In the Matter of the Complaint Against SKINPEEL 210 Barbara Circle at Ocean Springs, Mississippi 39561 and VERNON MCGUIRE 3127 S.W. 27th Avenue at Miami, Florida 33133 P.S. Docket No. 1/6; APPEARANCES: Complainant: George C. Davis, Esq. Daniel S. Greenberg, Esq. Law Department U. S. Postal Service Washington, D.C. 20260 Respondent: No appearance
This proceeding was initiated by the filing of a Complaint by the General Counsel of the Postal Service on July 30, 1971, charging that Respondent, Vernon McGuire, under his own name and under the name of Skinpeel, with conducting a scheme or device for obtaining money or property through the mails by means of false representations in violation of 39 United States Code 3005.
The Complaint charges the Respondent with having made false representations in advertisements soliciting sales of a course of skin peeling through the mails. The Respondent filed an answer in the form of a letter and attachment denying the essential allegations of the Complaint. It is likely that this answer was filed without assistance of an attorney.
The Complainant moved for an expedited hearing on the basis that a physical danger is present to the public by the activity of the Respondent covered by the Complaint. On the basis of the motion an expedited hearing before the Judicial Officer was granted.
In the view of the evident lack of assistance to Respondent by counsel, I wrote to the Respondent pointing out the nature of the hearing provided for under the rules and pointed out to him that he had a right to request a change in the date or place of hearing if he had good reason therefor. No response has been received to that letter. The Respondent did not appear at the hearing. Section 952.11(b) of the Rules of Practice (39 C.F.R. 952.11(b)) provides in this eventuality that "If the Respondent files an answer but fails to appear at the hearing, the presiding officer shall receive complainant's evidence and render an initial decision." Accordingly, Complainant's evidence has been heard.
In the motion for an expedited hearing, Complainant requested an oral decision at the conclusion of the hearing. Section
952.24 of the rules provide for an oral decision "when the nature of the case and the public interest warrant" that action. The issues in this case are relatively simple. I see no benefit to be obtained by written briefs. For this reason it is a case in which it is appropriate to issue a bench decision. Moreover, the course of treatment involved in this proceeding includes the application of Phenol, that is, carbolic acid, to the face by the purchaser of the Respondent's course. The strength of the Phenol to be applied is sufficient to be a hazard to health when self-administered. Therefore, the public interest not only warrants an immediate decision in this case but also warrants that this decision be a final decision as authorized by paragraphs (b) and (c) of section 952.24 of the Rules of Practice, rather than a tentative decision. Accordingly, this decision is rendered as the final Postal Service Decision in this proceeding.
The Complaint charges Respondent with obtaining money or property through the mails as a consequence of representations that are false. It charges, first, that in selling the course of skin peeling Respondent represents that it will enable the ordinary person to obtain the desired results without serious risk of concomitant adverse effects on appearance.
The Complaint charges, second, that Respondent makes the following representations that are false:
(1) Application of the course will greatly diminish severe wrinkles regardless of cause;
(2) Application of the course will substantially eliminate small scars regardless of cause;
(3) Application of the course will substantially reduce discolored, blotched and wrinkled skin regardless of cause; and
(4) Application of the course will allow the user to obtain a more vital natural look than that achieved by a face lift.
The Complaint charges further that the Respondent falsely represents that the course he sells may be used by lay persons themselves to obtain the foregoing results without serious risk of adverse effects on health and without risk of discomfort greater in type or degree than would be expected from sunburn or blistering by the sun.
The Complaint finally charges that Respondent represents that he will furnish all materials essential to follow the procedures advertised, but that he does not do so.
Postal Inspector A. W. Pfanmiller testified that on the basis of an advertisement in the National Informer, a copy of which has been placed in the record as Exhibit C-1, he wrote to the name and address given, namely, Skinpeel, 310 Barbara Circle, Ocean Springs, Mississippi 39561, and remitted $1 as solicited in the advertisement. In doing this he used a fictitious or test name. In response he received a letter about seven pages long which has been placed in evidence as Exhibit C-5. That letter makes extensive representations about the beneficial of skin peeling as applied in the course sold by the Respondent.
Enclosed with this letter was a questionnaire asking the name, address and age of the potential customer, the reasons for wanting a skin peel and very general questions as to the person's problems with skin, whether he had been treated previously for any form of skin disease, and whether he suffers from various diseases. The questionnaire also requests the return of a recent unretouched photo.
Sometime after returning the questionnaire the Inspector received, addressed to the test name used, a circular from the Respondent making a special 10-day offer (Exhibit C-11). The special 10-day offer solicited orders for the Skinpeel course for an initial payment of $10 and subsequent payments of $10 a month presumably for four additional months. The Inspector testified that in response to this solicitation he caused a $10 money order to be sent to the Respondent and received instructions from the Respondent entitled "Course 2," Exhibit C-20, as well as a small bottle of liquid labeled in handwriting "Phenol, Poison, Causes Burns" (Exhibit C-22). Subsequently he received a revised Course 2, Exhibit C-24, addressed to him in the test name. Thereafter he wrote the Respondent that he had not received the preparatory course. Presumably in response thereto he received a document entitled "Course 1, "Exhibit C-18, containing the preparatory steps recommended by Respondent.
