In the Matter of the Complaint Against BEAUTY RESEARCH COMAPNY, Palm Springs, California 92262 BEAUTY RESEARCH CO., and BOX 2142 at P.S. Docket No. 1/204 March 5, 1973 David J. Knight Administrative Law Judge Daniel S. Greenberg, Esq., Consumer Protection Office, U.S. Postal Service, Washington, D. C. for the complainant. Milton Linder, Esq., Kinder, Schurmer, Drane & Bullis, Los Angeles, Calif., for the respondent.
By complaint filed November 3, 1972, the Consumer Protection Office of the U.S. Postal Service alleges that the respondent, Joseph Kaplan, doing business as Beauty Research Company of Palm Springs, Calif., is engaged in a scheme or device to obtain money through the mail by means of false representations. In essence, the complainant contends that respondent advertises a method to remove wrinkles from the face permanently, comfortably, without changing facial features, and regardless of their cause. The representations in the advertisement, either actually made or inferable, are said to be false. An order is sought under 39 U.S.C. 3005 requiring mail sent to respondent in answer to the advertisement be returned to the sender and forbidding the postmaster to pay any money order drawn to the respondent.
The respondent's answer, filed November 27, 1972, in substance denies that it is engaged in a scheme or device or that the advertisement falsely represents its method. It admits to the use of the mail to send its product/service and receive money. Its motion filed on the same date to change the place of hearing from Washington, D.C., was granted and, on January 22, 1973, hearing was held in Los Angeles, California. Both parties were represented by counsel.
(1) Whether the ad contains the representations as alleged in the complaint;
(2) If so, are these representations materially false; and
(3) Whether the protection of the First Amendment to the Constitution would render the application of 3005 unconstitutional since respondent's product/service is in the form of a booklet or guide and if it is found that there is no variance between what the advertisement represents and the contents of the guide.
The Evidence and Findings of Fact:1/
By stipulation, the respondent's advertisement (exhibit C-1) appearing in the National Enquirer on March 19, 1972, and the booklet entitled "Three Easy Steps to Make Your Wrinkles Disappear in Less Than 10 Minutes" (exhibit C-5) were received in evidence.
The ad, cast in the form of a news release, is four paragraphs long. Its headline reads, "Chinese Method, Face Wrinkles Disappear in 10 Minutes." The first paragraph tells of a Chinese method, recently brought to light, of looking a full 10 years younger by removing wrinkles in minutes without using chemicals, cosmetics or messy cover-ups and usable by any woman anywhere. The second para- graph tells of how well the method works and that most women can look 10 to 15 years younger in minutes. The third paragraph describes the method as very easy, generally repeats the non- necessity for any extraneous cosmetic or exercise and concludes with, "Wrinkles disappear before your eyes and your entire face will smooth out and take on the charm and glow of youth" in just minutes. The final paragraph instructs on how to purchase the guide for $2.00 through the mail and guarantees satisfaction. It offers a refund to any unsatisfied purchaser.
The guide itself consists of a single sheet measuring 8 1/2" x 13 1/2" folded in quarters. The introduction to the method states, "Age and worry wrinkles will disappear from your face ..." The "technique of removing wrinkles" is described as purely "mechanical" which "lifts" the facial tissues to erase wrinkles. As a side benefit to "making wrinkles disappear," the technique will accentuate the user's beauty and sex appeal by causing a slight slant to the eyes and will provide "some therapeutic . . . benefits."
The technique or method is then described. The user needs four bobby pins and two rubber bands looped together. The pins are used to construct pin curls just above each ear in the temple area. Then the rubber band is attached to one and drawn over the back of the head across the crown and attached to the other pin curl. The hair is brushed over the curls's and band to hide them and the procedure is completed.
The parties tried out the issue of whether the "Chinese Method" actually works. A medical doctor called by the complainant testified that the method would tighten up the skin minimizing the appearance of wrinkles by decreasing their depth. Although he did not directly answer the question of whether a more youthful appearance would result, the sum of his testimony (Tr. pages 17-19) is that the youthful appearance could occur using respondent's technique. The doctor did examine respondent's guide but never had it tested and was unable to state when he made his study.
The respondent's witness--an attractive woman, 48 years old, who is the wife of respondent and operates the business-demonstrated the technique at the hearing. She learned this technique in Hongkong in 1965 and has been using it herself since about June 1971. Its use is one reason why she has not yet undergone plastic surgery to remove facial wrinkles.
She was wearing it at the hearing and, on the stand, removed it and then replaced it. Upon removal, a sagging of the skin occurred. Wrinkles along the cheeks and around the mouth and nose became more pronounced. When the rubber band was replaced, the skin was tensed and a minimization of the wrinkling took place. While no dramatic transformation as experienced by Dorian Gray was shown, the witness appeared younger with the apparatus in place. This was the result of tensing the skin minimizing the wrinkles but they were not removed nor did they disappear. The bands may be adjusted by changing the size or position and no serious discomfort would be felt. Thus any woman can wear this anywhere as claimed in the ad. Tensing the face's skin with this technique caused an ever so slight slanting of the eyes but this was barely noticeable.
Based on this evidence, I find that the advertisement oversells the results of using the method. Wrinkles are not removed, nor do they disappear. The allegations in the complaint that using respondent's method would remove facial wrinkles in minutes [item 2(a)]; remove wrinkles regardless of their cause [item 2(b)]; and remove wrinkles physiologically [item 2(c)] are supported by the evidence. The use of the terms removal and disappearance throughout the ad and the guide is too strong. These terms misrepresent the results to be achieved. What is accomplished is a minimization of the wrinkling, a decrease in the depth.
