In the Matter of the Complaint Against INTERNATIONAL BIOTICALS, INC., 822 Burton Street, S. E. at Grand Rapids, Michigan 49507 P.S. Docket No. 2/67 May 31, 1973 Mrs. Nancy Dorsch, Esq., Law Department, U. S. Postal Service, for Complainant David Ficksman, Esq., Bass and Ullman, 342 Madison Avenue, New York, New York 10017, for Respondent Before: William A. Duvall, Chief Administrative Law Judge
This proceeding was initiated by the filing on April 4, 1973, of a complaint in which the Assistant General Counsel in charge of the Consumer Protection Office in the Office of the General Counsel, United States Postal Service, charged that International Bioticals, Inc., at Grand Rapids, Michigan, the Respondent herein, was engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations contrary to the provisions of section 3005, Title 39, United States Code.
The Respondent is engaged in the sale of a product, which is a cream to be applied to the face for the purpose of diminishing wrinkles, and eliminating sagging flesh on the face, forehead, neck, and throat.
Attached to this decision as Appendix A is a copy of an advertisement which appeared in a publication known as the National Enquirer. The representations which the complainant charges the Respondent was making and which the complainant says are materially false as matters of fact are found in paragraph 3 of the complaint as follows:
3. By means of such advertising, Respondent directly or indirectly represents to the public in substance and effect:
a. that use of the Crushed Flower Beauty Recipe (hereinafter referred to as "Recipe") will eliminate wrinkles;
b. that use of the recipe will eliminate facial sag;
c. that use of the recipe will eliminate crows feet;
d. that use of the recipe will eliminate age lines;
e. that use of the recipe will refine pores;
f. that use of the recipe will make the user's skin appear and feel younger;
g. that the results enumerated in sub-paragraphs (a) through (f) will be accomplished within a few minutes; and,
h. that the results enumerated in sub-paragraphs (a) through (f) will be accomplished by:
(1) the skin being tightened, and
(2) the cells being moisturized, and 'plumped' out."
An answer to the complaint was filed on behalf of the Respondent on April 30, 1973. Through the answer and through the admission into evidence of certain exhibits at the hearing by stipulation, the following matters have been established as matters of fact:
1. The Respondent is in the business of selling the product known as Crushed Flower Beauty Recipe;
2. In the sale of this product, the Respondent employs the mails to consummate the sale of the product;
3. In selling the product through the mails, the Respondent does employ the advertising material which is annexed to this decision as Appendix A.
The Respondent denies the making of the representations set forth in paragraph 3 of the complaint, which has been quoted above.
As has been pointed out by counsel, when one construes literature, one must do so by considering the advertising literature as a whole and in light of the effect that such advertising material would most probably produce on ordinary minds. This is the admonition which is found in the case of Donaldson v. Read Magazine, reported at 333 U.S. 178. There are other cases in which it has been stated that the purpose of the postal statutes in this field are to protect the consumer and that that consumer includes all kinds and conditions of people, including the innocent, the naive, the gullible, and the careless and not just the sophisticated reader or the reader who carefully weighs each word as it appears in an advertisement. Gottlieb v. Schaeffer , 141 F. Supp. 7.
On the basis of the foregoing criteria, it is found that the Respondent does make the representations which are set forth in paragraph 3 of the complaint.
Now we come to the question of whether these representations, which have been found to be made by the Respondent, are true or false. Each party has produced a medical doctor to testify in support of its position and, while reference has been made in arguments of both counsel to the diversity of the views of these doctors, it seems to me that the diversity is not so great as it would appear at first blush. Dr. Vincent F. Cordaro, who testified on behalf of the complainant, was examined in terms of the charges as they are expressed in the complaint. And the complaint is so phrased as to indicate that the benefits, if any, to be achieved by the use of this product would be, if not permanent, at least long-lasting for a considerable period.
On the other hand, Dr. Marvin Ackerman, who testified on Respondent's behalf and who is a man with a distinguished background in biochemistry and dermatology and pathology, was questioned on direct examination, at least, in terms of the Respondent's theory in regard to the meaning of the advertisement, which is that the benefits promised by the advertisement would be only temporary in nature. I will return to this phase of the matter after a discussion of some other features.
The indication of the evidence of record in this case is that the use of this product will have the effect and result of refining the pores so long as that term is understood to mean the cleaning of the pores and perhaps the removal of excess sebum from the pores. The evidence of record in this case also establishes that the use of this product will have the effect of making the user's skin appear and feel younger. The evidence of record in this case supports the finding that the results that will be produced by the use of this product will be accomplished within a few minutes after that application of the product. The evidence also establishes that the results to be achieved by the use of the product will be accomplished by reason of the tightening effect that the product will produce on the skin and by the additional moistening conveyed to the cells as a result of which they will be "plumped out".
In other words, the proof of record in this proceeding is insufficient to establish the falsity of charges 3 f, 3 g, and 3 h.
We will now return to the first four charges set forth in paragraph 3 of the complaint and the decision with regard to these charges in terms of the definition of the word "replace." The Respondent takes the position that this word means a temporary action which will be of indefinite but short duration after which the thing or the individual will be restored to its or his original condition. On the other hand, the complainant views the language of this advertisement as a representation that the product will have a long-lasting effect. Now, the precise language in the advertisement about which this controversy centers is as follows: "Watch in absolute awe as wrinkles, sag, crows feet and age lines are replaced by firm, taut, smooth youthful looking skin."
Now, in this situation the average person would construe this word "replace" as being a stronger word than simply a temporary displacement. There are many, many things that come to mind when you talk about replacement. You take a tire on an automobile, when it is in such a condition that it has to be replaced, you put on the new tire and forget about the old one. You think of the same thing in regard to a television tube. When you have to replace a tube, it means that that set does not function properly with that tube in there and that that tube has to be disposed of and discarded and the new tube takes the place of it. In other words, the old tube is replaced. This is not an esoteric meaning of that word at all. This is a common, a well known, and a universally accepted meaning of that term.
In addition to that word, there is at the top of the advertise- ment used by the Respondents the following caption, which extends across the top of the page, and it reads as follows: "Tiny petals of Chamomile help restore natural skin beauty." If something is restored, it is brought back to its original condition or to a condition that is as good as its original condition. So I cannot agree with Respondent's contention that the tone and the tenor of this advertisement is that this substance, when applied, will produce only temporary benefits. The average person when looking at this advertisement would feel that the product, which he is interested in and which he is about to order, will achieve that happy goal that women seem to look for forever, "eternal youth", and that their skins will be restored to that youthful smoothness and glow, which they all once had. So, to the ordinary person, the significance of this advertisement is that the product will produce a long-lasting benefit in terms of removing wrinkles and sag and crows feet and age lines.
Now, the proof in this regard is simply that the product will not produce those results. The testimony of the Respondent's own witness is to the effect that, at best, the results would last for a period of from six to eight hours, and that in order to achieve the results over a long period of time there would have to be renewed application, time after time. There is, therefore, no permanent effect on wrinkles that is produced by the use of this product. For this reason I find that the representations set forth in paragraph 3(a), (b), (c), and (d) of the complaint are materially false as matters of fact.
Based upon the findings heretofore made, I conclude as a matter of law that the Respondent is engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations within the meaning of section 3005 of Title 39, United States Code.
I have listened with interest to the proposed findings of fact and conclusions of law of counsel for both parties and, to the extent indicated herein, they are adopted; otherwise such proposed findings of fact and conclusions of law are rejected because they are either contrary to or unsupported by the evidence or record in this case.
A order of the type provided by the governing statute should be issued against this Respondent.
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