Appeal of P.S. Docket No. 5/107 -- SANS EGAL


 In the Matter of the Complaint Against:

 SANS EGAL,
 380 Madison Avenue at
 New York, New York 10017

 P.S. Docket No. 5/107
 
 04/04/77

 Daniel S. Greenberg, Esq.
 
 Law Department
 United States Postal Service
 Washington, D.C., for Complainant 

 Robert H. Malis, Esq.
 Malis, Tolson & Malis,
 Six Penn Center Plaza,
 Philadelphia, PA, for Respondent 

 Before: William A. Duvall, Chief Administrative Law Judge

INITIAL DECISION

This proceeding was initiated by the filing on December 2, 1976, by the Consumer Protection Office, Law Department United States Postal Service (Complainant) of a Complaint in which it is alleged that Sans Egal at New York, New York (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. Attached to the Complaint was a copy of an advertisement used by the Respondent in the conduct of its business. A copy of the advertisement in question is attached to this decision as Appendix A. Complainant alleges that Respondent attracts attention to its business by means of this advertisement in which Respondent seeks remittances of money through the mail for its product.

The product being offered for sale by the Respondent is a cosmetic cream. Complainant charges that Respondent makes the following representations with respect to its product, and that these representations are materially false as a matter of fact.

"(1) That use as directed of Respondent's 'SANS EGAL' will eliminate or significantly reduce:

(a) wrinkles;

(b) sagging jowls;

(d) eyebags and crows feet;

"(2) That use as directed of Respondent's 'SANS EGAL' will:

(a) tighten and lift sagging skin;

(b) even and resurface pore size;

(d) reverse sun damage to skin;

(e) normalize skin texture and appearance;

"(3) That Respondent's 'SANS EGAL' will effect the claims enumerated in subparagraphs (1) and (2) supra, irrespective of the cause of ^1/ the condition sought to be corrected."

An Answer to the Complaint was filed on behalf of Respondent in which it is denied that a scheme or device for obtaining money or property through the mails by false representation exists. It is admitted that the advertisement, which is Appendix A hereto, is a typical advertisement used by Respondent. With respect to the charge in paragraph II(1), above, it is admitted that the advertisement infers that the use of SANS EGAL will reduce and shallow out wrinkles, dry skin, eyebags and crows feet, but it denies that the advertisement claims that the use of its product will eliminate such visible defects. Respondent admits the making of the representations set forth in paragraph II(2) of the Complaint. Respondent denies, finally, making the representations set forth in paragraph II(3), and it specifically denies that the results enumerated in subparagraphs (1) and (2) will be achieved irrespective of the cause of the condition sought to be corrected.

Respondent affirmatively alleges that the representations made in its advertising material are true as a matter of fact and that the product does perform as represented. Further, Respondent answers, "the product is sold with a money back guarantee and no interpretation of the claims made can be deemed to be untrue in any material respect." Finally, Respondent admits that by means of the advertisement (Appendix A), Respondent seeks to induce remitters to remit money or property through the mails for its product.

The matter came on for hearing on January 19, 1977.

This proceeding is unusual by virtue of the nature and quality of the expert testimony presented by both parties to this proceeding.

The sole witness for the Complainant was Dr. Peter M. Horvath, a practicing physician in the District of Columbia and, in addition, the Director of Dermatology at Georgetown University School of Medicine. Dr. Horvath is Board certified in the specialty of dermatology, a subject in which he specialized while attending the medical school of the University of Pennsylvania, from which he was graduated.

The sole witness for the Respondent was Dr. Bernard A. Kirshbaum. Dr. Kirshbaum is a graduate of Jefferson Medical College, Philadelphia, Pennsylvania, and since graduation he has been on the staff of the University of Pennsylvania Medical School. He is also on the staff of the Medical College of Pennsylvania. Dr. Kirshbaum is Board certified in the specialty of dermatology and he is in private medical practice in the field of dermatology.

The unusual feature with respect to the testimony of these highly qualified medical experts is the fact that with respect to every important point in this proceeding, there is no significant difference in their testimony. This remarkable fact is illustrated by the following question by Respondent's Counsel and the answer by Dr. Kirshbaum:

"Q By the way, do you know Dr. Horvath?

