In the Matter of the Complaint Against

FORT MORGAN VAPOR JET
15160 Highway 144, No. 7
at Fort Morgan, CO 80701

P.S. Docket No. 12/64;

03/26/82

Bernstein, Edwin S.

APPEARANCES FOR COMPLAINANT:

Thomas A. Ziebarth, Esq.
James A. Harbin, Esq.
Consumer Protection Division
Law Department
United States Postal Service
Washington, DC 20260

APPEARANCE FOR RESPONDENT:

Harlan G. Balaban, Esq.
Balaban & Lutz
1624 Market Street
Denver, CO 80202

BEFORE: Judge Edwin S. Bernstein

INITIAL DECISION

Complainant alleged and Respondent denied that Respondent is engaged in a scheme to obtain money or property through the mails by means of false representations in violation of 39 United States Code § 3005. The alleged false representations relate to Respon- dent's advertising and sale of its product, Vapor Jet, as having fuel saving and other benefits when installed in automobiles.

At the hearing on December 3 and 4, l981, in San Diego, California, Merrill Korth testified for Complainant while Michael Polowchak, William T. Trevaskis, Charles L. Brown, Patrick Killeen and Dr. William Guentzler testified for Respondent.

In its Proposed Findings and Conclusions filed on January 18, l982, Respondent renewed its Motion to Dismiss, which was denied at the hearing, but asserted no reasons not previously considered. I adhere to the denial of the motion for the reasons set forth at the hearing (Tr. 131-132).

The parties have filed proposed findings of fact, conclusions of law and argument, all of which have been considered in arriving at the decision. To the extent indicated, they have been adopted. Otherwise they have been rejected as irrelevant, immaterial, or not supported by the evidence.

FINDINGS OF FACT

I. RESPONDENT'S USE OF THE MAILS

Respondent solicits money through the mails in connection with the sale of Vapor Jet and Vapor Jet dealerships. Respondent admitted this in its Answer and at the Hearing (Tr. 4). Exhibits CX 1a, 3b, 5b and 53 also support this finding.

II. RESPONDENT'S REPRESENTATION

Paragraph 3 of Count I of the Complaint alleges that Respondent made the following representations:

(a) the installation of a VAPOR JET on an average motor vehicle will cause a substantial increase in fuel economy (a mile per gallon improvement of 13.3% to 17.3%);

(b) the installation of a VAPOR JET on an average motor vehicle will improve combustion efficiency;

(c) the installation of a VAPOR JET on an average motor vehicle will increase engine horsepower;

(d) the installation of a VAPOR JET on an average automobile will increase octane ratings by allowing more fuel to be converted into power producing energy thereby causing regular gas to give 'premium' results;

(e) the fuel economy and engine performance improvement claims set forth in subparagraphs (a) through (d) are supported by competent scientific research and test results;

(f) the installation of VAPOR JET will dissolve carbon deposits on spark plugs and cylinder walls in older vehicles and prevent such build up on newer vehicles;

(g) the VAPOR JET is substantially similar to water injection devices used on combat aircraft in World War II to give increased speed and extended range; and

(h) a United States patent has been issued on the VAPOR JET as a fuel saving device."

I find that Respondent's advertising makes all of these representations. Respondent's Answer admitted making the repre sentations alleged in subparagraphs 3(b), (c), (d), (e) and (f), but disputed those in 3(a), (g) and (h).

Respondent's advertisement at CX 1-a makes the representation alleged in subparagraph 3(a). The third paragraph reads, "Test results showed miles per gallon improvement of 17.3 per cent on Trevaskis' l971 Ford Galaxy and 13.3 per cent on a l973 Olds Starfire." This claim is repeated at the top of the second column. In answer to the question "How much mileage can be expected?" the advertisement first states "This varies from car to car," but then reiterates "Independent testing on Trevaskis' car obtained improvements from 13.3% to 17.3%". Respondent's witness, Dr. Guentzler, testified that in his opinion a lay person reading this language would conclude that he or she would get close to those claimed results (Tr. 328). I agree.

Additionally, CX 1-a and 1-b make the representations alleged in subparagraph 3(g). CX l-b states:

"Water injectors were developed to a highly refined state during World War II, to give combat planes increased speed. Farmers can remember using injection on their tractors for more power and efficiency."

