In the Matter of the Complaint Against JILL JARA LTD., 104 East 40th Street at New York, New Yor 10016 P.S. Docket No. 2/117 January 15, 1975 Rudolf Sobernheim Administrative Law Judge APPEARANCES: Daniel S. Greenberg, Esq. Consumer Protection Office Law Department U.S. Postal Service Washington, D. C. 20260 for Complainant Francis J. Sullivan, Esq. Richard H. Crowe, Jr., Esq. Liddy, Sullivan, Hart, Daniels & Baxley 253 Broadway New York, New York 10007 for Respondent
This is a proceeding by Complainant against Respondent under 39 U. S. Code 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 a scheme or device violative of 39 U. S. Code 3005 through the sale of "Trimma/Gel Face-Firma and Face-Firma Strap" (hereinafter sometimes referred to as the "product" or separately as "IG" and the "strap") and receipt of payment therefor through the mails. Specifically, Complainant alleges in paragraphs 2 and 3 of the complaint that Respondent in its advertisement of the product (Complt Ex. A; Compl. Ex. 1) falsely represents, directly or indirectly, by means of affirmative statement, implication or omission, in substance and effect:
"(a) That use as directed of the 'Face-Firma' cream and 'Face-Firma Strap' (hereinafter referred to collectively as the 'program') will firm, tone, and uplift the:
1. chin;
2. cheeks;
3. jowls;
4. neck;
(b) That the effects referred to in subparagraph (a), supra , will eliminate or significantly reduce wrinkles and sagging skin in the afore-mentioned areas;
(c) That the results enumerated in subparagraphs (a) and (b), supra , will be effected regardless of the cause of the remitter's wrinkles or sagging skin;
(d) That significant progress toward the results enumerated in subparagraphs (a) and (b), supra , will be noticeable within 10 days;
(e) That the formulation of 'Face-Firma' cream differs materially from that of all other creams offered for diminution or elimination of wrinkles or sagging skin;
(f) That, irrespective of the physiological action of its specific ingredients, the ultimate effects of said cream are materially different in concept from the ultimate effects of any other cream offered for diminution or elimination of wrinkles or sagging skin;
(g) That use of the program as directed embodies a new concept in elimination or reduction or wrinkles and sagging skin;"
Respondent in its answer admits selling the product by means of the cited advertisement and receiving payment for its product through the mails. It admits making the representations charged to it in paragraph 2(a) and (d) of the complaint, denies making those alleged in paragraph 2(b), (c), (e), (f) and (g), and further denies that any of these representations, whether made by it or not, are materially false.
Respondent also moved to dismiss the complaint as to all charges other than that stated in paragraph 2(a) of the complaint. The motion was denied at the outset of the hearing which proceeded to cover all charges contained in paragraph 2 of the complaint. The substantive issues raised by Respondent's motion are dealt with in this initial decision.
The hearing in this proceeding was originally scheduled for 28 August 1973 but was continued after the parties entered into an agreement, filed on 4 September 1973, for holding in escrow all payments received for the product pending completion of the administrative hearings and any judicial review thereof. Hearings were held on 29 January and 23 and 24 July 1974 at which both parties presented evidence. Both parties thereafter filed briefs.
1. Respondent is engaged in the sale of, and receives orders and payment for, the product through the mails.
2. Respondent applied for a patent for TG on which prosecution on the merits was closed by July 1974 "in view of: a. Applicant's communication filed Feb. 25, 1974" (Resp. Ex. 7). The patent was issued on 24 December 1974 and a copy received from Respondent's counsel on 8 January 1975. It is admitted in evidence as Respondent's Exhibit 8.
