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. 1/32; APPEARANCES: Daniel S. Greenberg, Esq.; Law Department, U.S. Postal Service, Washington, D.C. 20260 for Complainant Emanuel Levenson, Esq.; Levenson & Richman, Miami, Florida 33130 and Joseph P. Farina, Esq.; 9717 Northeast 2nd Avenue, Miami Shores, Florida 33138 for Respondent
The complaint in the above-captioned matter charges Respondent is engaged in the sale of "Evertone Skin Cream". More specifically the complaint charges Respondent makes the following false representations in promoting the sale of the product:
"(a) That use of 'EVERTONE SKIN CREAM' (hereinafter referred to as 'the cream') as directed will result in an increase in the bustline;
"(b) That use of the cream as directed will result in an increase in the size of the breast;
"(c) That use of the cream as directed will firm up sagging breasts;
"(d) That use of the cream as directed has been found by reliable medical authorities to be efficacious in obtaining the results enumerated in subparagraphs 3(a)-3(c), above;
"(e) That use of the cream as directed has been found by reliable medical authorities to present no hazard to the potential user or her offspring;
"(f) That Respondent is a bona fide laboratory engaged in research pertaining to the breast."
Respondent denies that representations (a) and (b) are false and denies making representations (c) through (f).
After hearing and briefs the Administrative Law Judge found that Respondent makes representations (a)-(f) substantially as charged in the complaint and that the representations are false as a matter of fact. Accordingly, he recommended a remedial order be issued under 39 U.S.C. 3005. Respondent has duly appealed from the Administrative Law Judge's Initial Decision. In his appeal he excepts to the findings and conclusions mentioned above to the extent that they are inconsistent with Respondent's answer to the complaint.
Respondent also raises questions concerning the burden of proof and the weight to be given medical and scientific evidence in the face of testimony of lay users of the product. Those questions are treated in connection with consideration of the charges of the complaint which are considered below in the order they appear in paragraph 3 of the complaint.
Representations (a) and (b)
"(a) That use of 'EVERTONE SKIN CREAM' (hereinafter referred to as 'the cream') as directed will result in an increase in the bustline;
"(b) That use of the cream as directed will result in an increase in the size of the breast".
Respondent admits making these representations. The question to be settled is whether they are false. 1/Complainant's evidence taken at the hearing consisted primarily of the testimony of expert medical and scientific witnesses. Respondent placed primary reliance on the testimony of users and their husbands.
If credited, Complainant's evidence establishes, as found in the Initial Decision, that Evertone Skin Cream will have no effect on the size of the female bustline or breasts. Respondent argues that the Administrative Law Judge should have accepted the lay testimony in preference to that of Complainant's medical expert and cites a number of court decisions to support that proposition. However, an examination of the cited authorities shows that in all of them, except Davidson v. Wee, 379 F.2d. 744 (Arizona 1963), where a directed verdict was set aside, the evaluation of the evidence by the trier of facts was accepted by the reviewing tribunal. Respondent seeks the opposite result here. The Initial Decision explains clearly the Administrative Law Judge's reasons for accepting the medical expert's testimony in preference to that of Respondent's witnesses. Respondent also contends that the medical testimony was in part based on a chemical analysis is insufficient to establish its validity.
Some time after he made the initial analysis of the product, the chemist conducted a further analysis to determine the presence of tannins. This analysis was performed because if galega, the herb referred to in the publication cited in the advertisements, was present in the product, then tannins would have been found. None was.
Respondent contends that the chemical analysis did not establish that galega is not present in the cream because of the time that elapsed before the test that would have indicated the possible presence of tannin was performed. On the other hand, there is no suggestion that the analysis, as performed, would not have revealed the presence of any tannins that were in the cream at the time the analysis was made. Respondent made no showing that tannins would be destroyed or dissipated during the period the cream was stored before it was finally tested for the presence of tannins. Supposition unsupported by evidence indicating that tannins would likely be destroyed or dissipated during such a period is insufficient to discredit the chemical analysis.
