In the Matter of the Complaint Against

BERNARD L. SILVER
d/b/a CARTWRIGHT-MITCHELL, INC.,
1350 E. Flamingo Road at
Las Vegas, NV 89119-5263

P.S. Docket No. 25/92

Randolph D. Mason Administrative Law Judge

APPEARANCES FOR COMPLAINANT:
H. Richard Hefner, Esquire
Robert L. Collins, Esquire
Consumer Protection Division
Law Department
United States Postal Service
Washington, D. C. 20260-1112

APPEARANCE FOR RESPONDENT:
Dale B. Hinson, Esquire
1101 15th St., N. W.
Suite 200
Washington, D. C. 20005-5002

INITIAL DECISION

This proceeding was initiated on September 10, 1986, when the Postal Service filed a Complaint alleging that Respondents are engaged in conducting a scheme or device for obtaining money through the mails by means of false representations in violation of 39 U.S.C 3005. Specifically, the Complaint alleges in 6 that Respondents falsely represent, directly or indirectly, in substance and effect, whether by affirmative statements, implications or omissions that Respondents' product, Mammrae-9000, will cause the female user's breasts to grow larger. In their Answer, Respondents deny any violation of the statute.

A hearing was held by the undersigned Administrative Law Judge on October 30-31, 1986, and November 12, 1986. Both parties were represented by counsel and afforded full opportunity to be heard, adduce relevant evidence, and examine and cross-examine witnesses. Complainant presented the testimony of its medical expert, Thomas D. Grekin, M. D., and Paul A. Scipione, Ph. D., an expert in survey measurement of consumer perception and consumer psychology. Respondents presented the testimony of Elaine Chipman, business manager for Cartwright-Mitchell, Inc.; Lynda Maddox, Ph. D., an expert in advertising and consumer behavior; and Mr. Donald Decker, Jr., president of Cosmetic Concepts, Inc., the manufacturer of the product in question. Thereafter, the parties filed proposed findings of fact and conclusions of law which have been duly considered. To the extent indicated below, proposed findings and conclusions have been adopted; otherwise, they have been rejected as irrelevant or contrary to the evidence.

Based on the entire record herein, including my observation of the witnesses and their demeanor, the exhibits, stipulations, and other relevant evidence adduced at the hearing, I make the following findings of fact and conclusions of law:

Findings of Fact

1. Respondent Bernard L. Silver is an individual residing at 8900 Washington Boulevard, Apt. 520, Pembrook Pines, FL 33025 (Ans. 2). He is the sole director and officer of the corporate respondent Cartwright-Mitchell, Inc, a Delaware corporation (Tr. 100, 102). He formulates, controls, and directs the activities of the corporation (Ans. 3).

2. Respondents sell Mammrae-9000 (the "product") and seek the remittance of money for it through the mail by means of advertise- ments appearing in publications such as Playgirl. Respondents instruct their prospective customers to send the money to Cartwright-Mitchell, Inc. at 1350 E. Flamingo Road., Las Vegas, NV 89119 (Tr. 26, 83; CX-1, 2, 3). The latter address is a mail receiving agency (Tr. 26-27).

3. The label on a bottle of Mammrae-9000 states that it contains the following ingredients: water, aloe extract, cucumber extract, niacin, glycerin, comfrey extract, sodium PCA, polysorbate 80, octoxynol-9, chamomile extract, horse chestnut extract, propylene glycol, hydrolyzed elastin, ginseng extract, isopropyl alcohol, carbomer 940, allantoin, panthenol, diazolidinyl urea, methyl paraben, menthol, TEA, and fragrance (CX-5). It is a clear, slightly viscous liquid (Tr. 160).

4. Customers purchasing Respondents' product are given the following instructions:

STEP 1: After thoroughly cleansing your breasts with mild soap or cleansing cream, shake bottle well and then dispense a few drops of MAMMRAE-9000tm into the palm of your hand.

STEP 2: Apply MAMMRAE-9000tm with your fingertips to the entire breast area. Massage vigorously for 3 to 5 minutes.

STEP 3: Soak a clean towel in hot (not scalding) water and hold it firmly to your breasts until it cools. Remove wet towel and pat dry.

NOTE: Use Mammrae-9000 4 to 7 times weekly.

