In the Matter of the Complaint Against BEAUTY ORIGINALS, INC., 227 East 45th Street at New York, New York 10017 P.S. Docket No. 3/24 March 10, 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 Bernard G. Ehrlich, Esq. 299 Broadway (Suite 1500) New York, New York 10007 for Respondent
This is a proceeding by Complainant 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 such a scheme in the sale of "SECOND NATURE" by the use of an advertisement (Ex. A to Complt (copy); Compl. Ex. 1 (orig.)) through which Respondent, directly or indirectly, by means of affirmative statement, implication, or omission, in substance and effect, represents;
"(a) That 'SECOND NATURE' (hereinafter referred to as the 'lotion') will eliminate or significantly reduce:
1. lines on forehead;
2. lines at corner of eyes;
3. 'bags' under eyes;
4. lines around nose;
5. lines around mouth;
6. lines on neck;
7. lines under skin;
(b) That the effects enumerated in subparagraph (a), supra , are accomplished by drawing up loose, sagging flesh, and by tightening and firming lines, wrinkles, creases and furrows;
(c) That the lotion will eliminate or significantly reduce parched skin;
(d) That the effects enumerated in subparagraphs (a)-(c), supra , will appear in minutes;
(e) That the effects enumerated in subparagraphs (a)-(c), supra , will last for 6-8 hours;
(f) That the combination of ingredients in the lotion differs materially from that of other lotions commonly offered for the conditions enumerated in subparagraphs (a)-(e), supra ." and that such representations are false (Complt, pars. 2, 3).
Respondent answered by a general denial but at the hearings held herein stipulated that it used the advertisement, a copy of which was attached to the complaint, to solicit purchasers of its product and that a test purchase had been made and the product received by a postal inspector.
As authorized at the hearing Respondent filed an affidavit of a physician regarding the efficacy of SECOND NATURE and Complainant filed an affidavit of its medical expert in rebuttal thereof. These affidavits are considered in evidence.
About two months after the second hearing Complainant also filed a motion to amend its complaint by adding thereto and additional charge of false representation. The motion will be considered hereafter.
1. Respondent is a corporation engaged in the sale of a beauty preparation, called "SECOND NATURE", and the receipt of money therefor through the mails.
2. SECOND NATURE is a beauty lotion composed of non-volatile and volatile matter with the latter constituting over 85% in volume of the product. The former, apart from preservatives, is starch.
a. A chemical analyst employed by the FDA, determined the quantity of non-volatile matter as 7.6%. He did not analyze the starches but determined that the volatile materials consisted of water and an alcoholic substance, called propylene glycol, as well as perfume oils (Compl. Ex. 3, T 10-11). He checked for propylene glycol by azeotropic distillation and performing a potassium iodate test (T 11, 23, 243, 246). He recognized propylene glycol partly by the odor of the distillate (T 246) and testified consistently under cross-examination that the product contained neither glycerine nor gelatin (T 30, 37), 246-7). He also testified that he did not expect glycerine in Respondent's product (T 254) hence did not test for it and looked for it only in the spectrum (T 249). He was sure of the correctness of his test results because propylene glycol and glycerine have different boiling points affecting their separation from water (T 257).
b. Respondent's president, a cosmetic chemist of 18 to 20 years experience with a master's degree in pharmaceutical chemistry from
Columbia University (T 140), produced a "batch sheet" for the production of batch control No. L-1185, dated 19 February 1974, for the production of a quantity of 375 pounds of pink-colored, lemon- scented SECOND NATURE, giving the following ingredients, apart from preservatives, color and perfume (Resp. Ex. 2):
18 lbs, 12 oz of Rice
357 lbs Water
1 lb, 12 oz Gelatin
25 lbs Starch (corn, T 157)
5 lbs Glycenin
In addition, the boiling of the rice to produce rice starch leaves a trace of rice oil which has a moisturizing or lubricating effect (T 177, 241).
c. The batch sheet (Resp. Ex. 2) was on the letter head of Lan-O-Tone Products, Inc. of 65 Wooster Street, New York, N.Y. 10012, a firm of manufacturing chemists. Respondent's president refused to provide information about his connection with this firm upon the instruction of his counsel (T 236 et seq .) but he testified that he supervised personally Lan-O-Tone's performance to assure compliance with Respondent's manufacturing instructions (T 236).
