In the Matter of the Complaint Against:

 M.K.S. ENTERPRISES, INC. and/or
 GROWING GLORY and/or PRO-B-5,
 50 Bond Street at
 Westbury, NY 11590

 and

 PRO-B-5 DIVISION,
 210 Fifth Avenue at
 New York, NY 10010
 
 P.S. Docket No. 5/121
 
 04/20/77
 
 Grant, Quentin E.; Administrative Law Judge

 Janice Adams, Esq.
 Law Department
 United States Postal Service
 Washington, D.C., for Complainant 

 Charles B. Chernofsky, Esq.
 Weiss, Rothfarb & Kaminsky,
 New York, New York, for Respondents 

 Before: Quentin E. Grant, Administrative Law Judge

By complaint filed January 14, 1977 the United States Postal Service initiated this proceeding in which it is alleged that respondents are engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations in violation of 39 U.S.C. 3005. The complaint alleges that attention is attracted to said scheme by means of advertisements appearing in publications of general circulation and/or direct mail advertising circulars sent to those who respond to such advertisements, all of which are calculated to induce readers thereof to remit money or property through the mails.

There are two products involved in this appeal, "Pro Vitamin B 5 d-panthenol Lotion" (hereinafter sometimes "Pro-B-5") and "Growing Glory Lotion" (hereinafter sometimes "Growing Glory"). The complaint alleges that respondents' advertisements make the following materially false representations with respect to such products:

"A. That the correct application of Respondent's product Pro-B-5 and/or Growing Glory will cause the user to have thicker, stronger, and longer hair;

"B. That Respondent's product, Pro-B-5 and/or Growing Glory, actually causes the hair to grow longer and become stronger because it is absorbed into the individual hair strands and permanently affects their structure;

"C. That Respondent's product, Pro-B-5 and/or Growing Glory, produces the promised results within one week;

"D. That Respondent's product will repair hair damaged by 'chemicals, brushing, teasing, bleaching ...' and will heal split ends;

"E. That Respondent's product will cause the user to have thick, long hair such as that of the model pictured in the advertisement."

On March 1, 1977 a hearing in the matter was held. The evidence of both parties was received. Both parties have submitted proposed findings of fact and conclusions of law.

1. Respondents are engaged in conducting a scheme or device for obtaining money or property through the mails (Ans. 1; Tr. 3; CX-1 through CX-9).

2. The products involved, "Pro-B-5" and "Growing Glory" are hair lotions manufactured and marketed by M.K.S. Enterprises, Inc. through the respondents named in the caption of this matter (Tr. 18, 47; CX-1, 6).

3. The products are identical in composition, i.e., a water solution of Wilson WSP-X250 protein, d-Panthenol (the alcohol analog of pantothenic acid (Vitamin B)), perfume, solubalizing agent, germicidal agents and a coloring agent. The active ingredients insofar as the human hair is concerned are the WSP-X250 and d-Panthenol (Tr. 18, 19). The directions on each product are for application to the hair daily and after shampooing (CX-1, 6). Because the products are identical in content they are sometimes hereinafter referred to as the product.

4. Dr. Vincent A. Cordaro, a medical doctor employed by the Food and Drug Administration (Dept. of HEW), testified for complainant. Dr. Cordaro described human hair as a growth, or dead extrusion, of the hair follicles. When asked whether human hair can be thickened, strengthened, or made to grow by the topical application of any product, Dr. Cordaro answered that hair, being a dead tissue, cannot be affected by anything added to the hair shaft itself (Tr. 7). However, he stated that a protein formula, used in many cosmetics today, would adhere to the hair and enter into spaces in the hair shaft creating an illusion of thickness but with no actual effect on the hair. He also testified that if a protein formula is thick enough it can bring split ends of hair together, but will not actually heal damage to the hair (Tr. 9-12). With respect to d-Panthenol, Dr. Cordaro stated that a vitamin applied topically to the hair will have no effect on the hair tissue (Tr. 13). Dr. Cordaro had conducted no tests on the products or tests for the effects of topical applications to hair. He testified that the opinions he expressed were based on information gained from books on dermatology, cosmetics, and chemistry but was unable to supply the titles thereof (Tr. 14-16). According to Dr. Cordaro the opinions expressed by him are consistent with the consensus of informed medical opinion (Tr. 13).

5. Respondents' witnesses were Irwin Thaler, executive president of M.K.S. Enterprises, Inc., and Stanley Scharf, an employee of Estee Lauder, a firm in the cosmetics business. Both Mr. Thaler and Mr. Scharf are cosmetic chemists with many years of experience as research and development chemists and production chemists for large cosmetic and drug companies (Tr. 17, 59, 60).

6. According to Mr. Thaler, he based his work in developing the product on literature of Hoffman LaRoche Inc., a leading pharmaceutical company, concerning the use of panthenol in hair products (Tr. 19; RX-1) and a technical document concerning protein research published by Wilson Protein Technology, a division of Wilson Pharmaceutical and Chemical Corp., which according to Mr. Thaler is a reputable, large pharmaceutical company (RX-2; Tr. 26, 46, 47).