The Expert Witnesses

5. Lynda M. Maddox, Ph. D., is Respondents' expert in advertising, consumer behavior and marketing. She is an associate professor in those subjects at George Washington University, and is program director of the marketing department. She received her Ph.D in communications in 1979, and an M. A. in advertising in 1974 (Tr. 105, RX-17). She has also worked as an independent consultant in the marketing and advertising fields (Tr. 106), and her teaching includes the area of deceptive advertising (Tr. 108). Dr. Maddox is of the opinion that "the consumer who reads [Respondents'] ad [CX-1] will believe that if she applies this product that she will have temporary breast enlargement . . . and each time she uses it she will have these same results" (Tr. 110). She thinks a reader would only expect a temporary enlargement in view of the fact that the order form provides for purchasing either 2 ounces ("Regular Breast Enlargement Program") or 4 ounces ("Extended Breast Enlargement Program"), implying that one will run out of the product and have to order more (Tr. 120-121). She does not believe the ad represents that the product will cause cellular or permanent growth or structural change of a woman's breasts (Tr. 114-115), but she concedes that up to 10 % of Respondents' readers would believe the product causes permanent or near-permanent breast enlargement (Tr. 148). She believes that the "majority" of consumers who read Respondents' ad would believe that the product is a cosmetic that produces only temporary results (Tr. 146).

6. Paul Scipione, Ph. D., testified for Complainant and is a highly qualified and persuasive expert in consumer psychology (Tr. 192). As such, he is a social psychologist who applies theories, techniques, and practices from the field of psychology to the consumer buying situation (Tr. 195). He has directed more than 300 research projects during his 15 year career. He is a professor of marketing who teaches in the following areas at the graduate and undergraduate levels: consumer behavior, market research, advertising, health care and pharmaceutical marketing (Tr. 193). He previously served for many years as vice president of Response Analysis Corporation, a national market research firm (CX-9). Most of his experience has been in testing and analysing how typical consumers understand advertising (Tr. 195-196, 198). Dr. Scipione was better qualified than Dr. Maddox; and, his testimony was forthright, credible and far more persuasive than that of Dr. Maddox.

7. Thomas D. Grekin, M. D., is Complainant's medical expert regarding the efficacy of the product as a breast enlarger. He has been practising medicine since 1948 and has specialized in surgery. He has also been an active medical consultant to the Arizona State Board of Medical Examiners since July 1984 (CX-8, Tr. 47). Respondents agree that Dr. Grekin is qualified as an expert in the field of medicine (Tr. 22). Although he has performed no experiments on the product, he is a forthright and credible witness and his qualifications as an expert in this proceeding are far superior to those of Respondents' expert, Mr. Decker. Accordingly, I have based my findings on the persuasive testimony of Dr. Grekin.

8. Donald Decker, Jr. manufactured Mammrae 9000 and is Respon- dents' expert witness on the manufacturing of cosmetic products (Tr. 161-162). He has been in the cosmetics industry since 1976, and has owned a cosmetic manufacturing business since the end of 1980 which develops private label cosmetics for sale by others (Tr. 156, 158). He has been formulating cosmetic products for 10 years. He has a Bachelor's degree in chemistry and has done graduate work in chemistry and immunology (Tr. 156).

9. Mr. Decker testified that niacin and horse chestnut extract were included to produce vasodilation which causes a temporary or transient swelling of breast tissue near the surface (Tr. 165-167, 174, 185); that glycerin and panthenol are moisturizing agents which penetrate the stratum corneum (outer layer of skin); and that sodium PCA also enters the dermal layers and binds water with it, resulting in swelling of the outer layer (Tr. 166, 174, 182).

The Representation

10. As alleged in 6 of the Complaint, Respondents represent in their advertisement (CX-1,2) that the product Mammrae 9000 will cause the female user's breasts to grow larger. The following portions of the ad, when read in context, make this representation:

LARGER BREASTS GUARANTEED]

INCREASE YOUR ACTUAL CUP SIZE

[The above headlines appear in large boldface type. Before reading these headlines, the average reader's eye first gravitates to a color picture of a female model with large breasts.]

Full, Round, Eye-Catching Breasts Will Make You Proud]

LARGER BREASTS GUARANTEED

. . .

