In the Matter of the Complaint Against

LAKELAND NURSERIES SALES
at Hanover, PA 17331

P.S. Docket No. 9/27;

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 a Complaint on August 6, 1980, in which it is charged that Lakeland Nurseries Sales, Hanover, PA, (Respondent) is 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 "CABATOE":

(a) Is a single plant that will produce simultaneously potatoes and cabbage;

(b) Will produce at least the size and, as to potatoes, the profusion of vegetables that would be expected if the potatoes and cabbage were each 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 paragraph I of the Complaint, but admitted (1) that Respondent advertises its products and (2) Respondent asserted that the Complainant failed to annex a copy of a recent advertisement typical of those referred to in paragraph I, and Respondent denied the allegations contained in paragraphs III and IV of the Complaint. 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 Complaint, 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. 38).

2. Lakeland conducts its nursery business primarily through mail order sales (Tr. 39 and 40). Mail order catalogues are published once each year (Tr. 39)

3. Respondent solicits remittances of money through the mail for its products. (CX 2)

4. 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:

It's New] It's Novel]

It's a LAKELAND EXCLUSIVE]

BE THE FIRST TO GROW

CABATOES

An Amazing Horticultural Achievement]

DELICIOUS CABBAGE ABOVE AND POTATOES

BELOW GROUND IN THE SPACE OF ONE PLANTING

Impossible? Heck no] Not for Lakeland . . . We meet the mini space age challenge--prolifically] Imagine, in one planting, crispy green cabbage flourishing above as loads of potatoes grow below the ground. Both in one tiny spot in your garden. Astound neighbors and friends by harvesting crop after crop of these two most wanted vegetables for plenty of good family eating. Beautiful enough to grow right in your

flower garden too] OBTAINABLE FROM NO OTHER SOURCE--AVAILABLE AT LAKELAND ONLY] Supply is

limited though--So order now]

E-007351E--Set of 6 Cabatoes.......Only $5.25

2 Sets for $9.95

b. The illustration of the plant shows the cabbage growing above ground and the potatoes are below ground. Even the potato roots appear to become part of the cabbage plant. Unless one is expert or at least partially informed in such matters, the cabbage and potatoes appear to be growing on the same vine since, because of the similarity 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 the two garden products have been grafted or blended in such a way as to produce both products from one plant.

d. 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 --"We meet the mini space age challenge--prolifically] Imagine, in one planting, crispy green cabbage flourishing above as loads of potatoes grow below the ground." --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.

5.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 horticul ture. 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. 4-7)

6. 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, and carbon dioxide. (Tr. 8) When plants are grown in close proximity to each other, there is competition between them for the elements necessary for their growth. (Tr. 8-9)

b. Cabbage plants are normally grown in spacings of from 12 to 24 inches in the row, with rows being from 2 to 3 feet apart. Potato pieces would be spaced, normally, 9 to 12 inches apart within the row, with the rows being 30 to 42 inches apart. The size of vegetables that one attempts to grow can be affected by the spacing between plants or by the total amount of soil area available to any one plant. Too close spacing of plants causes competition between plants for nutrients, and the competition, in turn, can produce results ranging from prevention of growth of one of the plants to a general stunting or weakening of the plants. (Tr. 9) There would be less yield per plant than if they were growing in a healthy condition. (Tr. 15)

c. A cabbage plant produces one head of cabbage per year. Similarly, there is a single harvest made off a given potato plant per year. (Tr. 11) New, or immature, potatoes can be harvested and later the fully grown potatoes can be gathered, but the harvesting of the new potatoes will not stimulate the growth of additional tubers. (Tr. 32)

d. Soil pH affects plant growth, and different species of plants have different requirements for soil pH, or soil acidity. The "Instructions for Cabatoe" accompanying the shipment of the plant contain no instructions with regard to soil pH. The pH range in which cabbage plants will grow and thrive is between 6.0 and 6.8, and the corresponding figures for the potato are 4.8 to 5.4, or possibly 5.6. (Tr. 12-13)

