In the Matter of the Complaint Against MAMILAB PRODUCTS, INC., P. O. Box 9086, Seminole Annex at Fort Lauderdale, Florida 33310 P.S. Docket No. 1/32January 17, 1973
Daniel S. Greenberg, Esq., Law Department, U.S. Postal Service, for Complainant. Emanuel Levenson, Esq., Levenson & Richman, Miami, FLorida, for Respondent. Before: John Lewis, Administrative Law Judge.
This proceeding was initiated by the filing of a complaint by the General Counsel of the United States Postal Service (Complainant) charging Mamilab Products, Inc. (Respondent), with conducting a scheme or device for obtaining money or property through the mail by means of false representations, in violation of 39 U.S. Code 3005. In substance, the complaint charges Respondent with having made various false representations in connection with the advertising of its product "EVERYONE SKIN CREAM". Respondent appeared by counsel and filed answer denying, in substance, that it was conducting a scheme or device for obtaining money or property through the mail by means of false representations.
Pursuant to notice duly given, a hearing for the reception of evidence was convened in Washington, D. C. Both parties were represented by counsel and were afforded full opportunity to be heard and to examine and cross-examine witnesses. Counsel for Complainant called three witnesses, (1) a postal inspector, through whom he sought to establish that Respondent's method of operation involved the obtaining of money through the mail by means of statements made in advertising, (2) a chemist, through whom he sought to identify the ingredients contained in Respondent's product, and (3) a physician, through whom he sought to establish the falsity of the representations allegedly made in Respondent's advertising matter. Counsel for Respondent called a single witness at the hearing in Washington, D. C., Respondent's President, through whom he sought to establish the basis of the claims made by Respondent concerning its product. An offer by Respondent to introduce into evidence a number of testimonial letters received from customers who had used its product was denied by the undersigned. At the close of the hearing, on application of Respondent and over the objection of counsel for Complainant, the record was kept open to afford Respondent an opportunity to obtain further witnesses.
Upon notification by Respondent that a number of lay witnesses would be available to testify in its behalf at a hearing in Miami, Florida, a hearing was convened in that location, over objection of counsel for Complainant. At said hearing Respondent offered the testimony of three female customers who had used its product and the husbands of two of them. Following the close of the reception of evidence, proposed findings of fact and conclusions of law were filed on behalf of both parties, and a reply to Respondent's proposed findings was filed by counsel for Complainant.
After having carefully reviewed the evidence in this proceeding and the proposed findings and conclusions submitted by the parties, 1/ and based upon the entire record, including his observation of the witnesses, the undersigned makes the following:
FINDINGS OF FACT
A. The Alleged Solicitation of Money Through the Mail
1. Respondent is engaged in selling a product which it designates as "EVERYONE SKIN CREAM", sometimes referred to herein as "EVERTONE" (CX 6).2/ Public attention is directed to said product through advertisements placed in magazines and other publications of general circulation (CX 1, 2; Tr. 13). As part of said advertise- ments, Respondent invites readers to order said product by sending cash, check or money order through the mail.
2. The record establishes that Respondent does, in fact, obtain money through the mail from customers who, pursuant to Respondent's invitation, order said product through the mail. Respondent does, in fact, ship said product through the mail in response to orders received from customers who respond to its advertisements (CX 3, 4; Tr. 14-17).
B. The Alleged Representations
3. Respondent's advertising matter contains various statements concerning its product "EVERTONE SKIN CREAM". A copy of said advertising matter, bu which it solicits money through the mail, is attached hereto as Appendix "A".