3. The conflict in testimony must be resolved against Complainant. The work of its chemical analyst was on its face less thorough than it might have been. Since some three months elapsed between hearings he might have rechecked his work in view of the attack on its accuracy but this was not done. Without going into excessive details it seems clear that the testimony of Respondent's president and the batch sheet (Resp. Ex. 2) establish that Respondent's product does not contain propylene glycol and does contain gelatine and glycerine. Accordingly, I so find.
4. The combination of the starches, gelatin and glycerine, contained in SECOND NATURE, forms an emulsion of a kind used in medical practice for years (T 157). If the product contained propylene glycol instead of glycerine such emulsion would not be created (T 160). The rice and corn starches, selected by Respondent, provide the emulsion with the appropriate degree of viscosity for use as a skin lotion (T 205).
5. SECOND NATURE is sold in two-ounce bottles marked with the name of the product and the caption "Temporary Wrinkle Remover". The label attached to the product container reads as follows (Compl. Ex. 2):
"Shake well. Apply a few drops over wrinkles on forehead, around the eyes or any other area. Blend off the ends with a damp tissue. Do not rub. Just apply and allow to dry. Apply makeup as usual." "Contains natural moisturizers and skin nutrients. Tends to remove wrinkle formations due to support of tissue."
6. a. Respondent advertised (Ex. A to Complt; Complt. Ex. 1) its product in a full-page advertisement, prepared by its president (T 232), in the periodical "Revealing Romances" under the big-letter heading: "How to Lie About Your Age By As Much As 15 Years...and get away with it]"
b. Beneath the heading is a box showing five pictures of a woman in full face, the first with a tight smile and pronounced nasal-labial fold, who gradually seems to relax her muscles until in the last picture her face is rather smooth and bland ( Cf . T 128). so that the reader does not miss the point, the caption adds that the pictures are "a photographic dramatization of the wondrous effects," attainable "in mere minutes," of this "miracle facial firm-up," meaning SECOND NATURE, introduced as the product toward the end of the advertisement's text and in the ordering coupon.
c. The following passages from the lengthy advertisement about the alleged action and appeal of Respondent's product are relevant:
(i) "How would you like to take all those lines and signs that shout your years to the world *** and in just minutes *** not cover them, not conceal them *** but actually help ease, soften
*** firm them away ] *** to shed years ***
ALMOST INSTANTLY]"
(ii) "a new INSTANT FIRM-UP that tightens aging skin ON CONTACT "
(iii) "SO EFFECTIVE--EVEN WITHOUT MAKEUP YOU LOOK UP TO 10 TO 15 YEARS YOUNGER
The secret behind this INSTANT-YOUTH formula ...this 60-SECOND FACIAL FIRM-UP...is a unique tissue-tightening concentrate that tightens and firms facial skin-tissue ON CONTACT] A natural plant extract that gives new lift, new support to the tissues of every critical area of your face and neck, the moment it touches your skin. Draws up loose, saggy flesh. Gently tenses away surface slack. Firms and fades the most glaring signs of age. Gently tautens and firms lines, wrinkles, creases and furrows...until, where one minute there was a parched, winkled, aging skin...the next minute there is a more youthful smoothness and firmness."
(iv) A facial diagram with the text: "NEW LIFT, NEW SUPPORT TO THESE CRITICAL AREAS:
Lines on Forehead
Lines at Corner of Eyes
'Bags' Under Eyes
Lines Around Nose
Lines Around Mouth
Lines on Neck, Under Chin"
(v) "--this wondrous tissue-tightener keeps your skin firm, taut and younger-looking for a full 6 to 8 hours at a time."
