In the Matter of the Complaint Against UXBRIDGE PRODUCTS COMPANY and UXBRIDGE HEALTH PRODUCTS COMPANY 84 State Street at Boston, Massachusetts 02109 P.S. Docket No. 2/199; 12/10/76 Lussier, Edward F.
The Circuit Court neither modified the Postal Service Decision nor ruled that there was no evidence for a definitive finding on the symptomatic relief representations. Rather it interpreted Acting Judicial Officer Rudolf Sobernheim's final Postal Service Decision more narrowly than did the District Court and, so interpreted, upheld it. The first quote above, attributed to be the ruling of the higher court, that there was no evidence to support the broader finding is actually found in that part of the Circuit Court decision which, in context, is commenting upon the broader interpretation given by the lower federal court to the final Postal Service Decision. In referring to the lower court's decision upholding the agency decision, the Circuit Court of Appeals said:
"The district court upheld the order against these objections. In so doing it seems to have understood the judicial officer to have found definitively that Prostex would afford no symptomatic relief even in genuine cases of BPH. We affirm, but on a more limited reading of the agency's findings."
The second part of the quote by Respondent attributable to the Circuit Court is accurate but neither suggests nor implies a basis for resorting to a special procedure for return of the mail to senders. It must be borne in mind that the end result of the proceedings, both before the Postal Service and in the Federal courts, was the conclusion that there was substantial evidence to support a finding that materially false representations had been utilized in the promotion of the product. In such cases the statute envisages simple return of the mail appropriately marked to indicate violation of the statute. Common resort to modified procedures in such cases is rife with practical problems and further delays which clearly are not in the public interest. In upholding Judge Sobernheim's decision the Circuit Court of Appeals stated:
"Specifically, as we read his opinion, the judicial officer found the advertising misleading in three respects: (1) it suggested that Prostex would relieve such symptoms as frequency and urgency of urination in men in all cases as long as the cause was not cancer, while in fact the drug would relieve the symptoms -- if ever -- only in the limited case where the cause was unexplained enlargement of the prostex, i.e. BPH; (2) it falsely represented that relief would be noticeable in two to four weeks; and (3) it falsely represented that relief would be prolonged after use of Prostex was discontinued."
The Circuit Court of Appeals went on to uphold the findings of falsity of these representations.
Proceedings brought under 39 U.S.C. § 3005 certainly do not result, in all instances, in every allegation of the Postal Service complaint being ultimately upheld. Moreover the final result often makes distinctions in defining the scope of the representations or the extent of their falsity. In any case where materially false representation has been proven the promoter of the product may nevertheless legitimately merchandise the product through the mails if he uses truthful advertising. However, as I view the statute, it does not envisage, and I see no strong public policy to support, permitting the use of the fruits of its violation to construct a mailing list for the violator's benefit. The fact that it may be impossible to determine whether in the case of each piece of mail covered by the mail stop order, the sender was in fact misled by the particular false representations can be said in almost every case. It hardly justifies resort to a special procedure.
Once the entire administrative process, including judicial review, is complete, the seller's personal interest in obtaining a list of names which might be considered rich in sales potential, can readily be seen. It does not, however, equate to the public interest. In my judgment there are far too many "if" in the concept to adopt it absent a special showing. Respondent's point that the mail has already been held for over two years so a few days more won't matter misses the point. It is not the additional time but rather Respondent's use of mail related to the statutory violation that should control. Respondent is free to advertise and sell its product through the mails so long as it does not contravene the law. It has no statutory or other right to be permitted special 1/ access to the tainted mail at the end of the litigation road to salvage whatever benefit it can from its earlier violation.
To the extent justification may be shown in an individual case to resort to a procedure such as Respondent suggests it suffices to say no such showing has been made here.
Respondent has requested that if the petition for modification of the order is denied then the mail stop order be further stayed in order to permit Respondent to seek review of the denial.
Respondent's Petition is hereby denied and by this decision I am vacating the stay of execution issued on December 30, 1974, of Mail Stop Order 74-89 and placing the mail stop order into full effect in accordance with normal procedures as of January 10, 1977. If within this period Respondent obtains an appropriate court order ordering further stay of the mail stop order the mail will continue to be held. In the absence thereof the order will go into full effect on January 10, 1977.