4. The complaint alleges that Respondent has made various representations to the public concerning its product and the nature of its business by means of statements made in its advertising matter. In its answer Respondent has admitted the making of certain of the representations alleged in the complaint, but has denied the making of the others. From an examination of the advertisements which are in evidence, I find that Respondent does make the representations, substantially, as alleged in the complaint, as follows:3/
a. The complaint alleges, Respondent admits in its answer, and I find that Respondent represents in its advertising matter that the use of "EVERTONE" as directed will result in an increase in the bustline and in the size of the breast. While Respondent, in its answer, denies that it represents this will occur in every case, its advertising matter contains no limitation as to the extent to which these results will be achieved. From the manner in which the representations are made, the ordinary reader would normally infer that the results promised will be achieved in all, or substantially all, cases. The fact that Respondent may, as alleged in its answer, advise readers in a brochure mailed to the customer with the product that there are limitations on the results to be achieved, does not negate or limit the representation made in its advertisements.4/ Moreover, the brochure does not, in fact, place any limitation on the results promised but merely states that there may be differences in the period of time required to achieve the results.5/
b. The complaint alleges Respondent makes the representa- tion that the use of "EVERTONE" will firm up sagging breast. Respondent denies the making of this representation and cites the testimony of several of its female witnesses to the effect that they did not understand from the advertisement that the product would firm up sagging breast (Tr. 188, 247). In my opinion the advertise- ments contain the clear implication that the product will firm up sagging breasts. One of the testimonials therein is from a woman who referred to her "terrible complex over my bust" which occurred "since nursing my son", and states that she was "delighted with the results EVERTONE gave me" (CX 1). As the physician called by Complainant testified, a loss of firmness or sagging of the breasts may occur following pregnancy as a result of stretching due to lactation (Tr. 58). The reference in the advertisement to the "terrible complex over my bust" which had occurred since nursing was obviously intended to refer to women with the problem of sagging breasts. The testimony of the female witnesses called by Respondent does not necessarily rebut this finding since the problem of the women in question was a lack of bust development, and they were not particularly concerned with the problem of sagging breasts. (Tr. 247).
c. The complaint alleges Respondent made the representation that the use of "EVERTONE" has been found by medical authorities to be efficacious and to present to hazard to the user. Respondent has denied the making of this representation. While the advertisement does not expressly state that the product has been found to be efficacious and safe by medical authorities, it does so by implication in its reference to the fact that the herb contained in "EVERTONE" is listed in certain medical journals and publications i.e., "Journal of American Medical Association - 1917; American Journal of Pharmacy - June 1891; U.S. Dispensatory, 25th edition - 1955." To members of the general public, which includes "the ignorant, the unthinking and the credulous"6/ this would be understood as representing that these medical and pharmacological publications have found the product to be effective and safe. There would be no purpose served by Respondent's reference to these authorities if it did not intend to convey to readers the impression that its product had been vouchsafed by such authorities.
d. The complaint alleges Respondent represents that it is a bona fide laboratory engaged in research pertaining to the breast. This is denied in Respondent's answer. In my opinion, Respondent's name contains the clear implication that it is a laboratory doing work pertaining to the mammary glands or breast, and many members of the public would so interpret it. It seems evident that the name was deliberately chosen to encourage said belief.
C. The Alleged Falsity of the Representations
a. Efficacy of Evertone
5. The only scientific evidence in the record as to the efficacy of Respondent's product consists of the testimony of Dr. Vincent Cordaro, a physician called by counsel for Complainant. Dr. Cordaro's uncontradicted and credited testimony establishes that Respondent's cream will have no effect in enlarging or increasing the size of the breast or the bustline or in firming up sagging breasts. The breast consists of fat-connective tissue and lactating glands covered by skin. Its size and shape is genetically determined and the massaging of the breast with a cream will have no significant effect on its size or shape (Tr. 57, 60).
6. The basis of Respondent's claim that its product will aid in the enlargement of the breast or bustline is based on its purported inclusion of an ingredient called Galega. Respondent offered no direct scientific or medical evidence concerning the efficacy of Galega in the enlargement or firming of the female breast or bustline. The only evidence which it offered in this regard was the hearsay testimony of its President, based on a report it allegedly received from a friend in England, that:
"...they had run clinical tests over there [England] on a pill containing Galega, and from what they told me that Galega seemed to be the deciding factor in the thing." (Tr. 93)
Respondent's President had no personal knowledge of how the tests were conducted and did not see the results thereof (Tr. 95). However, he claimed that he verified the purported efficacy of Galega from reading articles in various medical journals, and had a chemist make up a "humectant type formula" (vanishing cream) containing Galega (Tr. 93, 115).
7. According to Dr. Cordaro's uncontradicted and credited testimony, Galega (which is an herb) has no value and is of no benefit in improving or increasing the size or firmness of the breast or bustline. Many years ago, during the period described by Dr. Cordaro as the "Dark Ages of Medicine", certain tests conducted on goats and dogs had given rise to the claim that Galega was of some value in increasing lactation during pregnancy. However, this claim was later disproved and has not been accepted by the prepon- derance of medical opinion for many years. Moreover, it was never claimed or accepted that Galega had any value in increasing the size of the breast (Tr. 66-69). The articles in medical publications which Respondent's President claimed corroborated the view that Galega was valuable in increasing the size of the breast do not support his testimony. They refer only to Galega's purported usefulness in increasing lactation in cows, and there is no reference to its ability to increase the size of the breast. Moreover, they indicate that the view that Galega is able to increase lactation, based on the claims of a French scientist in the 19th century, had been disproved as far back as 1917 in tests conducted by American scientists (CX 10, 11).
