May 6, 1970

In the Matter of the Complaint Against

ELEANOR MARTIN COMPANY

at

Douglas, MI  49406

P.O.D. Docket No. 3/34

APPEARANCES:

For Complainant

Daniel S. Greenberg, Esq.

Office of General Counsel

Post Office Department

Washington, D.C.

For Respondent

Charles Rowan, Esq.

Milwaukee, WI

INITIAL DECISION OF HEARING EXAMINER

            The Post Office Department General Counsel fled a complaint charging Respondent with violating 39 U. S. Code 4005 in obtaining money through the mail by false representations about a product Respondent sells for wrinkles and other aging skin conditions.  Sufficient evidence supports essential allegations of the complaint and, therefore, a remedial order should issue under the applicable statute.

39 U. S. Code 4005

            The statute, on which the complaint relies, reads in pat now pertinent, as follows:

“***False representations ***

            “(a)  Upon evidence satisfactory to the Postmaster General that any person is engaged in conducting a scheme *** for obtaining money *** through the mail by means of false representations ***, the Postmaster General May issue an order which –

            (1) directs any postmaster at an office at which *** letters or mail arrive, addressed to such person *** to return such letters or mail to the sender appropriately marked as in violation of this section***; and

            (2) forbids the payment by a postmaster to such a person *** of any money order or postal note *** and provide for the return to the remitters of the sum named in the money order or postal note.

*           *           *           *           *           *           *           *           *           *           *”

            On the whole record this Hearing Examiner makes Findings of Fact and arrives at Conclusions of Law, set forth below.

I

Findings of Fact

            A.  Respondent sells Nutrivena B25 (the product) by means of advertising distributed to the public to induce readers to remit money through the mail to Respondent for the product.

            B.  Respondent advertised the product in various recent publications.  A copy of such advertisements is marked Appendix A and Appendix B, attached hereto and made part hereof.  Respondent makes the representations contained in Appendix A and Appendix B.

            C.  Gene F. McHale, a Postal Inspector employed by the Post Office Department, investigates matters related to medical quackery.  He received an unsolicited circular concerning Respondent’s product (Nutrivena B25) advertised for wrinkles and other aging skin conditions.  The Inspector subsequently caused the product to be ordered and paid for by mail.  After receiving the product, he delivered it to the U. S. Food and Drug Administration for analysis by a chemist.  After analysis, the Food and Drug Administration reported to the Post Office Department on the content of the product.  That report was later evaluated by a dermatologist in relation to Respondent’s claims concerning the product’s efficacy for wrinkles and other aging skin conditions.  Further references to the chemist and the dermatologist appear later in this decision.

            D.  Respondent makes, in the advertising matter referred to above, each of the representations set forth in paragraphs of the complaint designated “(3)***(a)” to (3)***(h)”, inclusive.  This appears from a comparison of Appendix A and Appendix B to this decision with the aforementioned paragraphs of the complaint.  The impression on readers arises not only from the words used in the advertisement but all that is reasonably implied from words, pictures, typographical format and total context.  Respondent’s representations are substantially equivalent to what the complaint says they are, based upon the impression on readers, particularly the ignorant, the unthinking and the credulous.

            E.  Respondent’s representations may be placed in three interrelated categories.

            1.  Representations in the first category directly concern somewhat overlapping or repetitive descriptions of those female facial skin conditions for which the product is, according to Respondent, the scientific solution.  This category includes what is set out in paragraphs designated “(3)***(a), ***(b), ***(e), ***(f)” of the complaint.  In summary, Respondent represents:  The product solves all 7 of the “AGE-REVEALING PROBLEMS” – lines on forehead, corner of eyes, under eyes, around nose, nose to mouth, around mouth, and on neck under chin; the product eliminates “skin problems typical of women 30 to 65” such as stubborn wrinkles in the forehead, crow’s feet about the eyes, deep, furrowing lines extending from nose to mouth, sagging flabby skin under the chin, dry aging  skin, and lose aging flesh at the neck; the product permanently eliminates the skin conditions, previously stated, rather than merely concealing or masking them temporarily; and the product will reverse the aging process of the skin.

            2.  Second category representations mainly concern claims of proof of the product’s efficacy in hospital, university and laboratory tests [paragraph designated “(3)***(g)” of complaint] and in clinical tests {paragraph designated “(3)***(h)” of the complaint].

            3.  Third category representations mainly concern statements that the aging skin conditions noted above are caused by body’s inability to supply skin with essential nutrients [paragraph designated “(3)***(c)” of complaint] and that Respondent’s product contains a new food discovery which compensates for body’s inability to supply skin with essential nutrients [paragraph designated “(3)***(d)” of complaint].

