In the Matter of the Complaint Against: JAY NORRIS CORP., 25 W. Merrick Rd. at Freeport, New York 11521 P.S. Docket No. 4/152 04/21/76 Duvall, William A., Chief Administrative Law Judge Daniel S. Greenberg, Esq. Law Department United States Postal Service Washington, D.C., for Complainant Robert Ullman, Esq. Bass, Ullman & Lustigman, 747 Third Avenue, New York, New York, for Respondent Before: William A. Duvall, Chief Administrative Law Judge
This case was initiated on January 22, 1976, when a Complaint was filed by the Assistant General Counsel in charge of the Consumer Protection office of the Law Department of the Postal Service, Complainant, in which it is alleged that Jay Norris Corporation at Freeport, New York, the 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 Section 3005, Title 39, United States Code.
The business of the Respondent is the sale of a device which is advertised to be capable of lifting years off the face of the buyer.
In due course, an Answer was filed on behalf of the Respondent in which the Respondent generally denied the allegations of the Complaint, but Respondent admitted the use of the advertisement which was attached to the Complaint and which is attached to this decision as Appendix A.
There are three issues in proceedings of this type, as follows: One, does the Respondent use the mails in the conduct of the business which is involved; Two, does the Respondent make the representations which are set forth in the Complaint; and Three, if the Respondent makes the representations set forth in the Complaint, are those representations true or are they materially false as a matter of fact?
The specific representations charged in this Complaint are that the Respondent falsely represents as follows:
"(a) That the 'Isometric Beauty Band' (hereinafter referred to as the 'band'), will give the user a youthful appearance by:
1. lifting and smoothing sagging skin;
2. strengthening facial muscles and tissues;
3. firming, toning, and conditioning the face;
4. recontouring the structure of the fact;
"(b) That repeated wearing of the band will have cumulative results, thus causing the effects enumerated in subparagraph (a), supra, to be achieved to a greater degree each additional time the band is worn."
With respect to the first broad issue, namely, whether the Respondent uses the mails in the conduct of this business, there were received in evidence Complainant's Exhibits 1 through 8, which fully established that the Respondent does advertise its product, that in return for the required remittances Respondent sends through the mails to remitters the product being sold by the Respondent.
It is also not necessary to dwell at length on the second broad issue in this proceeding, which is: whether the Respondent makes the representations which are set forth above. Examination of the statements made in Appendix A to this decision discloses that the representations set forth in the Complaint are lifted almost, if not completely, verbatim from the advertising language in Appendix A.
That brings us to the third issue, namely: whether the advertising representations set forth in the Complaint are materially false as matters of fact. Testifying at the call of the Complainant in this proceeding was Dr. Vincent Cordaro, a medical doctor who is qualified to give expert medical testimony with respect to the issues involved in this proceeding.
Dr. Cordaro testified that sagging and wrinkling are conditions of the skin which result from, among other things, aging and its concomitants, disease, sun and wind, and emaciation. The latter cause is very rarely encountered in the United States today except in cases of severe disease. The treatment most generally employed by the medical profession to treat the conditions of sagging and wrinkling of the skin are plastic surgery, moisturizing preparations, creams, lotions, and a proper diet.
Dr. Cordaro testified that there would be some improvement in appearance that results to the user of this product in terms of the lifting and smoothing of sagging skin. This would occur because of the stress put on the skin by the pull of the device when worn as directed. This lifting and smoothing would vary with different individuals, but it could be fairly said that it does occur.
This statement by Dr. Cordaro is borne out by two demonstrations that took place in the hearing room on subjects who agreed to have this article demonstrated on them, and the lifting and the smoothing of the skin of the forehead was apparent to anybody within visual range. Also, if the word "recontouring" is interpreted to mean the reshaping of the outer tissues of the face as opposed to altering the subsurface components of the fact, then the wearing of this device will provide recontour, or reshaping of the structure of the face. This, too, was demonstrated in the hearing room on the two subjects. The flesh in the area of the jawbone was definitely tightened so that it was less apparent to the eye of the beholder.
Dr. Cordaro testified that there is no feature of this device that would produce a strengthening of facial muscles and tissues. If there were such strengthening, it was the doctor's testimony that this strengthening would have no effect upon such sagging and wrinkling of the face as there might be.
Similarly, the use of this device would have no effect in terms of firming, toning or conditioning the face. It might cause the surface of the face to appear as if it is more firm, or had a different tone or a different condition, but that is purely a superficial appearance which would disappear immediately upon the removal of the device. Insofar as firming, toning, conditioning of the face, and strengthening of facial muscles and tissues are concerned, the use of this device would produce no effect whatsoever.
Dr. Cordaro testified repeatedly, on direct and cross-examination, that the wearing of this band will have no cumulative effect. And that when it is removed, the face reverts to the condition which it was in immediately before the device was put on.
Opposed to the testimony of Dr. Cordaro was the testimony of Mr. Mike Traynor, who, as far as this record shows, is a recognized expert in such matters as cosmetology and beauty treatments, and he is recognized in Europe by the term, as "aesthetician," and perhaps the use of that term has spread to this country.
Mr. Traynor testified that he graduated from high school, after which he went to a school where they give instruction in beauty treatments. At one time he went to a school in France operated by a Mr. John Destrees, which school is called the School for Aestheticians. In various schools which he has attended, he has had instruction as to the number and type of muscles that are found in the face area. None of his instructors in this field has been a medical doctor. All of the instruction that he has had in this field has come from recognized, qualified cosmetologists and beauticians.
Mr. Traynor states that it is his belief that by taking the various exercises, some of which are demonstrated in Complainant's Exhibit 7, the muscles of the face and neck area can be strengthened. In so strengthening these muscles, according to Mr. Traynor, one can achieve an effect in terms of strengthening facial tissues, firming, toning and conditioning the face, recontouring the structure of the face, and lifting and smoothing sagging skin.
This testimony with respect to the effect of exercising on facial muscles, carried over into a statement by Mr. Traynor that he believed that the cumulative effect of wearing the device which is the subject of this proceeding, over an extended period of time -- perhaps as much as three or four months, plus the engaging in the exercise program recommended with the instructions that come with the device, will produce a cumulative effect in those areas.
This testimony by Mr. Traynor, in the face of the testimony by the medical expert, just can not be accepted as competent. In support of this statement there is the case of U.S. Health Club, Inc. v. Major, 292 F.2d 665, a case that was decided in 1961, by the United States Court of Appeals for the Third Circuit, in which it was held that the uncontradicted testimony of one qualified medical expert, who was not Dr. Cordaro in that case, but another doctor testifying in a Postal proceeding, established a universality of medical opinion on the crucial issues of the case. That is the situation that obtains in this case.
It is found as fact that (1) the Complainant failed to sustain the necessary burden of proof with respect to the charges contained in paragraph 2 (a) 1. and 2 (a) 4. of the Complaint; (2) that the Complainant did sustain the burden of proof with respect to the charges in paragraph 2 (a) 2. and 2 (a) 3. of the Complaint; and (3) it is further found that the Complainant sustained the required burden of proof with respect to the charge set forth as paragraph 2 (b) in the Complaint.
It is concluded as a matter of law that the 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 Section 3005 of Title 39, United States Code.
Proposed findings of fact and conclusions of law have been submitted by both parties. To the extent indicated, these proposed findings of fact and conclusions of law are adopted. Otherwise, such proposed findings of fact and conclusions of law are rejected for the reasons stated or because they are contrary to, or unsupported by, the evidence of record in this proceeding, or because they are immaterial.
It follows that an order of the type provided in 39 United States Code 3005, should be issued against this Respondent.
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