In the Matter of the Complaint Against UNIQUE IDEAS, 1674 Broadway at New York, New York 10019 P.S. Docket No. 3/52August 21, 1974
Rudolf Sobernheim Administrative Law Judge
APPEARANCES: Daniel S. Greenberg, Esq. Law Department U. S. Postal Service Washington, D.C. 20260 for Complainant Alvin D. Wigdor, Esq. Michaels, Michaels & Wigdor 500 Fifth Avenue New York, New York 10036 for Respondent
This is a proceeding by the Complainant against the Respondent under 39 U.S.C. 3005, which authorizes action against Respondent on 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 selling of a complete face lifting shaper kit with course included which sells for $9.95. Specifically, the complaint alleges that by the use of advertising material, which is attached to the complaint as Complainant's Exhibit A, Respondent directly or indirectly in substance and effect represents:
"(a) That use of the 'Face Lifting Shaper' (hereinafter referred to as the 'device') in conjunction with the accompanying exercises, will significantly eliminate and reduce:
1. age lines;
2. wrinkles in face, skin, and neck;
3. creases;
4. crow's feet;
5. puffiness;
6. surface blemishes;
7. spots;
8. dry skin;
9. flaking skin;
(b) That the device and exercises will effect the aforementioned results by:
1. tightening sagging flab;
2. firming up face and neckline muscles;
3. toning aging tissues;
(c) That use of the device significantly adds to any benefits which may be obtained by the exercises alone;
(d) That the device is complete and ready to use as received from respondent;"
Respondent filed an answer to the complaint alleging that it had discontinued the advertisement of the face lifting shaper, attached to the complaint (for another copy see Compl. Ex. 1) and that it had been published for the last time in May 1974.
Respondent further alleged that it no longer was receiving any but a most occasional response to its advertisement and that, therefore, the relief sought by Complainant should be denied.
As stated in its answer, Respondent did not appear at the hearing. Complainant adduced thereat the testimony of a well-qualified physician, assigned by the U.S. Food and Drug Administration to work with the Postal Service, as well as the testimony of a postal inspector who made a test purchase through the mails from Respondent.
1. The evidence adduced by Complainant shows that Respondent is selling a device known as a dildo, which is a cone-shaped object, approximately seven or eight inches in length and one and a half to two inches in diameter, with a rubberized head covered with small spikes. The device is battery operated but batteries were not furnished to the purchaser. When battery operated, the device acts as a kind of vibrator and vibrates the face and neck muscles when put against them.
2. In addition, the Respondent provides the purchase with a pamphlet called "The Three Minute Face Shaper", which is termed a remarkable method that works. That method is said to be based on the work of a German dermatologist, Dr. Hans Weyhbrecht, and of Dr. Rudolph Drobil, said to be the distinguished author of a work called (as translated from the German) "Face Gymnastics." Dr. Weyhbrecht is said to live in Stuttgart, Germany, and Dr. Drobil in Vienna, Austria (Compl. Ex. 5).
3. Complainant's medical witness testified that he had caused the librarian of the Food and Drug Administration of the United States to make a library check for the mentioned books, and that the librarian had reported to him that he had found no record of any writings by the authors cited by Respondent.
4. Finally, the Respondent included with the paper an instruction for the use of the device (Compl. Ex. 4) which prescribes its use three to five minutes before and after the daily beauty figure exercises described in the pamphlet previously mentioned (Compl. Ex. 5). These instructions also inform the purchaser that a "C" cell battery or regular flashlight battery is needed to operate the device (Compl. Ex. 4).
5. In the pamphlet (Compl. Ex. 5) Respondent suggests exercises to be repeated a number of times, sometimes 10 times, involving movements of the lips for the purpose of allegedly strengthening the neck and face muscles.
6. As to the face lifting shaper itself, Complainant's medical expert testified that the physical weaknesses described in Respondent's advertising, such as age wrinkles, blemishes, surface blemishes, dry skin, puffiness of the face, cannot be treated by muscular exercises or by vibrating the affected parts of the body, except where increase in blood circulation, even it temporary, might provide some momentary relief. That is true of the condition of puffiness, but not of the other conditions mentioned in Respondent's advertising.
7. On the basis of the detailed findings of fact and the record as a whole I find:
a. Use of the face lifting shaper sold by Respondent through the mails by means of the advertisement, attached to the complaint as Exhibit A, in conjunction with the exercises prescribed in the accompanying pamphlet (Compl. Ex. 5) will not eliminate or significantly reduce age lines, wrinkles in face, skin or neck, creases, crow's feet, puffiness, surface blemishes, spots, cry skin or flaking skin. Moreover, the representations of the Respondent's advertising give the ordinary reader the impression that such results are permanent when at best they are very partial and temporary, as in the case of vibrating the face to reduce its puffiness.
b. The device sold by Respondent and the exercises prescribed by it will not tighten sagging flab, firm up the face and neckline muscles or tone aging tissues.
c. Use of the device sold by Respondent will not add any significant benefit to the use of the exercises alone.
d. Respondent's representations contrary to these findings (pars. 7a. to c.) are materially false.
e. Respondent further falsely represents that the device sole to the purchaser is complete for use although the batteries which are needed for its operation are not furnished by Respondent. While it is not free from doubt whether purchasers would or could reasonably expect that Respondent would furnish batteries for the initial operation of the device, the high price charged here by Respondent for its product may well lead an ordinary reader of its advertisement to believe that the device was in complete operating condition for initial use without further immediate expenditures on the purchaser's part.
1. Respondent is engaged in a scheme for obtaining monies or property through the mail by means of false representations.
2. The fact that Appellant is no longer using the advertisement on which the complaint is based does not prevent the issuance of the order requested by Complainant so as to bar the representations which I have found false.
3. Accordingly, an order in the form attached, as provided under 39 U.S. Code 3005, should be issued.
_________________