The Administrative Law Judge's acceptance of the validity of the chemical analysis was clearly justified by the record. Moreover, his resolution of the conflicting testimony as to the benefits of use of the product is reasonable. Accordingly, the exceptions relating to representations (a) and (b) are denied.
Representation (c)
"(c) That use of the cream as directed will firm up sagging breasts".
The charge that Respondent made representation (c) is derived solely from the following language appearing in one of Respondent's advertisements: "Mrs. M.A. CAL. writes: 'Since nursing my son, I had a terrible complex over my bust. I'm delighted with the results EVERTONE gave me.'" While it is true that breast-feeding is sometimes believed to be a cause of sagging, it is also true that a temporary increase in breast size accompanies lactation. It is reasonable to assume that a woman concerned about having small breasts might be disappointed with the loss of that temporary increase. I am doubtful that Respondent should be charged with having made the representation regarding sagging solely on the basis of the statement quoted in an advertisement that otherwise is wholly devoted to breast and bustline size.
Respondent's exception to the finding relating to representation (c) is allowed.
Representations (d) and (e)
"(d) That use of the cream as directed has been found by reliable medical authorities to be efficacious in obtaining the results enumerated in subparagraphs 3(a) - 3(c), above;
"(e) That use of the cream as directed has been found by reliable medical authorities to present no hazard to the potential user or her offspring."
Representations (d) and (e) are based upon the statement that "An herb contained in EVERTONE SKIN CREAM is listed in: Journal of American Medical Assoc.-1917; American Journal of Pharmacy--June 1891; U.S. Dispensatory, 25th edition, 1955." 2/ The listing of imposing sounding publications must be regarded as having a purpose of communicating some message supportive of the sale of the product for the purpose advertised. That much is clear. What is less clear is the full content of the message conveyed, since the advertisements do not expressly state what is said about the herb in the publications. I cannot conclude that the listing of the publications is a representation, as charged in (e), that any of the articles have made an affirmative finding on safety. A common on an herb or drug might well not refer to that subject. Charge (d) also presents some problems. Obviously, the reference to the various publications represents that the publications refer to the herb, which Respondent has identified as galega, in relation to the subject of its ability to aid the enlargement of female breasts and that the reference is favorable. It would be drawing too much from the quoted words to hold that they represent that writers for the publications have "found" the particular herb, much less the product itself, to be "efficacious". On the other hand, I must conclude that the language quoted from the advertisements constitutes a representation that the publications listed discuss favorably the value of the herb (galega), a supposed constituent of the product, in increasing the bustline. It is clear the publications do not do so. Moreover, as discussed above under (a) and (b), the herb is not in fact an ingredient of the product. Accordingly, Respondent's exception to the finding relating to representation (d) is denied and the exception relating to (e) is allowed.
Representation (f)
"(f) That Respondent is a bona fide laboratory engaged in research pertaining to the breast."
The Initial Decision found that by the use of the name "Mamilab" Respondent represents itself in its sales promotion to be a laboratory engaged in research pertaining to the breast. Mamilab is readily recognized as a name composed by combining the root of the Latin word "mamma" meaning breast and used in various English words such as "mammal" with the first syllable of "laboratory". Respondent has not presented any argument or stated any reason why the finding is erroneous. Accordingly, no extended discussion of the subject is required. The Administrative Law Judge's conclusion appears reasonable.
The exception is denied.
Complainant has carried the burden of proof to establish that Respondent makes the representations as charged in (a), (b) and (f) and substantially as charged in (d) and to establish the material falsity of those representations. The various other contentions raised by Respondent and not discussed above have been considered and found to be without merit.
The recommendation of the Administrative Law Judge that a remedial order under 39 U.S.C. 3005 be issued is adopted. An order is being issued concurrently with this decision.
04/06/73
Wenchel, Adam G.
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