3. TG, mistakenly described in the complaint as "cream", is a gel, the non-volatile chemical components of which, according to the analysis made by a qualified chemist of the Food and Drug Administration, are aluminum, zinc, and ammonia salts in chloride, sulfate, and acetate sale form in proportions not ascertained. These salts constitute 19.8% and the volatile portion of the gel, consisting of water and propylene glycol, constitutes 80.2% of TG (Compl. Ex. 9). Respondent contended that TG's non-volatile components make up 35 to 40% and its volatile components only 60 to 65% (T 127). The description of the gel in time 1 of the "Summary of Invention" section and in claim 1 of the patent (Resp. Ex. 8) confirms the analysis of Complainant's chemist in that TG is described as composed of a mixture of astringent aluminum salts with the astringent salts of other metals, such as zinc, magnesium or zirconium, among which zinc was identified by the chemist. The amount of water in the gel is described as "Preferably" between about 70% and 90% ( id ., clm 1d) and the volatile content ( id ., clms 1d, 5) found by Complainant's chemist falls thus about within TG's patented composition range. The chemist described the gel as having a pH of 4 which compares to the patent claims' stated pH of 3.4 to 4 ( id ., clms 1d, 7d).
4. Respondent attributed the high volatile component content of TG, found by Complainant's chemist (Compl. Ex. 9), to the opening of the jar during the period from April to October 1973 when it was in the possession of the Postal Inspector and the Complainant's chemist (T 12-13, 80-82) and the opened jar allegedly absorbed moisture. Complainant's chemist testified, however, that when he left the jar open, while analyzing its content, he found a weight loss of the gel, attributable to drying out, and no gain in weight from absorption of moisture in the air (T 88-89). Respondent did not offer any experimental evidence to the contrary although the time between the hearings would have allowed it to adduce such evidence. Its expert biochemist conceded that opening the jar was not itself moisturizing (T 129) and that the facts testified to by Respondent's chemist showed moisture loss (T 153).
5. On the record it is, therefore, not shown that TG has as high a concentration of non-volatile salts as claimed at the hearing on behalf of Respondent.
6. Respondent does not deny that the jar, the contents of which Complainant's chemist examined, was a jar used by Respondent to package its product. While the evidence may technically be less complete than is desirable, the record (T 12 et seq ., 80 et seq .; Compl. Exs. 3, 4, 8) adequately establishes that the jar examined by Complainant's chemist was the one received by the Postal Inspector as a result of his test purchase of the product and that no one tampered with the integrity of the contents of the jar prior to the time when Complainant's chemist completed his analysis (Compl. Ex. 9). Hence, the latter represented TG (see FF 3 to 5, supra ) and was properly used as the basis for expert testimony on the characteristics, qualities and potentialities of Respondent's product.
7. The TG jar bore a blue label stating in front: "Trimma Gel Face Firma for Women and Men" and on the reverse "2 oz., JILL JARA LTD. NEW YORK, N.Y. 10016" (Compl. Ex. 9). It does not list the components of the gel.
8. The origins of TG go back to about 1970 when a Dr. Turner, now deceased, and Respondent's president undertook to create an improved product which would tighten sagging skin around the chin, cheeks, jowl or neck of older men or women (T 229 et seq .).
Respondent's president researched the market and found that no such product existed in gel form (T 230) and he decided upon this form rather than a cream or lotion. Respondent's and Dr. Turner's patent agent, contacted in 1972 (T 92), researched the market and concluded that to put astringent salts in gel form without destruction of the gel by the moisture which such salts attract (T 95-96) created a novel product. He had found no other gels like TG (T 96). On the other hand, an excerpt from the Handbook of Non-Prescription Drugs , introduced in evidence as Respondent's Exhibit 2, shows that preparations of some astringent salts in gel form were not a novelty by 1970 or 1971. Remington's Practice of Pharmacy , published in 1956 and introduced in evidence as Respondent's Exhibit 1 (excerpt), also showed that as early as 1956 aluminum hydroxide and aluminum phosphate were known in gel form, the latter as a patented product. Complainant introduced no evidence of its own (other than through cross-examination of Respondent's witnesses) to show the falsity of Respondent's claim of novelty for its product.
