In the Matter of the Complaint Against BEAUTY SCIENCES, INC., VITAMIN E-PLUS, Dept. 103 at Hollywood, California 90028 and VITAMIN E-PLUS at Beverly Hills, California 90210 P.S. Docket No. 2/39 May 2, 1973 Nancy R. Dorsch, Esq., Law Department, U.S. Postal Service, for Complainant Sidney Schreiberg, Esq., New York, New York, 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 on February 23, 1973, charging the above-named 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, said complaint charges Respondent with having made certain false representations concerning the efficacy of its product "VITAMIN E-PLUS" in the removal of wrinkles and various skin blemishes. Said complaint was subsequently amended to alleged an additional address at which Respondent does business. Thereafter, answers were filed in each of the names used by Respondent in its advertising matte, denying the making of the false representations alleged.
Pursuant to notice duly given, a hearing for the reception of evidence was convened on March 26, 1973, 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 a physician through whom she sought to establish the falsity of the representations allegedly made in Respondent's advertising matter, such advertising matter having been received in evidence by stipulation. Counsel for Respondent also called a physician to testify and sought to show that it had not misrepresented its product. During the course of the hearing Respondent was permitted to amend its answers so as to deny the making of the representations alleged in the complaint, it having purportedly failed to deny same through inadvertence in its original answers.
At the end of Complainant's case-in-chief Respondent moved for a dismissal of the complaint, which motion was denied. Such motion was renewed at the close of all the evidence, and again denied. Pursuant to leave granted therefor, proposed findings of fact and conclusions of law have been filed on behalf of both parties.
After having carefully reviewed the evidence in this proceeding, and the proposed findings of fact and conclusions,1/ and based upon the entire record, including my observation of the demeanor of the witnesses, I make the following:
FINDINGS OF FACT
A. The Alleged Solicitation of Money Through the Mail
1. Respondent is engaged in the business of selling a liquid product or lotion which it designates as "Vitamin E-Plus Skin Care Balm". Public attention is attracted to said product through advertisements placed in magazines of general circulation. As part of said advertisements Respondent includes a coupon for use by prospective customers in ordering its product.
2. The coupon included in Respondent's advertisements directs persons desiring to order said product to send payment in an amount varying from $6.00 to $15.00, depending on the quantity of the product ordered. The record establishes that Respondent does, in fact, obtain money through the mail from customers who have detached and mailed the coupon to it, together with payment for its product.
B. The Alleged Representations
3. Respondent's advertising matter contains various statements concerning the efficacy of its product in the treatment of certain specific skin conditions. A copy of such advertising, which is typical of the advertisements used by Respondent, is attached hereto as Appendix "A".
4. The complaint charges that Respondent has made various representations to the public concerning the effectiveness of its product Vitamin E-Plus. These are, in substance, that the topical application thereof to the skin will (a) remove wrinkles, lines, creases, and brown age spots, (b) cure acne, pimples and blemishes, (c) speed the healing of burns and (d) halt and reverse premature aging of skin cells. It is further charged that Respondent has made the representation that the foregoing results will become apparent in 5 days and that they are accomplished through the combined action of the product's ingredients, Vitamin E and Aloe Vera, i.e., through (a) Vitamin E's conservation of the oxygen supply in each cell and (b) Aloe Vera's healing and restorative qualities.
5. While, as previously noted, Respondent had not denied the making of the foregoing representations in its answer, it was permitted to amend its answer at the hearing so as to put the making of such representations in issue. At the close of the Complainant's case-in-chief counsel for Respondent conceded the making of the representations that (a) the topical application of Vitamin E-Plus will speed the healing of burns, (b) the topical application of Vitamin E-Plus will halt the premature aging of skin cells, but not that such application will reverse the aging process, (c) the beneficial effect of the application of its product is based on the action of vitamin E in the conservation of the oxygen supply in the cells and on Aloe Vera's healing and restorative qualities and (d) beneficial results (but not a complete cure) will be achieved in 5 days. Respondent further contended that certain of the representa- tions made in the advertisement attached to the complaint had been modified in subsequent advertisements.
