In the Matter of the Complaint Against SANS EGAL 380 Madison Avenue at New York, New York 10017 P.S. Docket No. 5/107; 06/13/77 Lussier, Edward F. APPEARANCES FOR COMPLAINANT: DanielS. Greenberg, Esq. Law Department United States Postal Service Washington,D.C. APPEARANCES FOR RESPONDENT: Robert H. Malis, Esq. Malis, Tolson & Malis Philadelphia, Pennsylvania
The instant proceeding is before the undersigned on the appeal of the Respondent, Sans Egal, from the Initial Decision of Chief Administrative Law Judge William A. Duvall. That decision recommended the issuance of a mail-stop order under the provisions of 39 United States Code § 3005 on the finding that Respondent was using false advertising in selling its product, a face cream, through the mails.
Respondent first takes exception to the finding that its advertising represents that use of the product will eliminate or significantly reduce wrinkles, sagging jowls, dry skin and eyebags and crows feet. Judge Duvall based this finding on his reading of the advertisement attached to his decision and the application of the rules laid down in Donaldson v. Read Magazine, 333 U.S. 178, 188-9, and in Baslee Products Corp. v. USPS, 356 F.Supp. 841 at 847. Respondent argues that its advertisement has been construed too harshly. It contends that it is the improvement to the total and general appearance of the user that is desired by the user and given by the product. It suggests that being a cosmetic, users should know its limitations and it points to those areas where the product is admittedly efficacious. It contends that it is an unfair and improper dichotomization to read the advertisement in effect to promise to eliminate or significantly reduce the stated facial conditions. Aside from the problem of confusing the issue of what is represented with the question of whether it is materially false the argument is not convincing viewed in light of the wording and overall thrust of the advertisement. Since I agree with Judge Duvall's finding that the representations are made in Respondent's advertising this exception is disallowed.
Respondent next takes a number of exceptions to specific findings in the Initial Decision. 1/ However, Respondent has not shown wherein these findings are erroneous and save for one I see no basis to modify or reverse any of those findings especially when read in context with the related findings and conclusions in the Initial Decision. The one finding to which exception is taken that I believe deserves modification is the one found in the footnote on page 9 which states in full:
"Dr. Kirshbaum stated that the test conducted by him would not be suitable for reporting in a reliable dermatological journal because of the small number of subjects. (Tr. 80)"
As I read the cited testimony it raises doubt as to whether this is the purport of the witness' answer and I would, therefore, eliminate this finding. In so doing it must be noted, however, that this correction is immaterial to, and has no effect on, the outcome of the case. Other than as indicated, Respondent's exceptions to the findings of fact are disallowed.
Respondent includes within its exceptions to the findings of fact two additional exceptions to ultimate factual conclusions, namely, that there are:
"explicit false representations in the advertisement" (I.D., p. 15) and
". . . misrepresentations resulting from saying both too much and too little." (I.D., p. 15) It includes as exceptions to conclusions of law two further findings of ultimate fact, namely,
"That the representations made by Respondent are material representations and they are false as a matter of medical fact." (I.D., p. 16)
"That the product is misrepresented, and materially so." (I.D., p. 16)
The Respondent's argument that the representations are not materially false essentially rests on a base that requires acceptance of its advertising claims as merely puffing and assigning a controlling weight to the fact that the medical testimony from both sides, as elaborated on in the Initial Decision, recognizes certain benefits from use of the product, I do not see either leg of the base as supportable. The issue in this proceeding is not what benefits may be derived from the use of Respondent's product but whether it has been shown not capable of doing what its advertising reasonably holds out to the purchaser. On the basis of this record Judge Duvall correctly concluded that the representations were materially false and his conclusion that the record justifies issuance of a mail-stop order is upheld. Thus Respondent's exceptions to the ultimate factual conclusions and its further exceptions to the ultimate conclusions of law are disallowed.
Respondent's contention that there must be a showing of an intent to deceive is without merit. The postal false representation statute was amended in 1968 to expressly remove intent to deceive as a necessary prerequisite to the issuance of a mail-stop order. The case cited by Respondent, Mark Eden v.Lee, 433 F.2d 1077, had reference to the pre-1968 statute and is inapposite.
Respondent's citation to case law requiring substantial evidence to support the issuance of a mail-stop order under the statute is also unavailing here not because substantial evidence is unnecessary but, on the contrary, because it is present here when the record is reviewed in its entirety. Respondent's further reliance upon a partial quotation from an unreported District Court case is totally insufficient.
The Initial Decision is affirmed and a mail-stop order is being issued contemporaneously with this decision.