CX 1-a repeats this and further elaborates as follows:

"Water injectors were developed to a highly refined state during World War II, to give combat planes increased speed and extended range. However, up to now, the low price of gas and the high cost and extremely difficult installation required for earlier injectors combined to make them unattractive for automobiles and light trucks."

Finally, the heading of CX 1-a, "Gas Saver Tested & Patented" makes the representation alleged in subparagraph 3(h) of the Com plaint. Additionally, CX 5-f, in which the abstract of patent and fuel economy test results are printed back-to-back on the same paper reinforces this representation.

Count 2 of the Complaint alleges that persons electing to become dealers for Respondent were provided with material containing similar representations. Respondent admits this in its Answer and in Paragraph 17 of its proposed findings, and I so find.

III. THE TRUTH OR FALSITY
OF THE REPRESENTATIONS

My findings regarding each representation alleged in the Com plaint are as follows:

(a) the installation of a VAPOR JET on an average motor vehicle will cause a substantial increase in fuel economy (a mile per gallon improvement of 13.3% to 17.3%.

Complainant's expert witness was Mr. Merrill Korth. Mr. Korth has a Bachelor of Science Degree in Mechanical Engineering. He has been working in the automobile engineering field for about 20 years. Since 1973, he has been involved in fuel economy analysis. He is currently employed by the Environmental Protection Agency (EPA). Mr. Korth stated that in this opinion the installation of a Vapor Jet in a motor vehicle would not cause an increase of fuel economy between 13.3 and 17.3 percent (Tr. 60). Tests performed by EPA on similar air bleed devices showed fuel economy in the five to eight percent range and that results were highest in cars manufactured before 1971 (Tr. 45).

Respondent's expert witness, Dr. William Guentzler, agreed. He called devices of this kind "five to nine devices". He explained that such devices "will get five to a maximum of nine percent fuel economy under average driving conditions" (Tr. 331).

The weight of this testimony by these two knowledgeable experts was not overcome by other evidence submitted by Respondent. This included testimony by Michael Polowchak that he realized an 11% increase in miles per gallon during a test that he personally performed. Mr. Polowchak is Respondent's president. He left school in l967, worked for the Post Office from 1967 to 1972, attended bible college for the next four years and then became a preacher in Fort Morgan, Colorado. Since April 1980, he has sold Vapor Jet. He conceded that he is not an automotive engineer (Tr. 159) and his test was not an official test, "just layman-type tests" (Tr. 164).

William Trevaskis, Vapor Jet's inventor, testified regarding fuel consumption tests that were performed by the Automobile Club of Southern California which showed increased fuel economies on two automobiles to which Vapor Jet was installed (RX-16). On Trevaskis' l971 Ford Galaxy, miles per gallon increased from 15.71 to 18.43 and on Trevaskis' l973 Olds Starfire, miles per gallon increased from 16.80 to 19.04 after Vapor Jet was installed. However, these tests were only performed on one occasion and the testing agency, Automobile Club of Southern California, refused to allow its name to be used in connection with dissemination of the test results (RX-16, RX-17). Moreover, as Dr. Guentzler explained "... the lay person reading that statement increases of between 13.3 and 17.3% would assume that he would get, or she would get, very close to that result. And this resultant factor was only obtained under a steady state condition as opposed to being an average result." (Tr. 328-329) Therefore, although on some occasions mile per gallon increases of between 13.3% and 17.3% have been achieved, as alleged in the Complaint, the representation that Vapor Jet will cause such increases in the average motor vehicle is false.

(b) the installation of a VAPOR JET on an average motor vehicle will improve combustion efficiency.

(c) the installation of a VAPOR JET on an average motor vehicle will increase engine horsepower.

(d) the installation of a VAPOR JET on an average automobile will increase octane ratings by allowing more fuel to be converted into power producing energy thereby causing regular gas to give "premium" results.

I find that Complainant has not sustained its burden of proof with respect to these allegations. The evidence indicated that Vapor Jet quite likely will result in the alleged benefits.