7. If six cabatoe plants were planted and at the same time six cabbage plants and six potato plants were set out, and if all were grown under the same conditions, the individual plants would produce the highest yield. (Tr. 13-14)

8. In the Laboratory where Dr. Stoner is employed six cabatoe plants were grown in the summer of 1979. (Tr. 17-18) In order to give the product a fair test, every effort was made to follow the specific instructions that accompanied the product. (Tr. 17) Effort was made to provide ideal conditions for the plants in terms of soil fertility, (nutrients were added as indicated by soil test (Tr. 17, 28), soil moisture (one inch of water per week (Tr. 28), and soil pH (Tr. 17)). The instructions accompanying the kit contained no information relative to the kind or amount of fertilizer to use, or any information as to how to determine the proper balance of the components of the fertilizer. (CX 3) Other vegetables were grown in the same general area, but for different purposes. (Tr. 24) The plants were started about 3 weeks and 6 days prior to their being placed in the field (instructions said 4-6 weeks) and they were transplanted to the field on May 7th. (Tr. 22, 23) Some photographs (e.g. CX 5) were taken of typical plants during the first week of the following June. (Tr. 20)

9. The average yield from one cabbage plant would be one head with an average diameter of 8 inches and weighing about two pounds. The average yield one would expect from a potato plant growing under the same conditions would be about 8 to 10 pounds of tubers per plant. (Tr. 18-19) One can harvest new potatoes early, and mature potatoes later in the season, but there is only one set of tubers per plant, per season.

10. The yield of each of the six cabatoe plants set out was one cabbage head from each, and these measured approximately 4 inches in diameter. The yield of the potato plant was approximately 8 per plant and the diameter of each tuber was about 2 inches. Thus, the yield obtained from the six plants was somewhat less than would be expected if six single cabbage plants and six single potato plants of the same varieties as are present in cabatoe had been planted. (Tr. 18)

11. Since the soil pH where the cabatoe was grown was 6.5, the potatoes did not grow and thrive as they normally would -even if they had been planted individually. If the pH had been as high as 7.1 the potatoes might be expected to develop a disease called potato scab. (Tr. 25-26) Dr. Stoner did not recall seeing this disease on potatoes grown in the field in which the pH was 6.5. (Tr. 26)

12. Both cabbage and potato plants are considered to be extremely heavy feeders in terms of the nutrients that they extract from the soil during a season. When they are grown together, if it is assumed that they are to produce as much as when they are grown separately, the soil has to be fertilized to almost twice the extent that would be necessary if they were grown separately. The best soils in the United States are found in the area which includes Illinois. The soils there are very fertile, they have a high percentage of organic matter and they are very deep. There is a greater reserve of nutrients in the soil of Illinois, and in this respect it far surpasses the soil in the Beltsville, Maryland area.

Therefore, to fertilize for a normal crop requires a sufficient amount to build the soil to a point where it will sustain normal growth. If, as here, two plants are placed at one site, almost double the original amount would be required. (Tr. 78-86)

13. If one had a choice to take soil samples either before planting of during growing season or after harvest, it would be far more meaningful to have a soil sample prior to planting. A soil sample taken after the season, since there is nothing to compare it with, provides no basis for a conclusion. (Tr. 87)

14. The opinions expressed by Dr. Stoner are in accord with the consensus of informed scientific opinion. (Tr. 22)

15. A witness for Respondent 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/Lakeland Nurseries, 6 years. In all of these firms he was, as catalogue manager, very much involved with catalogue descriptions and the like. (Tr. 38)

16. Lakeland has been in the nursery business at least 12 years inasmuch as it was acquired as a division of Hanover in 1968. Lakeland publishes an annual catalog 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 cabatoe for about two years at the rate of about 2,500 to 3,000 per yeat. (Tr. 39-40)

17. Mr. Kenneth Whaley, Godfrey, Illinois, was called as a witness for Respondent. Mr. Whaley is sales manager of an auto- mobile dealership, and he and his wife own and operate the Ken Whaley Farm and Nursery in Godfrey. This Fram 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. 48-49) The excellence of the soil in Illinois for agricultural purposes was noted earlier. (Tr. 83)