9. a. The advertisement, used by Respondent and the wording of which is in issue in this proceeding carries the following heading in large, heavy letters:
"NEW] a do-it-yourself
at home face lift]"
followed by the picture of a TG jar and the following language:
"TRIMMA GEL NOW LOOK YEARS YOUNGER]
face-firma FIRM FACE-CHIN-JOWLS-NECK
AND ...A Unique-Original Formula
FACE-FIRMA STRAP Laboratory Tested & Patent Pending"
b. Beneath these headings there is to the right the picture of a young man and woman in profile, each wearing the strap and beneath these pictures of the TG jar and folded strap and the legends: $6.95 each Face-Firma Gel Face-Firma Strap" and "WE GUARANTEE RESULTS IN 10 DAYS OR YOUR MONEY BACK]"
c. To the left beneath the headings (subpar. a, supra ) appears the following text:
"NOW AVAILABLE]....AN AMAZING PHARMACOLOGIST-DEVELOPED FORMULA FOR YOUR FACIAL NEEDS. You'll relax completely while your TRIMMA/GELL FACE-FIRMA and FACE-FIRMA STRAP is FIRMING, TONING AND UPLIFTING. See the wonders it will do for sagging contours of the chin, cheeks, jowls or neck. YOUR FACE-FIRMA STRAP IS LONG LASTING AND ECONOMICAL. It is adjustable and extremely comfortable] Washable...Use it over and over again] "EFFECTIVE] EASY] SAFE] Simply apply TRIMMA/GEL FACE-FIRMA to your cheek, chin, jowls or neck. Then slip on your FACE-FIRMA STRAP. You are now on your way to having a firmer , more youthful-looking facial contour. And you'll be pleasantly surprised how your attractive new young look will help make new friends, give you pride and confidence in yourself, open up whole new areas of social activity]
"YOU'LL BE AMAZED AND DELIGHTED WITH THE RESULTS] It's equally effective for WOMEN AND MEN. Wear your Face-Firma Strap at least one hour a day. Go about your normal activities. WITHIN 10 DAYS or less, YOU'LL BEGIN TO ACTUALLY SEE THE WONDERFUL RESULTS YOU'VE BEEN WANTING AND HOPING FOR]"
d. The bottom line beneath the entire width of the advertisement reads as follows:
"HAVE A FIRMER MORE YOUTHFUL LOOKING FACIAL CONTOUR]"
e. Nowhere in the advertisement is there any reference to "wrinkles" or to any effect which the application of TG and the wearing of the strap may have on them. The advertisement promises a younger look through firm face, chin, jowls, neck and the correction of their sagging contours.
10. a. Respondent's advertisement (Compl. Ex. A, Ex. 1) states that:
(i) TG and the strap will "firm face-chin- jowls-neck". The representation that the product will firm the face includes the cheeks, as alleged in paragraph 2(a) of the complaint. Moreover, the "cheeks" are also separately mentioned as being firmed or toned by Respondent's product.
(ii) TG and the strap will do "wonders *** for sagging contours of the chin, cheeks, jowls or neck" and the user "now [is] on [his or her] way to having a firmer , more youthful-looking facial contour." This representation indicates that sagging skin or jowls which give a face an old appearance will be at least temporarily reduced or eliminated by the use of Respondent's product, as alleged in paragraph 2(b) of the complaint. The prominent use of the words "face lift" and "uplifting" in Respondent's advertise- ment also conveys the idea of elimination or reduction of sagging skin through use of Respondent's product.
(iii) TG will be effective regardless of the cause of sagging skin. Respondent's advertisement does not expressly so state. However, by not advertising to exceptions, Respondent in effect and by plain implication represents that use of its product will have the beneficial effects as advertised, however sagging skin of neck, cheek, jowls and chin have come about, as alleged in paragraph 2(c) of the complaint. Such representation is material since it reinforces the representations as to the product's effectiveness, if found false, are material false representations.
