In the Matter of the Complaint Against

NEW GENERATION CALIFORNIA PACIFIC RESEARCH, INC.
P. O. Box 22759
at Sacramento, CA 95822-0759

and

P. O. Box 2570
at Sparks, NV 89431-2570

P.S. Docket No. 11/152;

Thompson, Joan B.

APPEARANCES FOR COMPLAINANT:
JamesA. Harbin, Esq.
Thomas A. Ziebarth, Esq.
Consumer Protection Division
Law Department
United States Postal Service
Washington, DC 20260-1112

APPEARANCE FOR RESPONDENT:
Jay H. Geller, Esq.
Geller and Bozeman
2049 Century Park East Suite 1200
Los Angeles, CA 90067-3130

POSTAL SERVICE DECISION
ON PETITION FOR SUPPLEMENTAL ORDERS

On June 8, 1983, Complainant filed a Petition for Supplemental Orders pursuant to 39 C.F.R. § 952.30 alleging that Respondent is evading or attempting to evade Postal Service False Representation Order No. 83-85 by conducting the same or a similar scheme by using the name California Pacific Research, Inc., "New Generation," at the following addresses: P. O. Box 20160, Reno, Nevada 89515; and 51 E. Freeport Boulevard, Sparks, Nevada 89431.

 BACKGROUND

In prior proceedings, Complainant filed a Complaint on July 8, 1981, alleging that Respondent was advertising and selling two products, New Generation Hair and Scalp Cleanser and New Generation Shampoo, by means of false representations in violation of 39 U.S.C. § 3005. Paragraph 3 of the Complaint alleged that Respondent's advertising materials made the following representations:

"a. NEW GENERATION HAIR AND SCALP CLEANSER AND NEW GENERATION SHAMPOO will stop hair loss in balding men; and

b. NEW GENERATION CLEANSER AND SHAMPOO will cause the regrowth of hair on bald heads; and

c. NEW GENERATION CLEANSER AND SHAMPOO will strengthen and thicken new hair as it grows back on bald heads."

Paragraph 4 of the Complaint alleged that these representations are materially false as a matter of fact.

An Initial Decision of an Administrative Law Judge dated April 9, 1982, found that Respondent made the representation alleged in paragraph 3 (b) of the Complaint, but not those alleged under 3 (a) and (c). He also found that the representation was materially false. In a final Postal Service Decision dated May 13, 1983, the Judicial Officer agreed Respondent made the representation in paragraph 3 (b) of the Complaint and it was false. However, he overruled the Initial Decision as to paragraph 3 (a) of the Complaint. He found the parties understood the allegation to be that Respondent represented the products will stop excessive loss of hair and he found that representation was false. In view of a motion by Respondent to reopen the hearing, the Judicial Officer remanded the case to the parties for consideration of an agreement. He issued False Representation Order No. 83-85 but stayed the return portion of the Order.

On May 31, 1983, the parties entered into a stipulation to remain in effect until a final decision had been rendered in a suit brought by Respondent in the United States District Court for the District of Nevada, California Pacific Research, Inc. v. United States Postal Service, Civil No. CV-R-83-172-BRT, including any judgment on appeal if any appeals are taken. The stipulation permitted Respondent to receive all mail addressed to P. O. Box 2570, Sparks, Nevada 89431, and allowed Respondent to process mail that contained orders for the New Generation Shampoo and Hair and Scalp Cleanser under the following terms and conditions: that Respondent place into escrow $5,000 to insure payment of requested refunds; that Respondent may fill orders for the products if they transmit in the same container as the products a letter to the purchaser advising the purchaser of the decision of the Postal Service and offering the opportunity to have the price of the products refunded if the purchaser is dissatisfied with the products.

In addition to this stipulation, the parties filed a motion to vacate the False Representation Order as to P. O. Box 22759, Sacramento, California 95822-0759. Thereafter by Order of June 2, 1983, False Representation Order No. 83-85 was vacated as to the Sacramento address, and temporarily suspended as to the P. O. Box 2570, Sparks, Nevada, address to permit mail handling in accordance with the stipulation of the parties.

