In the Matter of the Complaint Against

 POST SHOP
 P. O. Box 45438 at
 Chicago, Illinois 60645

 P.O.D. Docket No. 3/61;  

 12/29/70

 Duvall, William A.  

On July 22, 1970, the General Counsel for the Post Office Department (Complainant) advised Post Shop, P. O. Box 45438, Chicago, Illinois (Respondent) that the statements contained in Respondent's advertisement (Attachment A) of a product called "New Super Formula Sex Pep Pill" are false representations and that Respondent was thereby running afoul of the provisions of 39 U.S. Code 4005. Complainant sent to Respondent a form of compromise agreement which, if signed on behalf of Respondent, would serve as a means of disposing of the matter without the necessity for a hearing, thus avoiding the possibility of the issuance of a mail-stop order under 39 U.S. Code 4005.

The compromise agreement was executed by Heinz Mietzner on behalf of Respondent on July 31, 1970, and returned to Complainant, who, in keeping with the agreement, took no further administrative action against Respondent.

In the agreement it is set forth, insofar as here pertinent, that the use of the representations complained of have "been and will be permanently discontinued and abandoned, and will not hereafter be resumed, directly or indirectly, ***." Paragraph Number 3 of this agreement provides as follows:

"3. A breach of this agreement by the undersigned or any party in privity with the undersigned will warrant the issuance of an order pursuant to § 4005, supra, by the Postmaster General, Deputy Postmaster General, or the Judicial Officer for the Post Office Department, against the name or names appearing in the caption hereof, or any other name or names then in use, provided that the undersigned or his attorney of record is first served with a copy of the petition for such order."

On November 11, 1970, the Complainant filed a "Petition for Order Based Upon Breach of Compromise Agreement." With this petition were filed, among other things,

1. A copy of an advertisement (Attachment B) by Respondent for a "New Super Formula Sex Pep Pill" (the product) from the September 20, 1970, issue of the National Informer;

2. A letter, dated October 23, 1970, in which the product is ordered;

3. A stub of a money order, dated October 24, 1970, payable to Respondent in the amount of $9.50 in payment for the product. The money order was enclosed with the order for the product;

4. The invoice indicating shipment of the product on October 29, 1970; and

5. Round plastic containers of the product, one of which was obtained from Respondent prior to the issuance of Complainant's letter of July 22, 1970, and the other two of which were received from Respondent in response to the order of October 23, 1970. The labels on the 3 cartons show the ingredients of the contents to be "sugar, starch, argentum leaf, gelatine, edible seedlac and food coloring."

Service of the petition presently under consideration on Heinz Mietzner is evidenced by Certified Mail Receipt Number 553952, dated November 28, 1970, and service upon Post Shop is evidenced by Certified Mail Receipt Number 553949, dated November 27, 1970.

The foregoing facts establish:

1. Respondent resumed or continued the use in his advertising material of the identical language and representations which were specifically agreed to be discontinued and not resumed.

2. Respondent resumed or continued the sale of a product, which, according to the statements on the labels, are identical in content with the product sold prior to the execution of the compromise agreement of July 31, 1970.

3. Respondent has been "served with a copy of the petition" now under consideration.

Respondent asked for a hearing on Complainant's Petition.

Respondent was given opportunity to indicate any genuine issue of material fact that might be presented if this matter should go to hearing. Respondent sought to avail itself of the opportunity thus offered, but Respondent failed to make any persuasive showing as to the existence of a genuine issue of material fact.

The facts in this case are strikingly similar to those considered in U. S. Bio-Genics Corp. v. Christenberry, U.S.D.C., N.Y., 1959, 173 F. Supp. 645; aff'd. 2 Cir., 1960, 278 F.2d 561, wherein the validity of the issuance of an order such as the Complainant now seeks, based on the breach of a compromise agreement similar to the one executed by this Respondent, was sustained.

Respondent has breached the compromise agreement, so, by its terms, effect must be given to the provisions of paragraph number 3 of that agreement.

The order sought in the petition will issue forthwith.