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

 March 17, 1975

 Rudolf Sobernheim Administrative Law Judge

 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  

This is a proceeding by Complainant against Respondent under 39 U.S.C. 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 Head Start shampoo and Head Start capsules. Specifically, Complainant alleges that by the use of advertising material Respondent, directly or indirectly, in substance and effect falsely represents:

1. As to Head Start Shampoo (Complt., par. IV) :

" A.

That the vitamin E compound in Respondent's product--

1. increases circulation;

2. increases vasodilation;

3. aids in scalp conditioning.

B.

That the protein contained in Respondent's product is absorbed directly into the hair; e.g.

Ordinary protein merely coats the outside of the hair shaft, giving temporary body.... But Head Start's enzyme treated (hydrolized protein is absorbed directly into the hair...; and

C.

That Respondent's product comports with the natural pH of hair--slightly acid, 4.5 to 5.5 on the pH scale."

II. As to the Head Start Capsules (Complt. par. V) :

" A.

That use of Respondent's vitamin W product will keep a user 'young'; e.g. 'The best way to keep your body young is to feed it what it needs';

B.

That use of Respondent's vitamin E product will make a user 'beautiful', i.e. that it will have a beneficial effect on the average person; e.g.

'Taken as an oral cosmetic Vitamin E helps make your body beautiful from the inside out.'

C.

That Respondent's product prevents wrinkles; That there is a need for Vitamin E as a dietary supplement and/or as a lotion; e.g., 'Feed it [Vitamin E] to your body... inside out. It needs it.'; and

E.

That Respondent's product, in the doses provided, is universally safe."

III. As to both products (Complt. par. VI) :

That Respondent "will process orders for and mail" the Head Start shampoo and capsules "within 24 hours of receipt of an order therefor."

A copy of the advertising folder, mailed by Respondent to prospective customers, and of its order blank are attached to the complaint, as amended, as Complainant's Exhibits 1 and 2. The relevant pages of the folder are referred to as Exhibits 1-B and 1-C.

Respondent does not deny the use of this advertisement and order blank or the receipt of money through the mails for its product but asserts that it does not make the representations charged in the complaint in that Complainant quotes in its charges from the advertisement out of context, that Respondent is at most guilty of puffery, and that the representations which actually are made in the advertising folder are true.

A hearing was held at which both parties presented the testimony of expert witnesses and other evidence. Since Complainant's medical expert was not present at the time of the presentation of Respondent's case, Complainant was allowed to present a rebuttal affidavit by this witness, subject to sur-rebuttal by Respondent (T 242-3). Complainant presented a rebuttal affidavit by its medical expert but Respondent offered no answer thereto. Both parties submitted briefs and Respondent thereafter submitted a memorandum citing additional legal authorities on burden of proof, implied representations and related issues.

1. Respondent is engaged in the mail order sale of Head Start shampoo and Head Start capsules by means of an advertising folder, mailed to a list of past customers of Respondent, with which an order blank is enclosed (T 3). It also concedes that it receives money through the mail for its product ( ibid .)

2. Respondent's advertisement for the shampoo (Compl. Ex. 1-5 reads:

"Vitamin E for your hair, too.

Remember, Vitamin E is a skin scalp vitamin. And Head Start Shampoo contains a Vitamin E compound, HS-E is specially designed for your hair.

HS-E promotes vasolary circulation, vasodilation, and aids in scalp conditioning.

Most people need to shampoo daily. But this can leave your hair dry and brittle.

Head Start is a mild, low sudsing, enzyme treated protein shampoo containing ten conditioning ingredients (Over three times the conditioning ingredients found in most of the best commercial shampoos).

Ordinary protein merely coats the outside of the hair shaft, giving temporary 'body'. And it can cause severe hair damage.

But Head Start's enzyme treated hydrolyzed) protein is absorbed directly into the hair and builds body from the inside of the hair shaft.

The natural pH of hair registers from slightly acid 4.5 to 5.5. The same pH as our Head Start Shampoo. Head Start Shampoo. Unconditionally guaranteed. Let your hair be the judge."

3. Respondent's advertisement for the Head Start capsules (Compl. Ex. 1-C) reads:

"The best way to keep your body young is to feed it what it needs.

