In the Matter of the Complaint Against

 JENASOL CO., JENASOL COMPANY

 and

 CHARLES ETTINGER
 at New York, New York
 (Respondent)

 P.O.D. Docket No. 1/54; 

 APPEARANCES:
 Julian T. Cromelin, Esq.
 Ralph B. Manherz, Esq.
 Office of the General Counsel
 Post Office Department
 for the Complainant

 Milton A. Bass, Esq. of
 Bass & Friend
 New York, New York
 for the Respondent

Since a complaint in the above matter was issued on March 14, 1957, charging the Respondent with conducting a fraudulent business, the record has become involved and prodigious. As I understnad the case now there are but three issues: 1 - Did the "Affidavit of agreement" filed on July 17, 1957, preclude further action by the Post Office Department; 2 - Is this case presently moot; 3 - Are the representations made by the Respondent concerning royal jelly materially false and if so is there an intent to deceive?

All the way through the entire record the Respondent places great weight on the original "affidavit of agreement." It is a "well settled doctrine that res judicata and equitable estoppel do not ordinarily apply to decisions of administrative tribunals; for such tribunals are in this respect--and in many others--sui generis, and this the Supreme Court has emphasized in warning us that we may not transplant into the realm of administrative law rules of procedure, trial and review which have evolved in the history and experience of courts." Churchill Tabernacle v. Federal Communications Commission, 160 F.2d 244, 1947. In 1952 the decision in Niagara Mohawk Power Corporation v. Federal Power Commission, 202 F.2d 190, upheld the Churchill decision. Wallace Corporation v. National Labor Relations Board, 323 U.S. 248, 1944.

In the injunction suit brought by Respondents filed in the United States District Court for the Southern District of New York Judge Levet granted an injunction only because he believed the Respondent was entitled to his request for certain reports of Complainant's expert witness which had been denied in a previous hearing. Judge Levet did not rule that the present administrative proceedings were barred by the earlier proceedings and the "affidavit of agreement" by the Respondent.

The Respondent claims that a decision in the above case at this time can serve no purpose since the representations complained of in the complaint are no longer being made by the Respondent. He alleges that the matter is presently moot because an injunction was issued by the United States District Court for New Jersey in the case of United States of America v. Jenasol RJ Formula 60, U.S.D.C., D. NJ, Civil No. 1042-58, decided February 6, 1962--a food and drug case. But the District Court decision is not final and the case is different. The representations employed by the Respondent and the court's injunction would not necessarily restrain the Respondent's use of the representations involved in the Post Office Department proceedings. If the charges alleged by the Complainant are true then the Post Office Department should not be deprived of the power to enter such an order as is determined necessary to prevent their revival where there is no showing of abuse of discretion. Hershey Chocolate Corporation v. Federal Trade Commission, 121 F.2d 968, 1941, and United States v. 47 Bottles, 201 F.Supp. 915, 1962.

As for the third issue I agree with the Hearing Examiner's findings and conclusions in his decision of April 10, 1962, when he said: a - That an intent to deceive has been adequately shown, and b -that "The representations made by the Respondent concerning royal jelly in its product are materially false. This was admitted by Respondent's pleading in view of Rule 201.8(c), 23 F.R. 2794. This conclusion reached by Hearing Examiner Carlick and Judicial Officer Ablard was confirmed by Judge Levet for the U.S. District Court in the Jenasol case and by Judge Hastings, for the Seventh Circuit Court of Appeals in the Owen case. There is no pending dispute about this aspect of the proceedings."

The findings and conclusions of the Hearing Examiner's decision of April 10, 1962, are hereby adopted.

On March 1, 1962, the parties in the case of Owen Laboratories, Inc. v. Schroeder, 284 F.2d 445, by written stipulation filed with the Docket Clerk of the Post Office Department, stated that the ruling in the Jenasol matter would be that of the Owen case also.

A fraud order is hereby issued in the present case of Jenasol Co., Jenasol Company, and Charles Ettinger at New York, New York and in accordance with the foregoing mentioned stipulation a fraud order is hereby issued in the case of Owen Laboratories, and H. L. Owen at Chicago, Illinois.

04/04/63

Bosone, Reva Beck