18. Mr. Whaley developed the cabatoe, and there is a patent pending on it. (Tr. 58) He had worked with potatoes and he said that the cabbage seemed to work so well with potatoes that they just seemed to go together. 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 George W. Park Seed Company, in Minnesota, and explained that he wanted vegetables that are hearty, heavy producers and widely used. (Tr. 49-50) One of the three plants the seed company recommended was the Golden Acre variety and this variety was chosen by Mr. Whaley. (Tr. 50, 18; CX 4)

19. Mr. Whaley stated that he normally gets cabbages the size of those depicted in RX B and C, pictures he said he took of a cabatoe plant grown on his farm. (Tr. 51) He estimated that he gets a yield of 8 to 10 pounds of potatoes, but it was never clear from his testimony whether he meant that he got that yield from each plant or from each kit. (Tr. 53, lines 21-15. For purposes of this proceeding it is assumed that he intended to say that the yield he gets is 8-10 pounds per plant since that is what Dr. Stoner said is a normal yield for a separately planted potato. F.F. 10) He stated that the yield from the cabatoe is comparable to the yield he has achieved from separate plantings of cabbage and potatoes of the same varieties as those used in the cabatoe. (Tr. 54-55)

20. Mr. Whaley, a high school graduate, stated that the cabatoe is comprised of two plants and that the potato that is involved is a red Desoto or a red Pontiac. Although he fertilized and watered the cabatoes, he kept no records as to the amount of either. He stated that he had markers to indicate the amount of rainfall, but when it does not rain, he uses a sprinkler system. (Tr. 56)

21. Mr. Whaley fed and watered the separately planted cabbage and potatoes the same as he did the cabatoe. There are no instructions in the instruction sheet about fertilization because he anticipates that purchasers will plant the cabatoe in fertile garden areas outside their houses. The plants are marketed and should in all parts of the United States. He claimed, however, that if he received an order from a cold area, it would not be shipped while the weather was cold. When he grows cabatoes he weeds them, because if the weeds grow big enough they would compete with the cabatoes for the nutrients in the soil. (Tr. 57-59)

22. Respondent's last witness was Mr. Robert W. Esch, Edwardsville, Illinois. ^1/ Mr. Esch's principal occupation is that of pilot of both airplanes and hot air balloons. He has, also, a horticultural 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.

23. Later, Mr. Esch started his own nursery and garden center in which he performed the same functions in addition to the administrative 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.

24. Mr. Esch is familiar with the cabatoe, which he said consists of "two separate plants - a potato and a cabbage - grown in essentially the same soil space. (Tr. 65) He visited Mr. Whaley's farm and nursery during the week of October 6, 1980, but he did not see a cabatoe plant for the reason that the season was over and the cabbage had been harvested. Mr. Esch had seen the photographs (RX B and C) which Mr. Whaley testified were pictures of cabatoes which had been grown on his farm, and photographed by him. (F.F. 19, Tr. 51) He commented as follows with respect to the cabatoe plants shown in the photographs:

"***As I understood the planting combination of the cabbage and the potatoes in the same soil space, it appears in Exhibit B that that's exactly what has occurred here. Soil has been pushed away from the root system of the cabbage, exposing potatoes underneath, some of the soil still being around them."

He said that the stock where the cabbage head had been was "very healthy." (Tr. 66-67)

25. Concerning the size of the vegetables in the photograph he said:

"It appears to be a normal-sized cabbage head that would be growing in a home garden that had been very well taken care of. It's of normal size and color. It appears to be good and firm, no major disease problems, a few insect holes that you would expect anywhere.

The potato crop underneath appears to be average for a hill of potatoes. There are quite a number of potatoes of good size and they appear to be good color, and no major disease is evident."

He added that the size and quantity of the cabbage and potatoes visible in the picture are quite comparable to those characteristics of the vegetables that would be produced if the cabbage and potato had been planted separate and apart from each other. (Tr. 67-68)

26. Mr. Esch's comment on Dr. Stoner's testimony with regard to the cabatoe was as follows:

Great emphasis was put on the situation of competition. Perhaps these plants could not be grown because of competition of three major things --of sunlight, of nutrient availability, and of water --being available for all of these roots to support the structures and produce proper plants.

