In the Matter of the Complaint Against

 ASTOR-SCOTT, INC.,
 1231 E. Las Olas Boulevard at
 Ft. Lauderdale, Florida 33301  

 P.S. Docket No. 2/147

 January 18, 1974

 Rudolf Sobernheim Administrative Law Judge

 APPEARANCES:
 Thomas A. Ziebarth, Esq. 
 Consumer Protection Office
 Law Department U.S. Postal Service
 for the Complainant

 Charles B. Chernofsky, Esq. 
 One Blue Hill Plaza
 Pearl River, New York 10965
 for the Respondent

This is a proceeding by Complainant against Respondent under 39 U.S.C. 3005 which authorizes action against Respondent upon evidence satisfactory to the Postal Service that Respondent "is engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations."

Complainant alleges that Respondent is engaged in such a scheme in the sale of Phantom Roach Killer powder. Specifically, Complainant alleges that by the use of advertising material Respondent, directly or indirectly, in substance and effect represents:

"(a) That PHANTOM ROACH POWDER will quickly clear an average home of cockroach infestation;

(b) That cockroaches of all kinds are strongly attracted to PHANTOM ROACH POWDER, gobble it up and stagger off to die;

(c) That cockroaches which consume PHANTOM ROACH POWDER initiate a 'strange chain reaction' transmitting a fatal disease which spreads like wildfire, striking one roach after the other until each and every roach nest and egg is killed off;

(d) That PHANTOM ROACH POWDER was originally conceived for use by professional roach exterminators and has only recently been released to the general public for use in homes, offices, factories and farms;

(e) That PHANTOM ROACH POWDER will rapidly wipe out all cockroach nests in an infested household; and

(f) That PHANTOM ROACH POWDER retains its killing power for five full years and one can is adequate to protect the average home against new roach infestations year after year -- up to five full years or longer."

A copy of one of the advertisements used by Respondent was attached to the complaint. Other advertisements used by Respondent, slightly varying in lay-out but essentially identical in their statements, were introduced in evidence at the hearing held herein (Compl. Ex. 3 and 4). Respondent does not deny the use of these advertisements to obtain orders for Phantom Roach Killer and payment therefore through the mails but denies that they contain false representations. At the hearing held herein the Postal Service presented the testimony of an entomologist employed by EPA, familiar with Respondent's product. Respondent called no witnesses. AFter the hearing both parties presented proposed findings of fact and conclusions of law.

1. Respondent is engaged in business as a distributor of the product labelled by it as Phantom Roach Killer. It is sold in 5 ounce bottles at the price of $3.95 per bottle (Compl. Ex. 2).

2. Phantom Roach Killer consists of 99% orthoboric acid and 1% tricalcium phosphate which is an inert substance intended to keep the orthoboric acid dry.

3. Orthoboric acid is an insecticide which, according to the undisputed testimony of the entomologist called as a witness by the Postal Service, kills the roaches which ingest a toxic dose thereof within three to ten days. Other insecticides, such as chloradane and diazazone, kill insects, including roaches, within two days (T 13, 15). Certain unstable compounds, such as phytherin, kill instantly (T 13).

4. Roaches are neither attracted to nor repelled by orthoboric acid (T 15). They do not seek it out to ingest it.

5. Roaches ingest the orthoboric acid powder primarily when they walk through an area strewn with it so that it adheres to their legs and antennae, and thereafter clean their legs and antennae of this foreign substance by passing them through their mouths (T 29, 32). They die in time when they thus have ingested a toxic dose. Roaches may also ingest the orthoboric acid when it penetrates their body wall (Resp. Ex. 1) or when it is placed on food which they eat (T 36).

6. The toxic effect of orthoboric acid is not transmitted by cockroaches touching each other or touching the eggs (T 17, 18). The substance is not ovicidal (T 18, 31).

7. While orthoboric acid retains its effectiveness over a long period of time, a five ounce can is not sufficient for 5 years' use since house cleaning or consumption by roaches will always remove some of the powder and it must be used over again.

8. A 5 ounce can of Phantom Roach Killer is not sufficient to wipe out roach infestation in an ordinary house rapidly. A letter of a professor of entomology at the University of California at Los Angeles, introduced in evidence by Respondent (Resp. Ex. 1), states that, in order to clear houses and apartments heavily infested with roaches a full pound of powder must be applied in the process, three times the quantity advertised by appellant for use over five years.

9. Orthoboric acid was first used as an insecticide in World War II when other chemicals were in short supply (T 20) but is not now used by professional pest controllers (T 19 et seq .).

10. Based on the foregoing findings of fact and on the entire record I find that the representations made by Respondent in its advertisements and alleged to be false in the complaint are false in fact:

(a) Phantom Roach Killer does not "wipe away all roach nests - quickly", as Respondent's advertisements guarantee but kills relatively slowly.

(b) "All kinds of roaches" do not "go wild over PHANTOM", as Respondent's advertisement state; it has no attraction for roaches.

(c) Phantom Roach Killer is not a "high speed CHAIN REACTION formula", as Respondent's advertisements assert and roaches do not transmit the toxic effect of the orthoboric acid to each other.

(d) Phantom Roach Killer has not "Now *** been released to the General Public for use in homes, offices, factories, and farms," as Respondent's advertisements state but has been known since World War II as an insecticide.

(e) Phantom Roach Killer does not by itself "thoroughly and quickly" destroy "roach nests all over the house" as Respondent's advertisements proclaim since orthoboric acid is not ovicidal.

(f) There is not "enough in each can for 5 full years of treatment" as Respondent's advertisements claim; for much larger quantities than one five ounce can contains must be strewn around for thorough disinfestation of a house from roaches.

1. Respondent is engaged in a scheme or device for obtaining money or property through the mails by means of false representations within the meaning of 39 U.S.C. 3005.

2. Respondent's advertisements expressly seek to create the false impressions charged in the complaint of the U.S. Postal Service and will be so understood by the ordinary reader. See Donaldson v. Read Magazine , 333 U.S. 178, 189 (1948).

3. The representations go to the effectiveness of Respondent's product, its mode of operation and the quantity needed for effective use. All are grossly misstated and their falsity materially misleads prospective mail order purchasers contrary to the intent of 39 U.S.C. 3005.

4. Accordingly, it is recommended that an order in the form attached, as provided in 39 U.S.C. 3005, be issued.