In the Matter of the Complaint Against

 CIGARETTE SALES, INC. at
 Fayetteville, North Carolina 28302

 P.S. Docket No. 1/156

 01/17/73

 Wenchel, Adam G.  

 APPEARANCES:
 Nancy R. Dorsch, Esq.;
 Consumer Protection Division,
 United States Postal Service,
 Washington, D.C. 20260
 for the Complainant

 Edward J. David, Esq.;
 Downing, David & Vallery,
 110-1/2 Gillespie Street,
 Fayetteville, North Carolina 28301
 for the Respondent

The above-captioned proceeding was instituted on August 24, 1972, by the filing of a complaint under 39 U.S.C. 3005 charging Respondent with conducting a scheme or device to obtain remittances through the mails by means of false representations with respect to the sale of cigarettes through the mails.

Respondent answered denying all material allegations of the complaint and raising a number of affirmative defenses. After holding a hearing, the Chief Administrative Law Judge issued an Initial Decision uitholding the allegations of the complaint and recommending the issuance of a remedial order under the statute.

The specific false representations charged in the complaint are:

"a. that the total dollar amount for which a prospective purchaser of respondent's cigarettes is legally responsible is the price shown on the order form; and,

b. that fulfillment of the requisites of being 18 years of age or older, and of purchasing the cigarettes for the personal use of the buyer satisfies all legal responsibility of the buyer arising directly out of the purchase."

These representations are said to be implied in Respondent's order blank. n1 The order blank contains only the Respondent's name and address, prices, the names of brands of cigarettes sold, spaces to indicate the quantities ordered, the purchaser's name and address and the following words "5 Day Delivery", "Postage Paid and Insured", and "I am 18 years of age" and "Cigarettes are for my personal use" "Check or Money Order No C.O.D.".

n1 Exhibit A to the complaint; Complainant's Exhibit 1.

While Respondent has taken a number of exceptions to the Initial Decision, only two have sufficient merit to warrant discussion. These are No. 3 excepting to the finding that Respondent has made the representations charged and No. 4 excepting to the finding that the representations made are materially false. These exceptions will be considered together.

I accept Complainant's thesis that omission of a material statement may be a false representation under 39 U.S.C. 3005 and that the statute should be construed to protect the unwary and trusting. Application of these theses to the matter at hand, however, causes some difficulty.

Firsts, the essence of the charges is that Respondent has misrepresented the state tax laws and the case was presented on the theory that the purchaser would incur an unanticipated liability under the Pennsylvania laws. But the order blank was not received by the Inspector, who used it, from any source within the State of Pennsylvania. Accordingly, it is not clear that whatever representation was made, was made with respect to the laws of Pennsylvania.

Second, persons receiving the order form and responding to it may fall into any one of the following categories:

1. Persons who believe a tax is due and expect to pay it.

2. Persons who believe a tax is legally payable by them but also believe the state will not collect it.

3. Persons who believe that no state tax is legally assessable.

Obviously, the omission of reference to state taxes is not a false representation insofar as persons in Categories 1 and 2 are concerned.

On the other hand, a representation concerning state taxes could be a material one as to Category 3 persons. But the representation charged here is as to the buyer's "legal responsibility" for the tax. Unless it is shown that the legal responsibility is more than a theoretical one and there is some likelihood that the responsibility will be enforced, the representations would not appear to be material representation. No evidence has been adduced to show to what extent, if at all, the State of Pennsylvania seeks to recover taxes from mail order purchasers of cigarettes or that as a practical matter that the state could locate Respondent's customers in order to recover the tax.

The proceeding was presented on the basis that the false representations charged would induce persons to purchase cigarettes, who would not have done so had accurate representations have been made. Aside from the problem of determining that any representation was made as to Pennsylvania law in the instant case, no evidence has been presented and no logical presumption has been established to show that the remittances sent with the order blanks were "obtained by means of false representations 76-84

The foregoing should not be interpreted to mean that to succeed in obtaining an order under 39 U.S.C. 3005 the Complainant must show in the normal case that members of the public have in fact been misled by the representations charged to be false. Here it is charged that the representation is made purely by implication and the record does not indicate that the representation is false in more than a technical sense. Had Respondent expressly stated that the purchaser had no legal responsibility for Pennsylvania taxes or if it had been shown that the liability was enforced against the purchaser, a different conclusion might be warranted. I cannot say here, however, that Complainant has made the requisite showing to warrant issuance of a remedial order under 39 U.S.C. 3005.

The complaint, therefore, is dismissed.