(iv) the user of Respondent's product will "begin to see the wonderful results" of using the product "WITHIN 10 DAYS or less", as alleged in paragraph 2(d) of the complaint.
(v) Respondent's product is "a unique original formula laboratory tested patent pending" and "an amazing pharmacologist- developed formula for" the user's "facial needs", thus effectively representing that TG differs materially from all other products offered for the diminution or elimination of sagging skin, as alleged in paragraph 2(e) of the complaint.
b. The language of the advertisement quoted in subpara- graph a.(v) also in effect represents that the concept of the action of Respondent's product differs materially from that of other products purporting to show like results, as alleged in paragraph 2(f) of the complaint, and embodies a new concept to this end, as alleged in paragraph 2(g) of the complaint.
c. Respondent's advertisement does not mention wrinkles and is on its face not addressed to smoothing out or covering up wrinkles, contrary to Complainant's allegations in paragraph 2 of the complaint. The testimony adduced by Respondent establishes satisfactorily that Respondent did not intend to address itself to the problem of eliminating or reducing, and in its advertisement deliberately refrained from referring to, wrinkles. The mention in an advertisement of "face lift" and "uplifting" may in some contexts convey to the ordinary reader the idea that the product will affect "wrinkles" or improve the appearance of wrinkled skin. In the instant case Respondent has chosen its language carefully enough to avoid such false inference and has in fact succeeded in not misleading an ordinary reader to believe that its product improves wrinkles. On balance, the allegation that the representations of Respondents' advertisement are addressed to wrinkles has not been sustained by Complainant.
d. As a matter of fact Respondent's advertisement makes the representations alleged in paragraph 2 of the complaint except that it advertises a gel and not a cream and makes no representa- tions in regard to wrinkles.
11. In support of the allegation of falsity of Respondent's representations Complainant adduced the testimony of a practicing physician, specializing in the field of dermatology (T 27). The witness holds degrees in the field of agriculture and food chemistry from French and American institutions as well as the degree of Doctor of Medicine from the University of California. He not only worked prior to graduation from medical school as a food chemist and pharmacologist but after such graduation had several years of training in dermatology in France and the United States before engaging in private practice in 1957. In addition, he holds, or until recently held, various appointments as consultant or attending physician in hospitals, medical schools and professional associations and is a member of numerous professional societies in the field of dermatology.
12. a. This witness testified that sagging skin was a phenomenon of aging when muscle fibers tend to break down and the skin loosens (T 29-30). This phenomenon can be cured by the surgical method, known colloquially as face-lift, by which excess sagging skin is removed (T 31-2), effective for from two to five years (T 33). Skin can be firmed by scarring injections (T 70) but there was no ingredient known to the witness to "tone" the skin (T 54).
b. The witness further testified that he kept abreast of medical literature and until 1972 had been the chairman of the American Medical Association's committee on cutaneous health and cosmetics and that he had not encountered or learned of any product which would achieve what Respondent claimed for its product in lieu of surgery (T 34).
13. a. Complainant's medical expert testified as to the potentialities of Respondent's gel on the basis of the analysis thereof by Complainant's chemist (T 37) - a procedure which has been found proper in the circumstances of this case (FF 6, supra ).
b. The witness stated that gels were more cooling but no more penetrating or efficacious than creams, although colorless and less greasy (T 35-6, 68). He considered Respondent's gel a mildly acid product, at the lower border of the skin's acidity and fairly innocuous. Applied to the skin the product would have a mildly astringent effect of giving a feeling of cooling and skin tightening, possibly also of tingling (T 37). In his view the effect of TG might be compared to that of compresses for a moderate irritation (T 38) and would have no significant effect in tightening sagging skin; it would cease to have any effect after application as soon as the user moved the muscles of his or her face (T 39). Nor does the wearing of the strap enhance its effect since the strap was not occlusive, i . e . did not keep the air out when worn over the gel-covered parts of the face. Its effect, too, ceases when it is taken off and the facial muscles move (T 40-1, 67). The instruction to wash and massage the face after removal of the strap (Compl. Ex. 5), on the other hand, would counteract any effect which TG may have by removing the gel and massage, when too vigorously applied, may further damage the skin (T 42, 65). Nor does the application of TG and the wearing of the strap have any extended or cumulative effect (T 43-5, 55). The witness noted similar claims for other products made in the early sixties and ruled out by the FDA (T 57 et seq .).