The Petition for Supplemental Orders

In its Petition for Supplemental Orders, dated June 8, 1983, Complainant alleged that Respondent currently promotes the sale of its products through the use of television programs which urge viewers to call a toll-free telephone number to purchase the products. Upon calling that number prospective customers are told that orders may be placed by credit card, c.o.d., or by sending a check or money order to Respondent. It alleged that as of May 19, 1983, remittances through the mail were directed to Respondent at P. O. Box 201600, Reno, Nevada 89515, but since then remittances have been directed to 51 E. Freeport Boulevard, Sparks, Nevada 89431. It alleged that purchasers receive written promotional material which reinforce the impression that the products will arrest the balding process and will cause new hair to grow, and reorder forms which direct the remittance of money or property through the mail to Respondent at P. O. Box 20160, Reno, Nevada 89515.

Complainant further alleged that Respondent's current promotional material is substantially similar to that which was previously found to be materially false, and that the current products and parties are the same as those which were the subject of the previous proceeding. Complainant requests the issuance of Supplemental Orders against Respondent at the two addresses identified in the Petition.

In support of the Petition, Complainant attached an affidavit of a Postal Inspector, copies of promotional materials and information concerning Respondent's two products, New Generation Shampoo and New Generation Hair and Scalp Cleanser, a photocopy of the outside of a video cassette of a television program concerning New Generation products, and a copy of the Complaint in the suit filed by Respondent against Complainant seeking review of the Judicial Officer's decision of May 13, 1983.

Respondent filed a timely Answer in which, among other things, it objected to any viewing of a videotape except in its presence. Thereafter, various motions and responses with regard to the viewing and hearing of the tape were made by the parties. As reflected by the Order and Memorandum of Telephone Conference dated August 16, 1983, the parties agreed to a hearing in the case, with the undersigned Administrative Judge to serve as Acting Judicial Officer to hear the case and issue the final agency decision on the Petition for Supplemental Orders.

A hearing was held on August 26, 1983, in Reno, Nevada. Complainant had one witness, Steven R. Kline, a Postal Inspector, and Respondent had one witness, Robert Murphy. Documentary and other evidence was presented, including the presentation of a videotape (CX-12) of a television talk show, which was transcribed and made part of the transcript of the hearing.

Complainant has filed Proposed Findings of Fact and Conclusions of Law. They are adopted to the extent they are consistent with this decision. Respondent has filed a memorandum brief in opposition to the Petition which also incorporates its proposed Conclusion of Law 3 to the original proceeding, and a reply brief.

FINDINGS OF FACT

1. The parties are the same, and the New Generation shampoo and hair and scalp cleanser currently being sold by Respondent are the same products as those subject to the Judicial Officer's decision of May 13, 1983, and False Representation Order 83-85 (Tr. 74, 89).

2. Respondent uses a videotape of a television program to promote sales of its products (Tr. 18-19, 60-61; CX-12). The videotape is of a talk show program by Fred Lewis, a Los Angeles talk show host, with Robert (Bob) Murphy, President of California Pacific Research, Inc., or New Generation (Tr. 21-51, 89-91). Mr. Murphy attributed the efficacy of the product to its cleansing effect on the scalp (Tr. 32-33). Members of the audience, who had been invited by Mr. Murphy, and telephone callers also participated in the discussion during the course of the show. Most of the participants gave favorable testimonials of their use of the products; one did not (Tr. 21-51). The overall impression an ordinary viewer and hearer of the program would receive is that Respondent's products will help to decrease hair fallout and will help many males who suffer from male pattern baldness to grow hair.

3. The program gave out a toll-free number for ordering the products, advising that to save c.o.d. charges a credit card could be used (Tr. 19, 50-51). After viewing one of the videotapes on or about November 4, 1982, Postal Inspector Kline called the toll-free number and was told by the agent that he could order the products by credit card, c.o.d., or mail by sending the remittance to New Generation at P. O. Box 20160, Reno, Nevada 89515. He mailed a check to that address and received the two products (Tr. 17-18; CX-2-11). Subsequently, Inspector Kline called Respondent's toll-free number on May 19, 1983, and was again told the products could be ordered by credit card, c.o.d., or by mail by sending money to P. O. Box 20160, Reno, Nevada (Tr. 62-63). He called a third time on June 1, 1983, and was told he could send the money by mail to 51 E. Freeport Boulevard, Sparks, Nevada, and was also told the products were supposed to "grow hair" (Tr. 64). Later that day he called the information number and asked for the number for New Generation and was given a different toll-free number, which he called. The person answering identified the office as the office for New Generation in Sparks, and indicated that money for the products could be sent to 51 E. Freeport Boulevard, Sparks, Nevada (Tr. 62-64).

