In the Matter of the Complaint Against MR. D. N. MYERS 7150 N.W. 21st Ct. at Sunrise, Florida 33313 P.S. Docket No. 2/186 March 11, 1974 Daniel S. Greenberg, Esq., Law Department, United States Postal Service, Washington, D. C., for Complainant No appearance for Respondent Before: William A. Duvall , Chief Administrative Law Judge
This proceeding was initiated on January 21, 1974, by the filing of a complaint on behalf of the General Counsel for the United States Postal Service, the Complainant, in which it is alleged that the Respondent, Mr. D. N. Myers, 7150 N.W. 21st Court, Sunrise, Florida, is engaged in conducting a scheme or device for obtaining money or property through the mail by means of false representations contrary to the provisions of Section 3005 of Title 39, United States Code. The scheme allegedly consists of the sale of a cream for external application which is falsely represented as being capable of making the female breast more attractive by increasing the size of the breasts more or by firming sagging breasts.
The complaint, notice of hearing, and a copy of the appropriate Rules of Practice, were served upon the Respondent on January 29, 1974, as evidenced by a signed receipt for certified mail which is contained in the record.
The Respondent filed an answer to the complaint on February 11, 1974, and the matter came on for hearing on February 22, 1974, pursuant to notice.
At the hearing no appearance was entered on behalf of the Respondent, so the hearing proceeded under the provisions of 952.11(b) of the Rules of Practice, which provides that: "If the Respondent files an answer but fails to appear at the hearing, the presiding officer shall receive complainant's evidence and render an initial decision."
Complainant's counsel had filed a timely motion for the issuance of an oral decision at the conclusion of the hearing, and on January 30, 1974, an order was issued in which it was provided that if it appeared to be appropriate and in the public interest to do so, the presiding officer might render an oral initial decision at the close of the hearing. This does appear to be a case in which such a decision would be appopriate and in the public interest.
Counsel were advised to be prepared, and Complainant's counsel has submitted Proposed Findings of Fact and Conclusions of Law. The evidence which has been received of record in this proceeding clearly supports the proposed findings of fact and conclusions of law, which have been submitted by Complainant's counsel and these are adopted as set forth in this decision.
The use of public advertisements and the mails in the conduct of Respondent's enterprise are established by Exhibits 1 through 7, consisting of an advertising circular sent through the mails by Respondent soliciting orders for "Amour" or "Amor" creme; test correspondence conducted with Respondent by the investigating Postal Inspector; and the product mailed by Respondent pursuant to the receipt of an order and the required remittance.1/
The advertisement attached hereto, which is in four parts, A through D, begins on Part A with a picture of a rather well-endowed attractive young lady shown from the bust up to the top of the head only.
Part B to Appendix I of this decision also shows a rather well-endowed young lady, and begins: "Hello, Friend," and in substance asks: have you heard about Amor Body Creme which will help you with your problem?
Turning now to Part C to Appendix I of this decision, which is the third page of Respondent's advertisement, there is not set forth the exact language found in the representations charged in the complaint, but a reading of the advertisement clearly indicates that Respondent is referring to those matters set forth in the charges. The advertisement indicates that the Respondent is anxious to help people with the problem of, on the third line, "an unattractive bosom," which apparently makes the person so afflicted the recipient of puns which are embarrassing, and this condition is also responsible for clothing which never fits right.
In the second paragraph, the advertisement refers to attracting the male by the development of the bustline.
In the third paragraph, the Respondent states that "Beauty is You." Next, the advertisement refers to the cream, and, then, on the last line of the third paragraph, it says that the cream assists "numerous women in achieving the desired results."
The quoted language from Respondent's advertising material clearly indicates that the Respondent is offering something which is going to give a woman a more attractive bosom, make her clothes feel right, and help her to attract males. These would apparently be the desired results.
Considering Respondent's advertising statements "in the light of the effect [they] would most probably produce on ordinary minds," it is found that the Respondent does make the representations contained in the charges of the complaint. (Donaldson v. Read Magazine, 333 U.S. 178, 189).
The Complainant called as a medical expert Dr. Vincent F. Cordaro, a medical doctor, who is qualified to testify in the field of medicine involved in this proceeding. According to the medical testimony, the size and shape of the female breast are determined by genetic factors. Normally, the configuration of the breast does not change until it is affected by puberty, childbirth or the menopause. If it is desired to alter the configuration of the breast, the treatments of choice of the medical profession would be by plastic surgery, the injection of silicones or the implantation of a silicone prosthesis.
The cream sold by Respondent is similar to other cosmetic moisturizing creams, with the addition of titanium dioxide to give it a white appearance. There is nothing in the cream sold by Respondent which could produce the effects of enlarging the female breast or of firming sagging breasts.
The medical testimony establishes that the representations found to have been made by Respondent in regard to the cream being sold by Respondent are materially false as a matter of fact.
The evidence of record in this case warrants the conclusion, and 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.
A mail stop order, as provided by 39 U.S. Code 3005, should be issued against this Respondent in regard to the sale of "Amour Body Creme" and "Amor Body Creme."
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