The items in the complaint alleging that the ad represents that the method is comfortable for all [item 2(d)] and that its use won't alter the facial features [item 2(e)] are not supported by the evidence. I find that the method is not uncomfortable to sue and any facial alteration that does occur is not a material misrepresen- tation of what actually happens.
I find that the advertisement accurately represents what is contained in the guide. The ad either directly quotes or exactly paraphrases the guide and no claim whatsoever is in the ad that is not taken from the guide. The ad goes no further than does the guide.
Based on the respondent's answer and exhibits C-2 through C-4 evidencing a successful test purchase by a postal inspector, I find that respondent obtains money through the mail to sell its guide.
If the protection of the First Amendment to the Constitution is available to the respondent, the complaint must be dismissed under the theory and policy announced by Parker Publishing Co. , P.O.D. Docket No. 3/80, in the order denying reconsideration issued by the Postal Service's Judicial Officer on March 9, 1972, holding that the First Amendment protects a book and no order under 3005 would issue if the ad for a book accurately represents its content.
In the Parker case, the Postal Service argues that the respondent there was selling a treatment but the Judicial Officer concluded that respondent was in the business of selling books. The ad was found to accurately represent the contents of the book--regardless of the truth of falsity of those contents--and the complaint was dismissed. In short, that decision holds that the First Amendment prevents a determination of whether the contents of a book are true or false.
The ultimate question in this proceeding is whether the three-step guide for wrinkle disappearance or removal is entitled to the same protection as a "book". If it is, the complaint must be dismissed; otherwise, the order sought under 3005 requiring mail in response to ad be returned to the sender should issue.
The respondent in its brief (page 2), relying on the Parker and court decisions, states that government interference with the distribution of ideas is not allowed except in the most extreme cases. The complainant agrees with this proposition but argues that Parker must be narrowly construed to avoid the situation where products with labels attached would--because of the label--be protected. Not all writing should be privileged says complainant, especially where, as here, the purchaser intends to buy a device or technique rather than a theory as would be contained in a book.
That there are limitations on the immunity flowing from the First Amendment is pointed out in Hiett v. U.S. , 415 F.2d 664 (1969). The court states at page 671:
. . . The freedom of speech is not absolute; it is subject to reasonable regulation both for its own preservation and for the furtherance of other overwhelming public interests . . . (case citations).
and at page 673:
. . . We have no doubt that a specific, narrow statute aimed at preventing fraud would be constitutional. Indeed, it might conceivably be constitutional even though written so as to encroach in some small measure on free speech, if the encroachment proved absolutely necessary to achieve the result . . .
Section 3005 was enacted to further and protect the public interest against "good old fashioned schemes to defraud by use of false representations" and that statute was found to be constitutional in a line of cases, a recent one being Lynch v. Blount , 330 F.Supp. 689 at 695 (1971), affirmed on appeal, 404 U.S. 1007, which did not involve a sale of the written word but rather a tonic for weight reduction. There are borders beyond which an advertiser may not go in touting its product via the mail and the constitutional immunity is limited to truthful advertising, 2/ U.S. Postal Service v. Beamish , 466 F.2d 804 at 807 (1972). Thus it appears that some encroachment on the First Amendment guarantee in this filed has been made to protect a well-defined public interest against a scheme or device for obtaining money through the mail by means of false representations. See 3005.
In other areas, as pointed out in complainant's brief, a copy of a book will be denied its First Amendment immunity if it is closely associated with an article and is tantamount to misbranding that product under the Federal Food Drug and Cosmetic Act, 21 U.S.C. 301 et seq., U.S. v. 8 Cartons of Molasses , 103 F.Supp. 626 (1951).
While it is true that respondent's guide is an expression of an idea in words, the same idea could be expressed in the form of a product. For example, if a cosmetic was offered which tended to shrink the skin to minimize or lessen the depths of wrinkles, the same idea as found in the guide would be expressed. There is no more in the guide than would be contained in the hypothetical cosmetic. The guide has no value except to accomplish the results claimed in the advertisement. It merely directs the specific use of pins and bands without more. Its only intent is to show how to apply an apparatus. In short, the guide itself does no more for a purchaser if she were to apply a cream or swallow a pill.
The content and intent of the guide are the controlling factors and each case involving a pamphlet or guide must be decided on its particular facts. But where, as here, a guide does no more than advise on the use of common and readily available articles, it must be viewed as an article or product.
In such a case, the advertisement should fairly represent what the guide is intended to accomplish because it is more like a "product" which has no constitutional immunity than a "book".
I conclude then that the Parker decision, supra , which confined itself to an issue involving a bookseller--and there is no such contention here--does not reach the guide. Admittedly at issue is something less than a book. The respondent refrains from characterizing the guide as a book. He cites the holding of the Parker case, supra , as stating:
If the advertising is found to accurately represent the material offered for sale , . . . (italics mine)
Throughout that brief, where the guide is referred to as a book, the word book is enclosed in quotation marks.
Proposed findings of fact and conclusions of law expounded by the parties--to the extent that these are supported by the record, are relevant and material--have been adopted. Otherwise, they are rejected.
Based on my findings concerning the use of the mails and that the advertisement misrepresents the results of using the guide, I conclude that respondent is engaged in a scheme or device to obtain money through the mail by means of false representations and that an order under 39 U.S.C. 3005 should be issued. I further conclude that such an order would not render the application of 3005 to these facts unconstitutional.
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