In the Matter of the Complaint Against MAGIC MOLD, INC. 10 Taylor Street at Freeport, New York 11520 P.S. Docket No. 2/115; 03/26/74 Wenchel, Adam G.
On February 6, 1974, the Judicial Officer issued mail stop Order No. 74-8 directing the Postmaster to return certain mail addressed to the name and address shown in the caption relating to the sale of Anatone Vitamin E Cream and Spandex band, also called Anatone 2-week Home Program. On February 26, 1974, Respondent filed the pending application for relief and on March 15 a supplement thereto. On March 15, 1974, Complainant made a reply to the application. Finally, on March 20, 1974, Respondent made a response to Complainant's reply.
Order No. 74-8 was issued to implement the Postal Service Decision of February 6, 1974, which found Respondent to be engaged in a scheme or device to obtain remittances through the mail by means of false representations with respect to the sale of Anatone Vitamin E Cream and Spandex band, also called Anatone 2-Week Home Program.
The specific false representations found to be made are:
"(a) That use as directed of the Anatone Vitamin E Cream and Spandex band (hereinafter referred to collectively as the 'program') will tighten sagging tissues in the lower face, chin, and neck;
"(b) That use of the program as directed will tone the muscles of the lower face;
"(c) That the effects described in subparagraphs (a) and (b), supra, will eliminate or significantly reduce double chins and neck wrinkles;
"(d) That the effects described in subparagraphs (a) through (c), inclusive, will occur after following the program for two weeks".
Those representations are shown to have appeared in advertisements in evidence as Exhibits C-1, C-2 and C-3.
Respondent's application for relief alleges that it is not now receiving orders for the product in question pursuant to Exhibits C-1, C-2 and C-3 and that Respondent is now using the advertisement attached to the application and designated R-1. The application requests that mail covered by Order No. 74-8 be delivered to it in the normal course conditioned on Respondent's agreement to "refund any orders that might possibly be received, pursuant to Complainant's Exhibits C-1 and C-3". 1/
Respondent renewed his request in the supplement and as alternate relief requests the order be stayed until completion of judicial review. 2/
Even if other conditions tended to indicate it would be reasonable to afford Respondent the relief originally sought, that relief would involve too large an element of trust to make it appropriate to grant that relief. Failure of Respondent to observe its terms would result in unretrievable losses to members of the public whom 39 U.S.C. 3005 is intended to protect.
Respondent asserts "that it is clear from the ad itself, that R-1 cannot in any manner be held to imply any representation of the elimination of neck wrinkles and/or double chins." 3/ The advertisement clearly represents that the product will provide a benefit. In seeking relief Respondent does not assert what that benefit is. The implication of the advertisement, however, remains that the product will tighten sagging tissues in the lower face, chin and neck, will tone the muscles of the lower face or will eliminate or reduce double chins and neck wrinkles. The advertisement directly represents the use of the product, i.e., the Vitamin E cream and the "Tru Health Anatone Chin Strap" as a beauty treatment. While the advertising for such a cream by itself could be visualized as being a representation that the cream is a remedy for dry skin or other skin conditions, 4/ the description of the chin strap included in the advertisement clearly makes the representations heretofore found false. The advertisement in effect claims a massaging action that will give results that are observable in a mirror. While certainly more subtle than prior advertising, the representations in R-1 clearly are to the effect that the cream and the band will bring about improvement in the appearance of the chin, neck and jowls. The improvement sought by a person who is concerned about the appearance of his chin, neck and jowls ordinarily would be those stated on page 2 above. In promising improvement of those areas, Respondent makes those representations which were found in the Initial Decision and in the Postal Service Decision to be false representations. Thus, for the reasons discussed above, Respondent's application is without merit.
Respondent's application is denied.
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1/ Omission of reference to C-2 presumably was inadvertent. Respondent subsequently included C-2.
2/ In order to preclude return of any of Respondent's mail to senders while judicial review is pending the Postmaster at Freeport, New York, has been directed to retain in his office all mail that otherwise would be returned to senders under Order No. 74-8.