In the Matter of the Complaint Against PARKER PUBLISHING CO. at West Nyack, New York 10994 P.O.D. Docket No. 3/80August 12, 1971
H. Richard Hefner and Thomas A. Ziebarth, Esqs., Office of the General Counsel, U. S. Postal Service, for Complainant. Joseph F. Kelly, Jr., Esq., of Townley, Updike, Carter & Rodgers, New York, New York, for Respondent. Before: John Lewis, Hearing Examiner.
STATEMENT OF PROCEEDINGS
This proceeding was initiated by the filing of a complaint by the General Counsel of the Post Office, on March 12, 1971, charging the above-named Respondent with conducting a scheme or device for obtaining money or property through the mail by means of false repre- sentations, in violation of 39 U. S. Code 4005, as amended. In essence, said complaint charges Respondent with having made false representations, in advertising matter, concerning the therapeutic value of the principle and method of "Foot Reflexology", as set forth in a book published by Respondent entitled "Helping Yourself With Foot Reflexology", Respondent appeared by counsel and filed answer in which it denied, in essence, having made any false repre- sentations in advertising matter, and alleged as affirmative defenses, inter alia, that (a) the advertising challenged by the complaint accurately represents the contents of the publication which it purports to advertise, and (b) the application of 39 U. S. Code 4005 to prohibit dissemination of such advertisement represents an unlawful restraint on the rights and privileges of Respondent and the author of the publication under the First Amendment of the Constitution.
Pursuant to notice duly given, a hearing for the reception of evidence was convened on April 14, 1971. Both sides appeared by counsel and were afforded full opportunity to be heard, and to examine and cross-examine witnesses. Counsel for Complainant called two witnesses, (1) a postal inspector, through whom counsel sought to establish that Respondent's method of operation involved the obtaining of money through the mail by means of statements made in advertising, and (2) a physician, through whom counsel sought to establish the falsity of the representations allegedly made in Respondent's advertising matter. Respondent called a single witness, its vice-president in charge of sales, who testified concerning the nature of Respondent's business, the source of the statements in the advertisement in question, and its policy with respect to refunds.
During the course of a discussion of the issues, conducted prior to the start of the reception of evidence, counsel for the Respondent indicated that he had prepared his defense on the assumption that the complaint was directed at a disparity between the statements made in the challenged advertisement and the contents of the book which, he claimed, was the theory on which the complaint in a proceeding involving another book published by Respondent (P.O.D. Docket No. 3/41) had been upheld by the Post Office's Chief Hearing Examiner. The undersigned Hearing Examiner ruled that whatever ambiguity may have existed in the other complaint, the complaint here was unambiguous and was not directed at any disparity between the advertising and the book, but at the falsity of the representations as to therapeutic benefits set forth in the advertising. Counsel for Complainant agreed the present complaint was not directed at any disparity between the advertising and the book, but indicated that he had no objection to holding the record open so that Respondent could produce countervailing medical evidence to rebut that proposed to be offered on behalf of Complainant. The examiner advised counsel for Respondent that in view of his apparent misunderstanding concerning the theory of the complaint he would be given an opportunity to review the record, after the close of the evidence, and determine whether he wished to offer any countervailing medical evidence. No request to adduce such evidence was made by Respondent following the conclusion of the hearing herein.
At the close of the hearing the parties were granted until May 17, 1971, to file proposed findings of fact and conclusions of law. Thereafter, the time for filing such proposed findings was extended until June 21, 1971, on the basis of successive motions filed by counsel for both sides.
After having carefully reviewed the evidence in this proceeding and the proposed findings and conclusions,1/ and based on the entire record, including his observation of the witnesses, the undersigned makes the following:
FINDINGS OF FACT
A. The Alleged Solicitation of Money Through the Mail
1. The Respondent is a wholly-owned subsidiary of the Prentice- Hall Publishing Company and publishes approximately 500 titles which are presently in print. Respondent's titles fall into the category 1/ Proposed findings not herein adopted, either in the form proposed or in substance, are rejected as not supported by the evidence or as involving immaterial matters. of business, teaching, instruction, coaching for sports, salesman- ship, public speaking, inspiration, and health for layment (Tr. 113-4).2/
2. Respondent publishes approximately two dozen titles in the category of health for laymen, including "Helping Yourself With Footh Reflexology", by Mildred Carter, which is the book involved in the advertising challenged by the complaint herein. Said book was published in 1969 and Respondent has sold approximately 52,000 copies thereof, of which 39,000 copies were sold by mail order and the balance through book stores and the Prentice-Hall book club operation (Tr. 115-6).