Now you can increase the size of the BREAST itself, not just the bustline, but the actual cup size, where it counts.

MAMMRAE-9000 CREATES VASCULAR EXPANSION

Mammrae-9000 is a powerfully effective verified scientific formulation that has the ability to penetrate deep into the outer layers of breast tissue preparing the breasts for certified expansion. Simply stated, your breasts will now have the capacity to ABSORB ADDITIONAL VOLUME similar to the way a sponge absorbs water. As the absorption begins, your breasts INCREASE in SIZE and WEIGHT. Your breast will develop a new satisfying feeling of FULLNESS as the entire breast EXPANDS to magnificent proportions right before your eyes and that's GUARANTEED]

LARGER BREASTS DO MAKE A DIFFERENCE

You know how much ATTENTION women with large breasts demand from men. And you know how it feels to see other women get all that attention just because their breasts are larger than yours. But now you can FIGHT BACK with MAMMRAE-9000, the ultimate breast enhancer.

[Adjacent to a picture of a large breast are the following words:]

Visible expansion begins with the very first application.

. . .

NOTICE: Because MAMMRAE-9000 causes the breasts to become both larger and heavier, Mammrae-9000 is fortified with tissue strengtheners to help prevent the possibility of sagging due to accelerated growth.

["Satisfied customers" are quoted as saying:]

I have already noticed a difference in my breasts. My breasts have become fuller and bigger . . .

. . . [Mammrae 9000] has definitely enlarged my breasts.

I used [Mammrae 9000] for a month and was amazed by the wonderful results. I slowly but persistently gained 2 inches going from a 32AA to a 32B . [Emphasis supplied].

Finally, the order form in the lower right corner states:

YES] I want to enlarge my breasts right now]
. . . (2 oz.) Regular Breast Enlargement Program. . .
. . . (4 oz.) Extended Breast Enlargement Program. . .

[CX-1, 2]

11. Dr. Scipione corroborates my finding that the average reader of Respondents' advertisement would believe that the product increases the size of a woman's breasts (Tr. 202, 205, 208). He notes that the ad contains at least 14 or 15 different phrases, words, or sentences that have the net effect of making this representation (Tr. 207). In addition, the reader's eye first gravitates to the picture of the female model in the middle of the page who provides "ample evidence of breast development" (Tr. 204-205). Also, in agreement with Dr. Scipione, I find that the average reader would tend to infer from the ad that the product brings about at least some degree of permanent breast enlargement as long as the product is being used (Tr. 210, 218, 219) I would also reach the latter conclusion independent of Dr. Scipione's testimony.

The Falsity of the Representation

12. It has been stipulated, and I find, that the product will not cause a permanent change in the size of the female breast (Tr. 22). Permanent enlargement is possible only by surgery or hormonal change unrelated to application of the product (Tr. 22, 55). Accordingly, Respondents' representation that the product will cause the female breast to grow larger on a permanent basis is false. The representation is material because it tends to induce the purchase of the product.

13. Moreover, even if some readers would assume from reading the ad that the product would cause only "temporary" breast enlargement, this representation is also materially false. Respondents' product, when topically applied in accordance with the instructions, may cause a reddening or blushing of the skin and a slight, transitory swelling (Tr. 36-38). This results from vasodilation of the surface capillaries caused by niacin (Tr. 36), vigorous rubbing for 3 to 5 minutes, and the application of a hot towel (Tr. 36-39). However, this slight swelling would not cause a noticeable, "eye-catching" enlargement of the breast or its tissues, such as the average reader would expect, and the tissues would return to normal in less than 30 minutes (Tr. 37-40). ^1/ These conclusions are in accord with the informed scientific consensus (Tr. 40-42).

Conclusions of Law

1. (a) Each of Respondents' advertisements must be considered as a whole and the meaning is to be determined in light of the probable impact of this material on a person of ordinary mind. Donaldson v. Read Magazine , 333 U.S. 178, 189 (1948); Peak Laboratories, Inc. v. U.S. Postal Serv. , 556 F.2d 1387, 1389 (5th Cir. 1977). The statute is intended to protect the gullible, naive, and less critical reader, as well as the more sophisticated, wary reader. Fields v. Hannegan , 162 F.2d 17 (D.C. Cir. 1947), cert. denied , 332 U.S. 773 (1947); M.K.S. Enterprises, Inc. v. United States Postal Service , 459 F. Supp. 1180, 1184 (E.D.N.Y. 1978);

(b) Where an advertisement is ambiguous or capable of more than one meaning, if one of those meanings is false, the advertise- ment will be held to be misleading. Rhodes Pharmacal Co. v. F.T.C. , 208 F.2d 382, 387 (7th Cir. 1953); Ralph J. Galliano , P.S. Docket No. 19/15 (P.S.D. May 2, 1985 at p. 9).