4. On August 9, 1983, Inspector Kline requested Inspector Michael McKim to make a test purchase on the price list reorder form which the purchaser was to return by mail with an enclosed check or money order or identified credit card number (Tr. 66; CX-13). The address on the reorder form was California Pacific Research, Inc. "New Generation," P. O. Box 20160, Reno, Nevada 89515. Inspector McKim mailed the order, with a money order for $36, to that address. The products were returned with additional material in an envelope with the 51 E. Freeport Boulevard, Sparks, Nevada 89431 return address (Tr. 67-72, 76-77; CX-13-20). Respondent discontinued sending the reorder form used by Inspector McKim in January 1983 when it began to use the new video program, CX-12 (Tr. 98-99).

5. On August 10 or 11, 1983, Inspector Kline again called the toll-free operator and was told he could order the products c.o.d. or by credit card but not by mail (Tr. 79). This is consistent with Respondent's current practice (Stipulation, Tr. 19).

6. The enclosures returned with the August 9, 1983, test purchase are the same as those which Respondent at the time of the hearing on August 6, 1983, used in sending information on the products (Tr. 92-95; compare R-1 B through E with CX-17 through 20), except the price list now has a different toll-free number for Nebraska (RX-1 B). The price has been increased to $39.95 (with an additional $1.65 for c.o.d. orders). An asterisked statement under the price states, "Price includes all postage, handling and sales tax where applicable" (RX-1 B; CX-19).

7. Respondent's president testified that it currently does not solicit money through the mail. However, he also testified that " w e receive money through the mail through the Sparks Post Office and through the Reno Post Offices"; although " w e don't retain anybody to receive money through the mail at all" and "have no contract with anybody to receive money for us" (Tr. 101-102). His testimony and the successful test purchase in August 1983 demonstrate that remittances for the products continue to be received by Respondent through use of the mail.

8. Included in the return package containing the products for both test purchases in November 1982 and August 1983 was a copy of an article in the San Francisco Chronicle dated Saturday, October 3, 1981, by Don Wegars, headlined "Happy Shampoo Users Testify" and subheaded "The Hair Grower's Fans" (Tr. 73-77). The article refers to testimony by four witnesses at the initial hearing. The first paragraph of the article summarizes the gist of the article:

"A small but grateful army of balding believers testified yesterday that new hair grew on their heads after they used a hair balm the U. S. Postal Service claims doesn't do the trick" (CX-4, 17).

9. Also received was a copy of an article in the San Diego Tribune of Friday, April 16, 1982, by Jimmy Thornton. The copy sent with Inspector Kline's test purchase in November 1982 has two photographs. It also has a lead heading "SOME CLAIM ITS A BALD FACE LIE," and then a larger headline, "Here's a hairy tale with a twist" (CX-5). The copy returned with the test purchase in August 1983 omits the heading "SOME CLAIM ITS A BALD FACE LIE" and the photographs (CX-17). It omits nine paragraphs from the text, including a statement from a dermatologist explaining that some diseases will cause temporary hair fallout which will grow back and that use of any hair conditioner could prevent hair fallout from combing. It also omits from the end of the article a high-lighted statement enclosed within a box which advises that information can be received from the P. O. Box 20160 address in Reno, or a given telephone number. Although the article quotes Mr. Murphy as saying the products do not grow hair and includes statements from scientists that hair-growing products sold over the counter do not work, the main thrust of the article is that despite such reports, users of Mr. Murphy's products have experienced new growth of hair and have experienced a stop or decrease of hair fallout. The article also attributed the efficacy of the products to the cleansing effect on the scalp (CX-5, 17; RX-1A).

10. The August 1983 test purchase also included copies of articles in the Los Angeles Times by Jim Sanderson on December 8, 1982, called "Getting to the Root of a Hairy Problem" and on March 3, 1983, captioned "Baldies, What Have You Got to Lose?" (CX-17). The December 8, 1982, article reported that on a TV talk show Mr. Murphy said he had helped "15,000 baldies." The article continued to describe the show, including fifteen to twenty favorable testimonials by users of the products, "most . . . were simply dazzled by what was happening to the tops of their heads." It also stated there were some phone calls which demonstrate the products aren't 100% successful. The writer reported he called Mr. Murphy who told him how he found the products, started his company, and how the products are to be used, and that " w ithin three months, 70% of the people will see baby hair --not just peach fuzz --and this baby hair matures to become your normal hair." The reporter concluded that " i t seems too good to be true, right?," but he would give an "honest report in three months" (CX-17).