It's my opinion, in my experience, that competition only comes into being a factor when there's not enough of any one of these to go all the way around. If there is an inch of water or so a week applied to the ground, there's no reason why the potatoes and the cabbage in this case could not go ahead and develop fully. There would be plenty of water for both to do just fine.

The color and size of the fruits ^2/involved here indicate no nutrient deficiency. Nutrient deficiency is manifest usually in color changes of the foliage and different growth characteristics. I see none of that. I'm assuming there was plenty of nutrients to go ahead and develop these very nice garden vegetables.

Then the other one is sunlight. Potatoes are a bushy plant as well as cabbage, being a very leafy plant. When planted together in this manner it's my opinion that the potato foliage would outgrow the cabbage foliage and, in fact, make a set of foliage surrounding the cabbage head and the cabbage leaves, which do not have this ability to send out longer branches. So you would have a cabbage head and the cabbage leaves surrounding it in the center, surrounded by potato foliage, so that sunlight could reach all of these different leaves in a horizontal plane.

And it appears that enough of that has happened, because certainly photosynthesis occurred with the potato plant and went ahead and produced certainly a reasonable --what one would reasonably expect to have in the way of a crop of potatoes.

So I don't see that competition is a factor in this case. I really don't. (Tr. 68-70)

27. Mr. Esch took a soil test in the plot where the cabatoes had grown which Mr. Esch said revealed nothing abnormal. There was, he said, no excessive nutrient drain. The pH level of this test was 7.3 in soil from the plot in the general garden area and not near the place where the cabatoe plants had been grown. If the cabatoe had been grown in soil of that pH characteristic, theoretically it should restrict some of the availability to the plant of the precise nutrients in the quantity required for this particular species of plant. He said this could be a normal situation for the average gardener and he suspected that there would be virtually no difference in the fruit. He said the fruits grew extremely well in the soil pH that was there. (Tr. 70-71)

28. Concerning the method employed in growing the cabatoe at the Vegetable Laboratory, Mr. Esch testified:

Well, he said he tested for the nutrients in the soil and the pH factor and corrected as per the analysis report that comes back. And that's all fine and good. That tells us what the pH was before these things were planted, but we really have no way of knowing what the nutrient availability was there.

When you apply these different products that theoretically are supposed to correct for any deficiencies, you are subject to human error. The standard of quality of the fertilizer, the calibration of the equipment that it's going on with, and the workman-like manner or not so with which it is applied.

No test was done afterwards or during the growing period to see exactly what the conditions were in which these plants were growing. We don't know.

Also, there was no control plants planted, so we have no idea of exactly why he did not receive the good results that he should have.

Examining the other photographs that he took of the younger plants, taken in June, they appear to be extremely healthy to me, and starting off very well. I can offer no opinion as to why these plants did not continue to grow and produce. (Tr. 72-73)

29. Mr. Esch did not test the soil, and he did not otherwise know the pH of the soil at the time where the cabatoe was planted. He did not know how much of the various nutrients a cabbage or a potato plant will remove from the soil during a season.

30. It is good gardening practice to week a garden because it eliminates competition among the younger plants. He said, "Weeds are weeds because they are not wanted. They're more vigorous plants. They grow and they can outshadow, competing with other plants for sunlight. You weed early in the season to eliminate this competition." (Tr. 75-76)

31. Mr. Esch stated that the opinions expressed by him in this proceeding are within the understood realm of scientific knowledge for the areas he discussed, and that they are commonly accepted.

32. Three witnesses - Dr. Stoner (Tr. 8), Mr. Whaley (Tr. 35), and Mr. Esch (Tr. 65) - testified that the cabatoe consists of two separate plants.

DISCUSSIONS

The decision in this case turns on the testimony of two witnesses - Mr. Esch and Dr. Stoner. Mr. Whaley's interest in the outcome of this proceeding is obvious and his views are colored by this interest.

