In the Matter of the Complaint against	) October 18, 1972
				   	)
 NATURALON LTD. 			)
					)
 at 					)
					)
 New York, New York 10017 		) P.S. Docket No. 1/172

 APPEARANCES:
 Nancy R. Dorsch, Esq.
 Law Department
 United States Postal Service
 Washington, D.C.

 for Complainant
 Robert Ullman, Esq.
 Bass & Ullman
 342 Madison Avenue
 New York, New York 10017
 for Respondent

Pursuant to the Order of October 5, 1972, the above-captioned proceeding came before me on oral argument on October 11, 1972, regarding the issues raised by Respondent in its answer of October 3, 1972, to Complainant's Petition for Issuance of False Representation Order Based Upon Breach of Compromise Agreement.

On April 10, 1972, Complainant addressed a letter to Respondent advising that he was considering institution of a false representation proceeding against Respondent by reason of nine specified representations Complainant alleged to have made in Respondent's advertising used to induce mail order sales of its product "Formula E". Negotiations between the parties resulted in the execution of a standard form of Compromise Agreement but subject to a Rider attached to the Agreement. This proceeding was commenced by the filing of the petition mentioned above which charged Respondent with violation of the terms of the Compromise Agreement. The charge of breach is predicated upon the advertisements contained in Exhibits 6 and 9 attached to the complaint.

In its answer, Respondent denies that those advertisements violated the terms of the Agreement.

The letter of April 10, 1972, charged the advertising representations were false in the following respects:

(1) that Formula E will "reduce your tissues' and cells' 'hunger' for oxygen and conserve their precious oxygen supply";

(2) that use of Formula E will cause wrinkles to disappear;

(3) that use of Formula E will eliminate visible signs of stretch marks;

(4) that use of Formula E will advantageously affect facial lines and creases;

(5) that use of Formula E will remove surface scars;

(6) that use of Formula E will prove efficacious to blemishes and eczema;

(7) that use of Formula E speeds healing of burns and wounds;

(8) that use of Formula E in the amount specified will alleviate the effects of aging; and

(9) that use of Formula E in the amount specified will soften dry, rough skin.

The Rider to the Compromise Agreement provides among other matters that:

"1. Naturalon represents that it has discontinued the advertisement referred to in the letter dated April 10, 1972, that no such advertising has been placed by it since February, 1972, and that the last of such advertising was published in May publications which appeared in April, 1972.

"2. Naturalon will not in any future advertising make the representations set forth in subparagraphs (1), (2), (3), (5) and (7) of the letter dated April 10, 1972.

"3. It is not the intent of this Agreement to prohibit Naturalon from selling its product as a cosmetic, provided that its advertising claims are limited to proper cosmetic claims as distinguished from the claims in subparagraphs (1), (2), (3), (5) and (7) of the letter dated April 10, 1972. Thus, claims such as softer, smoother, or younger-looking skin; and softens, smoothens and makes less obvious wrinkles, blemishes, stretch-marks, scars, and the like, would not be in violation of the Compromise Agreement.

"4. Any future claims for the efficacy of Formula E in regard to blemishes, acne and eczema make clear that there is no therapeutic benefit involved.

"5. Any future representations regarding the effect of Formula E on facial lines and creases, and/or the effects of aging, make clear that such conditions are not removed."

Complainant contends that the words "fade and fading" as used in the advertisement are equivalent to "disappear." However, the primary meaning of fade is "to become less distinct; lose color or brilliance; dim." ¹/ It is only under extreme conditions that fading becomes disappearing.

Complainant also contends that the words "help clear up all my blemishes" is a prohibited claim. It should be noted that Respondent is not expressly prohibited from claiming that Formula E will prove efficacious to blemishes--only that it will not make therapeutic claims about the efficacy. Also for consideration in this connection are the types of claims concerning blemishes mentioned in paragraph 3.

The words "help clear up" do have some therapeutic implication. Nevertheless, under all the circumstances here, including various provisions of the Agreement, the single use of the phrase "help clear up" in one unaccented statement among many is not a sufficient basis to support a charge of violation of the Compromise Agreement.

I have considered the other claims of breach made by Complainant and find the representations do not breach the Agreement in the manner charged. Accordingly, the Petition in the above-entitled matter is dismissed.

Adam G. Wenchel

Judicial Officer

_____________________

1/ See Webster's New World Dictionary of the American Language--College Edition 1951.