c. In sum, to this witness TG was simply one astringent gel among other astringent products, without special novelty or qualities (T 46-7). In fact a stronger, more acid or astringent gel with the ingredients known to be found in TG might well cause skin irritation and become dangerous (T 54, 66). Cross-examined about the relationship of moisture and astringent salts, he denied that they drew water from the point of application (T 63) or that astringency as such is a process of dehydration of the skin surface at the point of an astringent's application. He termed such theories as outdated and questioned in modern medical thought (T 61).
14. a. Respondent sought to meet the medical testimony proffered by Complainant by the terms of the patent granted it for its product and through the testimony of a biochemist who considered it his main work to convert ideas into saleable products (T 108).
b. Item 11 of the patent summary (Resp. Ex. 8) describes TG as having a pronounced astringent and shrinking effect on the skin, a tightening effect on sagging or loose skin areas which are improved in contour and imparting youthful appearance and tightness. However, claims 10 and 11 of the patent ( id .) claim for TG only that it is applied to the skin with or without the strap in "a method of restoring the structure of sagging and loose skin areas".
c. The career of the biochemist (Resp. Ex. 3) between 1955, when Stanford University conferred upon him a Ph. D. degree in biochemistry, to 1969 when he became the managing director of his own consulting firm, shows him as having held seven jobs as research supervisor, technical director or manager, generally for 2 to 3 year periods. What caused these changes is not known. In his work, in these positions and in his own laboratory, the witness tested and evaluated proprietary products, including those serving beautification and fragrance of skin and hair (T 109) but none to firm, tone or uplift sagging skin (T 110).
d. The witness was contacted by Respondent's president and by Dr. Turner to find a product of the highest degree of astringency on the human skin (T 111, 113) and began his work by investigating existing cosmetics using astringents and thereafter experimented with various solutions trying to keep increased concentrations of astringents, to which he ascribed a cumulative effect (T 135), from precipitating out of the solution (T 112). He finally hit on two suitable combinations of astringent salts which Dr. Turner tested for their effectiveness as skin tighteners and usability in gel form (T 113-4). The witness also tested his formula on people around him who understood the nature of the cosmetic product he was looking for and whose skin tightening and reaction to a tingling sensation, when the solution was applied, he observed (T 117). He never applied his solution to the whole face, however, nor did he make careful "before and after" application observations (T 120) or paired comparisons (T 150). He claimed to feel personally a long-lasting skin bracing effect when using the solution as an "after-shave lotion" and not in gel form (T 122).
e. TG, differing from his own solution (T 125) in respects known to him from the patent application (T 142) but unspecified on the record and not analyzed by him (T 142), uses a gel form and a water rather than alcohol base and, hence evaporates more slowly (T 121) and thus has a longer-lasting effect (T 123, 137 et seq .). If one abstains from bathing, its effect allegedly may last for many hours (T 132) and he contended that cumulative use of TG would lead to effective skin tightening lasting 12 to 18 hours (T 135). He conceded that TG's effectiveness varied from person to person and that the same person might not find it effective every time (T 136).
