In the Matter of the Complaint Against

 COSMETIQUE FRANCOIS LTD.,. 
 7471 Melrose at
 Los Angeles, California 90046

 P.S. Docket No. 3/37

 March 20, 1975

 William A. Duvall Chief Administrative Law Judge

 APPEARANCES: Lee H. Harter, Esq.
 Law Department U.S. Postal Service
 Washington, D.C. 20260 for Complainant

 Charles B. Chernofsky, Esq.
 One Blue Hill Plaza
 Pearl River, New York 10965 for Respondent

The General Counsel for the United States Postal Service (Complainant) charged that Cosmetique Francois Ltd., Los Angeles, California (Respondent) is engaged in conducting a scheme or device for obtaining money or property through the mail by means of false representations within the meaning of 39 U. S. Code 3005.

The specific representations which Complainant charges that Respondent falsely makes are:

"A. that Respondent's product will eliminate for a temporary period any and/or all of the following:

1) under-eye pouches and puffs,

2) wrinkles,

3) lines,

4) crows feet,

5) squint marks, and/or

[the product is expressly represented as:

'NOT A COVER-UP. . . [but] TEMPORARY WRINKLE REMOVER ' (underscoring supplied).]

"B. that Respondent's product will make the average user look up to 15 years younger;

"C. that Respondent's product will create an appearance similar to that caused by plastic surgery; and

"D. that the effective ingredient(s) of Respondent's product are 'New in America.'"

Respondent filed a timely Answer in which it admitted the use of the advertisement on which the Complaint was based (Ex. C-1); denied the making of the representations set forth above; denied that the aforesaid representations are materially false; and denied that it was engaged in business in the manner proscribed by 39 U. S. Code 3005.

The matter came on for hearing on June 6, 1974. Both parties were represented by counsel who examined and cross-examined the witness and by whom post-hearing briefs have been filed.

At the hearing, there were introduced into evidence, in addition to the advertisement mentioned above, correspondence and a money order stub showing the ordering of the product under a test name used by the investigating Postal Inspector and a carton containing a jar of a light green, very moist cream and an enclosed circular setting forth directions for the use of the cream. (Ex. C-2 through C-7) According to the directions, the cream, called Genesis 21, is to be applied sparingly to the face until it disappears from sight, at which time the cream will then serve as a make-up base.

The Complainant called Robert Joseph Carnathan, M.D., to testify in regard to the properties of the cream. Dr. Carnathan has an impressive background of training and experience, including the fact that he is certified by the American Board of Dermatology, and he is amply qualified to give expert testimony in the area involved in this proceeding.

Dr. Carnathan said that skin wrinkles, lines and the like are caused by (1) the weakening of the connective tissues underlying the outer layers of skin, which is a concomitant of the aging process, and (2) exposure to the elements, such as sunshine. These conditions are not reversible, but they may be corrected by certain measures, chief among which is surgery. In time, however, the lines and wrinkles will return.

When asked about Genesis 21, Dr. Carnathan said that he did not know what effects this product would have when applied to the surface of the skin because he did not know (and it was not shown elsewhere in the record) "what exactly the cream contains." He did say that in dermatology creams are not used primarily for treatment purposes, but, rather, as vehicles for various active ingredients that are to be applied to the skin. (Tr. 12) It is possible, though, that dryness of the skin can be alleviated by adding water to the skin and holding it in place with some type of emollient agent such as Respondent's product. (Tr. 13, 17) Dr. Carnathan said that he has not tested the product and he has no idea what is in it (Tr. 17), but that he "would not expect it", when used, to "create an appearance similar to that caused by plastic surgery." (Tr. 15)

There now must be determined, as well as circumstances permit, the nature of the business conducted by the Respondent in the context of the allegations of the Complaint.

There is no need to burden the record with a discussion of charge "A", quoted above, for the reason that there is no proof in the record in regard to this charge. There is ample proof that Respondent's product will not eliminate such things as under-eye pouches and puffs, wrinkles and the other conditions listed in charge "A", but this proof does not relate to the charge. The word "eliminate", when used alone and without qualification, connotes a greater degree of permanence than is suggested by Respondent's advertisement or by Complainant's charge. For example, the largest print on Respondent's advertisement conveys the message that the product will give no more than an "ALL DAY FACE LIFT." The charge is that Respondent represents that his product will eliminate these conditions only "for a temporary period." There is not a single question addressed to the medical expert as to what temporary effect, if any, the use as directed of Respondent's product will produce. In these proceedings brought under 39 U. S. Code 3005, the burden of proof is on the Complainant and if the Complainant is to prevail, the proof and the testimony of the witnesses must relate to the charges as they are stated in the Complaint.

Similarly, nowhere in the transcript of the testimony is there a question put to the medical expert that is predicated on charge "B", relative to the ability of Respondent's product to make the average user look 15 years younger, or on charge "D", concerning whether Respondent's product is "New in America." This lack of proof is conceded in paragraph 12 on page 6 of Complainant's post-hearing brief.

With regard to charge "C", concerning the likelihood that the use of Respondent's product will create an appearance similar to that caused by plastic surgery, Dr. Carnathan stated that he "would not expect" the results to be the same. This statement is a very conservative expression by a professional man based in part, obviously, on the fact that the ingredients of the untested product are unknown. Whatever may be the basis for Dr. Carnathan's testimony on this point, that statement leaves open the possibility that the use of Respondent's product might, even if only for a period of a day or an evening, produce an appearance not unlike that produced by plastic surgery. What should have been, but was not, brought out was a statement of the expert's opinion as to whether the product would or would not produce the particular result. In any event, the testimony of record does not rise to the standard required for evidence on which mail-stop orders are based.

Taking into consideration all of the factors mentioned herein, together with the entire record, including the briefs of Counsel, it is concluded that as a matter of law Complainant has failed to sustain the required burden of proof. The Complaint in this proceeding is dismissed. This disposition of this matter is no indication that the product will accomplish such results as are claimed for it by the Respondent.