Mr. Sanderson's March 3, 1983, article updated his prior article. He reported his mail had not been heavy. Several users were bitter, others sorrowful the products had not worked, but a few had "wildly enthusiastic success stories." Therefore, he did some "investigative reporting" and interviewed twenty happy men, concluding, " f riends, there is simply no way these guys are faking it. Murphy's product does help stop hair fallout, clearly. And it can generate some new growth on some --but not all --bald heads (please note these qualifications)." He described the products, and the refund if they do not work. He stated he has started using the products because the twenty men convinced him, and as Murphy offers the money back, "what have we got to lose that we haven't already lost?" (id.).

Both Sanderson articles gave Mr. Murphy's address at Box 220160, Reno, NV 89515. The second article gave the price of $39.95 after the address, and noted that the products are not available in stores.

11. The August 1983 test purchase also included a pamphlet saying "HERE'S WHAT PEOPLE ARE SAYING ABOUT NEW GENERATION," with brief favorable testimonials from six individuals and "Questions Most Frequently Asked About New Generation." The first three sets of questions and answers explain that the products are designed for people with "Male Pattern Baldness." Most of the other questions and answers relate to instructions for use. The last set stresses the money-back guarantee. The answer to question four states that New Generation's testing program shows that:

"about 90 percent of the users will experience a reduction in excessive hair loss within three to four weeks of proper use. Of the approximately 70 percent that will start regrowing their hair, the majority should notice new hair in 8 to 12 weeks. Some take longer to get growth results - a few will see results sooner. . . ." Underlining in the quote. (CX-18; RX-1 D.)

12. The August test purchase also included a copy of a letter which Respondent agreed to send customers by the parties' stipulation of May 31, 1983. The text of the letter is as follows:

"The Postal Service has asked us to send this letter to advise you of a decision and order it issued on May 13, 1983, and we have agreed to do so.

In that decision, the Postal Service ruled to the effect that New Generation products cannot grow hair on bald heads or stop excessive hair loss.

New Generation vigorously fought the Postal Service decision and disagrees with that decision. We are appealing the Postal Service order in the Federal Courts.

The Postal Service order does not affect the Company's right to sell New Generation products.

As a regular user of New Generation products, we know that you probably want to continue to use the products to improve the appearance of your hair. You can continue to do so.

We at New Generation continue to stand behind our products. Please be assured that requests for refunds, consistent with our company policy, will continue to be honored.

You are a valued customer, and our only goal is to make sure that you are satisfied with your New Generation products" (CX-20; RX-1-E).

13. The promotional materials included in the information returned to the purchasers reflected by the two test purchases are different from those materials that were submitted at the hearing in the original proceeding in this case. However, their overall import is to leave the same impression, namely, that the products will help grow hair and prevent excessive hair loss for most persons having male pattern baldness.

Decision

The determinative question on the Petition for the Supplemental Orders pursuant to 39 C.F.R. § 952.30 is whether Respondent is evading or attempting to evade the False Representation Order by conducting at the two new addresses the same or a similar enterprise as that in the prior proceeding. As the party and products are the same as those in the Judicial Officer's decision of May 13, 1983 (Finding of Fact (F.O.F.) 1), the remaining issue is whether Respondent continues to engage in a scheme to seek remittances through the mail and to make representations previously found to be false.

In its post-hearing briefs objecting to the Petition for Supplemental Orders, Respondent makes two primary arguments: first, that there is no jurisdiction to issue the order because Respondent has not engaged in and is not engaging in a scheme under 39 U.S.C. § 3005; and, second, that Complainant has failed to prove the allegations in the Petition by a preponderance of the evidence.

On both issues Respondent contends that great weight should be given to an Order by the United States District Court for the District of Nevada in Civil No. R-83-172 BRT filed July 26, 1983, denying a motion for a preliminary injunction under 39 U.S.C. § 3007(a) pending the administrative proceedings on this Petition concerning the two new addresses. Official notice is taken of the Court's Order which was appended to Respondent's first post-hearing brief. The Order was conditioned on Respondent's transmitting in the same container with its products a copy of Respondent's letter agreed upon by the parties in their stipulation of May 31, 1983 (F.O.F. 12).

