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; APPEARANCES: Nancy Dorsch, Esq. Law Department United States Postal Service Washington, D.C. 20260 David L. Ficksman, Esq. Bass & Ullman 342 Madison Avenue New York, New York 10017
This proceeding is before the Judicial Officer on Respondent's appeal from the Initial Decision of the Chief Administrative Law Judge sustaining the allegations a. thorough d. of paragraph 3 of the complaint filed under 39 U.S.C. 3005 and § 952.5 1/ of the Rules of Practice thereunder.
Insofar as sustained by the Initial Decision the complaint charges Respondent with obtaining remittances through the mails in marketing its product by means of the following representations:
"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; ***"
The Administrative Law Judge, however, refused to find the following representations to be false:
"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."
Essentially the substantive question presented is whether Respondent's advertising in evidence makes the representations a.-d. As is frequently the case in these proceedings, the representations charged are not found in haec verba 2/ in the advertisement, but are derived from Complainant's view of the meaning to be given to the advertisement as a whole in the light of specific language used.
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The key word in the charges is "eliminate". Although the word does not appear in the advertisement, in reviewing the advertisement, the judge concluded:
"*** 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." (pp. 8 & 9)
My assessment of the advertisement is somewhat different.
The words Complainant contends support the claim of long lasting benefits are found in such phrases and particularly in the words in the phrase underscored here (but not in the advertisement) as "YOUR SKIN CAN START TO LOOK AND FEEL YOUNGER AGAIN", "*** HELP RESTORE NATURAL SKIN BEAUTY", "WRINKLES, SAG, CROWS FEET AND AGE LINES are replaced by firm, taut, smooth youthful looking skin". The quoted language when considered in isolation may suggest to some extent that the benefits produced have a long duration. However, to the extent that the cited language may be considered to make the representations contended by Complainant, it does so by indirection. It does so neither in a direct nor forceful manner. Under these circumstances, the context in which the language is found is particularly important. Elsewhere, the advertisement in question indicates a need of continued use of the product which tends to negate a claim of extended effectiveness. Looking at the advertisement as a whole I cannot find that the effect of the advertisement on the minds of ordinary, unsophisticated, even trusting readers would be to produce an impression that the benefits would last longer than the periods estimated by the dermatologist who testified on behalf of Respondent. Those estimates presumably have been accepted as accurate for the purpose of this proceeding. I cannot find therefore that the advertisement falsely represents the product in the respects alleged in paragraph 3(a)-(d) of the complaint.
For the reasons stated, I do not adopt the recommendation made by the Initial Decision and the complaint is therefore dismissed.
12/06/73
Wenchel, Adam G.
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1/ The applicable Rules of Practice are published at 39 C.F.R. Part 952.