I was extremely impressed by the testimony of Dr. William Guentzler, Respondent's expert. Dr. Guentzler has outstanding credentials in the automobile technology field. I found him to be extremely knowledgeable in that field, truthful and persuasive. Dr. Guentzler testified that Vapor Jet would increase an engine's horsepower (Tr. 329), improve combustion efficiency (Tr. 330) and increase octane ratings (Tr 324-326). Dr. Guentzler stated:

"... anytime that you enlean a mixture ... it will increase the power.... So there's no doubt about it that it will always give a positive improvement from the standpoint of credibility. What the amount of horsepower improvement its going to definitely vary significantly from vehicle t vehicle" (Tr. 329).

He further testified:

"Anytime that an engine runs more efficiently, that you increase the power, you increase the mileage, you get better combustion efficiency. So in view of the process of improving the engine by any degree, by any degree at all, we have to be improving the combustion efficiency in that engine." (Tr. 330).

This testimony was not effectively contradicted by Complain ant's evidence. Complainant's witness, Mr. Korth testified that on some vehicles Vapor Jet "could give you a slight rise in horsepower" (Tr. 112) and this "would probably give you an increase in efficiency" (Tr. 112) although he stated that its effect on octane would be insignificant (Tr. 113).

Therefore, I find that Complainant has failed to satisfy its burden of proof with respect to these three allegations.

(e) the fuel economy and engine performance improvement claims set forth in subparagraphs (a) through (d) are supported by competent scientific research and test results.

Although there is some support for the claims made in subparagraphs (b), (c) and (d) and Complainant has not satisfied its burden of proof that the claims are untrue, neither are these claims supported by competent scientific research and test results. The tests offered by Respondent are far from conclusive. Mr. Polowchak's test was a lay-type test and the tests in RX-16 were not endorsed by the testing agency. (RX-16, RX-17). Therefore, I find that this representation is false.

(f) the installation of VAPOR JET will dissolve carbon deposits on spark plugs and cylinder walls in older vehicles and prevent such build-up on newer vehicles.

With respect to this representation, Mr. Korth testified that in his opinion Vapor Jet will not dissolve carbon deposits and prevent such build-up in newer vehicles because the amount of water that it introduces is so small (Tr. 67). Dr. Guentzler also stated that water will not dissolve carbon deposits although it can remove carbon deposits in older cars (Tr. 333). He did not dispute Mr. Korth's testimony that Vapor Jet will not prevent such build-up in newer vehicles. Therefore, I find that these representations are false.

(g) the VAPOR JET is substantially similar to water injection devices used on combat aircraft in World War II to give increased speed and extended range.

As Mr. Korth tes tified, in World War II aircraft engines, large amounts of water were injected by pumps. This is quite different from the small amount of water that Vapor Jet's system injects (Tr. 68-69). Dr. Guentzler agreed. He stated that water was injected into the World War II planes in a 50% alcohol and 50% water mixture as contrasted with Vapor Jet's inducing water into automobiles in a vaporous form (Tr. 327). Although Respondent's Counsel concedes that the two systems were of a "different strain", he argues that the average mind would not be misled by this representation. I disagree.

(h) a United States patent has been issued on the VAPOR JET as a fuel saving device.

Respondent stipulated that Vapor Jet was not patented as a fuel saving device (Tr. 194-195) and the patent confirms this (CX-6).

CONCLUSIONS OF LAW

1. Since Respondent has sought remittances of money through the mail, the jurisdictional requirement of 39 U.S.C. § 3005 has been ful- filled.

2. The representations made by an advertisement are considered to be those that the purchaser to whom it was directed, presumed to be of ordinary intelligence, would understand from viewing the advertisement as a whole. What has been omitted and what may be reasonably implied from the advertisement are considered in assessing its meaning. Donaldson v. Read Magazine, Inc., 333 U.S.178, 184, 188 (l948).

3. The average person reading Respondent's advertisements would interpret them substantially as characterized in Paragraph 3 of the Complaint.

4. The representations specified in subparagraphs (a), (e), (f), (g), and (h) of Paragraph 3 of the Complaint are materially false. Complainant has failed to prove that the representations in subparagraphs (b), (c) and (d) are false.

Therefore, I conclude that Respondent is engaged in conducting a scheme for obtaining money through the mail by false representations in violation of 39 U.S.C. § 3005 and that a False Representation Order, substantially in the form attached should be issued against Respondent.