3. Respondent advertises the book in question through a four- page advertising brochure containing various statements concerning the effectiveness and benefits of "Foot Reflexology". The brochure, which is mailed to prospective purchasers, offers an opportunity to receive the book "free for 10 full days", by filling out and mailing an enclosed order card, at the end of which period if the reader wishes to keep the book he is directed to "send $6.95 plus postage and packing", otherwise he may "send it back and pay nothing' (CX. 1-B). The order card enclosed with the brochure also offers the
2/ The following abbreviations are used herein in referring to evidence in the record: "Tr.", for the transcript of testimony; "CX.", for Complainant's exhibits; and "RX.", for Respondent's exhibits. Such references are to the principal parts of the record relied upon by the examiner, in support of particular findings, but are not intended as an exhaustive compendium of the portions of the record reviewed and relied upon by him. reader an opportunity to pay for the book in advance. In a separate box to be checked off by the prospective purchaser if he wishes to "SAVE MONEY", the card states (CX. 1-C):
"Check here if you prefer to enclose payment (plus sales tax where applicable) now, in which case we pay postage and packing charges. Same return privilege, full money-back guarantee."
4. Of the approximately 39,000 copies of the book in question sold by direct mail, approximately 12 to 13 percent are ordered by checking off the "Save Money" box and sending payment through the mail. The balance are ordered on the "free examination" basis (Tr. 122; CX. 1-C). Although the order card provides a 10-day period for examination of the book before payment is due, and permits customers paying in advance to request a refund within 10 days, Respondent does not strictly enforce the 10-day provision. Of the books sold by direct mail, 12.6% were returned to Respondent (Tr. 122-5). However, the record does not disclose how many of these were returned after the 10-day trial period.
B. The Alleged Representations
5. Respondent's advertising brochure is in the form of a letter purporting to be written by the author of the book, Mildred Carter. The letter is addressed to "Dear Friend" and contains various statements about the contents of the book and quotations therefrom (CX. 1-B). The front and back pages of the brochure purport to be statements by the author describing the general nature of "Foot Reflexology", and referring to various ailments and maladies which the use of this method will "relieve", "clear up" or "stop". The interior two pages contain an "Outline of Contents" of the book (in terms of the use of "Reflexology" to "bring relief ... and in many cases healing" for various diseases and portions of the body), a summary of certain specific diseases discussed in the book of which people were allegedly cured or relieved by the use of Foot Reflexology, and quotations from various chapters of the book describing how people with various diseases and maladies were helped by the use of Foot Reflexology. A copy of the brochure is attached hereto as Appendix "A".
6. The complaint charges that Respondent has made various representations in its advertising brochure concerning the effective- ness of Foot Reflexology in the treatment of various specific diseases and as a "panacea for the ailments of making". Respondent contends that it has itself not made any representations concerning the effectiveness of Foot Reflexology, but has merely set forth in the brochure statements made by the author. With respect to certain of the alleged representations Respondent contends that not even the author has made them, since the statements cited in the complaint are not made as positive representations but in the context of what the author "has seen" Foot Reflexology achieve in connection with certain specific ailments or diseases.