Megadoses of vitamins, minerals and proteins . . . especially Vitamin E.

Taken as an oral cosmetic, Vitamin E helps make your body beautiful from the inside out.

When applied directly to the skin, Vitamin E can help prevent wrinkles and make stretch marks less noticeable.

Break open a capsule and apply the pure natural vitamin E oil to delicate skin around eyes. Also to the thighs and other areas of the body where stretch marks may appear.

Pure Alpha Tocopheryl vitamin E. In 30,000 units of 1,000 units pers capsule. Feed it to your body . . . inside and out.

It needs it."

4. Respondent's order blank (Compl. Ex. 2). mailed with the above advertising folder, states in the bottom line:

"ALL ORDERS PROCESSED IN 24 HRS."

5. Respondent makes the representations in the advertising folder (Compl. Ex. 1) which Complainant sets forth in paragraphs IV, V and VI of the complaint and which are set forth above.

a. Respondent states in its advertising folder that Head Start shampoo "promotes vasolary circulation, vasodilation and aids in scalp conditioning." The verb "promote" is defined in WEBSTER'S INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE (3d ed., 1961) as meaning "to further the growth of" something. Hence, Complainant's use of the verb "increase" in the charge made in paragraph IV-A of the complaint fairly states the meaning of Respondent's advertisement and the meaning thereof which in fact the ordinary reader will get.

b. The representations charged to Respondent in paragraphs IV-B and C are taken verbatim or in substance from the Head Start shampoo advertisement and are unquestionably made by Respondent.

c. The representations with regard to Head Start capsules, charged to Respondent in paragraphs V-A and B of the complaint, are supported by the language of the advertisement for the capsules (Compl. Ex. 1-C). The charge that taking the capsules keeps the "user" young will obviously be read as a reference to physical youthfulness since nowhere in the advertisement is there a claim that the capsules affect the user's mental state. Similarly, if taking the capsules "helps", that is: does "assist" or "cause improvement" in, making the user's body beautiful, the language of the charge in paragraph V-B, quoted supra , properly sums up its effect on the reader's mind that taking the capsules will make the user beautiful. Hence, Respondent makes these representations.

d. Complainant, in paragraph V-C of the complaint, charges Respondent with representing that its product prevents wrinkles while Respondent's advertising folder (Compl. Ex. 1, p. 1-C) merely states that the capsules "can help prevent wrinkles". In other circumstances Respondent's contention that it carefully claimed less than Complainant charges might have merit. But here the language used by Respondent is a representation to the ordinary reader that its product is effective against wrinkles and that the ordinary user will avoid wrinkles by taking the capsules. If Respondent, however, by its language wished to indicate that its capsules only "help" prevent wrinkles if used with other measures or that they "can" do so only in special cases or as a matter of chance, its language concealed rather than revealed these limitations. Hence the use of the verbs "can help" does not overcome the impression of the total language used by Respondent.

e. The lack of warnings in Respondent's advertising implies plainly that its vitamin E capsules may be taken by any one without regard to his health and without medical advice. Such advertisement represents to the ordinary reader that the product can be used without any restriction or, in brief, is safe, as charged.

f. Respondent states in its order form that orders will be processed within 24 hours. Such a statement implies to the ordinary reader plainly that his order will go out to him in 24 hours, by mail or other form of delivery. It does not imply merely that a handling process will commence within that time which may take a week or more. Respondent makes the representation with which it is charged in paragraph VI of the complaint.

6. Complainant called as an expert medical witness a well-qualified, Board-certified dermatologist who has been for several years engaged in private practice in Washington, D.C., and who also serves as staff physician at Georgetown University Hospital and as assistant professor of medicine in the field of dermatology at Georgetown University (Compl. Ex. 16). The witness testified on the basis of his experience in the treatment of patients and familiarity with the literature (T 23-26, 64, 74-75) as well as consultation with colleagues (T 73). He sometimes expressed himself with a certain indefiniteness of speech, using phrases such as: "I do not believe" ( e . g ., T. 27) or "I have no information" ( e . g ., T. 49). Having heard and observed the witness, however, I am convinced and I find that such seemingly indefinite answers are no more than a speech mannerism and that his answers are in fact definite affirmations or denials on which reliance can be placed for the purpose of making findings of fact.