Mr. Esch is primarily an airplane and hot air balloon pilot. He has been educated and he has had experience in horticulture, principally ornamental, but he has become so far removed from this field that it now occupies only one or two weeks per year of his time. ^3/ Mr. Esch's criticisms of the possible planting methods, soil preparation, and fertilizer balancing steps of the Vegetable Laboratory are the sheerest speculation and they are scarcely worth mention.

It is truly remarkable that Mr. Esch can testify under oath concerning the conditions under which the cabatoe plants grew on Mr. Whaley's farm - especially since Mr. Whaley said he, himself, did not know how much water or what kind of fertilizer were applied to them. Assuming that the photographs, as is claimed for them, depict the growth of cabatoes on the Whaley farm, the record indicates that the only known condition under which they were grown was the exceptionally high fertility of the soil in Illinois. The record also indicates that outside that particularly favored area, of which Illinois is a part, the fertility of the soil is far less. Soil in these other areas must be supplemented by the addition of the proper amounts of the required nutrients.

Dr. Stoner's statement on his background, on the other hand, shows him to be thoroughly and extensively educated in the pro- fession in which he now is, and for 15 years has been, actively engaged. He is an active member and sometime officer of a pro- fessional society in his speciality and he has written for and supervised publication of a book related to his area of interest. In addition, each year he supervises the scientific growing of vegetables at the Vegetable Laboratory, United States Department of Agriculture, Beltsville, Maryland, where he has been designated as the person responsible for the conducting of research in the area of plant culture. This research is specifically oriented more towards small farms. This is the witness who took Respondent's product, followed the planting instructions as closely as possible, went beyond the instructions in providing soil with scientifically appropriate pH, fertility and nutrition, saw to it that the plants were properly watered, cultivated and weeded, and reported that the growth of the cabatoes, despite this kind of care, was disappointing and less than one would expect from the same species and varieties of plants had they been separately and individually planted. That is the persuasive, competent, credible evidence in this case.

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 were comments about the unsatisfactory yield obtained from the cabatoe.

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 this case is so serious, Complainant should have filed the complaint in November 1979, and not waited the ten months. Respondent's position is that the delay in filing the complaint 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).

The Allen & Co. case is inapposite because it involves a controversy between two private parties. There is no evidence of laches or neglect on the part of the government's representatives in this matter, but even if there had been, the prevailing rule is that --

"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) (See also

Institute for Weight Control, Inc. v. Klassen, 348 F. Supp. 1304 1315 (1972); Chromcraft Corp. v. United States Equal Emp. Op. Com'n., 465 F.2d 745 (1972); 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); Davis, Administrative Law Treatise, 1958, § 17.04, pp. 511-512.

Respondent's affirmative defense is unavailing.

CONCLUSIONS OF LAW

1. Respondent solicits remittances of money through the mail to the name and address shown in the caption hereof for a plant called CABATOE.

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

6. 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 U. S. Code § 3005.

7. An order of the type authorized by Section 3005 of Title 39, United States Code, substantially in the form attached, should be issued against the Respondent.

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/ Mr. Esch's qualifications were stated in a proceeding involving the same parties, but a different product, at or about the time this proceeding was heard. By agreement of the parties those qualifications as stated in P.S. Docket Numbers 9/26 and 9/31, heard jointly, were to be, but were not actually, incorporated into the transcript of the hearing in this matter. Hence, the statement of Mr. Esch's qualifications as they are stated in the Initial Decision in Docket Nos. 9/26 and 9/31 are partially repeated.

2/ At numerous times, Mr. Esch referred to such vegetables as cabbage and potatoes as "fruit." He later defined "fruit" as a product having a fleshy body and containing seeds. (Tr. 76)

3/ This statement is taken from page 135 of the transcript of the hearing in Docket Nos. 9/26 and 9/31. It was agreed that Mr. Esch's "explanation and his statements regarding his expertise as they appear in those transcripts can be transcribed into this transcript so that we can save the time of going through those." (Tr. 64, Docket No. 9/27)