In the Matter of the Complaint Against CONTEMPO 1701 Highway 35 at Neptune, New Jersey 07753 P.S. Docket No. 3/134 March 28, 1975 William A. Duvall Chief Administrative Law Judge Robert Ullman, Esq., 747 Third Avenue, New York, New York, for Respondent Janice B. Adams, Esq., Law Department, U.S. Postal Service, Washington, D. C., for Complainant Before: William A. Duvall , Chief Administrative Law Judge
It is not necessary to review the procedural steps that brought us to the hearing today. The Complaint was filed and the answer was timely filed. We have come to hearing as scheduled.
Complainant charged Respondent with making the following representations which are alleged to be both material and false:
"By means of such advertisements, or others similar thereto, Respondent represents directly or indirectly in substance and effect whether by affirmative statements, omissions, or implications that Respondent's product, applied correctly, will eliminate temporarily:
1. Wrinkles;
2. Crows feet;
3. double chin;
4. wrinkled neck;
5. mouth lines;
6. droopy puffs around the eyes."
We have heard testimony of the Inspector who investigated the case - how he obtained the product and what happened to the product after he obtained it. In addition, we have had the testimony of Complainant's expert medical witness, with respect to the device being sold by Respondent.
I think the record will bear me out, and I know my notes bear me out, that at the very end of his testimony, I asked the doctor, who is amply qualified to testify in regard to this proceeding, if he said that this device could be used to smooth out wrinkled areas such as the chin and the neck. He said it could be so used and that it would have that effect to some degree. In addition to that, he said he did not even object to the use of the term "eliminate" with respect to these various skin conditions described in paragraph III of the Complaint, so long as that term "eliminate" is not intended to mean the correction of the inner elasticity of the tissues.
Now, as I look at the advertisement, used by the Respondent, it seems to me that that is a pretty forthright advertisement. (Compl. Ex. A) It talks about the temporary face lift and this language is located in the advertisement right under the top heading. It is in a prominent place. It emphasizes the temporary nature of the effect of the use of the device. The prospective purchaser is told how to use it. The advertisement says the device is composed of hidden attachments that slip on easily and are completely undetectable. That is true, particularly with the hair styles that are in vogue today I think you could hide almost anything.
The ad then says that these devices tighten your skin gently but firmly to eliminate sagging skin and wrinkles. In view of the charges as they are presented in the Complaint and in view of the testimony of the Complainant's own witness, I conclude that the Complainant has not sustained its burden of proof showing the falsity of the representations set forth in paragraph III of the Complaint.
Accordingly, I conclude that this proceeding should be and is dismissed, subject, of course, to the Complainant's right to appeal to the Judicial Officer.
____________________