8. Aside from the lack of evidence that Galega has any value in a program for increasing the size of the breast, the record estab- lishes that there is, in fact, no Galega present in Respondent's product. Tests conducted by a qualified chemist at the request of the Postal Service establish that Respondent's product does not contain Galega in any amount sufficient to be identifiable. While it is not possible to specifically identify Galega's presence in a product, it is possible to identify the presence of Tannins which are a gum-like substance from which Galega is mainly constituted. The tests made by the chemist on behalf of the Postal Service disclosed that there were no Tannins present in "EVERTONE" in an amount which could be considered significant (Tr. 31-33; CX 8).7/
9. Respondent's case for the beneficial effects of its product in increasing the size of the breast is based largely on the testimony of three female users of "EVERTONE", who claimed to have achieved some increase in the size of their breasts through the use of the cream. The first of the witnesses claimed that her breasts had gotten "a little fuller" and that her "bra" size had increased from 34B to 38B (Tr. 159, 174). However, her testimony reveals that she used "EVERTONE" on a very sporadic basis and ceased using it for long periods of time (Tr. 163-165). Moreover, the increase from 34 to 38 in her bra could have been the result of changes in body circumference since there was no change in her actual cup size, which would be where the change in breast size would be principally reflected. The second witness made no claim that her breast had grown larger "in a sense of extension-wise", but claimed that it had filled out somewhat, and that she now filled the 34A cup which she did not previously fill (Tr. 190-191). The record discloses that this witness had gained 6 or 7 pounds and was taking birth control pills, which could have affected her bust size (Tr. 21, 213). The third witness' testimony indicated that she had not gained in the size of her breasts, but she claimed that they had filled out, resulting in an increase in bra size from 32A to 32B (Tr. 245-246). However, the witness' testimony reveals that following the birth of her child several years previously her bra size had been as large as 34C (Tr. 254). Like the first witness, her use of the cream was somewhat sporadic (Tr. 256-257).
10. In the light of the medical testimony offered by Dr. Cordaro concerning the ineffectiveness of Respondent's product, and the lack of any scientific or medical evidence by Respondent that Respondent's product contains any ingredient which is of value in increasing the size of the breast, the testimony of the lay witnesses called by Respondent is of marginal value. In at least two instances the sporadic use of the product would appear to negative any causal connection between the use of Respondent's product and any change in breast size. In the case of the second and third female witnesses, there appeared to be very little visual evidence to this observer that the use of Respondent's product had caused any appreciable improvement in nature's endowments. Any improvement which they may have thought they observed could have been due to any number of factors other than the use of Respondent's cream. Thus, Dr. Cordaro's testimony discloses that the normal processes of married life, massage or pregnancy can cause temporary engorgement and increase in the size of the breast (Tr. 76-77).
11. Based on Dr. Cordaro's credible testimony, the lack of substantial evidence that Respondent's product contains any ingredient which is calculated to increase the size or firmness of the breast, and the lack of any substantial countervailing evidence by Respondent concerning the effectiveness of its product, it is concluded and found that the use of Respondent's cream as directed will not increase the size of the breast or bustline, or firm up sagging breasts.
b. Listing of Ingredients in Medical Publications as Endorsement
12. As heretofore noted ( 4c, supra ), Respondent has referred in its advertising to the fact that "an herb contained in EVERTONE SKIN CREAM was discovered in 1832 and is listed" in certain medical journals and publications, thus implying that these journals and publications have endorsed the efficacy and safety of the product. The listing of an ingredient in a medical publication does not normally constitute an endorsement as to the efficacy or safety of the product (Tr. 61, 64). Moreover, as heretofore noted, the specific publications referred to in Respondent's advertisements do not, in fact, vouchsafe the efficacy or safety of the ingredient purportedly contained in "EVERTONE". They contain no reference to Galega's effectiveness in increasing or improving the size or appearance of the female breast. In two instances they contradict the claim that Galega is effective even for the secondary purpose of increasing lactation (CX 10, 11).
c. Respondent as Bona Fide Laboratory
13. As heretofore found ( 4d, supra ), Respondent has represented that it is a bona fide laboratory engaged in research pertaining to the breast. The record establishes that Respondent is not a laboratory and does not maintain any facilities for research pertaining to the breast. The product here involved was not even produced in any facilities maintained by Respondent, but by chemist hired by Respondent for that purpose.
