In the Matter of the Complaint That ) November 21, 1963 ) AGE-WISE COSMETICS, and ) AGE-WISE COSMETICS CO. ) ) at ) ) San Francisco, California ) P.O.D. Docket No. 2/103 ) (hereinafter called Respondent), is ) engaged in conducting a scheme for ) obtaining money through the mails in ) violation of 39 U.S. Code 4005 ) (formerly 39 U.S. Code 259 and 732). ) APPEARANCES: Ralph B. Manherz, Esq. and Abraham Levine, Esq. Office of the General Counsel Post Office Department for the Complainant Pierce N. Stein, Esq. Lewis and Stein 690 Market Street San Francisco 4, California for the Respondent Bosone, Reva Beck
The Respondent in this case has been charged with conducting a scheme for obtaining money through the mails in violation of 39 U.S. Code 4005.
The two products involved are "Beauty Band" or "Throat Pad" and "Bless Plex." "Beauty Band" is a device which contains "Bless Plex." This device is tied in place and usually worn for one night. "Bless Plex" is a lotion to be used on the forehead, face, and throat for the purpose of losing or eradicating sags, wrinkles, and creases in the skin.
Advertisements used in the Respondent's business are placed in newspapers and in two circulars. The circulars are sent to prospective customers when there is an inquiry or when an order is received concerning either product.
The issues are: 1st, does the Respondent in its pre-sale literature make representations set forth in paragraph three of the complaint; 2nd, are the representations if made, false; and 3rd, if so, were they made with an intent to defraud?
The Respondent admits sending the advertisement through the mail but denies that the representations are false and that there was any intent to defraud. 1/ The Respondent maintains that there is only "puffing" in the advertisements--that the public is used to this type of advertising and certainly used to it in cosmetic advertising.
The law seems to be clear that "questions of fraud may be determined in the light of the effect advertisements would most probably produce on ordinary minds"--Donaldson v. Read Magazine, Inc., et al, 333 U.S. 179--that "the buying public does not ordinarily carefully study or weigh each word in an advertisement. The ultimate impression upon the mind of the reader arises from the sum total of not only what is said but also of all that is reasonably implied"--that "the law is not made for experts but to protect the public - - -".--Aronberg et al. v. Federal Trade Comm., 132 F.2d 165.
In the advertisement and Exhibit A "YOUNG THROATS FOR OLD" that title is just below two drawings of a woman's head and neck. The woman on the left has the chin-sag often typical of a woman or a man who is growing old. The drawing on the right shows the same picture but with the firm curved neckline from the chin. The question is what is the ordinary public or the reader going to infer from that advertisement.
It is a castigation on the intelligence of middle-aged and above middle-aged women to become so intrigued with remaining young that they believe such advertisements are true, that old throats can be made young by some kind of a cosmetic and one through the use of these products can look twenty years younger. The constant emphasis in our country on the preservation of youth--in the newspapers, in radio, in TV, has induced too many women to seek means which they think will make them look younger. So long as women search for a miracle cosmetic to supplant age with youth, they will take cosmetic ads seriously and try one product after another in their constant search. The tremendous sales and profits in cosmetics prove this to be true.
Of course any human being wants to look her best and if there is some preparation that will help her, then that preparation is inviting. The subject matter of aging of the skin and change in the epidermis.--Tr. 56.
Dr. Epstein said these products would not correct "sagging" or"crepey" tissues and that the products, the subject of this case, would not accomplish the restoring of youthful appearance more effectively than most plastic surgery.--Tr. 113. As to the two
drawings of the women in the advertisement--the one with the chin-sag and the other with a curving neckline--Dr. Epstein said that such a result could not be possible by the use of the product advertised. Dr. Epstein further said that there was no doubt that his testimony as to the value of these products is consonant with the preponderance of accepted medical opinion on the subject--that he knew of no recognized, reputable medical and scientific authorities who had different views from his on the matter involved.--Tr. 121. Dr. Epstein did not deny that for a short while any cream that is applied to the skin would be a temporary improvement but that if one were looking for a good therapeutic agent "this is not it"--Tr. 122--that makeup and not treatment is used to cover up the aged areas on one's face and neck--Tr. 136--that there are people regardless of age who have very soft skins but that depends upon the person--the reason may be heredity he injected.
Dr. Epstein described the hormones used in cosmetics--the limitation put on the amount of estrogen--that progesterone and other hormones are not limited but there would have to be more than one per cent in an ointment to make it an active agent to penetrate. He said that the use of progesterone might last for hours or even two or three days before it finally disappears but that pregnenolone has the same local effects as progesterone--that pregnenolone when rubbed into the skin of an old woman caused an edema of the tissues--the face became swollen.--Tr. 150D.