The arguments concerning the weight to be given the Court's Order are rejected. By its own terms it does not purport to review the underlying decision and it recognizes that the decision on the Petition will be made in these administrative proceedings. The last sentence of 39 U.S.C. § 3007(a) provides: "An action taken by a court hereunder does not affect or determine any fact at issue in the statutory proceedings." Because of this specific statutory language, the lack of finality of the preliminary injunction proceeding which only determines "probable cause" for issuing the injunction, and because 39 U.S.C. § 3005 requires the Postal Service initially to make the evidentiary determination under the Act, the court's ruling denying the preliminary injunction has no impact upon the determination of the issues on the Petition here. See Standard Research Labs, P.S. Docket Nos. 9/63 and 9/64 (P.S.D. Aug. 31, 1981), at 3-7, and cases cited therein. That the District Court viewed the same videotape that is in evidence here and Respondent's letter makes no difference (id.), particularly since additional evidence was introduced in support of the Petition.

The underlying decision in this case is the Postal Service decision, New Generation, P.S. Docket No. 11/152 (P.S.D. May 13, 1983), by which a false representation order was issued against Respondent. Unless that decision is overturned in the pending appeal to the Federal court, all factual and legal issues resolved therein which directly relate to this proceeding will not be reconsidered on a Petition for Supplemental Order. Cf. Hayman Cash Register Co., 669 F.2d 162 (3d Cir. 1982); Landreth v. Wabash R. Co., 153 F.2d 98, 100 (7th Cir. 1946), cert. den, 328 U.S. 855. Therefore, to the extent Respondent's arguments attempt to raise issues determined in the prior decision they are rejected.

In contending there is no jurisdiction to grant the Petition, Respondent stresses the present tense in the statutory language in 39 U.S.C. § 3005 that "any person is engaged in conducting a scheme or device for obtaining money or property through the mail . . ." (emphasis added). Respondent contends Complainant has failed to meet its burden of showing that Respondent is engaged in such a scheme because Complainant agreed in a stipulation that Respondent is not engaged in a "scheme." However, the stipulation referred to by Respondent (see F.O.F. 5) cannot be interpreted as having the effect for which Respondent argues. It relates only to Respondent's current practice of soliciting orders from callers using its toll-free telephone number. The stipulation does not address orders resulting from past solicitations and current written promotional material.

Respondent acknowledges in its brief that past orders may currently be filled from remittances through the mail received at the two new addresses identified in the Petition (Brief at 6), but contends it is not seeking customers to send remittances to those addresses, and its current order form does not solicit orders through the mail.

However, negating Respondent's contention with respect to the P.O. Box 20160, Reno, Nevada, address are the prior telephone solicitation orders to that address, its use on reorder forms, the continued inclusion of the address in newspaper articles which Respondent returns with the products and testimony that remittances continue to be received there (see F.O.F. 3, 4, 7, 10). The 51 E. Freeport Blvd., Sparks, Nevada, address was previously used in telephone solicitations and presently appears as Respondent's return address on filled orders. This is sufficient mail order contact for inclusion in a false representation order. Cf. The New Body Boutique, P.S. Docket No. 11/95 (P.S.D. July 30, 1982), aff'd, New Body Boutique, Inc. v. United States, Civil Action No. 83-0197, slip op. at 2 (D.C.D. April 21, 1983). That Respondent's agents now advise telephone callers not to order by mail does not eliminate the effect of the above stated uses of the addresses by Respondent and Respondent's admission that it continues to receive remittances through the mail (see F.O.F. 7; Brief at 6). Moreover, cessation of activities directly seeking remittances by mail does not bar this proceeding. This is particularly true where the prior impermissible activity could be repeated. Cf. United States v. W. T. Grant Co., 345 U.S. 629, 632 (1953); Carpenters Union v. N.L.R.B., 341 U.S. 707, 715 (1951).

Respondent asserts that receipt of money at the Sparks post office box results from the stipulation between the parties pending resolution of Respondent's suit for review of the Judicial Officer's decision and, thus argues, it is not engaging in an unlawful scheme because use of the mails is authorized by the Postal Service. However, that post office box address is not at issue in this Petition. In any event, the stipulation of the parties whereby Respondent is permitted to fill mail orders pending final court determination cannot vitiate the Judicial Officer's prior determination that Respondent is engaging in a scheme violative of 39 U.S.C. § 3005. Also, the Reno post office box number and Sparks street address in issue here are not affected by that stipulation except insofar as the Court Order of July 26, 1983, required Respondent to include the letter set forth in F.O.F. 12 with its products, pending this administrative determination. Moreover, as the discussion infra will conclude, Respondent's current advertising materials continue to make representations found to violate 39 U.S.C. § 3005. Therefore, Respondent continues to engage in conduct found to constitute a scheme within the meaning of the statute.

All of Respondent's arguments on the jurisdictional issue have been considered but must be rejected as having no merit.