The Hoffman LaRoche literature reported findings of an independent research laboratory, supported by scanning electron microscopy (SEM), that soaking of normal, cuticle covered hairs in aqueous solution of panthenol for 3 minutes, followed by air drying for 30 minutes resulted in swelling or thickening of the hair up to 10 percent. The literature also reported findings, supported by the SEM technique, that treatment of damaged hair with an aqueous solution of panthenol showed improvement and mending of damaged areas with some degree of repair remaining even after vigorous combing. This literature stated that panthenol penetrates into the hair shaft, leaving a thin elastic film outside and inside the hair shaft providing pliability from the inside and lustre on the outside. Based on the findings reported therein, the Hoffman LaRoche literature recommended that panthenol should receive prime consideration for inclusion in hair products.

Mr. Thaler testified that d-Panthenol cures split ends in that it puts them together; it corrects the condition. He also testified that d-Panthenol as applied to the hair is both adsorbed and absorbed into the hair shaft and after repeated washings is not removed, thereby showing the quality of substantivity (Tr. 22, 23).

7. For the effect of the protein WSP-X250 on the hair, Mr. Thaler referred to the Wilson Protein Technology report (RX-2). This report stated that WSP-X250 is the most substantive protein available to the cosmetic chemist, based on tests for sorption of the protein into the hair. The report also states that "This proof of sorption was needed because if the protein was not substantive, it would be impossible for it to impart any true beneficial effects" to the hair . Another conclusion arrived at in the report is that the greater the hair damage from various causes such as bleach the greater the amount of protein sorbed.

Finally the Wilson report concluded that the absorption of protein into the hair results in thickening effect, reduction of split ends, and increased tensile strength all of which were shown in photographs, determined analytically, or by tests. The test for tensile strength was performed with an instrument called instrumtensiometer (Tr. 24).

8. Mr. Thaler testified that the WSP-X250 would cause the hair to thicken; to become stronger; would allow the hair to grow longer by reducing breaks but would not cause the hair to grow; would be absorbed into the individual hair strands, thus permanently affecting their structure by permanent chemical or physical bonding; that it will repair damage produced by chemicals, brushing, teasing and bleaching (Tr. 29-33, 51, 53, 54).

9. According to Mr. Thaler the testimony he gave concerning the Hoffman LaRoche and Wilson literature reflects the state of the art, what is being done in the cosmetic industry today (Tr. 56, 57).

10. Mr. Scharf's testimony was essentially cumulative of that of Mr. Thaler. He emphasized that his knowledge that the product works with respect to thickening, strengthening and lengthening hair and repairing split ends and other damage is based on work he has done as a cosmetic chemist for various cosmetic companies (Tr. 61). He testified that Clairol produces a similar product in which he was directly involved.

11. Through Mr. Scharf respondent introduced additional literature concerning the substantivity of certain proteins (collagen-derived polypetides) to human hair (RX-4) and the cosmetic effects of substantive proteins (RX-5). These studies support the opinions of Mr. Thaler and Mr. Scharf as to the sorption of protein in human hair and the substantivity of protein to human hair. Sorption is the taking up and holding by either adsorption or absorption. Substantivity is the capacity of a substance to be sorbed to a surface (RX-4, p. 2).

12. Mr. Scharf testified that the study introduced as RX-5 shows by photographs that protein treatment causes hair to become straighter, with fewer tangles (Tr. 70).

13. In Mr. Scharf's opinion use of the product involved in this proceeding would cause the user to have thicker (Tr. 62, 67), longer (Tr. 65) and stronger hair (Tr. 62, 64, 67). It would not cause the hair to grow but would allow it to grow longer by causing it to be less prone to breakage (Tr. 65). In his opinion the product would permanently affect the structure of the hair (Tr. 73). Further he stated that the product would produce results within one week (Tr. 73). Finally, he expressed the opinion that the product will repair hair damaged by chemicals, brushing, teasing, and bleaching (Tr. 73) and would heal split ends (Tr. 67, 68). His testimony reflects the present state of the science in hair technology (Tr. 73).

1. Donaldson v. Read Magazine, 333 U.S. 178 (pp. 188, 189) has the following to say concerning the matter of advertising representations:

"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, or because advertisements are composed or purposefully printed in such way as to mislead. Wiser v. Lawler, 189 U.S. 160, 264; Farley v. Simmons, 99 F.2d 343, 346; see also cases collected in 6 Eng. Rul. Ca. 129-131. That exceptionally acute and sophisticated readers might have been able by penetrating analysis to have deciphered the true nature of the contest's terms is not sufficient to bar findings of fraud by a fact-finding tribunal. Questions of fraud may be determined in the light of the effect advertisements would most probably produce on ordinary minds. Durland v. U.S., 161 U.S. 306-313, 314; Wiser v. Lawler, supra at 264; Oesting v. U.S., 234 F. 304, 307. People have a right to assume that fraudulent advertising traps will not be laid to ensnare them. 'Laws are made to protect the trusting as well as the suspicious.' Federal Trade Commission v. Standard Education Society, 302 U.S. 112, 116."

