In the Matter of the Complaint Against MAGIC MOLD, INC., 10 Taylor Street at Freeport, New York 11520 P.S. Docket No. 2/115 November 1, 1973 Daniel S. Greenberg, Esq. , Law Department, United States Postal Service, Washington, D. C., for Complainant Jerold W. Dorfman, Esq. , 16 West 61st Street, New York, New York, for Respondent Before: William A. Duvall, Chief Administrative Law Judge
1/ This proceeding was initiated on July 4, 1973. It was filed on behalf of the General Counsel for the U. S. Postal Service.
The complaint alleges that Magic Mold, Inc., the Respondent, at Freeport, New York, is engaged in conducting a scheme or device for obtaining money or property through the mail by means of false representations, contrary to the provisions of Section 3005 of Title 39, United States Code.
The business of the Respondent, which was the subject of the complaint, is the sale of a moisturizing cream or lotion which is to be applied to the neck and chin and then over that is to be a strap or band which is fastened so that it fits those areas snugly, the areas of the chin and neck.
The advertising material which was attached to the complaint as exhibit "A" will be attached to this decision as Appendix "A".
The Complainant charges the Respondent with making the following representations which the Complainant alleges are false:
1. That use as directed, of the Anatone Vitamin E cream and Spandex band (hereinafter referred to collectively as the "program") will tighten sagging tissues of lower face, chin and neck;
2. That the use of the program as directed will tone the muscles of the lower face;
3. That the effects described in subparagraphs (1) and (2) above, will eliminate or significantly reduce double chin and neck wrinkles; and
4. That the effects described in subparagraphs (1) through (3), inclusive, will occur after following the program for two weeks.
The Respondent filed answer to the complaint and denied that the advertisement on which the complaint was based, or at least the advertisement which was attached to the complaint, was an advertisement in current use by the Respondent as of the time of the filing of the answer.
In addition to the foregoing denial, the Respondent denied generally the charges set forth in the complaint and specifically denied that it was conducting a scheme or device for obtaining money by means of false representation.
The first question that we may approach is the one in regard to the advertising material used by the Respondent. It may be, as stated by the Respondent in its answer, that it has discontinued the use of the advertising material which is attached to the complaint. However, there has been no showing that the Respondent is not still receiving remittances from persons who saw and were impressed by that advertising material.
In addition, the complaint put the Respondent on notice that the advertising material attached to the complaint was only illustrative of the kinds of advertising material in use by Respondent, and in any ever, the Respondent has not and could not claim any surprise in view of the fact that it is his own advertising that is at issue. So that insofar as the denial of the currency of the advertising matter that is attached to the complaint, that denial is not regarded as being of great significance and is disregarded as an answer to the complaint in this proceeding. In any event, it is not a sufficient answer.
The next question then to be determined is whether the advertising matter that has been used by the Respondent does contain the representations which are set forth in the complaint. In deciding this question, there is the case of Donaldson vs. Read Magazine , 333 U.S. 178, where it said that advertisements are to be interpreted on the basis of the effects and the impact that the language used in those advertisements would tend to produce on persons of ordinary minds. When considered in that light, the advertising material of the Respondent does make the representations attributed to it in the complaint. For example, in the advertising matter attached to the complaint, the language stated above in the first charge of the complaint appears verbatim, that is to say it is stated that the use of this Anatone program helps tighten sagging tissue, tones muscles of the lower face for a smoother contour, so that requires no interpretation whatsoever. The language makes it perfectly clear that the representation has been made.
Also in large letters at the top of the ad are the words that this Anatone two-week program helps eliminate double chin and reduce wrinkles; and this advertising material stresses the fact that this program includes a product which is called vitamin E cream.
In the later advertisement which was received in evidence as exhibit C-3 and it was agreed it appeared in the new York Daily News, Sunday, August 5, 1973, there are pictures of two individuals, one man and one woman, each of whom is wearing this neck and chin band, and they are facing each other. Underneath their pictures are the words, "each chin strap comes with vitamin E cream and free exercise booklet".
Further in the ad, it is stated that this program, apparently, is the beauty secret of generations of women passed on from mother to daughter; and this program being sold by the Respondent brings the secret up to date. There, again, it is indicated that if you try it for two weeks and wear it for 45 minutes every day, satisfaction is guaranteed.
Hence, it is obvious from this language that the purpose of this chin strap, when used together with this vitamin E cream is to have a beautifying effect on the chin and the neck of the user.
I find, therefore, that the representations set forth in the complaint are, in fact, made by the Respondent.
Now, it must be determined whether these representations are true or false.
In this connection, the Complainant presented as a witness Dr. Robert Joseph Carnathan, a Board Certified Dermatologist, who is well qualified to testify in matters involved in this proceeding. Dr. Carnathan testified that wrinkles are caused by the destruction of elastic tissue in the dermis and this elastic tissue is fibrous material which is fragmented and this action results in wrinkling. Another cause of wrinkling of the skin is dryness whereas double chins are caused by the aging of the individual and also by the presence of fat in the subcutaneous tissue.
A flaccidity of muscles in the area of the chin could result in the presence of double chins, based on the expert testimony of the medical witness. However, the muscles located in the area of the chin and neck are flaccid only in most rare instances so that that cause of double chin must be, for all practical purposes, discounted.
The accepted medical treatment for wrinkles and double chin may be surgical, or it may be in the form of diet.
The use of the Respondent's cream and chin strap would not have any effect in toning up the muscle and it has already been determined that even if it did tone up the muscle, that this would not have any great effect on the problem of sagging chin.
The fact that vitamin E is present in the lotion or cream sold by the Respondent is of no medical significance, contrary to the suggestion in the advertising material employed by the Respondent. This suggestion as to the importance of vitamin E cream is contained in the advertising material which the Respondent claims to have abandoned and the advertising material which the Respondent is currently using. But the presence of vitamin E makes no difference from a medical standpoint.
The only condition which would be aided by the use of the Respondent's product is that condition which may be described as the existence of fine lines in the skin caused by dryness, and that condition would be aided to the extent that the use of this cream restores some water or liquid to the skin, and helps supply the liquid which has been lost. That aid will continue for only so long as that moisture which is contained in the cream remains in or on the skin.
In response to a question by the Respondent's Counsel, the Doctor stated that in a situation in which moisturization is applied to the skin, in the area of the neck and chin, and there is compression applied to those areas, and in which those areas are given exercise that's occasioned by their normal movement, there will be no permanent effect on the wrinkling, and there will be no effect on the wrinkling other than which has just been described in regard to the lines in the skin due to dryness.
In short, there is no medical testimony in this record which in anyway tends to support the claims made by the Respondent for this product. I find, therefore, as a fact that the claims made by the Respondent for its produce as set forth in the complaint and as contained in its advertising materials are false.
In view of the findings of fact that have been made heretofore, I conclude as a matter of law, that the Respondent is engaged in conducting a scheme or device through the mail by means of false representations, and that an order as provided in Section 3005 of Title 39, United States Code, should be issued against this Respondent.
It goes without saying, of course, the exhibits that were received in evidence during the course of the hearing established that the Respondent does conduct its business through the mail.
I have considered the proposed findings of fact, and conclusions of law as submitted by the parties and they are adopted to the extent herein indicated. Otherwise, such proposed findings of fact and conclusions of law are rejected because they are contrary to the evidence in this case or because they are irrelevant or immaterial.
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