In the Matter of the Complaint Against MORRIS KAPLAN of 1124 North La Brea Avenue, Los Angeles 38, California, and 1085 No. Oxford, Hollywood 29, California using the fictitious, false or assumed names and addresses of: CHRISTMAS DECORATIONS, CHRISTMAS ORNAMENTS, 114 East 32nd Street 135 East 34th Street, and 228 Lexington Avenue, New York, New York, and 1085 North Oxford, Hollywood 29, California H.E. Docket No. 5/182; 06/19/58 Ablard, Charles D. POST OFFICE DEPARTMENT WASHINGTON, D.C.
On December 11, 1957, a complaint was issued in the above matter charging that the respondent, one Morris Kaplan, was engaged in a fraudulent enterprise whereby Christmas tree decorations and ornaments were being offered and sold to the public through the mails. The complaint also alleged that Kaplan was violating an "affidavit of discontinuance" filed in the proceeding "Helene Doll Creation", H.E. Docket 4/263. The decorations and the dolls sold by the respondent were made of styro-foam plastic which is a flat sheet of plastic foam with various designs printed thereon which can be pressed out of the sheet. A copy of the advertisement used by the respondent in the sale of the Christmas ornaments was attached to the complaint.
Pursuant to an agreement between the complainant and the respondent all mail addressed to the respondent has been impounded pending a final departmental determination of this matter. This agreement is still in effect.
A hearing was held and the Hearing Examiner found that the allegations in the complaint as to the decorations were true recommending the issuance of a fraud order. The examiner found
that the enterprise had not violated the affidavit of discontinuance since a separate and different business enterprise was involved even though it was operated by the same individual.
The respondent has excepted to the finding of the examiner that the respondent was conducting a fraudulent enterprise. The complainant did not except to the finding regarding the affidavit of discontinuance.
The first exception of the respondent is to the finding of the Hearing Examiner that certain representations alleged in the complaint were made. The advertisement must be considered in its entirety and it is the impression conveyed to the average reader which controls. The Supreme Court said in Donaldson v. Read Magazine, 333 U.S. 178 (1947):
"Advertisements as a whole may be completely misleading although every sentence separately considered is literally true. This may be because things are omitted that should be said, or because advertisements are composed or purposefully printed in such way as to mislead."
The analysis of this advertising by the Hearing Examiner is correct.
Two of the representations made by the respondent merit further discussion. The advertising represents that, "never before could you afford to decorate as lavishly as your heart desires." The respondent would interpret the word "lavish" as meaning "very abundant, or more than enough." The examiner apparently partially agrees with this interpretation saying, "It is perhaps true that with several sets of the sold ornaments a tree may be so 'lavishly' trimmed." (Initial Decision, page 7). I disagree with this interpretation. It is difficult to imagine a "lavish" repast with copious quantities of bread or crackers. To be "lavish" the table would certainly have to be set with some caviar or sturgeon or at least a little cheese. The ornaments sold by the respondent would not provide a "lavish" decoration no matter how abundantly they might be used. The value of the product as compared to the cost to the purchaser is of no great consequence. Harris v. Rosenberger, 145 Fed. 449.
The respondent excepts to the finding that the representation was made that the ornaments were three dimensional. The advertisement shows various designs of ornaments which appear to be coming from a rectangular box similar to those used for the sale of the ordinary ball type Christmas tree decorations. In fact, the respondent's "decorations" are sold in an envelope and they are flat. Thus, the representation is most effectively made that the ornaments are three dimensional and must be packed in a box.
Upon a review of the advertising of the respondent and the Initial Decision I concur in the finding of the examiner. The exception is disallowed.
The second exception is to the finding that the representations were fraudulent and made with intent to deceive. There is ample evidence in the record concerning the representations and their composition to indicate an intent to deceive. The finding of the examiner is adopted and the exception is disallowed.
An additional point merits discussion. With each order for ornaments a book of "The World's Most Popular Christmas Carols" was offered. This was obviously designed to soothe the wounds of any purchaser of ornaments and discourage requests for refunds. The blatant commercialization of Christmas is appalling enough without enterprises such as this designed to prey upon the poor, the gullible and the unsuspecting.
The decision of the Hearing Examiner is affirmed and adopted. An appropriate order will be issued. All mail impounded should be returned to the sender and should the respondent undertake this or similar activities in the future a request for a supplemental order should be made in accordance with Section 201.34 of the Rules of Practice.