7. a. The witness testified that human hair is a protein keratin, the product of the hair follicle, and that the hair which is visible on top of the head is dead tissue. It is not benefited by increased blood circulation (T 26-27) or by topical application of vitamin E. In any event, the latter cannot cause increased circulation of the blood (T 27). Nor does vitamin E in any application dilate the blood vessels (T 27-28, 61-62).

b. The witness testified further that hair conditioners, so-called, made their hair more manageable by coating it with a fatty substance and that vitamin E could be so used (T 30). It could also have a lubricating effect on dry scalp provided it stayed on after use of the shampoo (T 31). A shampoo, however, is a degreasing agent and to put a lubricant into it would do the hair no good ( ibid .).

c. Since hair is dead matter, it cannot absorb proteins and the latter can merely coat hair (T 33, 63). This would also be true if proteins are hydrolized, i . e ., broken down into smaller particles", amino acids or peptides (T 31-32, 62).

d. The pH of hair is a formula which, as a practical matter, states whether hair is acid or alkaline. To say, as Respondent's advertising folder does that the pH of Respondent's shampoo is that of hair means that the shampoo does not irritate the skin or eyes when used (T 35). If the pH of the shampoo were 8.25 rather than the stated 4.5 to 5.5, it would be more alkaline than the witness would wish and would irritate the eyes (T 59).

e. The witness also testified that wrinkles were due to fragmentation of the skin as the human body ages, that this process is not affected by vitamin E and that vitamin E, whether ingested or topically applied does nothing either to cure or prevent wrinkling of the human skin (T 36-38). Nor has it any other topical use (T 42).

f. The witness did not deny that vitamin E had medical uses in rare diseases (T 40) and he himself had so used it (T 49). There existed at the present time controversy among scientists as to whether the benefits from vitamin E resulted from its action as a vitamin or as an antioxidant (T 40-41), but even the antioxidant effect of vitamin E would not retard wrinkling (T 54). Vitamin E deficiencies as such are most uncommon since the ordinary American diet provides all that the body needs (T 42).

g. The witness was familiar with some recent symposia on vitamin E, one of which was promoted by a food and chemical manufacturer (T 45-46). He also was familiar (T 50, 71) with the claim that burns could be topically treated with vitamin E but stated that no controlled studies had ever shown this method of skin restoration successful (T 50-51, 71). Even if these claims were, however, true they would not have any bearing on Respondent's shampoo claims (T 6). Nor did dermatological literature substantiate other claims for vitamin E (T 64).

8. Complainant also called as an expert witness in the field of nutritional biochemistry the head of that section at the National Institute of Arthrities and Metabolism and Digestive Diseases of the National Institute of Arthritis and Metabolism and Digestive Diseases of the National Institutes of Health (T 78), a distinguished scientist (Compl. Ex. 17, T 79-81) who supervises in particular vitamin E and A research (T 81).

9. a. This witness confirmed that vitamin E deficiencies were essentially unknown and could only result from bizarre eating habits of which he gave an actual example (T 82). The ordinary vitamin E intake of the average male adult should be about 10 to 15 international units (IU), amply found in ordinary diets (T 83, 87) and no more than half the 30 IU requirement formerly believed justified (T 85). He would, therefore, not recommend additional vitamin E intake (T 106). Vitamin E deficiencies were found in premature infants or persons afflicated with a congenital inability to absorb fat (T 84). They may get vitamin E simply to improve their nutrition (T 114).

b. The effect of vitamin E on the aging process was established for small animals but not for humans (T 89-92) and the results of topical application of vitamin E in animal studies could not be extrapolated to the human body (T 92-93). Nor did other studies validate claims made for such human topical application (T 92).

c. The witness found some evidence of toxicity in vitamin E when over 300 IU were used daily, resulting in diarrhea. But he termed such claims not well documented (T 93). A continued ingestion of 1,000 IU, the content of Respondent's capsules (Compl. Ex. 9), however, would not be safe because of the sensitivity of the human body's cells to excess chemicals, in this case 100 times the normal dosage (T 96).