            F.  Taken singly, and in combination, Respondent’s representations are materially false.

            1.  Materiality appears from the obvious inducement of the representations to readers, in search for a fountain of youth or something like it, to part with money for the product.

            2.  The representations in the first category described above, are false.

            a.  The description and general chemical content of the product, as observed, analyzed and reported by chemist Jacob S. Sage, of the U. S. Food and Drug Administration, includes the following

“Swedish Formul B/25

Face Cream”

* * *

“a pleasant smelling, off-white cream”

* * *

“RESULTS:

Non-volatile Residue……………….76.8%

                        Hydrocarbons (Long Chain)

                             and esters……………………………..    76.0%

                        Cholesterol………………………………..      0.2%

                        Parabens and alkyl sulfate………………      0.6%

Volatile Portion…………………….. 23.2%

                        Water………………………………………     23.2%

* * *

            b.  A leading dermatologist, Peter N. Horvath, M.D., considered the foregoing chemical analysis together with the state of medical knowledge and his own very wide experience concerning aging skin conditions.  According to Dr. Horvath, the product would have no significant effect for eliminating skin conditions such as those described or referred to above as Respondent’s first category representations.  The only possible value of Respondent’s product might be to soften or lubricate the skin and also temporarily – for an hour or so – fill out by moisturization or otherwise – some superficial or very fine lines.  (Such a limited representation, if fairly made and compatible with Dr. Horvath’s views, which are representative of sound dermatology, would not be false on the present record).

            c.  Sound medical practice and procedure recognize that effective treatment or therapy for the more severe aging skin conditions included within Respondent’s first category representations, described above, might well require, depending upon individual circumstances and proper medical judgment, either a referral to and surgery by a plastic surgeon or the use of fairly strong acids for peeling the skin or dermabrasion (sanding off superficial layers of skin with use of machine similar to a dental drill).  Conditions of the skin, which such approved medical practice and procedure would be likely to substantially remedy, surely can not be remedied by the use of Respondent’s product.

            3.  Respondent’s representations in the second category, described above, are false.

            a.  Dr. Horvath never heard or saw any scientific report or any other scientifically credible evidence of the testing of Respondent’s product in any hospital, university, or laboratory, which supports Respondent’s claims or product efficacy.  Nor did Dr. Horvath ever hear or see any scientific report or other scientifically credible evidence of clinical testing of Respondent’s product to establish and prove efficacy.  Such testing did not occur anywhere so far as available and reported knowledge in medicine or dermatology indicates.

            b.  Respondent produced at the hearing no credible scientific report substantiating the basic representations made concerning the efficacy of Respondent’s product for the aging skin conditions described in category one.

            4.  Respondent’s representations in the third category are false.

            a.  Dr. Horwath’s view of the cause of aging skin conditions is that no single definite cause for such conditions is known to medical science and that a number of factors may be significant, including excessive exposure to sunlight and malnourishment of the individual.

            b.  If there were a difference among dermatologists on the theories concerning the causes of aging skin conditions, such difference would not substantiate Respondent’s representations that there is in effect a single theory, namely, the lack of the body’s ability to supply nutrients to the skin.  Moreover, medical experience and knowledge do not indicate that any product, such as Respondent’s product, by moisturization or otherwise would do anything more for skin conditions, described above in category one, other than possibly soften or lubricate the skin and temporarily fill in very fine lines.

II

Conclusions

            A.  Respondent is engaged in an enterprise for receiving money through the mail by means of false representations concerning the efficacy of its product to remove wrinkles and other aging skin conditions, in violation of 39 U.S.Code 4005.

            B.  A remedial order should issue under 39 U. S. Code 4005 (Proof of fraud is not required under that statute, as amended).

            C.  The foregoing findings and conclusions are supported by a preponderance of the evidence of record.  There is no substantial evidence in the record to the contrary.

            D.  The proceedings herein are in accord with all pertinent provisions of the Administrative Procedure Act, including those relating to the designation of hearing examiners to hear and initially decide such matters as those presented by the instant proceeding.

III

Comment

            This Hearing Examiner issued an initial decision, on a complaint against another respondent, December 15, 1969 (sustained in Departmental Decision February 13, 1970, P.O.D. Docket No. 3/20, Nuevene, Intl., Ltd., at New Jersey and New York).  That decision concerned essentially the same product Nutrivena B25) and substantially the same representations in advertising as those here present.  A remedial order under 39 U. S. Code 4005 has been issued against that other respondent.  Nothing in the instant case, including the testimony of the Respondent’s witness, chemist, Paul Strauss, justifies a different conclusion now.

* * * * * * * * * *

            A form of remedial order is submitted herewith.

                                                                                    Jesse B. Messitte

                                                                                    Hearing Examiner