr. Esch said that it is commonly done, that tomatoes, potatoes and peppers are planted at roughly the same time of the year. With proper cultivation such plants will grow and produce. (Tr. 128)

35. Mr. Esch stated, also, that he did not know from the testimony of Dr. Stoner what the pH or the nutrient levels of the soil were at the time of the planting of the topeperatoes at the Vegetable Laboratory. He said that he did not know, either, if the chemicals were produced uniformly, if the equipment was properly calibrated or if the technicians who applied the nutrients did so carefully and in a workmanlike manner. He did not know what the soil conditions were during the growing time and he had no explana- tion as to why the plants shown in CX 4 and 5 did not continue to grow and to produce good crops. They had a good start and they seemed to be growing well in the pictures, but he was at a loss to explain the failure of the plantings to prosper. Mr. Esch said that it is not usual experimental technique to grow test plants without using a control group. He said that there was no way of knowing what the tomato, pepper and potato components of the topeperatoe would have done if each of these components had been planted separately. He stated that such a control might have shown that any particular one of the three plants was not growable. (Tr. 129-130)

36. Mr. Esch testified that it is good practice to weed a garden in order to eliminate competition among younger plants. (Tr. 131) If the plants which are the components of the topeperatoe are planted together they grow to different heights. He said, however, that if they are staked as stated and as generally grown, the top one will not shade the middle one and the top two will not shade the bottom one. This is so, according to Mr. Esch, because the sunlight comes at the plants from the side, if goes over the top and comes at them again from the other side. Although plants will grow on a wide range of pH, the closer the pH gets to the edge of the range the less well the plants will do. They will perform satisfactorily within the center of the range. His statement that there was no excessive nutrient damage was based on the tests of the two samples of soil that he took on the occasion of his visit. However, no samples were taken at the beginning of the summer which could be compared with the tests taken at the time of Mr. Esch's visit. He did not know how much fertilizer was used. He observed the total yield of potatoes, but he did not observe, and therefore could not state the total yield of the tomato and pepper plants. The fact that a plant has good foliage does not necessarily mean that it has had, or will have, good production. Mr. Esch had never grown the topeperatoe. He did not know at what time of the year those he saw at Mr. Whaley's farm were planted. He stated that the growth of a plant during a season will in some conditions affect the pH because the roots of certain plants will secrete an acid that sometimes will change the pH. He was unable to state as to which plants this would be true. (Tr. 132-134)

37. Mr. Esch stated that the opinions expressed by him are generally accepted by people in the horticultural field. He based this statement on a number of factors including his education, his professional training and his business experience. He said that he consults quite heavily with the Crawford Extension Service, which is a Division of the University of Illinois, Edwardsville, Illinois. In the next sentence, however, he said that not very much of his time is spent in consulting; perhaps two or three cases a year consuming maybe a week or two, depending on the size (of what, he did not say). Next, he said that he has done a considerable amount of consulting work in the past and that he does it on a continuing basis, and that he keeps his education up to date for that reason. There are no feeding instructions that come with the kit, so the feeding method and substance are up to the judgment of the individual gardener. The average home gardener is not going to have the soil of his garden plot tested for the pH level. However, there is for sale at most garden centers for less than five dollars a kit which one can use to determine the pH level. On the other hand, most people do not know the results of the test, or understand what it means, and therefore, the test is not commonly done. However, unless something is done to the soil excessively, if grass and weeds grow there, plants probably will grow, too, with fertilizer, but the average homeowner would not know the proper balance of fertilizer to use. Commercially prepared fertilizer should help the amateur to grow vegetables, but fertilizer will not be of help with problems of inadequate water, sunlight and weeding, and this statement would be true with respect to any kind of plant - not just the topeperatoe. (Tr. 135-140)

DISCUSSION

While Mr. Esch appeared to be rather well informed on the subject of gardening, there are some disturbing inconsistencies in his testimony which must be examined. Some of these are now discussed.

Mr. Esch was, in general, critical of the planting and care given the topeperatoe at the Vegetable Laboratory at Beltsville, Maryland. But Mr. Esch said that the average gardener would be successful in growing these plant species separately, even though they frequently are planted at the same time of the year. Success will be the product of proper cultivation, including hoeing, watering and so forth. Then, he said that he did not know (1) the pH and nutrient levels at the Vegetable Laboratory, (2) whether the chemicals were properly produced and if the equipment was properly calibrated, or (3) if the technicians applied the nutrients in a workmanlike manner.

