In the Matter of the Complaint Against: POMPIE, P.O. Box 9313 at Ft. Lauderdale, FL 33310 P.S. Docket No. 5/103 01/21/77 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 Mr. D. N. Myers, Pompie, P.O. Box 9313, Ft. Lauderdale, Florida 33310 for Respondent
This is a proceeding brought by complainant against respondent under 39 USC 3005 which authorizes action against respondent on 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 a "Bust Toner Kit", through use of an advertisement, a copy of which is attached as Exhibit A to the complaint, and a "Firm-Up Bust Massage Creme" in substitution for the kit.
Specifically, complainant in paragraph II of its complaint alleges that respondent represents:
"(1) That it will supply the kit to remitters;
(2) That use of the kit will:
(a) tone and firm the female breast;
(b) eliminate or significantly reduce lines and stretch marks on the female breast;
(c) increase the size of the female breast."
In addition, complainant charges in paragraph III of the complaint that respondent, in lieu of supplying the remitter with the advertised kit, substitutes therefor a cream as to which respondent makes the same representations as are charged in paragraph II(2) of the complaint and as to which it further represents that the cream is better than the kit (Compl., par IV and Exh. B thereto).
Respondent filed an answer stating that it had given up selling the products at issue here and requested for that reason that no stop order be issued. A hearing was thereafter held on 4 January 1977 at which respondent did not appear. Complainant in accordance with the provisions of 39 CFR 952.11(b) presented thereat evidence in support of its complaint and requested issuance of an oral decision which request was granted.
1. Respondent D. N. Myers, dba Pompie, at relevant times was engaged in the sale through the mails of the Bust Toner Kit or, in lieu thereof, of a Firm-Up Bust Massage Creme.
2. The record of a test purchase made by a Postal Inspector shows that respondent solicits and receives through the mail requests and payment for the advertised product.
3. In response to the order for the kit (consisting of a 2 oz. jar of Oriental Love Bust Toner Hormone Cream and a 7" personal vibrator complete with batteries) respondent failed to send the kit and instead sent a Firm-Up Bust Massage Creme, claiming that it was a better product, that a balance of $5.00 would have been due for the kit and that the purchaser would have had to wait for the product ordered by him (Compl., Ex. B).
4. Complainant presented the testimony of a physician employed by the United States Food and Drug Administration and assigned to act as a Medical Liaison Officer with the U.S. Postal Service in false representation matters involving medical products. This physician is well qualified to testify on the medical aspects of respondent's products and the truth or falsity of the representations made for them by respondent.
5. This physician testified that the shape of the female breast cannot be affected in any way by exercise or the use of creams since it consists largely of fat and does not have muscles which can either be firmed or toned, whatever these lay terms may exactly mean, by exercise. Nor can the female breast, and indeed, the male breast be enlarged except by means of surgery, including implants and similar measures.
6. He also testified (a) that hormone creams have no effect on the character of the breast, the smoothness of the skin or the firmness or tone of its physical consistency or appearance, and (b) that the use of a vibrator has no other effect but to titillate the skin or create a titillating sensation on the part of the user.
7. Respondent's representations refer to the very results from use of its products which would induce or persuade members of the public to buy them.
8. Based on the advertisement used by respondent and the expert testimony offered on behalf of complainant, all of which is uncontradicted in the record, I find that respondent makes the representations charged in the complaint and that such representations are materially false.
1. Respondent is engaged in a scheme or device for obtaining money or property through the mails by means of false representations in violation of 39 USC 3005.
2. Accordingly, a mail stop order in the form attached as provided in 39 USC 3005 shall be issued.
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