In the Matter of the Complaint Against:

 DOCTOR'S LABORATORIES,
 DR. SHIFFER LABORATORIES,
 and DOCTOR'S ROTASAGE,
 Box 398 at
 Punta Gorda, Florida 33950

 P.S. Docket No. 5/41
 
 09/17/76
 
 Sobernheim, Rudolf; Administrative Law Judge

 APPEARANCES: 
 Daniel S. Greenberg, Esq.
 Consumer Protection Office,
 Law Department, U.S. Postal Service
 Washington, D.C.  20260, for Complainant 

 Charles E. Shiffer, President-Treasurer,
 Dr. Shiffer's Laboratories, Inc.,
 P.O. Box 398, Punta Gorda, Florida 33950 for Respondent

This is a proceeding by complainant against respondents under 39 U.S.C. 3005 which authorizes action against respondents upon evidence satisfactory to the Postal Service that respondents are "engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations."

Complainant alleges that respondents are engaged in such a scheme in the sale of a scalp massager, called "Rotasage" or "Rotasage" (Compl., Ex. A and C (1) and (3)). Specifically, complainant in paragraphs (1) and (2) of the original complaint alleged that by means of an advertisement respondent Doctor's Laboratories represented, directly or indirectly, by means of affirmative statement, implication, or omission, in substance and effect, and materially falsely so (Compl., par. 3):

"(a) That the 'Rotasage Scalp Massager' (hereinafter referred to as the 'massager') increases hair growth;

"(b) That the massager will effect the aforementioned result irrespective of the cause of the user's present rate of hair growth;"

In its answer the original respondent Doctor's Laboratories admitted that it published the advertisement which is Exhibit A to the complaint and amended complaint and alleged that the intent of the advertisement was to indicate that the Rotasage scalp massager stimulated hair growth and not that it would grow hair. Respondent Doctor's Laboratories further alleged that Rotasage was a patented device used for years past "as a very helpful modality to increase circulation" of the blood in the scalp. He stated further that, in order to avoid future misunderstandings, Rotasage would not be advertised again as a device to "increase hair growth."

After the answer was filed complainant moved, and was permitted, to amend its complaint by adding Dr. Shiffer's Laboratories and Doctor's Rotasage as respondents, adding Exhibits B and C to the amended complaint and the following claim of false representations (Am. Compl. par. (2)(c)):

"(c) That Charles E. Shiffer, president of Respondent laboratories, is a licensed medical doctor;"

In answer to the amended complaint respondents alleged in relevant part that Charles E. Shiffer was president of Dr. Shiffer Laboratories, Inc. and that by virtue of an Ohio State Medical Board license he was entitled to call himself a doctor of cosmetic therapy (D.C.T.); that he also held the degree of doctor of mechanotherapy (D.M.) from the Great Lakes College of Mechanotherapy; and that for these reasons he could properly use the prefix "Dr." in front of his name.

Respondents further pleaded that they believed the instant proceeding to have resulted from a refund dispute with a named disappointed customer.

Respondents further stated that because of his health Charles E. Shiffer could not attend the hearing set herein. However, no request for change of venue was made.

Thereafter discovery proceedings were had in which respondents through Charles E. Shiffer stated in answer to complainant's interrogatories that said Charles E. Shiffer was not, and did not hold himself out as, a medical doctor, that he was duly licensed by the State of Ohio as a practitioner in cosmetic therapy (license No. 1283, dated 31 July 1933) and was properly referred to as "Dr. Charles E. Shiffer, D.C.T." or "Dr. Charles E. Shiffer, Cos. Therapy, Licensed by Ohio State Medical Board"; that he also held a degree of doctor of mechanotherapy from Great Lakes Medical College but did not practice, and hence had not sought a license to practice, in that field.

A hearing was held on 14 September 1976 at which complainant in conformity with the rule set forth in 39 C.F.R. 952.11(b) proceeded to make proof of the allegations of the complaint. Complainant waived filing of a brief and requested a prompt decision.

