In the Matter of the Complaint Against VITAL NUTRIENTS, P. O. Box 1082 at Southgate, Michigan 48195 P.S. Docket No. 5/161 07/21/77 Sobernheim, Rudolf Administrative Law Judge APPEARANCES: Thomas A. Ziebarth, Esq. Consumer Protection Office Law Department U. S. Postal Service Washington, D. C. 20260 for Complainant Mr. R. E. Gumen 1/ 14162 Ziegler Taylor, Michigan 48180 for Respondent
This is a proceeding 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 lotion called "Vanish Plus". Specifically complainant in paragraphs (2) and (3) of the complaint alleges that respondent through the use of an advertisement (Compl. Ex. 1) makes representations, directly or indirectly, in substance and effect, whether by affirmative statements, omission or implication, as follows:
"(a) VANISH PLUS will work instantly 'to smooth out rugged stretch marks and renew faded and discolored skin';
(b) VANISH PLUS will cause ugly stretch marks to 'vanish in minutes'; and
(c) VANISH PLUS will 'remove stretch marks forever.'"
Complainant further alleges in paragraph (4) of the complaint that these representations are false and materially so.
Respondent filed an answer to the complaint admitting the use of the advertisement and the receipt of a few orders in response thereto. It further alleged that its advertisement was patterned after advertisements of competitors and that, since it attracted only a few orders, it abandoned its use in November 1976.
Respondent further stated that it could not attend the hearing. The hearing was held on 16 June 1977 and respondent failed to appear. Complainant, in accordance with the rule set forth in 39 CFR 952.11(b), presented evidence in support of the complaint, regarding a test purchase (T 3-6) and the falsity of respondent's representations.
FINDINGS OF FACT
1. Respondent is engaged in the sale of a product called "VANISH PLUS" and receives orders and moneys therefor through the mails.
2. In the sale of its product respondent uses an advertisement reading in essential part as follows (Compl. Ex. 1):
"REMOVE
STRETCH
MARKS
FOREVER
Ugly stretch marks will VANISH in minutes thanks to an amazing new lotion Vanish Plus. This miraculous formula instantly works to SMOOTH out rugged stretch marks and RENEW faded and discolored skin. Yet, Vanish Plus is GENTLE to even the most sensitive skin."
3. A comparison of the representations which respondent is alleged to have made (Compl. par. (3)) with the advertisement used by respondent clearly establishes that it makes the representations charged to it in paragraph (3) of the complaint.
4. In response to his test purchase the postal inspector who had made it received a bottle, labelled "VANISH PLUS" and "STRETCH MARK LOTION" thereunder, containing according to the label 2 fluid ounces of the lotion, described as "nutrient-enriched" and "formulated to help erase and soften ugly stretch marks" (Compl. Ex. 2).
5. Complainant's expert medical witness was a well-qualified physician, employed as a medical officer by the federal Food and Drug Administration (FDA) and assigned to the position of Postal Collaborative Officer since 1971 (see Compl. Ex. 3).
6. The witness testified that the lotion "VANISH PLUS" was presumably a moisturizer commonly used in cosmetics to retain moisture in the skin and that he knew of "no such thing as a nutrient for the skin" (T 8).
7. The witness further testified that stretch marks on the skin are due to rapid weight loss in obese persons and sometimes to obesity itself and in the case of women due to pregnancy but that, except for surgery, there is no way to erase them or smooth them out. For stretch marks are a fracture of the skin and the broken connective skin tissue is not regenerative (T 8-9). At best, small stretch marks can be masked by an opaque layer of an appropriate cosmetic material. But they cannot be removed either temporarily or forever (T 10). The witness concluded his testimony by stating that it represented the consensus of informed medical opinion.
8. The record affords no basis for not accepting the testimony of complainant's expert witness and it is accepted as accurate.
9. Based on the foregoing detailed findings of fact and on the record as a whole I find that the representations made by respondent and forming the basis of complainant's complaint are false and are materially false since they set forth desirable effects of the product on account of which purchasers will be induced to buy the same.
CONCLUSIONS OF LAW
1. Respondent is engaged in a scheme or device to obtain money through the mails by means of false representations in contravention of 39 USC 3005.
2. Accordingly, an order as provided for in 39 USC 3005 and in the form annexed should be issued against respondent.
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