6. The record establishes that Respondent's advertising matter does, substantially, make the representations alleged in the complaint. Insofar as any alleged modification in the advertising is concerned, it establishes that there has been no significant change therein. The only difference between the advertisement attached to the complaint, copies of which appeared in magazines in November 1972 and March 1973, and Respondent's latest advertisement which appeared in April 1973, is that the earlier advertisement used the expression "Does Wonders For These 11 Skin Problems" (which were specified in the advertisement below such heading), while the later advertisement uses the phrase "Banishes These 12 Horrid Skin Problems". In the context of their use the words "does wonders" and "Banishes" would be interpreted by the ordinary reader as meaning that the enumerated conditions will be substantially eliminated or improved by the use of Respondent's product.
7. Among the conditions enumerated in the advertisement under the above-quoted headings are the following: "Wrinkles and lines", "Creases", "body stretch marks", "Brown age spots", "Blemishes", and "Acne and pimples". The body of the advertisement contains such 1statements as: "Wrinkles and creases begin to disappear, as if by magic". "Pimples, acne, even old surface scars begin to vanish". "[E]ven severe burns heal rapidly". With respect to Respondent's contention that it makes the representation that its product will halt premature aging of the cells, but does not represent that it will reverse the process, it may be noted that the ad contains the specific statement: "By conserving the oxygen, vitamin E halts and can reverse premature aging in skin cells". Concerning the ingredients in its product which are instrumental in accomplishing the promised results, Respondent's advertisement states that vitamin E "conserves the precious oxygen supply in each cell" and that Aloe Vera "penetrates deep to heal and restore". Insofar as the time frame within which results are promised, the advertisement states:
"You will notice a decided difference in 3 days. Amazing results in 5 days. Then use a few drops only once or twice a week to keep the rejuvenating process working."
It is clear from the foregoing quotations that Respondent's advertising matter does make the representations charged in the complaint, and it is so found.
C. The Alleged Falsity of the Representations
8. According to credible testimony of Dr. Robert Carnathan, a qualified dermatologist who testified on behalf of Complainant, the topical application of Respondent's product Vitamin E-Plus will have no beneficial effect on any of the enumerated skin conditions for which Respondent has been heretofore found to have represented that its product will be efficacious. The enumerated conditions fall into two principal categories, viz. , (a) those due to the aging a process, such as wrinkles, lines, creases and stretch marks, and (b) those that may be characterized as skin blemishes, such as pimples and acne and, in a sense, burns. With respect to conditions in the first category, Dr. Carnathan's testimony establishes that the application of Respondent's product will have no effect in arresting the aging process and thus in halting or eliminating any of the skin conditions resulting therefrom. Aside from surgery, e.g., face lifting, there is no known method for improving these conditions, and even surgery is merely a temporary expedient which cannot arrest the process.
Insofar as skin blemishes are concerned, there are methods and chemicals which are helpful for improving such conditions, but they do not include Respondent's product or any of the ingredients contained therein. Dr. Carnathan's testimony was not substantially contradicted by Respondent's witness, Dr. Mark Hollander, a dermatologist, whose area of emphasis has been in the use of ultrasof X-Rays in the treatment of skin conditions. While Dr. Hollander was somewhat less dubious than Dr. Carnathan concerning the ability of vitamin E, topically applied, to penetrate the skin and enter the blood stream, he made no claim that it could arrest the aging process and ameliorate skin conditions incident thereto. Insofar as other types of skin conditions which may be characterized as blemishes are concerned, Dr. Hollander's testimony does not substantially contradict that of Dr. Carnathan.
9. The basis of Respondent's claims concerning the effectiveness of its product in halting or eliminating skin conditions resulting from the aging process is contained in the following statement which appears in its advertising matter:
"Scientists know that vitamin E helps prevent the deterioration through oxidation of parts of the cell membrane. And it is the oxidation process that causes aging in humans. By conserving the oxygen, vitamin E halts and can reverse premature aging in skin cells."
However, according to Dr. Carnathan's credible testimony, wrinkles, creases, lines and other indicia of the aging process are the result of the fragmentation or breakdown of the elastic tissue in the second major layer of the skin, the dermis. The tissue is fairly long and continuous during the individual's earlier years but becomes short and stuggy as he grows older, resulting in the appearance or accentuation of wrinkles, lines and creases. While vitamin E is recognized as an anti-oxidant and has been prescribed internally to prevent oxidation of the wall of the red cells in open heart surgery and for other conditions, its ingestion will not prevent the aging process of the skin by conserving oxygen (Tr. 19-20, 25-7), 38, 48-9, 55, 69).