The basis for the foregoing claimed lack of knowledge is unknown in view of Dr. Stoner's statements, while Mr. Esch was present, that (1) within existing time constraints the indoor and outdoor plantings took place as nearly as possible to the optimum times (Tr. 52); (2) prior to planting, the pH of the soil was measured at, or brought to 6.5, the optimum level for tomatoes and peppers (Tr. 54); (3) the nutrient level was determined by a soil test and a balanced fertilizer was produced by compounding the proper mixture of nitrogen, phosphorus and potassium (Tr. 54, 55); (4) Respondent's planting instructions, including staking the plants, were followed; (5) the amount of sunlight was "whatever God provided" (Tr. 56); (6) the whole garden area in which the topeperatoe and other plants were grown was uniformly irrigated, when necessary, to provide the equivalent of one inch of rainfall per week (Tr. 56, 64). If, as Mr. Esch suggests, the watering, feeding and cultivation of the topeperatoe were improperly, inexpertly or carelessly performed, what, then, is Respondent's explanation of the fact that the garden vegetables planted in the same plot, and subjected to the same conditions, prospered and produced normally as they were expected to do?

Mr. Esch was critical of the fact that no topeperatoe plant was divided into its three components and planted, individually, at the same time the three plants, combined, were planted. He said that such individual planting of the three components would provide a control group with which to compare the growth of topeperatoe. (Tr. 130)

Dr. Stoner said that the wide range of probably as much as 15 or 20 plant species of vegetables, including tomatoes, peppers and potatoes, that would commonly be grown in a home garden and which were grown in the same plot as the topeperatoe provided a control group. (Tr. 55)

Mr. Esch stated, also, that planting each of the three components of topeperatoe separately might show that one or more of them could not be grown at all. (Tr. 130-131)

The above statement may be true, but that statement does little to enhance the reputation of the topeperatoe as a plant which will produce "Plump, juicy tomatoes...crisp, green peppers...savory, full bodied potatoes...in one single harvest]"

Although Mr. Esch was, as pointed out above, critical of the methods and procedures employed by Vegetable Laboratory of the Department of Agriculture, he later said that the average home gardener is not going to have the pH level of his garden tested (Tr. 137); that he will not be bothered to observe the optimum planting dates (Tr. 127); and that he will not know the proper balance of fertilizer to use (Tr. 139). Nevertheless, Mr. Esch stated that the average gardener, if he properly cultivates the plants, can successfully grow the topeperatoe. (Tr. 128)

Mr. Esch stated that while plants will grow on a wide range of pH, the closer the pH gets to the edge of the range the less well the plants will grown and produce. He added that plants will perform satisfactorily close to the center of the range. (Tr. 132) This testimony accords with that of Dr. Stoner. (F.F. 11) Yet, Mr. Esch glowingly described the plant he saw on the Whaley farm, which he determined to be set in soil with a pH of 7.4, which far exceeds the top of the range for potatoes, tomatoes and peppers. (F.F. 30, 31, 33) He offered no explanation for this anomaly.

The testimony of Mr. Esch was based on his viewing the one plant on his one visit to Mr. Whaley's farm and on two soil tests. Since Mr. Whaley did not know the pH of the soil, or the amount of fertilizer he added to it, Mr. Esch could not have known what conditions existed at the time of planting, the condition of the soil during the growth period, or the kind, quality and amount of nutrients. In addition, he did not see the yield of the individual components of the plant. In short, the basis of his testimony was less firm than that of Dr. Stoner, and his testimony is, therefore, not entitled to be given much weight.

THE AFFIRMATIVE DEFENSE

Respondent pointed out on the first day of the hearing that Complainant had received probably on a day in November, 1979, a memorandum (RX A) dated November 27, 1979 from Dr. Allan K. Stoner to Howard J. Brooks, NPS, and captioned "Report on Unusual Vegetables Obtained from Lakeland Nurseries Sales." In the memorandum there was a comment about the unsatisfactory yield obtained from the topeperatoe.

Respondent referred to the fact that the complaints in these proceedings were not filed until August 1980, or ten months later.

Respondent stated that if the situation presented in these cases is so serious, Complainant should have filed the complaints in November, 1979, and not waited the ten months. Respondent's position is that the delay in filing the complaints estops the Complainant from bringing this proceeding.

Respondent relies on Allen & Co. v. Occidental Petroleum Corp., 382 F. Supp. 1052, (SDNY, 1974), aff'd. 519 F.2d 788 (2d Cir., 1975), wherein the court stated at 382 F. Supp. 1063:

"Silence under such circumstances when, according to the ordinary experience and habits of men, one would naturally speak if he did not consent, is evidence from which assent may be inferred. Where a plaintiff, with knowledge of the relevant facts, acquiesces for an unreasonable length of time in the assertion of a right adverse to its own, the court may presume assent to the adverse right, and the consequent waiver of the right sought to be enforced." (Emphasis added by Respondent).