(vi) "NOT A MAKE-UP, NOT A COVER-UP BUT AN INSTANT, ALL-DAY FACIAL FIRM UP"
(vii) "...you simply apply a few drops of this wondrous tightener and INSTANTLY here's what happens:
First, you'll feel the firm-up action start to work. The tensing, the tautening...that good, tight, youthful feeling as it draws up loose saggy tissues. Then, just one minute later you not only feel...but actually see a wonderful transformation before your very eyes...your own face grown up to 10 to 15 years younger]"
(viii) "Best of all, because this thrilling new discovery is not a hormone, not a harsh chemical, but nature's own natural tissue-tightener and temporary wrinkle remover, it's so completely safe and gently you can use it as often as you like (even 3 times a day should you desire) for that constant more youthful appearance."
(ix) "Naturally, mere words cannot possibly describe the sheer wonders that await you with this natural 60-second facial firm-up called SECOND NATURE."
7. Based on the language of Respondent's advertisement I find that Respondent makes the representations charged in paragraph 2 of the complaint with one exception. Respondent clearly states that its product has only temporary effect and neither uses the word "eliminate" to characterize the action of its product nor by indirection or general effect on the ordinary reader represents a permanent effect such as this word, used in Complainant's charge (Complt, par. 2(a), (c)), implies.
8. on the issue of the falsity of Respondent's representations Complainant called as an expert medical witness a dermatologist, engaged in private practice in Washington, D. C. who also serves as a consultant to Walter Reed Army Medical Center and is an assistant professor of dermatology at Georgetown University (T 73).
a. He testified that faces normally have lines but that with greater age additional lines develop from stretching and fragmentation of the skin (T 74, 76) and that over the years exposure to the sun adds to a person's aging look (T 75). Wrinkles, in other words, are a degeneration of the skin (T 107). The lined appearance of the face and loose and sagging skin can be treated but not corrected by a variety of surgical procedures (T 76-77, 112).
b. He knew of no substance which, when applied externally to the face, would fill in the deeper lines, wrinkles or folds, such as "crow's feet" or the nasal-labial fold, (T 112, 114; Post-Hrg Aff., par. 4) and did not find in Respondent's product any substance which would do so (T 114, based on Compl. Ex. 3; Post-Hrg Aff., par. 4). He considered the possibility that such a substance would be found remote (T 114).
c. Hence, Respondent's product would not reduce wrinkles for 6 to 8 hours (T 85). Such products as SECOND NATURE are known from practical experience not to have a physiological effect on lines and wrinkles and no way is known to medical science to reunite fragmented skin (T 87). Nor do such products make the skin look younger (T 88). To the extent that Respondent's products would fill cracks in the skin it would minimize wrinkles. It would make lines less noticeable but would not soften them (T 116). Nor would SECOND NATURE give real support for sagging flesh or a tighter skin although it may give the user such a feeling (T 118; Post-Hrg Aff., par. 3). Application of the product might, however, reduce dry or parched skin (T 92).
d. The witness found nothing in the ingredients listed in Complainant's Exhibit 3 which would not be found in other lotions (T 95-96, 123) or that differentiated the product from many similar ones (T 120). He was not present when Respondent's witness testified, did not see Respondent's Exhibit 2 and was not called as a rebuttal witness on this document.
9. Respondent submitted after the hearing the statement of a physician in medical practice in New York since 1937 and a specialist in dermatology since 1946.
a. He expressed the view that Respondent's product did not induce anatomical change, only visual effect, hiding but not removing wrinkles, and that Respondent's advertisement made this clear and did not lead the reader to believe that wrinkles would be removed.
b. He further stated that the product was a glycerite and as such a film-former, filling hollow or low spots "allowing to firm-form, then applying make-up". The film was water soluble and its duration affected by perspiration, washing, skin oiliness. However, when make-up was applied, the wrinkles would be removed from sight.
c. This physician also confirmed that the emullients in the product would have a beneficial effect on dry or parched skin.