1. Dr. Shiffer Laboratories, Inc. is a corporation of which Charles E. Shiffer is the president and treasurer.

2. Doctor's Laboratories and Doctor's Rotasage are names used by Dr. Shiffer Laboratories, Inc. in its advertising and product literature.

3. For purposes of this proceeding complainant concedes that Charles E. Shiffer is entitled to call himself a doctor by virtue of his Ohio license to practice cosmetic therapy and that he has a doctoral degree from Great Lakes Medical College in mechanotherapy.

4. I take judicial notice of the fact that Great Lakes Medical College is listed in the fifteenth edition of the College Blue Book as a school teaching physical therapy located in Cleveland, Ohio, and granting a doctor's degree in mechanotherapy upon completion currently of a 36-month course.

5. Respondent Doctor's Laboratories advertised the "Rotasage" scalp massager in the Star of 9 December 1975 as follows:

"'ROTASAGE' SCALP massager increases hair growth. Patented stimulator. $5.00. Doctor's Laboratories Box 398-D, Punta Gorda, Florida 33950." (Ex. A to Compl. and Am. Compl.)

6. Purchasers receive a hand-operated hard-rubber device with a surface broken up into points with which the users are to massage their scalps. The device is illustrated on a leaflet accompanying the device (Resp. Ex. 1; item 10), a folded sheet of paper, 6 15/16 x 7 1/4 inches in size, printed in black on yellow background. The sheet illustrates the device on the title page under the legend:

YOUR HAIR

How to Save It

How to Glorify It

Describes its use in preserving hair and hair growth through stimulation of blood circulation by means of massaging the scalp. It gives the postal address "Doctor's Rotasage, P.O. Box 398, Punta Gorda, Florida, 33950" on the title page and the $5.00 price on an inside page.

7. Purchasers further receive a four-page folder, 7 x 8-1/2 inches in size (Resp. Ex. 1, item 8). It advertises on the two inside pages a large number of appellant's products, including as number 9 the Rotasage 5-spot scalp massager at the price of $5.00. The title page shows "Dr. Chas. E. Shiffer, Pres." in an unusually youthful looking picture for a man who alleged in his answer to the amended complaint that he had been a licensed practitioner in cosmetic therapy for 43 years and presumably therefore is about between 65 and 70 years of age.

This document begins with the words:

"Dear Friend: I am a medical doctor with my practice devoted for more than 36 years EXCLUSIVELY to the hair and scalp."

8. Finally, purchasers receive a typewritten sheet, 3 3/4 x 6 inches in size (Resp. Ex. 1, item 9), bearing the facsimile signature of Charles E. Shiffer, advising the use of his shampoo and antiseptic in connection with the scalp massager and directing attention to the leaflet described in Finding of Fact No. 6.

9. At the hearing a postal inspector testified that respondent's advertisement for the Rotasage scalp massager came to the attention of the complainant through perusal of the Star and that he thereafter made a test purchase paying five (5) dollars and receiving the massager as well as the literature described in Findings of Fact Nos. 6, 7 and 8.

10. At the hearing a well-qualified physician, employed by the Food and Drug Administration, U.S. Department of HEW, who is assigned to assist complainant in false representation cases involving medical products and claims, testified as to the claim that use of the Rotasage scalp massager increases hair growth. He stated that baldness generally is a matter of heredity and that massaging the scalp neither increases nor otherwise stimulates the growth of hair. In addition, baldness may be caused by forms of dermatitis and other hair and scalp diseases. In some cases keeping the scalp and hair clean, as by removing dandruff, is necessary and massaging the scalp helpful to this end. But in such cases, too, the use of the Rotasage scalp massager would neither increase nor stimulate hair growth and increased blood circulation in the scalp has no such effect.

11. Indeed, the folder of the respondent Dr. Shiffer Laboratories, described in Finding of Fact No. 7, expressly disavows representations "that hair can be regrown for all owners", states that there are "no miracles for dead-function materials" and that respondent Dr. Shiffer Laboratories merely offers preparations "to keep ... hair and scalp in the best possible condition."