d. The witness further testified that vitamin E did not keep the body young and that skin would feel softer with any fat rubbed into it but that topical application of vitamin E or its ingestion was not needed to this end (T 95-96). Claims for any effect on blood circulation were in his view unproven (T 101).

e. He knew of claims to helpful effects of vitamin E in the treatment of coronary diseases but stated that no one had been able to confirm these claims by breaking down a blood clot with vitamin E in a test tube (T 98, 118). These claims were made by a Canadian physician, Dr. Evan Shute, the same who made the claims as to burns about which Complainant's medical expert testified (see FF 7g, supra ).

f. The witness was cross-examined on various claims made by Dr. Shute and a Japanese physician, Dr. Kamimura. His testimony invariably was that these claims were unproven by reliable experiments which trained scientific observers had confirmed and represented merely subjective views of clinicians without objective evaluation by trained scientific investigators (T 102-105, 109-110). Not being a physician, he relied on cardiologists who did not believe Dr. Shute's claims that vitamin E dissolved blood clots (T 106). He also checked further on Dr. Kamimura's vasodilation experiments and was confirmed in his view by a physiologist at NIH. It was not even sure that Dr. Kamimura had actually measure vasodilation (T 105). Nothing developed in the witness' cross-examination cast doubt on his statement on direct examination, that 80 to 90% of all vitamin E researchers were in agreement with his views (T 97).

10. Complainant showed through the testimony of a chemical analyst, employed by the FDA and who tested Respondent's shampoo, that the pH of Respondent's product was 7.25 as received and 8.25 when dissolved in a 10% solution of distilled water (Compl. Ex. 18). The chemist testified that a pH of 7 was neutral, that a lower pH, claimed by Respondent in its shampoo advertisement (Compl. Ex. 1-B) was an indication of acidity and a pH above 7 of alkalinity (T 122). The witness made his analysis from a bottle of shampoo purchased by a Postal Inspector about one month before the hearing (T 121). No countering testimony was introduced on behalf of Respondent.

11. Respondent did not call any medical expert witness. It had asked for and received permission to take the deposition of Dr. Evan Shute, the Canadian physician already mentioned, and interrogatories and cross-interrogatories were forwarded to him (see Ltr. of Resp. Counsel to presiding ALJ, dtd. 1 Oct. 1974). The time for completing the deposition of Dr. Shute was extended to 4 November 1974 (Ltr. presiding ALJ to counsel, dtd. 4 Oct. 1974) but no answers to the interrogatories were ever filed nor was the failure to do so explained on the record.

12. Respondent called as an expert witness on the efficacy of vitamin E a biochemist with a bachelor's degree from the University of Delaware in 1959 (T 133-134).

a. His primary present employment is as a full-time researcher in the field of fluorescence with American Instrument Company in Silver Spring, MD. (T 134), a subsidiary of Baxter Laboratories, Inc. (1 MOODY'S INDUSTRIAL MANUAL 849 (1974)). The witness' employer is a manufacturer of optical instruments used for chemical analysis (T 201) and the witness shows scientists how to use such equipment in their health research ( 171).

b. The witness also worked on a contract basis for American Gerontological Research Laboratories in Rockville, MD. (T 172) conducting research on counteracting the effect of pollution on mice by vitamin E diet supplements (T 146, 137-140). It is his goal through this research to develop a drug which will help reduce the effect of pollution on humans. At this time all of the witness' conclusions on vitamin E have only been verified on mice and no work has been done with humans (T 142, 143-144). A product has been patented in France and Mexico but not in the United States (T 185). But it would also have to be approved by the FDA before the witness would market it. He and his associates have no hopes of achieving this for another 15 or 20 years (T 202).

c. He has on the side engaged in nutritional and gerontological research for about 15 years and has published three bibliographies in unnamed areas (T 134-135, 170). He has also written articles on geriatrics in both scientific and popular periodicals and in journals which emphasizes the social as well as the medical aspects of the subject (T 135, 173). He also discussed his theories with dermatologists but was unable to furnish their names (T 194, 199).

12. As to the uses of vitamin E the witness expressed the belief that vitamin E may be effective in topical or internal application because the bodily tissues may suffer from vitamin E deficiency even if the blood does not (T 150). From his experiment with mice he has formed the belief that vitamin E intake increases energy (T 154) and most scientists do not question that vitamin E is an antioxidant (T 154). The latest but heavily disputed idea is that vitamin E is involved in energy transfer (T 157).

