In the Matter of the Complaint Against: LONG 'N STRONG, Caroline Road at Philadelphia, Pennsylvania 19176 and AMERICAN CONSUMER, Caroline Road at Philadelphia, Pennsylvania 19176 P.S. Docket No. 5/6 10/19/76 Lussier, Edward F.; Judicial Officer APPEARANCES FOR COMPLAINANT: Mrs. Janice B. Adams; Law Department; U. S. Postal Service; Washington, D.C. APPEARANCES FOR RESPONDENT: Charles B. Chernofsky, Esq. Weiss, Rothfarb, Kaminsky & Slade; New York, New York
The Consumer Protection Office, Law Department United States Postal Service, the Complainant herein, has filed a petition for a mail stop order based upon breach of a Consent Agreement executed by Martin Lipset on behalf of Long 'N Strong and American Consumer, the Respondent herein. Under the terms of that Consent Agreement Respondent agreed that the promotional activities and representations described in a Complaint dated May 18, 1976, and docketed as P.S. Docket No. 5/6, would be permanently discontinued and abandoned and would not be resumed directly or indirectly under any other names or addresses or through any corporate or other device.
In accordance with paragraph 3 of the Consent Agreement, Respondent agreed to the issuance of an ex parte mail detention order upon filing by the Complainant of a petition with the Judicial Officer alleging breach of the Consent Agreement. Such an order was issued on September 28, 1976, by the undersigned. Respondent has now filed a reply to the petition with a cover letter requesting an expedited decision in the matter. It is apparent from the pleadings that no further pleadings or evidence is necessary and neither party has suggested to the contrary.
The single issue is whether the advertisement which is made the basis for the petition is a continuation of the promotional activities which are covered by the Consent Agreement. In my view it is and a mail stop order must therefore issue under paragraph 3 of the Consent Agreement.
Respondent's reply to the petition is brief but to the point. It maintains that the gravamen of the complaint and of the petition is the allegation "that it will cause the user's fingernails to grow longer." It contends that the only claim it makes for its product is that "it strengthens the nail thereby promoting growth--since the nail has far less susceptibility to cracking, snagging and breaking."
The promotional activities made the basis for the original Complaint, and incorporated into the Consent Agreement, are that the Respondent's advertising represented directly or indirectly, in substance and effect, whether by affirmative statements, or implication, as regards Long 'N Strong:
"A. that it will cause the user's fingernails to grow longer;
B. that it will cause the user's fingernails to grow longer within a week;
C. that it will cause the user's fingernails to grow longer by supplying essential nutrients that are lacking in the fingernails;
D. that the product is a 'new wonder discovery'."
Complainant's petition sets forth a comparison between those portions of the new advertisement and the old wherein it can be seen that the representations complained of in the original Complaint are in substance and effect continued. Respondent's reply does not deal with these specifically. They are quoted below and speak for themselves. n1
n1 "B. Respondent continues to represent that the product will cause the user's fingernails to grow longer, as described in allegation A of the Complaint. This representation is made by the bold headline of Exhibit 1 which proclaims:
'Now] Grow Longer, More Beautiful Nails Starting in Just 5 to 7 Days'
"The headline of Exhibit 1 is almost identical to the headline of Respondent's previous advertisement, Exhibit A of the Complaint. Respondent's previous advertisement proclaimed:
'Now] Grow Longer, More Beautiful Nails in as Little as 5 to 7 Days'
"By the use of the following language from Exhibit 1 Respondent makes the representation described in allegation A of the Complaint:
'. . . an incredible formula that actually strengthens your nails and helps promote full beautiful growth.'
'NOW] THRILL TO GLAMOROUS GROWTH IN JUST A MATTER OF DAYS]'
'Then, like magic you'll see even the most embarrassing short and stubby nails actually become stronger and longer in less time than you ever dreamed possible.'
Continued on next page
"C. Respondent continues to represent that the product will cause the user's fingernails to grow longer within a week, as described in allegation B of the Complaint. This representation is made by the headline of Exhibit 1, which is quoted in paragraph B above. Furthermore, this representation is made by the manner in which Respondent describes the results that the user may expect (see Exhibit 1):
'The result: Just one week from today your nails start to grow longer, stronger, more glamorous than you've ever seen them before.'
"D. Respondent continues to make in current advertising the representation described in allegation C of the Complaint. Respondent states that 'Long 'n Strong...actually strengthens your nails with this vital amino formula so important to promote long, strong growth. It does for your nails what your own system denies you: the ability to promote and maintain the growth of long magnificent nails FAST.'
"E. In Exhibit 1 Respondent describes Long 'n Strong as an 'amazing discovery' and a 'new wonder formula'. This description of the product continues the representation alleged in paragraph 3(d) of the Complaint."
The truth or falsity of these allegations are no longer in issue that being precluded by the execution of the Consent Agreement. See American Image Corp. v. USPS, 370 F. Supp. 964 (S.D. NY 1974), affirmed 504 F.2d 1397 (2d Cir. 1974). It is apparent from a comparison of the advertisements in relation to the charges in the original Complaint and the commitments contained in the Consent Agreement that the Consent Agreement is being breached.
Respondent further contends that it advised government counsel that its intent was to describe "Long 'N Strong" as effective for "promoting long fingernails" and was not advised that such representations would be considered a violation of the Consent Agreement. It attaches a letter dated June 4, 1976, from Complainant which in pertinent part states, in connection with that intention that:
"As you see, these suggestions have not been drafted into the Agreement. They were not included because this Office does not wish to enter into an Agreement that describes in an explicit manner the representations which may be used in the future by your client as this may be interpreted as prior approval of advertising."
Moreover the Consent Agreement is quite specific on the point in paragraph 5 which reads:
"5. No officer, employee, or agent of the U. S. Postal Service has expressly or impliedly, directly or indirectly, accepted or approved any revised advertising matter or activities presently employed or contemplated for future use by the undersigned."
In view of the above findings and conclusions the petition for issuance of a mail stop order for breach of the Consent Agreement is well founded. Accordingly, the petition is granted and the requested mail stop order is being issued contemporaneously with this decision.