12. Based on the foregoing detailed findings of fact and the record as a whole I find:

a. Respondent Doctor's Laboratories makes the representations charged in paragraph (2)(a) of the amended complaint in its advertisement (Ex. A to Compl. and Am. Compl.). Like false representations are found in the supplemental sales pamphlet of respondent Doctor's Rotasage (Ex. C to Am. Compl.). These representations are false in that the use of the Rotasage scalp massager does not increase or in any other way produce hair growth. The falsity of the representation is material since it goes to the effectiveness of the advertised product.

b. Respondent Dr. Shiffer Laboratories, Inc. in its product advertising, received after the purchaser had made his purchase (Resp. Ex. 1, item 8), does not advertise the Rotasage scalp massager as increasing hair growth. Hence, it does not make the false representation charged to it.

c. Respondents Doctor's Laboratories and Doctor's Rotasage in their advertising (Ex. A and C to Am. Compl.) falsely represent by implication, as alleged in paragraph (2)(b) of the amended complaint, that use of the Rotasage scalp massager increases hair growth irrespective of the cause of the user's present (presumably inadequate) hair growth. Such representation is contrary to the medical testimony which establishes that inadequate hair growth may result from scalp diseases which require special medical treatment. This false representation is a material one since it goes to the effectiveness of the product for all users regardless of the cause of their inadequate hair growth.

d. Respondent Dr. Shiffer Laboratories does not make this representation.

13. Respondents Doctor's Laboratories and Doctor's Rotasage do not represent that Charles E. Shiffer is a medical doctor. Concededly it is proper for Charles E. Shiffer to call himself "Doctor" in the practice of cosmetic therapy and the Rotasage scalp massager is an appliance in that field. With the inflationary multiplication of doctoral degrees and titles in recent decades I cannot accept the proposition that use of the word "Doctor" is a per se representation that the advertiser using it holds or is connected with a person holding the degree of doctor of medicine ("M.D."). Some additional circumstantial element is needed to make such a conclusion factually reasonable and it is lacking here.

14. In advertising material of respondent Dr. Shiffer Laboratories Charles E. Shiffer misleadingly calls himself a "medical doctor" (see Ex. B to Am. Compl.; cf. Resp. Ex. 1, item 10). Such representation is false since Charles E. Shiffer is entitled to use the title "doctor" only as one licensed to practice cosmetic therapy or academically as a doctor of mechanotherapy.

1. Respondents Doctor's Laboratories and Doctor's Rotasage are 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. Whether directly or by implication the advertisements of respondents Doctor's Laboratories and Doctor's Rotasage make the false representations that increased hair growth results from use of the Rotasage scalp massager, as charged in paragraph (2)(a) and (b) of the amended complaint herein, and they will be so understood by the ordinary reader. See Donaldson v. Read, 333 U.S. 178, 189 (1948). As to the representation charged in paragraph (2)(b) of the amended complaint see S.S.S. Co. v. F.T.C., 416 F.2d 226 (6th Cir., 1969); International Laboratories, P.S. Docket No. 4/110 (1976).

3. Respondent Dr. Shiffer Laboratories does not make the false representations charged to the other respondents in paragraph (2)(a) and (b) of the amended complaint.

4. Respondents Doctor's Laboratories and Doctor's Rotasage do not make the representation charged to them in paragraph (2)(c) of the amended complaint.

5. Respondent Dr. Shiffer Laboratories, Inc. does make the false representation charged in paragraph (2)(c) of the amended complaint. On the record it is not, however, clear that respondent Dr. Shiffer Laboratories was on notice that such charge was brought against it in connection with the sale of the Rotasage scalp massager. Among other things failure to incorporate in the complaint the entire document which is complainant's Exhibit 1, item 10 created confusion and most likely lack of proper notice as to the charges. In my view due process is best served by dismissing the charges against Dr. Shiffer Laboratories without prejudice to any proceeding under 39 U.S.C. 3005 which complainant may hereafter deem it proper to institute against that respondent.

6. Accordingly an order as provided in 39 U.S.C. 3005 should be issued against respondents Doctor's Laboratories and Doctor's Rotasage.