A Yes, I do. He is my colleague in dermatology. If I may say, I am pleased to see him here and I am amazed at how close our feeling is, and concept s in dermatology are in agreement." (Tr. 46)

In view of the practical unanimity of the opinions of the experts which was expressed at other places in the hearing (e.g. Tr. 107-108) there is no need to discuss separately the testimony of each medical expert.

Turning now to the question of whether the Respondent makes the representations which are set forth in the Complaint, the only denial with respect to the charge set forth in paragraph II(1) is the denial that the Respondent represents that the use of its product will "eliminate" such visible defects. Looking at Appendix A, it is noted that the person purporting to give the testimonial in support of the product describes herself as a "53-year-old grandmother". She then proceeds to describe her highly satisfactory experience with the use of Respondent's product and she says:

"And very often you look older than you need to because of wrinkles, sagging jowls and loose or dry skin. But now, at last there is a professionally formulated method to help us eliminate and overcome these visible signs of age ... in just a matter of days]"

Further in the advertisement, the reader is told to anticipate "THE LOOK OF YOUTH WITHOUT SURGERY", and the method is described as "amazingly effective".

It has been pointed out earlier in this decision that Respondent admits that it makes the representations set forth in paragraph II(2) of the Complaint.

Concerning the allegation of paragraph II(3) of the complaint, the Respondent denies, and properly so, the making of the representation that the results enumerated in subparagraphs (1) and (2) of paragraph II will be produced by the use of Respondent's product as directed irrespective of the cause of the condition sought to be corrected. Respondent offers its product for sale as a cosmetic designed for use by women who wish to remove or reduce the visible facial signs of the aging process. The product is not sold as a restorative which will overcome the effects and the ravages of any and all types of disease conditions or any other untoward events which have produced scars or other deleterious effects upon the skin and appearance.

Summarizing as to this point, it is found that the Respondent does make the representations set forth in subparagraphs (1) and (2) of paragraph II of the Complaint, but that the Respondent does not make the representation set forth in paragraph II(3). In arriving at this finding of fact, there have been followed the rules laid down (1) in Donaldson v. Read Magazine, 333 U.S. 178, 188-9, that advertisements are to be interpreted in the light of the effect they would most probably produce on ordinary minds, and (2) in Baslee Products Corp. v. U.S.P.S., 356 F. Supp. 841 at 847 (1973), cited by Respondent, that the test to be applied in interpreting advertisers' claims is the "meaning and 'impression upon the mind of the reader that arises from the sum total not only of what is said but also of all that is reasonably implied.' Spiegel, Inc. v. F.T.C., supra, 411 F.2d at 483."

It now must be determined whether the representations found to have been made by Respondent are true or materially false as a matter of fact. In resolving this question consideration must be given to the testimony of the medical experts with respect to the various conditions for which SANS EGAL is being offered.

Wrinkles of the skin result from several factors, among which are the aging process and exposure, or overexposure, to the elements of sun and wind. Physiologically, wrinkles result from the shrinkage of fibers in the mid-layer of the skin, known as the dermis. The removal of wrinkles, when that step is considered by the medical profession to be indicated, is accomplished by, among perhaps other methods, surgery and medications. In surgery some skin is removed from the area being treated and the remaining skin is pulled tight so that the wrinkles are smoothed out. The medications that are used in treating wrinkles are those containing protein materials such as albumin. With respect to SANS EGAL, the medical witnesses stated that if the product is used regularly and frequently for a period of time, it would have a beneficial effect for persons who have only small or fine-line wrinkles. For persons having larger wrinkles, those that could be called physiological wrinkles, the effect would be minimal, or none at all. These results were reported by Dr. Kirshbaum on a group of women who participated in a test which he supervised. ^2/On the other hand, persons with deep wrinkles will receive some benefit in two ways: (1) small wrinkles which accompany deep wrinkles will be improved and (2) persons with deep wrinkles usually have dry skin and the use of Respondent's product would have the effect of adding moisture to the skin. Therefore, from these two effects, the general appearance of the individual with deep wrinkles may be improved, but, again, there will be but minimal, or no, change in the deep wrinkles. (Tr. 106)

Sagging jowls are a concomitant of aging and they are manifested by a deepening of the lines which run along side the nose and cheek to the corners of the mouth. In addition to accompany the aging process, sagging jowls are caused, also, by exposure to weather. The method of treatment for sagging jowls employed by the medical profession is surgery, and the use of SANS EGAL would have little or no effect upon this condition.