15. a. After the initial hearing a further hearing was held to enable Respondent to present additional evidence to rebut the expert medical testimony offered by Complainant. In order to do so, Respondent arranged for Testkit Laboratories, Inc., a well-established skin testing laboratory in New York City (Resp. Ex. 5), to test its product on fifty (50) women over a thirty-one or thirty-two day period.
b. The test subjects were limited to older women and excluded men although Respondent's product advertising was directed to both (Compl. Ex. A, Ex. 1; see also Compl. Ex. 5).
c. The test subjects were instructed to apply the product in accordance with Respondent's instructions except that they were told to and did wear the strap at least one hour and one-half (T 166) or 50% longer than the minimum time advised by Respondent in its advertisement and instructions (Compl. Ex. 1, 5).
d. The test subjects were seen by a physician at the beginning, the middle and end of the test period. At the end thereof they were asked to provide answers to a questionnaire which were taken down by Testkit. Of the questions asked two are of particular significance.
(i) Question 7 read: "Did you notice any change in the area of application?" Of the fifty subjects 34 answered "yes" but 16 or 32% answered "no." Respondent did not provide any explanation for the apparent ineffectiveness of its product for so large a minority.
(ii) Question 8 read: "Did Trimma Gel firm your
Cheeks Yes No
Jowls Yes No
Chin Yes No
Neck Yes No"
The 50 test subjects answered as follows: Yes No
Cheeks 11 39
Jowls 37 13
Chin 38 12
Neck 16 34
e. Testkit provided neither a test control group nor "before and after" pictures of the test subjects. Nor were any observations of the appearance of each individual test subject before, during or after test recorded.
f. The tester's conclusions as to the effectiveness of the tested product rest, therefore, (i) on the purely subjective feelings of the test subjects, as summarized in their answers to the questionnaires (see also the testimony of two test subjects who had given favorable answers to Respondent's questionnaire and were called as witnesses by it, T 253 et seq . and T 281 et seq .) and (ii) on the observations of the supervising physician, perhaps more skilled but equally subjective and also wholly unspecific (T 211, 212) and unsupported by contemporaneous recorded data of his observations.
16. The owner of Testkit prepared an extremely brief statement on the test (Resp. Ex. 6) in which he concluded that in his opinion "there was evidence of firming and lifting" and that the "faces appeared smooth, firm and slimmer" ( id ., p. 2). No reference was made to the actual test results (see FF 15d) and the writer merely noted that many test subjects "were happy with the results" ( ibid .).
17. a. The dermatologist, selected by Testkit to supervise the test (T 165), was a private practitioner of long standing in the New York area (Resp. Ex. 3A).
b. He testified that seven of the test subjects did not show any results and the balance results in varying degrees (T 173) and about one-fourth of the latter visibly good results (T 183- 184). He also stated that TG would tone flabby skin "[t]o a certain degree" (T 178) but that he did not understand the phrase "uplift" the skin (T 177), used by Respondent.
c. He concluded that the product was efficacious enough in firming sagging skin to warrant more testing (T 174) and that he was willing to try it out on some patients (T 180). He also was of the opinion that longer and more intensive daily use might have given better results (T 183). Except for silicone injections (T 179) the witness knew of no method using a physical substance to firm up sagging skin.
18. In evaluating the expert scientific testimony, proffered by the parties, great weight attaches to the testimony of Complainant's medical expert. His qualifications and wide experience both in medicine and pharmacology lend convincing support to his conclusion that astringent products cannot firm, tone, or uplift sagging skin in the manner advertised by Respondent and that there is in fact no chemical substance the external cosmetic application of which has such effect. That was in effect confirmed by Respondent's medical witness who referred only to silicone injections a treatment for sagging skin using a chemical substance. Moreover, that physician at best saw the results of the Testkit test as justifying endorsement to Respondent's product or is representations in respect thereof.
19. As against this medical testimony as to the manner in which sagging skin can be firmed or otherwise treated little weight can be placed on the testimony of the biochemist called by Respondent. His professional record is not impressive and his activities and interests do not seem to lie in the field of scientific exploration or in the validation of scientific experience. The substance of his testimony is that he created a strong solution of astringent salts which he turned over to Respondent. Although he claimed greater penetrating and "toning" or firming power for this solution because of the interaction of its ingredients he cited no principles or facts of chemistry to support or explain this contention and it appears wholly gratuitous. Nor did he engage in any worthwhile experimentation to validate his conclusions as to the effectiveness of his product. The only testing undertaken by Respondent certainly shows the product ineffective on many persons as well as specific areas of head and neck.
