Appeal of P.O.D. Docket No. 2/4 -- MARSHALL DRUG REMEDIES, INC.


 In the Matter of the Complaint That	) August 13, 1963
 					)
 MARSHALL DRUG REMEDIES, INC. 		)
 					)
 at 					)
 					)
 Forest Hills, 				)
 Flushing, New York, 			)
 				 	)
 (hereinafter called Respondent), is 	)
 engaged in conducting a scheme for 	)
 obtaining money through the mails 	)
 in violation of 39 U.S. Code 4005. 	) P.O.D. Docket No. 2/4

 APPEARANCES:
 Bass & Friend
 Office & P. O. Address
 342 Madison Avenue
 New York 17, New York
 for the Respondent

 Ralph Manherz, Esq.
 Office of the General Counsel
 Post Office Department
 Washington, D.C.
 for the Complainant
 Bosone, Reva Beck

D E C I S I O N

A Compliant in the above matter was filed on November 9, 1960, charging the Respondent with obtaining remittances of money through the mails by means of false and fraudulent pretenses, representations and promises in violation of 39 U.S. Code 4005.

On January 9, 1961, the Respondent, Marshall Drug Remedies, Inc., by Julius Lynne, president, signed an Affidavit in which he promised to ".....discontinue any claim in its advertising material that its said product (either alone or in combination with Respondent's exercises program) is beneficial for enlarging the bust, but will limit all references for the program and product, to toning of body muscles and/or as a general body creme to soothe body muscles and to provide a more supple body, and improving posture."

The Respondent further agreed in paragraph 3 of said Affidavit "..... that if the Post Office Department receives evidence showing a resumption of the enterprise complained against in violation of this affidavit, the Assistant General Counsel, Fraud Division, Post Office Department, may issue or cause to be issued to the person or concern causing the mails to be used relating to the enterprise in question, a ten (10) day notice for a hearing to determine whether a violation of the said affidavit has been made; and in the event that a violation is found, an appropriate order may issue pursuant to and in accordance with 39 U.S. Code 4005; and in the event that a fraud order is issued against any name or names employed by affiant in the operation of the said mail enterprise, the undersigned hereby waives all rights to any indemnity covering insured and C.O.D. shipments of the merchandise sold under the above name or any other name or names, and agrees that any such claim may be forthwith disallowed by the Post Office Department."

After the affidavit was signed the proceedings in the foregoing matter were suspended.

A hearing on the charge of the Complainant that the Respondent had violated the Affidavit was held on June 25, 1963. At the hearing Counsel for the Complainant offered a proposal of settlement. The proposal was rejected by Counsel for the Respondent. The decision on the issue in the foregoing matter was taken under advisement.

The advertisement alluded to as "1," and the advertisement alluded to as "2-A" in the Complainant's request for a fraud order of May 9, 1963, create the same impression in words along with the

picture on the advertisement of a full-breasted young woman.--Bersoff et al v. Donaldson, 174 F.2d 494 (1949) and Donaldson v. Read Magazine (1948), 333 U.S. 178:

"Questions of fraud may be determined in the light of the effect advertisements would most probably produce on ordinary minds." "People have a right to assume that fraudulent advertising traps will not be laid to ensnare them. 'Laws are made to protect the trusting as well as the suspicious.'"

The No. 1 ad below is the one used by Respondent before the Affidavit was signed. The No. 2 ad below shows the one used after the Affidavit was signed.

The emphasis in both advertisements is on the feminine breasts. According to the intent of the Respondent in signing the Affidavit there would be no further advertisements referring "to enlarging the bust."--Tr. 12. The second advertisement clearly indicates that the product advertised will develop the bosom (and the word "bosom" is first), leg, hip and thigh muscles. The meaning of the two advertisements is so graphic that a further interpretation is unnecessary. Since the two advertisements convey the same impression there is an intent to violate the Affidavit. There is a violation of the Affidavit and an intention to circumvent the Affidavit of Agreement.--Darnell v. Darnell,, 200 F.2d 747; U.S. v. Epstein, 152 Fed. Supp. 583; U.S. v. Kyle, 257 F.2d 559; U.S. v. ylvanus, 192 F.2d 96, cert. den. 342 U.S. 943.

The Respondent did violate the Affidavit causing the basis for the complaint. A fraud order is hereby issued.