13. On the issues directly involved in this proceeding the witness believed that vitamin E may be beneficial in retarding the formation of wrinkles but he admitted freely that this view was not supported by scientific evidence and that he could not state conclusively that such effect exists (T 160). But since vitamin E is an oil it may help the skin retain moisture (T 160) and the witness ingested a daily average of 800 IU to convince himself of this effect (T 161). The witness also thought that if vitamin E were rubbed around the eyes the tissues would absorb more of the vitamin but he conceded that he could not prove this either (T 165-166). But again this view was derived from small animal experiments at a Cleveland clinic (see T 166-167). He also had done no research on the effect of vitamin E on blood circulation (T 165) but relied for his positive view on the reports of Dr. Shute and of a clinic in New Orleans, LA. He conceded, however, on cross-examination that some studies cited by him were pollution studies testing various antioxidants and had nothing to do with the problem at hand (T 185-186). The witness was now preparing a book encouraging people to consume vitamin E not because it is known to work but because of circumstantial evidence that it may work (T 194). Two hundred IU daily would be adequate consumption ( ibid .).

14. The witness conceded that vitamin E might possibly have some toxic effect but on all the evidence he considered it improbable (T 196).

15. On the issue of whether protein can be absorbed directly into the hair and build up its body from inside the shaft (Compl. Ex. 1-B), Respondent called as its witness the business manager of the personal care division of inolex Corporation, a subsidiary of American Can Co. and formerly called Wilson Pharmaceutical and Chemical Corporation (T 203-204). While originally engaged in polymer development, the witness had not done laboratory work since 1960 when he became involved in marketing chemical specialties in the personal care field (T 213, 225).

16. The witness testified that Inolex is manufacturing a protein product, called WSP-X250, which when added to a shampoo in the proper strength (T 214, 223), not only coats the cuticle of human hairs but penetrates their cortex or shaft (T 206, 207). Concededly, most of the protein attaches to the cuticle or skin of the hair and much less of it penetrates (always, according to this witness) the cortex (T 229). A brief shampoo application suffices to produce the penetration of the protein (T231) and the shampoo allegedly thickens the hair and improves its sheen (T 233-234).

17. The witness testified that Inolex had done laboratory work to convince its customers that WSP-X250 penetrates the hair (T 215). Respondent's Exhibits 1, 2 and 3 were published by Inolex' predecessor Wilson and purport to explain WSP-X250 and to offer proof of protein penetration into the hair.

a. The raw material of WSP-X250 is a collagen or animal- derived protein (T 226; Resp. Ex. 1, p. 4). Since collagen in its native state is not soluble in water, it was deemed necessary to subject it to hydrolysis to convert collagen to water soluble materials. Implied in this process is that partial hydrolysis of protein will yield other proteins (Resp. Ex. 1, p. 1, chart) rather than amino acids and peptide linkages as the charts on pages 2 and 3 of the same exhibit would seem to indicate. Nevertheless, Inolex claims whole protein would be absorbed into the cortex through immersion of hair into WSP-X250. But there is nothing in the brochure to show that WSP-X250, if it penetrates the hair cortex, does so in the form f a protein.

b. Proof is supposedly made by tracing in hair immersed in WSP-X250 the amino acid hydroxyproline which is present in collagen but not in human hair. The brochure fails to explain, however, why the penetration, if any, of the amino acid hydroxyproline into the cortex of the hair proves protein penetration rather than merely penetration of this small amino acid.

c. Pages 8 to 13 of Respondent's Exhibit 1 contain numerous charts purporting to show the quantity of WSP-X250 in the hair. For purposes of this proceeding it suffices to consider the chart on page 8 for virgin hair. Nothing in this chart indicates either the original weight of WSP-X250 added or explains why different quantities of WSP-X250 of varying molecular weight were used in the same test. Nor does it furnish proof that the amount of removed from the hair by scraping and then intact strands, cuticle and cortex are separately analyzed for collagen protein content after immersion in a 5% WSP-X250 solution. The test results shown by Inolex indicate penetration into the cortex but whether of whole protein or components such as peptides or amino acids is not shown. In the second test method the hair treated with WXP-X250, as before, is dipped into the dye ninhydrin. Ordinary hair comes out in a pale color while treated hair comes out in a darker color indicating, it is alleged, the presence of absorbed protein in the cortex.

f. Hence, the Wilson document (Resp. Ex. 3) concludes "WSP-X250 offers the cosmetic technologist significant advantages in a wide range of hair care products such as shampoos . . . . WSP-X250 is, quite simply the most substantive and penetrative protein on the market."

