In the Matter of the Complaint Against R.J. INDUSTRIES, P. O. Box 19055 at San Diego, California 92119 P.S. Docket No. 2/191March 21, 1974
William A. Duvall Chief Administrative law Judge
Lee H. Harter, 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 24, 1974, when a complaint was filed on behalf of the General Counsel, United States Postal Service, the Complainant, in which it is charged that R. J. Industries, Post Office Box 19055, San Diego, California, the Respondent, is 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 called Kaminomoto. It is for application to the hair. Specifically, the Complainant charges the Respondent with making the following representations, which Complainant charges are false, and materially false as a matter of fact:
a) that Respondent's product is a "hair restorer";
b) that by use of Respondent's product, a user's hair will become thicker;
c) that the active ingredient of Respondent's product will, when used as directed, nourish the scalp; and
d) that use of Respondent's product will stop "thinning hair."
There is a further charge that by implication Respondent's advertisement represents:
e) that Respondent's product will prevent baldness in the majority of users.
This case was investigated by Inspector Gerald Raftery. In the conduct of his investigation, Inspector Raftery noted an advertise- ment that appeared in the National Enquirer on December 9, 1973. A copy of this advertisement is attached to this decision as Appendix A.
Using the test name, Ralph Xander at Post Office Box 121, Elk Mountain, Wyoming, Inspector Raftery sent in the required remittance and, in the course of time, received the product from the Respondent.
The Respondent had filed an Answer to the complaint in this proceeding, but no appearance was entered at the hearing which was conducted on February 26, 1974, pursuant to notice. The proceeding was conducted as if Respondent had filed a general denial to the charges in the complaint. The procedure was governed by 952.11(b) of the Rules of Practice which provides that if the Respondent files and Answer but fails to appear at the hearing the presiding officer shall receive Complainant's evidence and render an initial decision.
After receipt of evidence of the Respondent's advertisement and the evidence relating to the purchase of the product under the test name, the Complainant presented a medical expert, Dr. Vincent F. Cordaro, who is the collaborative medical officer for the Postal Service, employed at the Food and Drug Administration.
Dr. Cordaro is qualified to give testimony in the field of medicine which is involved in this proceeding. Dr. Cordaro testified that there are several causes of baldness, the chief among which are genetic influences which produce what is known as male pattern baldness. Other causes are diseases of the scalp, systemic diseases, local toxins and others. One type of baldness is known as alopecia areata, which simply means that a patchy-type of baldness appears in various areas of the scalp.
The treatments of baldness, which are prescribed by the members of the medical profession are these in substance:
1. If the patient has male pattern baldness or alopecia areata, there is not much that can be done, although in some cases persons with alopecia areata may be treated successfully by a dermatologist. But generally speaking, when hair is restored in this situation, the return of hair is a spontaneous phenomenon in which it does not appear to be affected by external stimuli.
2. In the case of persons who are bald because of diseases of the scalp, a systematic disease or local toxin, in order for hair to be restored to such persons, the underlying cause or condition would have to be treated and overcome. When this occurs, the hair will then re-grow on such persons.
Hair itself is not a living tissue, but it is extruded from the follicle. The follicle is part of a living organism and lives, but the hair is dead at the minute of extrusion from the follicle.
The consensus of medical opinion in this area is that there is no product which can restore hair to persons who are bald by reason of the male pattern type baldness. It is, further, the opinion of the informed medical scientists that there is no topically applied product which can restore hair. In cases in which systemic disease is the cause of the loss of hair, local applications can be a successful treatments of certain diseases of the scalp and certain local toxin conditions.
Basically, the Respondent's product consists of a shampoo which is to be used in washing the hair. The shampoo is to be followed by the application of what the Respondent calls "KAMINOMOTO, Japan's Natural Formula Scalp Preparation."
Upon the basis of evidence of the record in this proceeding, I find as a fact, that Respondent is engaged in the conduct of a business through the mails.
The Respondent, in the conduct of his business, does advertise in a publication of national circulation and Respondent does solicit remittances through the mail.
In response to orders, the Respondent does use the mails to supply the remitter with the product in the advertising material used by the Respondent.
Respondent does make, or make in substance, the representations which are set forth in paragraph 3 of the complaint.
The representations made by the Respondent in its advertising material are materially false, as a matter of fact.
It is concluded, as a matter of law, that the Respondent is engaged in conducting a scheme for obtaining money or property through the mails by means of false representations contrary to the provisions of Section 3005 of Title 39, United States Code.
In light of the foregoing findings of fact and conclusion of law, an Order as provided by Title 39, United States Code 3005, should be issued against this Respondent.
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