Therefore, as indicated above, even if the current promotional materials do not directly solicit remittances by mail, this does not preclude a determination that there is a "scheme" under the Act to receive remittances through the mail. Cf. Kurzon v. United States Postal Service, 539 F.2d 788, 795 (1st Cir. 1976).

Respondent argues that neither the videotape nor the written material represents that the products will grow hair on bald heads or will stop hair loss in balding men. Respondent suggests that only a person of the class to whom such material is directed can properly evaluate the representations. However, as the May 13, 1983, Postal Service Decision held at 17 and 20, it is the trier of fact in an administrative proceeding under 39 U.S.C. § 3005, who can review promotional materials, independent of other evidence, to determine the impact of the representations made or implied. Furthermore, it is well established that the courts in reviewing the administrative determinations concerning the representations also primarily look to the language of the promotional materials themselves to determine the impact upon the minds of the "ordinary reader" to whom they are addressed. E.g., Peak Laboratories, Inc. v. United States Postal Service, 556 F.2d 1387 (5th Cir. 1977); N. Van Dyne Advertising Agency, Inc. v. United States Postal Service, 371 F. Supp. 1373 (S.D.N.Y. 1974); Baslee Products Corp. v. United States Postal Service, 356 F. Supp. 841 (D.N.J. 1973); and Gottlieb v. Schaffer, 141 F. Supp. 7 (S.D.N.Y. 1956). It is not necessary for the trier of fact or reviewing court to be one of the class to whom the products are directed. As the above cases illustrate, Respondent's suggestion is contrary to the administrative and court decision-making process on interpreting and deciding false representation issues.

Although there are differences in Respondent's promotional materials shown in this proceeding from those in the original proceeding, the overall impression received from the materials is similar and a different conclusion is not warranted. The May 13, 1983, Postal Service decision found the parties to have interpreted charge 3(a) in the original Complaint to mean the products will stop "excessive hair loss." That finding is not appropriate for review in a supplemental order proceeding. In any event, Respondent submitted neither evidence nor argument during the trial of this Petition to show any different interpretation. Therefore, its post-hearing arguments concerning this matter are rejected.

Applying the test set forth in the May 13, 1983, decision, of considering the promotional or advertising materials in their entirety for the impression they would most probably create in the ordinary minds of those to whom directed, it is concluded that persons with male pattern baldness would receive the impression that the products will stop excessive hair loss and will promote hair growth. This impression is not negated because the promotional materials contain statements by Mr. Murphy that the products do not grow hair and that some people will not be helped by the products, nor is it negated by reports of some unsuccessful users and skeptical portions of the materials. Moreover, Respondent continues to attribute the efficacy of the products to the scalp cleansing action (F.O.F. 2 and 9).

Respondent contends that since the buyers of the products now receive the letter approved by the stipulation of the parties following the original proceeding (F.O.F. 12), the buyers are aware of the prior decision and the money-back guarantee and, therefore, Respondent is not making the alleged representations. Respondent states in the letter that it disagrees with the May 13, 1983, Postal Service decision and is appealing it in the Federal Courts. The letter does not suffice to vitiate the impression arising from the other representations. Also, the Court Order requiring transmittal of the letter with orders from the addresses in this Petition applies only until these proceedings are concluded. Furthermore, as the May 13, 1983, Postal Service Decision in this case noted at 27-28, representations of a money-back guarantee and the promise of a refund to dissatisfied customers does not vitiate the effect of misrepresentations and negate the overall impression. Accord, George M. Ernst, Jr., d/b/a Many Interested Savers, Inc., P.S. Docket No. 13/88 (P.S.D. Aug. 4, 1982), and cases cited therein.

Other contentions of Respondent concerning interpreting the representations made in its promotional materials have been considered and are rejected.

Additional contentions of Respondent indirectly attempt to relitigate the issue of the falsity of the representations. The minor differences between the representations in Respondent's new promotional materials with those in the prior proceeding do not warrant any change from the conclusion therein reached that the representations are false. Therefore, it is concluded that Respondent is attempting to evade the prior False Representation Order in this case by use of these two new addresses.

Accordingly, Complainant's Petition for Supplemental Orders is granted and a Supplemental Order including both addresses is issued herewith. However, in view of the agreement of the parties pending court resolution of the prior May 13, 1983, decision in this case, the return portion will be stayed by Supplement A to the Order for thirty days for the parties to negotiate an agreement concerning the addresses in this Petition.