18. The rebuttal affidavit of Complainant's medical expert, received in evidence as heretofore set forth, admits that proteins can be broken down into parts, such as amino acids and groups thereof, known as peptides, which have low molecular weight and become soluble in water. The exhibits of Respondent (Resp. Ex. 1, 2, 3) considered in Finding of Fact 17, show only that these soluble derivatives of protein are absorbed in the hair but not protein itself. The ninhydrin and hydroxyproline tests, described in these exhibits, only discloses the presence of amino acids present or of hydroxyproline, respectively. But in neither test is it possible to distinguish between amino acids, polypeptides and proteins or to determine whether the hydroxyproline is present in a protein form or only as an amino acid or polypeptide. The scraping technique, also used by Wilson, introduces a substantial possibility of contamina- tion which cannot be disregarded. Since hair damaged by bleaching and waving is treated by water, the greater absorption of water soluble amino acids and polypeptides in damaged hair shown by Wilson, is not surprising. However, even if the hair follicle absorbed amino acids, polypeptides or even complete protein molecules, this would not contribute to the structure of the hair which is the chemically stable end product of body synthesis.

19. Respondent's shampoo contains WSP-X250 in proper quantity.

20. The only evidence as to Respondent's handling of orders sent to it is based on the two test mailings made by the Postal Inspector. Merchandise to fill her orders did not leave Respondent's hands until a week or more after money to pay therefore was received by Respondent (Compl. Ex. 3, 5, 7, 10 to 15). No evidence was introduced to show that recipients of Respondent's advertisement considered its promise of rapid processing of orders as an inducement to order from Respondent or otherwise important.

21. In arriving at ultimate findings great weight must be given to the medical evidence which stands unrebutted by contrary medical evidence. This evidence is strongly supported by the testimony of the prominent biochemist who testified on behalf of Complainant and whose credentials stand unchallenged.

22. Against the testimony of these witnesses Respondent was unable to adduce any medical evidence whatever. The biochemist, called to testify on its behalf, lacked any advanced academic training and was primarily a specialist in the use of fluorescence in optical instruments, working as a "sales engineer". His interest in gerontology was apparently more an avocation than the practice of a profession, except for a past employment in handling experiments with mice for a gerontological research firm. Although the witness recognized that the development of vitamin E therapeutic specialty products may be half a generation off, he nevertheless, espoused, in my view, a kind of popular "try it", it might help" approach to the use of vitamin E products while he conceded freely that there was no scientific evidence to bear out assumptions of efficacy in such fields as hair care and skin preservation with which this proceeding is involved. Testimony of this character can be given little weight.

23. The testimony offered by Respondent to counter Complain- ant's charges of false representation as to protein penetration stands on a different footing. Fot it rested on evidence from the manufacturer of a commercial ingredient, used by Respondent, that this ingredient achieves such penetration as the manufacturer of the product claims. The testimony of the witness proffered is of relatively little value for he was not connected directly either with the development of the ingredient or the test methods or testing employed and merely repeated the company's claims. The documents setting them forth contain uncertainties and ambiguities that in the light of the evidence offered through Complainant's medical expert leads to the conclusion that the manufacturer's claims assume more than is actually proven.

