In the Matter of the Complaint Against

 KRISNEL, INC. and
 P. O. BOX 188 at
 Brick Town, New Jersey 08723

 and

 LYNCRIST, INC. and
 P.O. BOX 536 at 
 Brick Town, New Jersey 08723

 
 P.O.D. Docket No. 3/95
 

 11/18/71
 

 Wenchel, Adam G.  

 APPEARANCES:
 George C. Davis, Esq.;
 H. Richard Hefner, Esq.;
 United States Postal Service,
 Washington, D.C. 20260 for the Complainant

 Walter D. LeVine, Esq.;
 Gutkin and Miller,
 744 Broad Street,
 Newark, New Jersey 07102 for the Respondent

This proceeding involves a complaint by the General Counsel of the United States Postal Service alleging in substance that Respondents' Krisnel, Inc., and P. O. Box 188, Brick Town, New Jersey, and Lyncrist, Inc., and P. O. Box 536, Brick Town, New Jersey, are engaged in a scheme or device for obtaining money or property through the mails by means of false representations in violation of 39 U.S. Code 4005, now 39 U.S. Code 3005. The complaint charges that certain advertising used in connection with Respondents' sale of a product and dietary regimen known as the "Syntron Method" is false and misleading as set out in paragraphs 3 and 4 of the complaint. During the course of the hearing at the conclusion of the Complainant's case, the Hearing Examiner dismissed the complaint as to Lyncrist, Inc., and P. O. Box 536, Brick Town, New Jersey. In his Initial Decision, however, he upheld the complaint against the other Respondents except that he found that Respondents did not make the representation set out in paragraph 3(b) of the complaint.

Complainant has appealed from the dismissal of the complaint as to Lyncrist, Inc., and P. O. Box 536. Respondents Krisnel and P. O. Box 188 have appealed from the findings and conclusions adverse to them.

The basis of the dismissal of the charges against Lyncrist, Inc., and P. O. Box 536 was that no test purchase having been consummated, there was no evidence as to the composition of the product sold by them. Complainant contends that the identity of the advertising matter used by Lyncrist with that used by Krisnel and the interconnection between the two raises a presumption that the products are identical. It does not appear, however, that there is warrant for issuing a false representation order in this proceeding on the basis of such a presumption. One other basis for issuing an order would be convincing evidence that no product could achieve the results claimed in the advertisement. But, a review of the testimony presented on behalf of the Complainant does not require that conclusion to be reached.

¹/Respondent has taken seven exceptions to the findings of fact and conclusions of law set forth in the Initial Decision of the Chief Hearing Examiner. These are set out and discussed below.

Comment. Subparagraphs (a) through (h) of paragraph 2 of the findings of fact correspond to subparagraphs (a) through (h) respectively of paragraph 3 of the complaint. Paragraph 3(a) of the complaint charges that Respondent has represented "The 'Syntron Method' is a scientifically sound and effective remedy for obesity". However, there is no express representation to this effect and the reasoning necessary to conclude from the text of the advertisement that this representation is made is somewhat attenuated, and would in the opinion of the Judicial Officer carry logic further than is appropriate for this proceeding. Of course, the finding that the representation charged in paragraph 3(a) was in fact made is not crucial to the decision, since as concluded above, Respondent did make the representations charged in paragraphs 3(c)-3(h) of the complaint, as found in paragraphs 2(c)-2(h) on pages 10 and 11 of the Initial Decision.

Exception 2. "That any representations found to have been made by the respondent are materially false and misleading."

Comment. The Complainant's medical expert testified clearly and unequivocally as to the valuelessness of the Syntron tablets and Method not only in terms of his own opinion but also in terms of the opinion of the medical community as a whole. This testimony is not qualified by his acknowledgement that other qualified physicians would use treatments different from his, since he also testified that none would use the Syntron Method. This testimony was not contradicted by any evidence produced by Respondent and was fully credited by the Hearing Examiner who received the testimony. There is no basis for overturning the Hearing Examiner's conclusion in this respect. The medical testimony establishes that the representations made by Respondent as charged in paragraphs 3(c) through 3(h) are materially false and misleading.

Exception 3. "That, as a conclusion of law, the complainant had sustained the required burden of proof."

Comment. This exception is essentially cumulative of Exception 2. For the reasons stated in the comment on Exception 2, Exception 3 is denied.

Exception 4. "That, as a conclusion of law, the complainant need not establish the existence of fraud, and the mere fact that money may be obtained by means of false and fraudulent statements is sufficient."

Comment. The current state of the law is that it is not necessary to prove intent in order to obtain an order under 39 U.S. Code 3005. See the decision dated August 23, 1971, by the three-judge court in Vincent Lynch d/b/a Brewster Products v. Blount, Postmaster General, S.D.N.Y., 71 Civil No. 1564 and pages 4 and 5 of the Postal Service Decision, dated July 30, 1971, in Eleanor Martin Company, P.O.D. Docket No. 3/34.

Exception 5. "That the respondent is engaged in conducting a scheme for obtaining money or property through the mails by means of false representations as proscribed by the provisions of 39 U.S.Code 3005."

Comment. For the reasons set forth in the comments on Excepts 1-4, Exception 5 must be denied.

Exception 6. "The hearing examiner's refusal to hear the argument of the respondent that complainant must prove that the respondent had an intention to deceive the public, and his ruling that such proof was not necessary in this proceeding."

Comment. Since intent is not now a factor in the issuing of orders under 39 U.S. Code 3005, this exception must be denied. See comment on Exception 4.

Exception 7. "Further, respondent claims that it was denied due process, in violation of the Fifth Amendment to the United States Constitution, by the denial of its motion for a continuance."

Comment. Respondent's counsel moved at the commencement of the hearing for a continuance on the grounds that Mrs. Jean Jersted was then unavailable to testify because of illness. The motion for continuance was denied on the grounds that anticipated testimony was irrelevant.²/While counsel in the appeal brief contends that Mrs. Jersted might have been able to testify or assist on other issues, he did not dissent at the time of the hearing from the Hearing Examiner's conclusion that essentially Mrs. Jersted could testify only as to what was intended at the time the advertising was composed. He did urge, however, intent to which Mrs. Jersted might testify was a relevant consideration in the proceeding. The motion for continuance was denied, however, on the grounds that the anticipated testimony was irrelevant. That ruling was correct.

The Initial Decision of the Chief Hearing Examiner is affirmed.

A remedial order as provided in 39 U.S. Code 3005 will issue forthwith.

___________________

1/The Exceptions were filed on behalf of both Krisnel and P. O. Box 188.

2/The Hearing Examiner did not consider whether counsel's motion came too late, when he knew at least eight days before the hearing, as shown by the affidavit attached to the motion, of the witness' unavailability, but did not apprise the Hearing Examiner of this fact until the day before the hearing.