7. It is the opinion and finding of the examiner that the statements appearing in the brochure may be regarded as representa- tions made by Respondent, despite the form of the brochure as a letter purporting to emanate from the author, since (a) the wording of the brochure was prepared by Respondent, albeit the brochure was sent to the author for approval (Tr. 127), (b) the brochure was and is used by Respondent in the solicitation of orders for the book of which it is the publisher and from the sales of which it is a bene- ficiary, and (c) its name appears on both the brochure and the order card as a source of the statements and representations therein. With respect to the matter of the statements in the brochure in which the author states "I have seen it /Foot Reflexology/ relieve" or "clear up" certain ailments, it is the opinion and finding of the examiner that such statements may be regarded as positive represent- ations concerning what the reader may expect to achieve from the use of Foot Reflexology. It is apparently Respondent's position that the representation, if any, made in such statements is as to what the author has "seen" Foot Reflexology accomplish rather than that the use of Foot Reflexology will, in fact, accomplish the results which the author has allegedly "seen". The distinction which Respondent seeks to make between a statement that the use of Foot Reflexology will accomplish a certain result and a statement that the author has "seen" it accomplish that result is one of such subtlety that it would escape the understanding of all but the most sophisticated readers of the brochure. The ordinary reader would interpret a statement as to what the author has "seen" Foot Reflexology accomplish to imply that the reader may expect similar results in his or her own case.
8. Based on the statements appearing in Respondent's brochure, some of which are herein quoted below, it is the finding of the examiner that Respondent has made the following representations, in substance and effect, to readers of such brochure:
a. That the principle of "Foot Reflexology", as set forth in the book "Helping Yourself With Foot Reflexology", is in the nature of a panacea for the ailments of mankind (e.g., "Now] With the simple method of Foot Reflexology] 'You can Get Almost Immediate Relief from Aches and Pains All Over the Body]'" "Foot Reflexology is a method for healing the whole body." "I have been helping people achieve remarkable relief from seemingly hopeless aches and pains all over the body, ..." "Reflexology will free you from sickness and suffering, and fear of pain". "Foot Reflexology is a safe, natural, and inexpensive way to help restore healthful circulation to every area of your body". "Healings and relief from discomforts of all sorts are reported, by the dozen, in the pages of my book"). Respondent contends that no such representation was made for the reason, apparently, that the brochure does not use the word "panacea", and because the author is quoted as stating that: "No one can guarantee a cure, nor is it /Foot Reflexology/ a medical substitute". While the word "panacea" is not specifically used in the brochure, the listing of all of the areas of the body where Foot Reflexology may be used effectively, the listing of an extensive number of ailments which it has allegedly cured or relieved, the description of how the method operates, and the above quoted portions indicative of its utility in all areas of the body, would create an impression in the average reader that it is in the nature of a panacea for all diseases and ailments. This impression is not minimized by the statement, quoted by Respondent, that "No one can guarantee a cure" and that Foot Reflexology is not "a medical substitute". this brief statement is immediately followed by a "but" and then lists an impressive array of diseases and ailments which have been relieved, cleared up or stopped by Foot Reflex- ology. The reader is also told: "I have proven that this method of healing works in my own experience. You owe it to yourself to try it". Despite the statement that it is not a "medical substitute" the reader is told: "I have seen it do marvelous things that surprised me many times when doctors said it couldn't be done. If it can do this for others, it can do it for you]"
b. That "the feet contain Reflexes, which lead like telephone lines to all parts of the body." This assertion is at the heart of the claims made for the effectiveness of Foot Reflexology in the alleviation of diseases and ailments of the body. The brochure states that "Foot Reflexology is a method of healing the whole body *** / b /y rubbing and pressing gently on certain areas of your feet" thereby enabling the user to get "almost immediate relief IN OTHER PARTS OF THE BODY". This is based on the theory that, as initially quoted above, the feet contain "reflexes which lead like telephone lines to all parts of the body", and that "/ by /y pressing them /the feet/ you help restore normal circulation and health to congested areas". Respondent does not deny that the foregoing statement or statements appeared in the brochure, but contends that they are expressly attributed to the author of the book and are not those of Respondent. As above found, the brochure was prepared and distributed by Respondent, and the representations made therein may be regarded as being made by it.