Dr. Ralph Weilerstein of Berkeley, California, testifying for the Post Office Department, is a field medical consultant to the Food and Drug Administration at San Francisco. He is also an assistant clinical professor of medicine at the University of California Medical Center. He disagreed with Mrs. Georgia Ann Frank, the owner
of Age-Wise Cosmetics, who said that placenta and pep-tone restored the normal element to human skin and restored elasticity and vitality to aging skin. His testimony was based he said on studies of the medical literature relating to the cosmetic use of placenta extracts and on conversations with experts in the field of dermatology.
The Respondent produced women witnesses who said they had used the products mentioned in this case for weeks and that they had noticed an improvement. To substantiate their testimony there were produced two pictures of each witness--a "before" taken before the products were used and an "after" taken after the products were used. I agree with the initial decision that these "photographs must be completely disregarded"--because of "the differences in poses of the subjects, the differences of apparel, the differences in lighting, the differences in the backgrounds and the differences in the facial expressions of the subjects." The photographer submitted the pictures to Mrs. Frank, the Respondent in this case, and she made the selection of the ones to be presented in the hearing. Taking the pictures as represented by the Respondent--any improvement was not impressive--the age of the person was not hidden.
Mrs. Georgia Ann Frank, the owner of Age-Wise Cosmetics, was the chief witness for the Respondent. She said she was sixty-five years of age and that she had used her own product. It was apparent that she has a nice skin regardless of her age. She said she had been producing "Bless Plex" for three years and "Beauty Band" for eighteen or twenty months--that the product was the result of her own experimentation and that it contained two wonder drugs--human
placenta and pep-tone. She said she knew nothing of plastic surgery except as she read articles in the "Readers Digest." She said that the ad "YOUNG THROATS FOR OLD" meant that that could be as long as a woman cares to use the product. But there was no place in the ad that indicated that. She admitted that the Complainant's Exhibit 1-A-1, wherein there are the two drawings mentioned above, that if any user followed the directions as furnished by her they would not achieve the results that are portrayed in the one drawing. She added that she had ordered the one drawing of the woman with the sagging neck changed. Mrs. Frank disagreed with Mr. Craig's report. She did not divulge the formula for her product but she did say that she buys placenta in powder form from a firm in Chicago, Illinois.
Mr. Craig testified later in the hearing that human placenta will deteriorate or decompose over a period of time. He had received the sample of "Beauty Band" on April 30, 1962, and prepared his report on June 29, 1962--Tr. 406--but then Dr. Weilerstein said--Tr. 413--" . . . in no case could they (placenta and pep-tone) be able to accomplish the results described by her."
The Hearing Examiner took official notice of two earlier cases involving this same Respondent, one in 1954 and one in 1959, in the sale of two products called "Byline" and "Defyline".
In the light of the testimony of Dr. Epstein and Dr. Weilerstein I must agree with the initial decision "that the representations set forth in paragraphs 3(c) and 3(e) of the complaint are true and that the remainder of these representations are false". While the representations do not say that the products will produce permanent
results, the scientific evidence is that no cosmetic as the initial decision indicates from the doctor's testimony will restore elasticity to muscles and thereby correct sagging tissues.
There was an intent to defraud because the statements and implications on the ads are not true and cannot be considered as only "puffing" because the exaggerations are too extreme. The representations made by the Respondent are not concurred in or upheld by the universality of scientific belief.--Reilly v. Pinkus,, 338 U.S. 269. With all the experience Mrs. Frank has had in the past with cosmetics she had the responsibility of finding out the capability of each ingredient and the combination of the ingredients to make the products that she invited the public to buy. Ignoring this responsibility she certainly disregarded what the truth might be.
It is therefore held that the Respondent is engaged in a scheme for obtaining money through the mail by means of false and fraudulent pretenses, representations and promises in violation of the provisions of Section 4005 of Title 39, United States Code.
The Respondent in this case is not new in the business of cosmetics. From her own history and that of the proceedings in 1954 and 1959 one cannot say she did not know better. The Hearing Examiner would like to avoid the issuance of an order so that the Respondent could continue a business which grew in gross sales from $50,000 to $136,000 in a period of three years. But if I am to read the testimony and the Hearing Examiner's own deductions from that testimony and the law I do not understand why a fraud order should not issue. Therefore I believe the Hearing Examiner's recommendation should not be followed.
A fraud order will issue.
1/ The representations described by the Complainant will be found attached at the conclusion of the decision.