In the case of Vibra-Brush Corporation v. Schaffer, decided by the United States District Court for the Southern District of New York, 152 F. Supp. 461, 465, the Court said:

"It is not each separate word or a clause here and there of an advertisement which determines its force, but the totality of its contents and the impression of the entire advertisement upon the general populace. *** The ultimate impression upon the reader results not only from the total of what is stated but also from what is reasonably implied."

The Court in G.J. Howard Company v. Cassidy, 162 F. Supp. 568, 572 said:

"It is the net impression which the advertisement is likely to make upon purchasers to whom it is directed which is important, and even if an advertisement is so worded as

not to make an express misrepresentation, if it is artfully designed to mislead those responding to it the mail fraud statutes are applicable. Cates v. Haderlein, 7 Cir. 1951, 189 F.2d 369, 373, reversed on other grounds 1951, 342 U.S. 804, 72 S. Ct. 47, 96 L. Ed. 609."

Applying the foregoing authorities to the interpretation of the advertisements in question here, I find and conclude as follows:

a. As alleged in the complaint and as admitted by respondent (Proposed F of F, p. 2) the advertisements represent that the correct application of the products will cause the user to have thicker, stronger, and longer hair.

b. As alleged in the complaint and as admitted by respondent (Proposed F of F, p. 3) the advertisements make the representation that the products will cause the hair to become stronger because they are absorbed into the individual hair strands.

c. That the advertisements for both products make the representation that they will cause the hair to grow longer. This representation is found particularly in the photographs of models with waist-length or longer hair and in the following wording:

" *** LONGER HAIR *** So it grows better and longer everyday" (CX-2, Growing Glory)

" *** new provitamin B-5 is actually absorbed into the hair to give you *** longer hair ***"

A close, analytical reading of the advertisements may lead one to the conclusion that the ads represent that the products will allow, rather than cause, growth. But the representation that the products cause growth is that which would most probably be found by ordinary minds.

d. That the advertisement for Pro-B-5 represents that the promised results will be produced within one week. This representation is found in the wording "Just try Pro B-5 vitamin formula for one week *** You will notice the remarkable beautifying difference immediately ***".

The advertisement for Growing Glory does not make the same representation.

e. That the advertisements for both products represent that they will heal split ends but that only the advertisement for Pro-B-5 represents that the product will repair damage caused by chemicals, brushing, teasing and bleaching.

f. That the advertisements for both products represent that they will cause the user to have thick, long hair such as that of the model pictured therein. This representation is found in the combination of the pictures and the promises as to growing and lengthening of the hair.

3. Complainant has sustained its burden of proving the material falsity of the following representations:

a. That the products will cause the hair to grow longer. Respondents' witnesses testified that the products will not cause the hair to grow longer.

b. That the products will heal split ends. The proof is that the products will help to bring split ends together but there is no evidence that this is a true healing, healing being defined as making whole, curing, or restoring to original integrity (see Webster's Third New International Dictionary).

c. That the products will cause the user to have long hair such as that of the models pictured in the advertisements.

4. There is substantial evidence that the products will cause the user to have thicker and stronger hair; that it will permanently affect the structure of the hair; that the products will produce thickening and strengthening of the hair within one week; and that they will repair hair damaged by chemicals, brushing, teasing and bleaching. In the latter connection, I find that "repair" is not synonymous with the term "heal" as the latter is defined above. Rather, the word repair means to put together what is torn or broken. Respondent's evidence shows that the products do repair damaged hair in that sense of the word.

Complainant has not sustained its burden of proving that the foregoing representations are false.

5. Based on the conclusions reached in paragraph 3, above, and the evidence in support thereof, I find that respondents are engaged in conducting a scheme for obtaining money or property through the mails by means of materially false representations in violation of 39 U.S.C. 3005.

6. Respondent has moved to amend the caption of the complaint to eliminate any reference to M.K.S. Enterprises, Inc. on the ground that such respondent has not placed any advertising for the products involved here. The return address on the package in which the products were mailed in this case is that of respondent M.K.S. Enterprises, Inc. The propriety of including in a proceeding of this nature a respondent whose name is used as a return address when mailing out products in response to orders based upon advertising found false has been upheld in Shore Products, P.S. Docket No. 5/97 (Postal Service Dec., Feb. 1, 1977). Accordingly, respondent's motion is denied.

7. Based on the foregoing findings of fact and conclusions of law an order pursuant to 39 U.S.C. 3005 should be issued against respondent under the names contained in the complaint herein.