Dry skin is, as the name suggests, the absence of a sufficient quantity of oil and water in the skin. This condition results from the passage of time and from elemental exposure. The medically approved treatment for this condition is the addition, by appropriate means, of oil and water to the skin. Respondent's product, according to the experts, would work quite well as a treatment for this condition. (Tr. 17)

Eyebags and crows feet at the corners of the eyes are also produced by a shrinkage of the fibers in the dermis. The most successful medically approved treatment for these conditions are surgery, strong chemicals and sanding. The surgical procedure was discussed above in connection with the treatment for wrinkles. Chemicals and sanding are used if the crows feet are small enough. The chemicals are used to peel away the skin folds creating the crows feet, and the sanding device is a rotary instrument not altogether unlike the drilling instrument found in the dentist's office, and it is equipped with a wire brush. It was explained that chemicals and sanding are not used for very small crows feet, and that for very small crows feet a good lubricant cream might be helpful. (Tr. 19)

With respect to efforts to tighten and lift sagging skin, it was the consensus of medical opinion that there was very little, if anything, that could be accomplished by the use of Respondent's product.

One's general appearance is affected by the size of the pores. This feature of a person's appearance is affected to a large extent by heredity. The pores in the skin of an infant are small; as sex hormones start to work the pores begin to enlarge and they continue to do so with age, menopause and exposure to the elements. Respondent's product would provide some moisture and some evening and resurfacing of the pores. It will do nothing to decrease the size of the pores, but if they are small Respondent's product will fill them in. Large pores will not be greatly affected by the use of Respondent's product. (Tr. 26)

There was discussion of "skin tone". This term was identified as a lay term referring to the turgor of the skin, that is to say, the plumpness or the firmness of the skin -- a firm feeling to the skin rather than a wrinkly feeling. Turgor of the skin is the product of one's age, environmental factors, and the degree of retention of water in the tissues. Skin tone relates to dryness deeper in the skin rather than the surface dryness discussed earlier. Respondent's product could have some effect upon the turgor of the skin, but the visible effect would be slight or none at all since turgor is primarily tactual, not visible.

The texture of one's skin varies with matters that have been discussed above, such as dryness and with the kind and degree of irregularities of the surface of the skin. It is obvious that Respondent's product will have no effect upon such features as moles or warts, and the effect of SANS EGAL upon the condition of dryness has already been discussed. Similarly, changes in skin pigmentation will be unaffected by the use of Respondent's product. (Tr. 31)

In their testimony the medical experts made clear distinctions n the effects that the use of Respondent's product would have upon major wrinkles and blemishes and the effect that use of the product would have upon small wrinkles and lines. Anything of a minor nature, minor wrinkles, less than physiological wrinkles would be beneficially affected by the use of SANS EGAL as directed. Non-pathologic skin conditions, such as dryness and leathering resulting from elemental exposure would also be benefited by the daily use of SANS EGAL. Repeated, regular and frequent use of Respondent's product will have a beneficial effect in terms of keeping skin moisturized, and small wrinkles will tend to be less apparent, and, if they are small enough, they may even disappear. (Tr. 33) Respondent's product has very little, if any, beneficial effect in reducing large pores and large wrinkles because those conditions relate to the dermis area. (Tr. 26, 105, 110)

There was received in evidence a copy of the report of a study conducted by Albert M. Kligman, M.D., a professor on the faculty of the medical school of the University of Pennsylvania. It was generally accepted that the substance tested by Dr. Kligman was substantially of the same ingredients as those found in SANS EGAL. No protracted discussion of Dr. Kligman's report (Ex. R-1) is needed because the report was read by both medical witnesses and each of them indicated that he had no significant differences of opinion from those stated in the report. (Tr. 110, 117)

In summary, it is found that Respondent's product, if used as directed, will have a beneficial effect only if the users have small wrinkles and crows feet, dry skin, or, a combination of these conditions. People with small pores could temporarily smooth them over by using SANS EGAL as directed. Persons with large wrinkles could improve their general appearance somewhat by using SANS EGAL, but the improvement would come from the lessening or disappearance of small lines, and not by reason of any effect of the product on the large wrinkles. Persons with sagging jowls, eyebags, large pores and changes in skin pigmentation would derive minimal or no benefit from the use as directed of SANS EGAL. Certainly, persons with pronounced skin conditions of the type enumerated in Respondent's advertising matter would not be enabled to "eliminate and overcome these visible signs of age ... in just a matter of days]" Nor could they again enjoy "THE LOOK OF YOUTH WITHOUT SURGERY".