c. That through employment of "Foot Reflexology" the purchaser may safely treat, relieve, alleviate and/or cure numerous and varied, specific or general human body ailments, conditions, maladies, and/or illnesses, including the following which are specifically set forth in the brochure as illustrations:
1. "...crippled hands and feet, caused by painful arthritis, straighten whole bodies and bring them back to normal]";
2. "It can stop the pain of hemorrhoids almost immediately]";
3. "Most headaches vanish immediately with this method]";
4. "...liver and gall bladder trouble]";
5. "...relieve back troubles, in a matter of seconds]";
6. "...fast relief to stomach troubles]";
7. "...lasting relief to sufferers of varicose veins with this method. This is also true with cramps or pains in the legs]";
8. "...relieve bladder trouble quickly, with great relief after the very first treatment -- all sensation of burning or itching seem to disappear completely]";
9. "Relieves Cataracts]";
10. "Relieves Heart Condition and Restores Youth";
11. "Anemic Conditions" and "...pernicious anemia";
12. "Kidneys, Ovaries and Hemorrhoids Healed]"
Aside from the general objection that the foregoing statements are made by the author, rather than by it, Respondent contends that the statements made in subparagraphs 1 and 4-8 cannot be regarded as representations since they are preceded, in the brochure, by the words "I have seen it". This contention has been previously discussed and found to be lacking in merit. In addition, Respondent notes that the statements referred to in subparagraphs 9-12 consist of headings in the brochure, following which specific cases are quoted from the book involving individuals suffering from these conditions who were allegedly relieved by the use of Foot Reflexology. This fact in no way detracts from the nature of the statements as constituting representations by Respondent concerning what readers suffering from these and similar conditions may expect to achieve from the use of Foot Reflexology.
d. That employment of "Foot Reflexology" will renew, rejuvenate, and restore the youth of the user (e.g., "How to Make Reflexology Your Rejuvenator," "...be young again?" "... with a revitalized body?" "Reflexology rejuvenates the entire body, giving new life to glands and cells". "We do not have to be old".). Respondent contends that the statements above quoted do not constitute representations made by it since they are quotations from statements made by the author in the book. This fact in no way detracts from the nature of these statements as constituting representations made by Respondent.
e. That the scientific principles, theories and practices of "Foot Reflexology" were developed, practiced and generally recognized by the discipline of physiotherapy. The basis of the foregoing representation is a statement appearing in the brochure allegedly made by a "Registered Technician in Physiotherapy" as follows:
"During my forty-eight years as a Physiotherapist in my own Treatment Centers...I have had every opportunity to observe the amazing benefits of manual massage. *** The techniques described in Mrs. Carter's book have been developed by experts in the field of reflex massage and we have no hesitation in recommending them. ..."
Contrary to Respondent's contention, such quotation constitutes a representation by Respondent of the nature set forth above.
C. The Alleged Falsity of the Representations
9. The uncontradicted and credited testimony of Dr. Vincent F. Cordaro establishes that the foregoing representations made by Respondent are false, for the following reasons:
a. The technique of Foot Reflexology involves essentially the rubbing and pressing of certain areas of the foot so as to allegedly produce "almost immediate relief IN OTHER PARTS OF THE BODY". This is supposed to result from the fact that "the feet contain Reflexes which lead like telephone lines to all parts of the body" and that by rubbing and pressing certain areas of the feet you can "restore normal circulation and healthy to the congested areas". The book itself contains a chart showing which areas of the foot contain the specific reflexes which lead to particular parts of the body (CX. 4-D at 4-9).
b. Dr. Cordaro's testimony establishes that there are no reflexes in the feet which lead like telephone lines to all parts of the body. The feet contain nerves which are connected with other nerves in the body that ultimately reach the brain, but these are not reflexes. A reflex arc is one which upon stimulation will cause a reaction to occur elsewhere. Such arcs are usually short and go from sensory nerves to motor nerves. Reflex arcs are not derived from the foot. The massage of the foot may afford some relief to a sore foot, but will not generally produce relief in other parts of the body (Tr. 49-50, 97).