The Allen & Co. case was one between private parties in which different considerations govern than in a proceeding in which the United States Government is a party. Concerning the latter situation, Professor Davis had the following to say:

"When the government is not merely a contractor, and when its interest is a public interest involving the execution of a policy in which the public is thought to have a stake, the notion that the govern- ment may not be estopped may often be soundly applied."

Davis, Administrative Law Treatise, 1958, § 17.04, pp. 511-512.

Some decisions in which the above sentiment is variously expressed are the following:

1. "I therefore find *** assuming that an estoppel can be worked against the United States, where, as here, a substantial public interest is involved, that there were no facts here warranting its application." Institute for Weight Control, Inc. v. Klassen, 348 F. Supp. 1304, 1315 (1972).

2. "As a general rule laches or neglect of duty on the part of officers of the Government is no defense to a suit by it to enforce a public right or protect a public interest." Utah Power & Light Co. v. U.S., 243 U.S. 389, 409 (1961)

3. "Section 706 of 5 U.S. Code limits judicial review of agency action and, in the absence of some other limitations provision, empowers federal courts only to 'compel agency action unlawfully withheld or unreasonably delayed.' Here the employer seeks a nullification of the agency action, not a court order compelling such action. Moreover, even were we to assume that this provision creates mandatory duties on administrative agencies sufficient to set aside agency action as unlawful if 'unreasonably delayed,' § 706 further requires that the reviewing court shall take due account 'of the rule of prejudicial error.' We read that Congressional mandate to require a showing of prejudice before agency action can be set aside for its lack of punctuality. Here no such showing of prejudice has been made." CHROMCRAFT CORP. v. UNITED STATES EQUAL EMP. OP. COM'N., 465 F.2d 745 (1972)

4. See, also, Irish v. Securities and Exchange Comm'n., 367 F.2d 637 (1966); Matter of Parker Publishing Company, Inc., P.S. Docket No. 1/84, P.S. Dec. June 7, 1974, pp. 7-8).

CONCLUSIONS OF LAW

1. Respondent solicits remittances of money through the mail to the names and addresses shown in the caption hereof for a plant called TOPEPERATOE.

2. An advertisement is to be considered as a whole and the meaning is to be determined in light of the probable impact of the entire advertisement on the person of ordinary mind. Donaldson v. Read Magazine, 333 U.S. 178 (1948); Peak Laboratories, Inc. v. United States Postal Service, 556 F.2d 1387, 1389 (5th Cir., 1977); Unique Ideas, Inc. v. United States Postal Service, 416 F. Supp. 1141, 1145 (S.D.N.Y., 1976). Based upon the foregoing criterion, Respondent makes the representations set forth in paragraph III of the Complaint.

3. Persons of ordinary mind reading Respondent's advertisements would interpret them substantially as characterized in paragraph III of the Complaint.

4. The representations found to have been made by Respondent are material representations because they are of the kind and character which would be calculated to persuade readers to order and pay for Respondent's product.

5. Because of the irreconcilable inconsistencies in the testimony of Respondent's expert and principal witness, Mr. Esch, the testimony of the Complainant's witness is accepted as the more reliable and credible and, therefore, as providing a sound basis for a decision in this case.

6. For the reasons stated in conclusion of law number 5, and based on the record as a whole, the material representations heretofore found to have been made by Respondent in its advertising material are false. The lack of candor in Respondent's advertising material falls far short of the standard expressed by the Supreme Court in United States v. 45 Barrels of Vinegar. 265 U.S. 438, 443 (1924) when it said: "It is not difficult to choose statements, designs, and devices which will not deceive." (See, also, Virginia State Board of Pharmacy, et al. v. Virginia Citizens Consumer Council, Inc., et al., 425 U.S. 748, 771, fn. 24 (1976))

7. The falsity of Respondent's representations has been established by the preponderance of the competent, credible evidence.

8. Respondent is engaged in conducting a scheme or device for obtaining money or property through the mails by means of false, material representations within the meaning of 39 J.S. Code 3005.

9. An order of the type authorized by Section 3005 of Title 39, United States Code, substantially in the form attached, should be issued against Lakeland Nurseries Sales and Ferndale Nurseries at the respective addresses shown in the caption.

Proposed findings of fact and conclusions of law submitted by the parties have been fully considered, and to the extent indicated herein, they have been adopted. Otherwise, such proposed findings of fact and conclusions of law are rejected for the reason that they are unsupported by or contrary to the evidence or because of their immateriality or irrelevance.

1/ The letters "CX" and "RX" are used, respectively, to designate exhibits of the Complainant and the Respondent. The exhibits introduced by both parties are identified in Appendix B. Only one set of some exhibits was introduced. Hence CX 4, 5 and 6 in Doc. No. 9/26 and RX A through I are listed for both cases.

2/ Certain indications lead to the belief that RX B through G were made in 1980. (Tr. 101)