In its Brief, Respondent points out that the purpose of 39 U.S. Code 3005 and other postal laws is to protect the public. In Lynch v. Blount, 330 F. Supp. 689 (1971), aff'd. 404 U.S. 1007, the Court cautions that --

"This is not to say that stop orders will be upheld by the courts whenever a person has resorted to a little exaggeration or mere puffing. The false statement must be material and it must be substantial to warrant the imposition of this drastic remedy."

It is significant that, despite the language in the above quotation, the Court upheld the order under attack on constitutional grounds in that case. And the Court said, further, that "*** it is also clear that the First Amendment right to freedom of speech does not go so far as to grant a person a privilege to mislead the public by means of false commercial advertising," Lynch v. Blount, supra, at p. 694.

The statement by the Lynch Court quoted and relied upon by Respondent is clearly correct but there is another facet of the situation which must be considered. This factor is that misrepresentations are made in various ways. As the Court said in Donaldson v. Read Magazine, supra, at 188:

"Advertisements as a whole may be completely misleading although every sentence separately considered is literally true. This may be because things are omitted that should be said ***."

The above language is applicable to the instant case, although there are also explicit false representations in the advertisement. What has been omitted from Respondent's sales literature is the fact that SANS EGAL will cause the disappearance of only small, fine-line creases in the face or other areas to which it is applied. It is beneficial for skin dryness, but worthless to anyone who has noticeably sagging jowls or sizeable bags under the eyes. Thus, there are in Respondent's advertising matter misrepresentations resulting from saying both too much and too little. As it was stated in United States v. 95 Barrels of Vinegar, 265 U.S. 438, 443 (1924), and quoted in Virginia State Board of Pharmacy, et al. v. Virginia Citizens Consumer Council, Inc., et al., 425 U.S. 748, 771-2 (fn 24) (1976):

"It is not difficult to choose statements, designs and devices which will not deceive."

The representations herein found to be made by Respondent are material representations and they are false as a matter of medical fact.

When, as here, a product is offered to the public on the basis of representations that the product will produce far more in terms of benefits than actually will, or can, result from its use, that product is misrepresented, and materially so. A better statement of this proposition is found in Borg-Johnson Electronics v. Christenberry, 159 F. Supp. 746, 751 (1959) in the following language:

"When it appears that an advertiser deliberately induces its patrons to purchase its product in the belief that its value far exceeds its true worth it is sufficient to support a finding that a fraudulent ^3/ scheme was being conducted. Leach v. Carlile, 1922, 258 U.S. 138, ***. This is so, even where there is a promise to refund the purchase price should the article sold prove unsatisfactory. Farley v. Heininger, 70 App. D.C. 200, 105 F.2d 79, 84, cert. den. 1939, 308 U.S. 587, 60 S. Ct. 110, 84 L.Ed. 491."

Proposed findings of fact and conclusions of law submitted by the parties have been considered and they are adopted to the extent heretofore indicated. Otherwise, such proposed findings of fact and conclusions of law are rejected because they are contrary to or unsupported by the evidence or because of their immateriality.

On the basis of the entire record in this proceeding, it is concluded as a matter of law that the Respondent is, as charged, engaged in conducting a scheme or device for obtaining money or property through the mail by means of false representations within the meaning of 39 U.S. Code 3005.

An order in the form attached hereto should be issued under 39 U.S. Code 3005 against this Respondent.

William A. Duvall

Chief Administrative Law Judge

____________________

1/The words "the cause of" appear to have been inadvertently omitted from the Answer.

2/ 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)

3/Respondent here is charged only with false representation, and not with fraud.