c. Foot massage is not a panacea for the ailments of mankind and it will not relieve, alleviate or cure the specific ailments, maladies or illnesses referred to in the brochure, including arthritis, hemorrhoids, headaches, liver and gall bladder troubles, back troubles (except in the infrequent cases where they are cause by foot problems), stomach troubles, varicose veins or cramps or pains in the legs (except where they result from minor injury to or trouble with the feet), bladder troubles, cataracts, heart conditions, anemia, or kidney and ovary troubles. The employment of Foot Reflexology will not renew, rejuvenate or restore the youth of the persons employing it. Foot Reflexology is not in accordance with the principles of physiotherapy and is not a part of physiotherapy. Physiotherapy is used to relieve certain muscular pains, stresses or strains, but not to cure or alleviate the multiplicity of diseases set forth in Respondent's brochure or to restore vigor. In some instances the use of Foot Reflexology will not only not cure or alleviate the condition but may actually cause its deterioration. For example, pernicious anemia is due to a lack of Vitamin B12 and if not promptly treated by the injection of such vitamin could result in a degeneration of the spinal cord (Tr. 49-59, 84, 89-90).
CONCLUSIONS
1. Respondent contends that Complainant has failed to establish the first of the constituent elements of a violation of Section 4005, now Section 3005, of Title 39 U. S. COde, viz., the existence of a "scheme or device" for obtaining money through the mail. Respondent asserts that the scheme or device with which it is charged is not effected "until the contract /for the sale of the book/ has been consummated", inasmuch as the book is offered on a 10-day "free" inspection basis. Hence, it argues that since the recipient of the advertising brochure has an opportunity to examine the book before ordering it, "the representations in the advertising matter have been merged into the product itself", and consequently the sending of the brochure cannot be considered a scheme or device for obtaining money through the mail.
2. Respondent's position in this regard is wholly lacking in merit. The scheme or device with which Respondent is charged is the use of false representations in the brochure to induce the purchase of the book and hence to remit money through the mail. It is immaterial that, as a matter of Contract Law (cited by Respondent), the sale may not be completed until the end of a 10-day inspection. The use of the advertising brochure is an essential element in Respondent's scheme or device for merchandising the book. Such element cannot be ignored or be considered to have disappeared or "merged" because of the later availability of the book for inspection by the prospective purchaser. As has been held in an analogous situation:
"The law is violated if the first contact or interview is secured by deception (FTC v. Standard Education Society, et al., 302 U.S. 112, 115), even though the true facts are made known to the buyer before he enters into the contract of purchase (Progress Tailoring Co. v. FTC, 7th Cir., 153 F.2d 103, 104, 105)." Carter Products, In. v. FTC, 186 F.2d 821, 824 (7th Cir., 1951).
Furthermore, Respondent's argument is based on the assumption that a 10-day opportunity to examine the book will enable the ordinary reader to disabuse himself of any false impressions received from the brochure. This ascribes a degree of sophistication to the average reader which he does not possess. However, even assuming arguendo that a sale on a 10-day free inspection basis were to justify ignoring the deceptive statements in the brochure in the case of purchasers ordering on that basis, the fact is that a substantial number of purchasers, viz., 12 -13 percent do order and pay for the book without taking advantage of the 10-day trial period. The fact that these purchasers have an opportunity to request a refund and that some indeterminate portion do so is immaterial. G. J. Howard Co. v. Cassidy, 162 F. Supp. 569 (1958); Farley v. Heininger, 105 F.2d 79 (1939); Borg-Johnson Electronics v. Christenberry, 169 F. Supp. 746 (1959).
3. Respondent's second basic argument is that the record fails to establish it made any representations in the brochure concerning the efficacy of Foot Reflexology, since the statements in the brochure purport to be those of the author of the book. While the brochure is in the form of a letter from the author, it was, as previously found, prepared by Respondent and used by it to induce prospective customers to purchase the book and transmit money through the mail. The fact that someone else may have been the source of the statements utilized by Respondent in the brochure does not insulate it from responsibility for using such statements as part of a scheme or device for obtaining money which inured to its benefit. Goodman v. FTC, 244 F.2d 584 (9th Cir. 1957); Globe Readers Service, Inc., v. FTC, 285 F.2d 692 (7th Cir. 1960).
