In the Matter of the Complaint Against
COSVETIC LABORATORIES
1030 Windsor Parkway at
Atlanta, Georgia 30319 and
P. O. Box 7040 at
Atlanta, Georgia 30309
P.S. Docket No. 3/68;
APPEARANCES:
Lee H. Harter, Esq.
Consumer Protection Office
Law Department
U. S. Postal Service
Washington, D.C. 20260
for Complainant
Jack Paller, Esq.
400 Colony Square
1201 Peachtree Street, N.E.
Atlanta, Georgia 30361
for Respondent
The subject case is before the Judicial Officer on appeal the Initial Decision of Administrative Law Judge Rudolf Sobernheim which found a violation of 39 United States Code § 3005 and recommended issuance of a remedial order under that statute against Respondent. The products being sold by Respondent through use of the mails are "Head Start Capsules", a vitamin supplement, and "Head Start Shampoo". Of nine advertising representations alleged as false in the Postal Service Complaint, Judge Sobernheim found seven materially and substantially false. Three of these related to the shampoo and four related to the vitamin supplement. Complainant has filed no exceptions to the Initial Decision. The Respondent has filed exceptions as to only two findings both relating to the shampoo. 1/
The first exception Respondent takes is to the finding in paragraph 24b of material falsity related to the representation that the protein contained in Respondent's product is absorbed directly into the hair. Respondent contends that Judge Sobernheim misplaced the burden of proof on this issue upon the Respondent. It cites the following sentence in paragraph 24b in support of this contention:
"While the ingredient manufacturer's evidence as to the penetrative capacity of its compound WSP-X250 is entitled to serious consideration, the medical evidence adduced by Complainant and an analysis of the documentary evidence convinces me that the ingredient manufacturer has not conclusively demonstrated the correctness of its claims and that valid physiologico-medical reasons must lead to their rejection on the record here."
The use of the term "conclusively demonstrated" is capable of the construction urged by Respondent. However, when read with the rest of the sentence and the earlier detailed findings relating to the pertinent evidence on the issue, it is clear that the finding was based upon the weight of all of the evidence rather than any assumption of falsity. The record supports the finding. This exception is disallowed.
Respondent's second exception is to the finding in paragraph 24c of material falsity related to the representation that "the product comports with the natural pH of hair - slightly acid, 4.5 to 5.5 on the pH scale." Judge Sobernheim found that the record shows the product to be slightly alkaline rather than slightly acid and that the representation was material "since it affects the degree of eye irritation which the product may cause in at least some users." Respondent does not contest the first part of the finding but takes exception to the finding that there is a material misrepresentation "based only upon irritation of the eyes when there was no evidence that a slightly acid content would not have the same eye effect and further based upon the fact that it would not be injurious to the scalp." Respondent's advertisement represents that "The natural pH of hair registers from slightly acid 4.5 to 5.5. The same pH as our Head Start Shampoo". The record indicates that the undiluted shampoo has a pH of 7.25 and of 8.2i When in 10% solution was distilled water. The testimony is that alkaline would be more than 7 and that the pH range of most soaps and shampoos is 8 to 10.
Complainant's position with respect to this exception does not concentrate on the possible irritation aspects of the record so much as the difference between the product being alkaline instead of acid and the spread between the advertised pH of 4.4 - 5.5 and 8.25. It has not invited attention to any part of the record to support a conclusion that a pH of 4.4 to 5.5 would not also be irritating to the eyes. However, I consider this inconsequential for the reason that when such a specific representation on chemical components is made to prospective purchasers any material deviation from the truth is prima facie a material misrepresentation. The product does not have the "natural pH" of hair. It is alkaline rather than acid and its pH is substantially different than advertised. This sufficiently makes out a case for materiality and Respondent's exception thereto is disallowed.
The Initial Decision in this case properly found a violation of 39 U.S.C. § 3005 and is accordingly upheld. An appropriate order under that statute is being issued contemporaneously with this decision.
08/15/75
Lussier, Edward F.
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