14. It is concluded and found that the representations made by Respondent, as heretofore found in 4, supra , are materially false as a matter of fact in that:
a. The use of EVERTONE SKIN CREAM as directed will not result in an increase in the size of the breast or in the bustline and will not firm up sagging breasts.
b. The listing of an ingredient purportedly contained in EVERTONE SKIN CREAM in publications such as Journal or American Medical Association, American Journal of Pharmacy and U.S. Dispensatory is not an endorsement by these publications as to the efficacy or safety of such ingredient.
c. Respondent is not a bona fide laboratory engaged in research pertaining to the breast.
15. Respondent argues, in its proposed findings, that the evidence in support of the complaint is deficient in that it fails to establish a fraudulent scheme or a fraudulent purpose or intent to deceive on its part. It cites in this connection Reilly v. Pinkus, 338 U.S. 269 and other cases purporting to hold that there must be proof of a fraudulent intent in order to establish a violation of the statute. Respondent contends that its reliance on the report of the English clinical tests and the other reports which it received precludes any finding that it acted with a fraudulent intent. The short answer to Respondent's argument is that it is totally irrelevant, inasmuch as a fraudulent intent is no longer a necessary element of the offense. Because of difficulties experienced in administration of the predecessor statute, based on the holding in Reilly v. Pinkus that a fraudulent intent had to be established, the statute was amended in 1968 so as to eliminate the words "false representations". If the representations are, in fact, false a violation of the statute is established, without regard to whether Respondent made its representations in good faith reliance on what it thought was acceptable medical opinion. Sauna Belt, Inc. , P.O.D. Docket No. 3/43, October 4, 1972, at 9-10, 35-37.8/ Moreover, the desultory hearsay testimony offered by Respondent's President, based on reports received from an unidentified friend, concerning certain English tests was so vague and unpersuasive that it hardly serves as a basis for any finding of good faith reliance by Respondent on any credible medical opinion. In addition, the reports in medical journals which he consulted not only fail to substantiate the purported results of the English tests, but they tend to contradict them and belie his good faith reliance.
" The bill will eliminate the necessity for establishing the intent to deceive , which is wholly incompatible with the underlying purpose of the civil fraud statute--the protection of the public--the consumer--against the use of the mail to distribute false representations as a basis for obtaining money or property." [Emphasis added.]
CONCLUSION OF LAW
Respondent has engaged in conducting a scheme or device for obtaining money or property through the mail by means of false representations, in violation of 39 U.S. Code 3005. It is accordingly recommended that an order in the form provided for in 39 U.S. Code 3005 should be issued.
____________________
1/ Proposed findings not herein adopted, either in the form
proposed or in substance, are rejected as not supported by the evidence or as
involving immaterial matters.
2/ The following abbreviations are used herein in referring to
the evidence in the record: "Tr.", for the transcript of testimony; and
"CX", for Complainant's Exhibits. No exhibits were received in
evidence on behalf of Respondent.
3/ Although no consumer witnesses were offered by counsel for
Complainant to establish how the public would interpret the
statements made in Respondent's advertisements, it is clear that no
such testimony is required since the agency charged with the
enforcement of such a remedial statute may itself determine how such
statements would be interpreted by ordinary readers. E. F. Drew &
Co., Inc. v. Federal Trade Commission , 2 Cir., 235 F.2d 735,
741 (1956).
4/ The law is violated if the first contact is secured by
deception even though the true facts are later made known to the buyer.
Carter Products, Inc. v. Federal Trade Commission , 186 F.2d 821,
824 (7 Cir., 1951).
5/ The brochure, which is attached to Respondent's answer and
is not technically in evidence, contains the following statement:
"IT IS EXTREMELY IMPORTANT THAT YOU CONTINUE USING EVERTONE,
UNTIL YOUR DESIRED RESULTS MAY HAVE BEEN ACHIEVED. DON'T BE
IMPATIENT AND DON'T EXPECT AN OVER NIGHT MIRACLE, because body
chemistry is different in each person and no one can predict how
quickly results may be achieved."
6/ Charles of the Ritz Distributors Corp. v. Federal
Trade
Commission , 2 Cir., 143 F.2d 676, 679 (1944).