10. Respondent's president, whose professional qualifications have already been set forth, not only testified regarding the ingredients of SECOND NATURE but also gave his views on its mode of application and effectiveness.
a. He stated that the product was designed to fill crevices in and straighten the skin by forming a film over it (T 143, 145, 210) for a temporary effect of from 5 to 8 hours (T 148, 156). In his view, the film gave physical support to sagging flesh which it covered (T 149). As the lotion dries on the face it fills out the lines in the skin and tightens it (T 210). If the cracks in the skin are deep, the film will be heavier ( ibid .).
b. Respondent's president further testified that the user should apply make-up over the film formed by applying the lotion to the face (T 151, 156, 188-9, 212) and that the product label specifically so instructed the user. The photos on the advertise- ment were all of a person using make-up over the lotion (T 190) but the advertisement did not indicate the need for the use of make-up (T 188-9). Used without make-up, the lotion loses half its effectiveness (T 190).
c. Respondent's president testified further that he asked National Testing Laboratories in January or February 1974 to test the product (T 152) and that they tested the product on women using make-up (T 198-9) to his satisfaction. Respondent agreed to furnish a copy of the test report, to be marked as its Exhibit 1 (T 155), but the exhibit was never furnished. In consequence no reliance can be placed on the test or its alleged result and it must be disregarded.
d. Finally, the witness stated that the main ingredients of Respondent's product, the starches, glycerine and gelatin, in emulsion combination were well known and used in medical practice for years (T 157), that his product was based on an old formula (T 216) but that the use of a glycerine (gelatin plys glycerine) product for removing wrinkles was an original application thereof (T 215). So-called wrinkle removers usually use an alkali silicate base as a skin irritant or include albumen and estrogen which latter is a high protein film former (T 158).
11. Based on the foregoing detailed findings of fact and the record as a whole I find:
a. SECOND NATURE is a beauty lotion which is intended to and, when applied under make-up, does in some measure temporarily conceal or hid wrinkles or lines of the face, affected by or resulting from the aging process. It does not purport to nor does it in fact effect any physiological or anatomical change in the wrinkles or lines of a user's face.
b. Respondent represents that its product reduces lines at the corner of the eyes, on the forehead or neck, around the nose or mouth, under the skin, or "bags" under the eyes (Complt, par. 2(a)). While the word "reduce" does not appear as such in the advertisement, the advertisement uses terms which are properly subsumed in the mind of an ordinary reader under the verb "reduce". Respondent's lotion does not merely "cover" the lines, "conceal them" but helps "ease", "soften", "firm", "gently tense" or "tauten" them "away" and gives "New lift, new support" to the critical areas where they appear. In fact, the action of Respondent's lotion, as described by its president, is precisely what the advertisement denies. It forms a film over the face which very temporarily hides or conceals lines and wrinkles in some measure. The language of the advertisement, selected by its president for its greater "popular appeal" (T 233), therefore, leads the ordinary reader to understand that she or he will receive far greater results than the lotion can possibly deliver. Hence, the representations made by Respondent are false as charged in paragraph 2(a) of the complaint and are materially false.
c. On the record made here there is no credible evidence that application of Respondent's lotion draws up sagging flesh or tightens or firms lines and wrinkles. At most, application of the lotion will provide a subjective and temporary feeling of skin tightening without such phenomenon actually occurring. Hence, the representations made by Respondent, as charged in paragraph 2(b) of the complaint, are false and materially so.
d. Since the representations made by Respondent as to the effect or efficacy of its lotion are false, any representations as to the speed with which the lotion has such alleged effect or how long it lasts, are of necessity false (see Complaint, par. 2(d),(e)). Nothing herein is to be deemed a finding of fact as regards the speed with, or the duration for, which the actual and temporary wrinkle hiding or concealing effect of Respondent's product is effective.
e. Respondent's description of its product as "this thrilling new discovery" is not born out by the record. Both the individual ingredients and the act of combining them in a film-forming emulsion are well-known to medical science, theoretically and in practical application. At most the record establishes that some other film-forming lotions, intended to hide wrinkles, use other ingredients to form the film. No material difference between Respondent's glycerite product and others has been shown. Respondent's reference to its product as a "thrilling discovery" clearly implies a representation of a material difference in ingredients in the mind of the ordinary reader. Any such representation on the record made here is a false one and materially so because of the known attraction of the claim of a new discovery in selling products through the mails. The false representation charge in paragraph 2(f) of the complaint is factually sustained.