24. Based on the foregoing detailed findings of fact, the evaluation of the weight to be given to the testimony of the expert witnesses, and the record as a whole, I find:

a. The representation charged to Respondent in paragraph IV-A of the complaint and heretofore found to have been made by it is materially false. There is credible and reliable expert evidence that vitamin E has no effect in increasing blood circulation, dilation of the blood vessels or as an aid to scalp conditioning. Evidence to the contrary, offered on behalf of Respondent, is at best speculation on which no reliance can be placed.

b. The representations charged to Respondent in paragraph IV-B of the complaint are materially false. 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. Hence, Respondent's representations of protein penetration of its product into the hair, instead of coating, are false and materially so as they relate to a basic quality of its product. Moreover, on the record before me, the representation that such penetration is efficacious in managing the user's hair may also be challenged. But since Complainant did not do so directly, I find it unnecessary to advert to this aspect of the matter separately.

c. The representations made in paragraph IV-C of the complaint are false since the only evidence of record shows the product to be slightly alkaline rather than slightly acid. Such a false representation is material since if affects the degree of eye irritation which the product may cause in at least some users.

d. The representations charged on Respondent in paragraph V-A, B and C of the complaint and heretofore found to have been made by it are false since the record shows that ingestion of vitamin E in any dosage has no effect on keeping the body young or making it beautiful or in preventing wrinkles. The record is bereft of credible evidence that it does any of these things or its in any way helpful in attaining them. At most the record shows that one ingester of the capsules believes that his skin has become oilier. Since such representations add to the appeal of the product, their falsity is material.

e. The representations charged in paragraph V-D of the complaint are materially false since the record is devoid of credible evidence that vitamin E is needed as a dietary supplement except by persons suffering from the rarest of diseases or that it is needed as a skin lotion. At best the record shows that some persons may need skin moisturizers but nothing shows that the moisturizer should contain vitamin E or by composed of vitamin E oil.

f. While the record contains some evidence that excessive consumption of vitamin E may lead to health complications, the evidence as a whole is too uncertain and lacking in specifity as to justify a finding that an implied representation of safe use of the vitamin E capsules is false. Hence, the charge of false representa- tion made in paragraph V-E of the complaint is not upheld on the record before me.

g. The representation charged to Respondent in paragraph VI of the complaint, as amended, is false but is materiality is neither proven nor apparent. Hence, no action against Respondent can be based thereon.

1. Respondent is engaged in conducting 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. Respondent's claim that the use of qualifiers such as "promotes" or "can help" overcomes the ordinary reader's understanding that what "promotes" or "can help" does so in a material way is not valid. Cosmetic shading of language in product advertising cannot overcome the inherent meaning which the ordinary reader gains from the advertisement as a whole. See Nutri-Diet , P.S. Docket No. 3/74 (Init. Dec. 1975) and cases there cited. Rodale Press, Inc. v. F.T.C. , 407 F.2d 1252 (D.C. Cir. 1968), relied on by Respondent, involved the advertising of a lengthy health book which created a context wholly different from that found here where the impression of a snappy, hard-sell ad for a shampoo and vitamin E capsules on the mind of the ordinary reader must be examined. The test of Donaldson v. Read Magazine, Inc ., 333 U.S. 178, 189 (1948), here clearly supports the factual findings made.

3. Respondent's major defense invokes School of Magnetic Healing v. McAnnulty , 187 U.S. 94 (1902) but in vain. For in the light of Leach v. Carlile , 258 U.S. 138 (1922), and Reilly v. Pinkus , 338 U.S. 269 (1949), the record in no way supports an application of McAnnulty (for a recent reference to that decision see American Trustee & Loan Association , P.S. Docket No. 3/40(Init. Dec., 1974). For the record does not disclose the existence of a serious scientific view in respect of vitamin E's capabilities which would support Respondent's representations hereinabove found face and, hence, a split in scientific opinion such as was found to exist in McAnnulty . To the extent that some serious scientific theories might provide a point of departure for Respondent's claims its representations are so far out as to bring Respondent without doubt under the restraints imposed by 39 U.S.C. 3005, the false representations statute. One example must suffice. There is in the record some evidence that vitamin E may affect the aging process in mice and of clearly unproven speculation that what may be good for mice might also some day be found to be good for humans. But such mice data and speculative thoughts about them can in no way render true the representation by Respondent that taking one 1,000 IU vitamin E capsule per day keeps the body young, helps make the body beautiful from the inside out or helps prevent wrinkles.

4. On the other hand, the scientific divergences on vitamin E which do exist and to which McAnnulty might apply have nothing to do with the issues presented in this proceeding.

5. Accordingly, an order under 39 U.S.C. 3005, in the form annexed, should be issued against Respondent.