In the Matter of the Complaint Against

 NUEVENE, INTL. LTD., and
 P.O. Box 800M at
 Union City, New Jersey 07087

 and

 NUEVENE, INTL. LTD. at
 New York, New York

 P.S. Docket No. 3/20; 

 APPEARANCES:
					 For Complainant
					 William F. Lawrence, Esq.
					 Thomas A. Ziebarth,Esq.
					 Daniel S. Greenberg, Esq.
					 Office of General Counsel
					 Post Office Department
					 Washington, D.C.
					
					 For Respondent
					 Milton A. Bass, Esq.
					 Bass & Ullman
					 342 Madison Avenue
					 New York, New York

This proceeding was initiated by the issuance of a Complaint alleging the conduct of a business to obtain remittances of money through the mails by means of false representations contrary to the provisions of 39 United States Code 4005, as amended. ¹/

The Respondents are engaged in the sale of a product, called Nutrivena B25, for wrinkles and other skin conditions associated with aging.

During the hearing, Complainant introduced the testimony of (1) a chemist, who set forth the ingredients of the product and (2) a well-qualified dermatologist who testified (a) in regard to the causes and treatments of aging skin conditions and (b) that, at best, Respondents' product might lubricate or soften the skin and temporarily fill in very fine lines.

The Respondents produced one witness, an attorney from Philadelphia, Pennsylvania, one Robert H. Malis. Mr. Malis repeated a list of items which he said he had been told were the ingredients of Nutrivena B25. He presumed that the Respondents' product is the same as the product manufactured by his Swedish client A. B. Lakela, and sold to Respondents.

The Hearing Examiner found that Respondents were making each of the representations charged in the Complaint and that the representations are false. He recommended the issuance of the order provided by the governing statute.

The Respondents have excepted to the decision of the Hearing Examiner and briefs on appeal have been submitted by both parties.

The Respondents assigned the following points as errors of the Initial Decision.

1. The finding and conclusion that the formula and composition of the Respondents' product are equivalent to the formula set forth by Government's chemist;

2. The finding and conclusion that the Respondents' advertisement makes the representations set forth in the complaint and that such representations are false; and

3. The shifting of the burden of proof from the Complainant to the Respondents.

In regard to the first point, above, the Government's chemist testified as to the ingredients of Respondents' product as he had found them to be by chemical analysis. Respondents did or most certainly should have anticipated the introduction of this kind of evidence and Respondents should have been prepared to rebut any inaccuracies. After all, the ingredients of Respondents' products are matters peculiarly within Respondents' knowledge. That the Respondents came forward with no competent refutation whatsoever is strong support for the conclusion that the chemist's analysis is accurate.

When measured against the yardstick of Donaldson v. Read Magazine, 333 U.S. 178, it is beyond question that the Respondents make the representations set forth in the complaint. ²/ When these representations are compared with the results which the expert medical witness testified (with no testimony to the contrary) could reasonably be expected, the falsity of these misrepresentations is conclusively established. Respondents' second point is without merit.

There was no shifting of the burden of proof in this proceeding. The Complainant clearly and abundantly made out a prima facie case on the basis of substantial evidence. Whatever the reasons may have been, when they were given the opportunity to do so, the Respondents utterly failed to overcome the evidence adduced by the Complainant. Nothing further need be said about Respondents' third assignment of error.

Upon review of the entire record, I find that Respondents' exceptions are without foundation in the record; that they are without support in law; and that they are otherwise not persuasive. Respondents' exceptions are rejected.

For the reasons stated, the Initial Decision of the Hearing Examiner is sustained. An order under 39 United States Code 4005 will issue forthwith.

02/13/70

Duvall, William A.

1/ See Appendix A.

2/ See Appendix B.