The Inspector's testimony establishes that the Respondent has made the representations contained in the various exhibits and he has solicited remittances through the mails as part of the enterprise described in the Complaint. The product label attached to Exhibit C-22 establishes that the material is Phenol. Further, Exhibit C-20 contains instructions on page 1 to purchase one-half ounce of pure Phenol stating, "This can be purchased at a pharmacy for the purpose of disinfecting utensils."
Doctor Peter N. Horvath, a physician whose specialty is dermatology, testified on behalf of Complainant. His qualifications as shown in the record establish that he is well qualified to testify with respect to conditions affecting the skin and to the treatment for skin problems.
He testified that pure Phenol as bought in a pharmacy consists of a solution generally with a strength of about 89 per cent. Instructions contained in Exhibit C-20 provide for diluting the Phenol in one instance to 50 percent strength of the original solution or about 44 per cent Phenol, and in the other instance to approximately 36 per cent Phenol. Dr. Horvath further testified that a solution of Phenol sufficiently strong to peel the skin can cause substantial damage to the eyes or blindness in the case of accidental application of it there. He also testified that there is a substantial hazard with respect to the skin at the areas on which applied. He stated that he had at one time used strong Phenol solutions but had given them up because of the dangers involved even when applied by a physician specializing in the field of dermatology.
On the basis of the evidence submitted, I make the Findings of Fact as follows:
(1) Respondent is engaged in a scheme or device for obtaining remittances through the mails for the sale of his course known as Skinpeel (Exhibits C-1, C-5, C-11).
(2) As an integral part of that program or scheme or device, he makes the representations through various use of the exhibits admitted into evidence including specifically C-1, C-5, C-11 and C-18.
In these exhibits the Respondent makes the following representations, among others: That the course will
(a) greatly diminish severe wrinkles (Exhibit C-5, page 4);
(b) substantially eliminate small scars (Exhibit C-5, page 4);
(c) substantially reduce discolored, blotched and wrinkled skin (Exhibit C-5, pages 2 and 3); and
(d) enable the user to obtain a more vital natural look than that achieved by a facelift (Exhibit C-5, page 4).
(3) Doctor Horvath testified that a course of treatment such as that recommended by Respondent and involved in this proceeding would eliminate or reduce small scars. While there may be some dispute as to the definition of small scars, I cannot find that Complainant has sustained his burden with respect to the representation (b) above. Otherwise I find that the evidence of record establishes the falsity of representations (a), (c), and (d) above.
(4) In a number of instances Respondent has made representations as to the ease and safety of following his course as in Exhibit C-11 where he represents: "A sixth grader could follow the directions," and "I have absolute confidence in my course, which is specially prepared for the novice", and "simple to follow instructions". In Exhibit C-5 Respondent states, "I believe people are capable of using a stove without blowing themself up, or crossing the street without getting run over by a car. Non-medical people have been peeling for years, and the number of people injured by this has been negligible, mostly because of extreme carelessness." I find on the basis of the foregoing that Respondent has represented that the ordinary user may use the product without hazard to health. Since the purpose of skin peeling as presented by the Respondent is to improve appearance, I further find that this representation also is to the effect that the ordinary person may follow this course of instructions without hazard to his appearance.
(5) It is abundantly clear from the testimony of Dr. Horvath that the representations in Finding (4) are false and I so find.
In connection with the Findings generally the decision of the United States Court of Appeals for the Sixth Circuit in The J. B. Williams Company v. Federal Trade Commission, 1967, 381 F.2d 885, is pertinent. The Court held that where a representation is made that a product will be efficacious for a condition, the representation will be considered to be a deceptive one and to be false and misleading when there are a substantial number of instances in which the product will not be efficacious. This holding is of application here since it is recognized that skin peeling by chemical means can be efficacious with respect to blemishes of various types which are not deep-seated, but that this method of treatment is not appropriate or effective for the more deep-seated blemishes.
On the basis of the foregoing Findings, I conclude that the Respondent is engaged in a scheme or device for obtaining money or property through the mails by means of false representations within the meaning of and in violation of 39 United States Code 3005.
The Judicial Officer has issued a remedial order under 39 U.S. Code 3005 directed to mail of Skinpeel and/or Vernon McGuire at 3127 S.W. 27th Avenue, Miami, Florida 33133; 4651 S.W. 32nd Avenue, Ft. Lauderdale, Florida; and Post Office Box 678, Miami, Florida 33133.
09/01/71
Wenchel, Adam G.
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