20. Respondent's representations find only very limited factual support in the patent claim covering the product's utility (see FF 14b). On what evidence even this limited claim of effectiveness was accepted by the cognizant examiner of the United States Patent Office is not known. What is known is that the results of the Testkit test of the product contradict some of the representations made by Respondent and cast gravest doubt on others. On the record here made the claims allowed in Respondent's patent are not factually determinative of the issues at hand.
21. On the basis of the foregoing detailed findings of fact and the record as a whole I find:
a. Respondent by express language or by the plain implication of the words used makes as a matter of fact the representations charged by Complainant in paragraph 2 of its complaint, except as they refer to "wrinkles".
b. TG is a combination of astringent salts in gel form (misdescribed in the complaint as a "cream") which, like other astringent lotions, gives the user a refreshing feeling and the superficial sensation of tightened skin. It neither firms, tones nor uplifts the skin and does not give the user the youthful appearance, supposedly to follow from its use.
c. So large a minority of test users found the product ineffective as to invalidate any broad claim of effectiveness based on Respondent's test results. But all, including those subjectively enjoying Respondent's product, denied overwhelmingly that the product firmed sagging skin of their cheeks and neck.
d. Accordingly, Respondent's representations to the contrary, as charged in paragraph 2(a), (b) and (c) of the complaint, are false.
e. The representation made by Respondent, as charged in paragraph 2(d) of the complaint, is false since its product is ineffective to produce the represented result. On the other hand, such temporary and individually pleasing sensations as the use of the product may create are not shown to be related to any 10-day time span of use.
f. The representations of uniqueness and conceptional newness made by Respondent, as charged in paragraph 2(e), (f) and (g) of the complaint and attempted to be proved by the testimony of Respondent's biochemist, are false since Respondent's product is shown to be only another form of astringent salt solution of no greater or different effectiveness in the relevant respects than other such solutions.
g. The creation of such solution in gel form appears, on the record of this proceeding, to be novel and a representation of this feature as such would by itself not be false in fact. However, the gel form of TG does not contribute to the product's effectiveness in the claimed respects. Since an ordinary reader is likely to be led to understand Respondent as representing otherwise it, too, is tainted by the basic falsity of all of the other representations in Respondent's advertisement.
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. Paragraph 2 of the complaint is deemed conformed to the evidence (see 39 C.F.R. 952.12(c)) and read as referring to Respondent's "gel" rather than its "cream".
3. Respondent's advertisement seeks 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).
4. The issuance of the TG patent is not proof of the truth, and cannot overcome the weight of the evidence showing the falsity, of Respondent's representations. The "Summary of Invention", reproduced in the patent, was a required part of the specification submitted by the patent applicant (37 CFR 1.73), in compliance with the statutory mandate (35 USC 112). No probative effect attaches to this part of the patent document as to the truth or falsity of the representations in issue in this proceeding. On the other hand, the claims actually allowed, far less conclusive than the statements made in the "Summary", were allowed in an ex parte proceeding in which as a matter of law proof of efficacy is not required.
5. The conclusions reached here as to the falsity of Respondent's representations are in accord with the decisions of the courts in similar matters. Charles of the Ritz Distributors Corp. v. F.T.C. , 143 F2d 676 (2d Cir., 1944), finding that cosmetics cannot overcome skin conditions resulting from systemic causes or physiological change due to the passage of time. Nothing has transpired in the last 30 years to invalidate this conclusion. Cf. U.S. v. An Article ... labelled ... SUDDEN CHANGE , 409 F2d 734, 741-2 (2d Cir., 1969).
6. Accordingly, an order against Respondent pursuant to 39 U.S.C. 3005 should be issued.