12. Complainant has failed to show that Respondent's lotion does not significantly reduce dry or parched skin. Accordingly, this charge is not sustained.
13. At the hearings held herein it became apparent that Respondent failed to disclose in its advertisement that the user of SECOND NATURE should for best effect use make-up over the film formed by the lotion. Indeed, the advertisement represents that the same younger look attained by hiding or concealing wrinkles and lines could be attained "EVEN WITHOUT MAKEUP" - falsely so since at the hearing Respondent's president stated that failure to put make-up on top of the lotion reduced the latter's effectiveness by held (see FF 10b., supra ). Such a representation is materially false in fact since the prospective purchasers of the product who do not use make-up are not advised that they buy a product the effectiveness of which is much reduced for them.
1. The Rules of Practice in false representation proceedings (39 CFR Part 952) permit amendments of the pleadings to encompass events and developments since the date of the original pleadings and to conform, if necessary, the pleadings to the proofs (39 CFR 952.12(c), (e)). The issue of conforming pleadings to proof and amending pleadings formally is raised here by the fact that at the hearings the testimony of Respondent's witness established a material misrepresentation not expressly comprised in the pleadings, relating to the use of make-up with Respondent's product (FF 13, supra ). Complainant has moved to amend its complaint in a manner which I consider both confusing and not responsive to the point presented. Hence to that extent the motion is denied.
2. Complainant's motion raises, however, the question of whether it is necessary to amend the pleadings in order to encompass the facts found in Finding of Fact No. 13. These facts in themselves merely exemplify in still another way Complainant's charge of false representation that Respondent's product significantly reduces lines and wrinkles (Complt, par. 2(a)) since it obviously does not do so for those who do not use make-up. Hence, formal amendment to the pleadings would seem superfluous. However, since the matter rests on evidence adduced by Respondent's witness himself, Respondent cannot complain if the pleadings are deemed conformed to the proof and to include a specific charge that Respondent false represents its product to be effective for all women when its effectiveness is in fact very substantially reduced for all women users who do not put on makeup. As to false representation of unlimited usability see Midwest Health Aids , P.S. Docket No. 2/151 (1974). Accordingly, the complaint is deemed conformed to the proof.
3. 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 and contrary to 39 U.S.C. 3005, as alleged in paragraph 2(a), (b), (d) through (f) of the complaint as deemed conformed to the proof.
4. Respondent's advertisement seeks to create the false impressions charged in paragraph 2(a), (b), (d) to (f) of the complaint of the U.S. Postal Service, as deemed conformed to the proof, and will be so understood by the ordinary reader. Donaldson v. Read Magazine , 333 U.S. 178, 189 (1948).
5. Respondent has in its brief urged as a defense that the proof fails to show an intent to deceive, citing in support a Federal District Court decision of 1966. However, since the amendment of 39 U.S.C. 3005 in 1968 (82 Stat. 1153), scienter , is no longer required as a condition precedent to the issuance of an order under the statute. Lynch v. Blount , 330 F. Supp. 689 (S.D.N.Y., 1971), aff'd w.o. op. 407 U.S. 1007 (1972); U.S. v. International Term Paper Co ., 477 F.2d 1277, 1280 (1st Cir., 1973); National Opportunity Research Service , P.S. Docket No. 2/125(1974); U.S. Zip Code Service , P.S. Docket No. 2/171(1974); Midwest Health Aids , supra . Accordingly, it is not necessary further to consider this asserted defense.
6. Accordingly, an order pursuant to 39 U.S. Code 3005 in the form attached should issue against Respondent.