10. Respondent offered no affirmative evidence in support of the claim in its advertising matter that vitamin E will arrest the aging process of the skin through its anti-oxidant capability, and thereby halt or remove wrinkles, lines and similar conditions incident to the aging process.2/ The physician whom Respondent called, Dr. Hollander, did not seriously contradict Dr. Carnathan's testimony in its essential aspects. The principal difference in their testimony was in the degree of uncertainty as to whether vitamin E could penetrate the skin and enter the blood stream when topically applied. Dr. Carnathan testified that he "suspect[ed] that it would not be absorbed" through the skin because of the size of its molecule (Tr. 23-4), but conceded on cross-examination that while this appeared to be so "on a theoretical basis", he could not state with certainty that it would not be absorbed through the skin since he had done no scientific study on vitamin E and knew of no controlled study on its application to the skin (Tr. 49). Dr. Hollander was less positive than Dr. Carnathan concerning the ability of vitamin E to penetrate the skin when topically applied, and testified simply that he could not state one way or the other whether it could do so (Tr. 104). When asked by Respondent's counsel whether vitamin E would get into the blood stream and have the same effect as it would when orally ingested, based on the assumption that vitamin E could penetrate the skin, he responded that "presumably" it would. However, he could not state what effect it would have on the connective tissue (Tr. 104-5). While previously testifying that he "had heard of it [vitamin E] as essential in the integrity of connective tissues" (Tr. 96), he agreed with Dr. Carnathan that there was no known process or chemical that could prevent the breakdown of connective tissue incident to the aging process (Tr. 107). Moreover, since he did not know whether the breakdown of connective tissue was due to oxidation, he could not state whether the application of an anti-oxidant (assuming it penetrated the skin) could prevent the breakdown of such tissue (Tr. 108-9). Dr. Hollander indicated on cross-examination that the aging process of the skin could be due to factors other than oxidation, with respect to which vitamin E as an anti-oxidant could not conceivably be of any help (Tr. 116).
11. With respect to the various other types of skin conditions referred to in the complaint (other than those which are incident to the breakdown of connective tissue due to aging), such as acne, pimples, blemishes, brown spots and burns, there was no substantial disagreement in the testimony of the two doctors that the application of vitamin E would be of no value in the treatment or removal thereof. Dr. Carnathan testified that acne, pimples and similar blemishes are treated with various drugs and procedures that keep open the orifice of the oil glands and cause a superficial peeling of the skin, or by the ingestion of antibiotics or hormones. Peeling agents are also the recognized method for treatment of so-called brown spots on the skin. The use of Respondent's product would be contraindicated in cases of skin blemishes since it contains an oil base, and the use of oils is detrimental in the treatment of such conditions (Tr. 17-8). Respondent's product would likewise be of no value in the treatment of burns, and the use thereof would, in fact, be contraindicated since oils are now regarded as retarding the healing process and the application of cold water or ice cubes is the recognized method of treatment (Tr. 28). Dr. Hollander's testimony related principally to the matter of vitamin E as an anti-oxidant and its use in the treatment of skin conditions incident to the aging process. However, his testimony was in substantial agreement with that of Dr. Carnathan that vitamin E would not be prescribed for the removal of acne and other skin blemishes (Tr. 119).
12. The other ingredient in Respondent's product (other than vitamin E) purporting to have curative properties is "Aloe Vera", which Respondent states in its advertising is an "age old plant" and describes as follows:
"The rubbery leaves of this rare tropical plant contain a white milky sap that acts as an entire medicine chest for some primitive tribes of the Amazon. They apply a crushed leaf directly to an open wound or a bad burn. They chew the leaf when they have a stomach pain. The result? Researchers can't find a single scar on the bodies of any tribesman]" "The skin of every native is absolutely flawless and without a blemish]"
According to Dr. Carnathan's uncontradicted and credible testimony, Aloe Vera (which is a species of the aloe plant, a member of the lily family) has no value in the treatment of any of the conditions of the skin referred to in the complaint. While aloe has, in the past, been used as a laxative because of its putative action on the liver, it has no recognized healing or restorative properties in the treatment of the skin conditions referred to in Respondent's advertising matter (Tr. 21-3).
13. In accordance with the foregoing findings, it is concluded and found that Respondent's representations with respect to its product Vitamin E-Plus are materially false as a matter of fact, since the overwhelming weight of the credible evidence establishes that such product will not perform as represented.
CONCLUSION OF LAW
Respondent is 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 attached, as provided in 39 U.S. Code 3005, should be issued.
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