In the Matter of the Complaint Against B-BEAUTIFUL METHOD Post Office Box 1231 Radio City Station at New York, New York 10019 P.S. Docket No. 1/181; APPEARANCES: Thomas A. Ziebarth, Esq.; Law Department, United States Postal Service, Washington, D.C. 20260 for the Complainant Lee Hirsey, pro se, P. O. Box 743, Pittsfield, Massachusetts 01201 for the Respondent
The above-captioned proceeding is before the Judicial Officer on the Respondent's appeal from an Initial Decision recommending the issuance of a false representation order under 39 U.S.C. 3005 as to mail relating to the sale of Respondent's product "B-Beautiful Method".
The Initial Decision found that Respondent made the representations charged in the complaint 1/ and that following Respondent's exercise program will not increase the size of a woman's breasts or bustline. Consequently, it found that Respondent made false representations as charged in the complaint.
As I understand Respondent's appeal, he contends therein what he is offering for sale is a book and that the statements in the advertisement about the results achievable are mere expressions of opinion that do not rise to the status of representations. Otherwise, however, he does not question the findings in the Initial Decision that the representations charged were made nor that the evidence showed them to be false.
The instant case does not fall within the ambit of the Parker decisions 2/ on which Respondent relies and in fact does not even approach it. In Parker the advertisement specifically offered a book for sale and described its contents. Here the advertisement carefully refrains from stating that a book or booklet is involved. The policy stated in Parker would have no application here. The other argument presented by Respondent has no greater merit.
The advertisement clearly and unquestionably represents that the product Respondent sells will produce definite benefits as charged in the complaint. When such representations are found to be false and to be made as part of a scheme to obtain money through the mail by means of false representations, the First Amendment does not preclude issuance of a false representation order under 39 U.S.C. 3005. See Lynch v. Blount, D.C.S.C. N.J. (1971), 330 F.Supp. 689, aff'd 404 U.S. 1007.
Upon consideration of the record in this proceeding in the light of Respondent's exceptions, the Initial Decision is affirmed and a remedial order is being issued pursuant to 39 U.S.C. 3005 contemporaneously with this decision.
Adam G. Wenchel Judicial Officer
05/14/73
Wenchel, Adam G.
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