(c) An inconspicuous disclaimer is not sufficient to dispel the effect of false representations. Leo Daboub, supra ; Gottlieb v. Schaffer , supra .

(d) The Administrative Law Judge can determine whether the representation is made, its effect on the ordinary mind, and materiality without the assistance of lay or expert testimony. Standard Research Labs , P.S. Docket No. 7/78 (P.S.D. Oct. 27, 1980); The Robertson-Taylor Company , P.S. Docket Nos. 16/98-102, 16/120-121, (P.S.D. March 31, 1986 at page 29); Vibra-Brush v. Schaffer , 152 F. Supp. 461 (S.D.N.Y. 1957), rev'd on other grounds , 256 F.2d 681 (2nd Cir. 1958).

2. Applying the foregoing standards, I find that Respondents' advertisements make the representation alleged in 6 of the Complaint. The language contained in the advertisements, when read in context, which directly or impliedly makes this representation is set forth in the Findings of Fact. Moreover, this finding is fully corroborated by the credible testimony of Dr. Scipione.

3. As set forth in the Findings of Fact, the representation set forth in paragraph 6 of the Complaint is materially false.

4. The representation made by Respondent is material because it has a tendency to persuade readers to order and pay for Respondents' product.

5. Contrary to Respondents' argument, it is not necessary for an expert such as Dr. Grekin to base his testimony on his own testing of the product. Expert opinion testimony need not be based upon tests of the product to constitute sufficient evidence of false advertising representations. Original Cosmetics Products, Inc. v. Strachan, 459 F. Supp. 496 (S.D.N.Y. 1978), aff'd mem. No. 78-6165 (2nd Cir. April 30, 1979); Reilly v. Pinkus , 338 U. S. 269, 274 (1949).

6. A promise to refund if a customer is dissatisfied will not dispel the effect of false advertisements. Farley v. Heininger , 105 F.2d 79 (D. C. Cir. 1939); Borg-Johnson Electronics, Inc. v. Christenberry , 169 F. Supp. 746 (S.D.N.Y. 1959).

7. It is irrelevant whether anyone has actually complained to the Postal Service about Respondents' ads. Farley v. Heininger , supra . In addition, the existence of satisfied customers does not establish that the statute has not been violated. Id.

8. Complainant has established its case by a preponderance of the reliable and probative evidence of record. S.E.C. v. Savoy Industries, Inc. , 587 F.2d 1149, 1168 (D.C. Cir. 1978).

9. Respondents have argued that this proceeding is unconstitutional because 3005 violates the Separation of Powers Doctrine and Article 2 of the Constitution which gives the Executive Branch exclusive responsibility to enforce the laws of the United States (Tr. 15-16). I need not address this issue because I do not have jurisdiction to determine the constitutionality of statutes. 39 CFR 224.1(c)(4)(iv)(B).

10. The attached False Representation Order and Cease and Desist Order should be issued.

___________________

1/ Although the Complaint does not specify that the ad represents that the product will cause a "noticeable" or "measureable" enlargement, the ad clearly makes this representation, and the issue of enlargement was litigated on this basis. Gottlieb v. Schaffer , 141 F. Supp. 7 (S.D.N.Y. 1956); Leo Daboub , P.S. Docket No. 19/185 (P.S.D. July 10, 1986). Express misrepresentations are not required. It is the net impression which the advertisement is likely to make upon individuals to whom it is directed which is important, and even if an advertisement is so worded as not to make an express representation, if it is artfully designed to mislead those responding to it, the false representation statute is applicable. G.J. Howard Co. v. Cassidy , 162 F. Supp. 568 (E.D.N.Y. 1958); See also , Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council , 425 U.S. 748 (1976).