4. Respondent's final argument is that although the complaint purports to be directed at statements made in the brochure, it actually represents an attack on the book "Helping Yourself With Foot Reflexology", since the proof offered as to the falsity of the representations in the brochure involves an evaluation of whether the author's opinions and methods described in the book are valid or not. Thus, while the doctor called by Complainant purported to base his opinion primarily on the brochure, Respondent notes that his report to the Post Office indicates that his evaluation was based on the text of the book as well as the brochure (RX. 2). Respondent contends that the author of the book has a constitutional right, under the First Amendment, to advance "her ideas, thoughts, opinions and methods for the alleviation of diseases and poor health", and that such constitutional right extends to an advertisement for the book, "especially /to/ an advertisement which contains her quoted statements."
5. The medical testimony indicates that the conclusions of the doctor with respect to the false and misleading character of the representations are based primarily on the statements made in the brochure itself, rather than on the contents of the book. The brochure sets forth, in general terms, the nature of the methodology of Foot Reflexology and represents to the reader what he may expect to accomplish through the use of this method, both generally and in terms of specific diseases and ailments. All that the book does is to supply more detail about what is already adverted to in the brochure. Thus, it contains several charts which pinpoint the areas of the foot that should be massaged in order to achieve beneficial results in specific areas of the body. It also contains further details concerning the anatomy and functions of certain portions of the body and their relationship to specific diseases, together with a number of case histories of individuals who were allegedly helped by use of foot massage. Dr. Cordaro testified that after reading the brochure he felt that he had "read enough" because:
"I thought I would be wasting my time reading any part of the book, but I did skimp through it, a few pages, here and there, a chart, just to see what it contained. And broadly, the contents were so far afield from my medical knowledge that I didn't think I would gain anything by reading it." /Tr. 68/
6. It is the opinion of the examiner that a determination as to the material falsity of the representations made in the advertising brochure may be made on the basis of the contents of the brochure, without the necessity for an evaluation of the book itself. How- ever, in the view of the examiner it is immaterial, in determining the constitutional question raised by Respondent, whether the con- clusions as to the falsity of the representations here involved are based entirely on the contents of the brochure or also involve an evaluation of the contents of the book since, in either event, the advertising brochure is not protected by the First Amendment.
7. The right of freedom of speech and of the press under the First Amendment is not absolute. It does not confer any immunity on speech or writing which constitutes "libel, slander, misrepresentation, obscenity, perjury, false advertising", or the use of the mails to promote circulation by fraud or deception of the public. Konigsberg v. State Bar, 366 U.S. 36, 49 n. 10 (1961); Donaldson v. Read Magazine, 333 U.S. 178, 190 (1948). "There is no constitutional right to disseminate false or misleading advertisements." E. F. Drew & Co. v. FTC, 235 F.2d 735, 740 (2d Cir. 1956), cert. denied, 352 U.S. 969. In Matter of Witkower Press, Inc., 57 FTC Reports 145, 218, the Federal Trade Commission held that its authority to prohibit deceptive advertising extends to "false promises of therapeutic benefits in the advertising for a book when such advertising statements derive from or reflect like views or information contained in the publication itself." In Koch v. FTC, 206 F.2d 311 (6th Cir. 1953), the court held that a book distributed to physicians containing a doctor's scientific theory fell within the protection of the First Amendment, but ruled that booklets distributed to patients for sales purposes "present primarily an advertising feature" not protected by the free speech amendment. As in the Witkower case, supra, the order sought here "does not purport to forbid the printing or sale of the book but looks instead to prohibiting false therapeutic claims used in advertising." The author of the book is free to advance any theory which she wishes to the public, no matter how ill-conceived and misguided. However, if Respondent wishes to promote the sale of the book as a commercial enterprise and to induce the public to purchase it, it has no constitutional right to falsely advertise the therapeutic benefits which the purchaser will receive, merely because the product with which it is dealing is a book.
FINAL CONCLUSION OF LAW
Respondent is engaged in conducting a scheme or device for obtaining money or property through the mail by means of false representations, in violation of 39 U. S. Code 3005. It is accordingly recommended that an order in the form attached, as provided in 39 U. S. Code 3005, should be issued.