In the Matter of the Complaint Against DERMA-DIET, P. O. Box 906 at San Mateo, California 94403 P.S. Docket No. 5/171 07/21/77 Duvall, William A. Chief Administrative Law Judge Daniel S. Greenberg, Esq. Law Department United States Postal Service Washington, D. C., for Complainant Ms. Wilma Brewster 3214 Hacienda Street, San Mateo, California, for Respondent Before: William A. Duvall, Chief Administrative Law Judge
This proceeding was initiated on May 3, 1977, when the Consumer Protection Office of the Law Department of the United States Postal Service, the Complainant, issued a Complaint in which it alleged that Derma-Diet, P. O. Box 906, San Mateo, California, the 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 is an advertisement of the type used by the Respondent and a copy of that advertisement is attached to this decision as Appendix A.
The charges that were set forth in the Complaint, which will be discussed at greater length hereinafter, are attached to this decision as Appendix B.
An answer to the Complaint was received over the signature of Wilma Brewster on May 16, 1977. This letter which constitutes the answer is a general denial of the charges set forth in the Complaint. Later, in response to a request from the Respondent, it was indicated that the hearing would take place in San Francisco, on June 23, 1977. At the hearing the exhibits, which constituted a documentation of the events involved in the purchase of the product from the Respondent by the Complainant, were received in evidence. It is the test correspondence procedure in the course of which the investigating postal inspector notices an advertisement in a publication. He, through a test name at a different location, orders the product. It is received and the inspector then turns the product over either to a doctor for medical advice or he delivers the product to the Office of the General Counsel for Postal Service, who in turn obtains medical advice with respect to the product. These exhibits were introduced in evidence as Exhibit Nos. C-1 through C-9.
Testifying as an expert medical witness for the Complainant was Dr. Theodore A. Tromovitch, a Doctor of Medicine, who is Board certified in dermatology. Dr. Tromovitch graduated from the medical school at Boston University. He interned at San Francisco General Hospital and he had residencies in Tulane and New York University Hospitals. He then had two years in the Air Force as a dermatologist, and he worked an additional two years under a grant from the federal government in the field of cancer.
From this recitation it is obvious that Dr. Tromovitch is well qualified to testify with respect to the matter under consideration in this proceeding, and the Respondent has acknowledged that the Respondent so recognizes Dr. Tromovitch.
The first charge in the Complaint is that the Respondent falsely represents that Derma-Diet will erase wrinkles, pock marks, acne pits and stretch marks from the user's face if the individual uses the product involved in this case, as directed. The very words, "Erases wrinkles, pock marks, acne pitts (sic), stretch marks," are present in the advertisement used by the Respondent. There is, therefore, no question but that the Respondent does make this particular representation.
The second charge is that repeated use of Derma-Diet would produce cumulative results. From this advertisement, which is Appendix A to this decision, there is this phrase, "Restores elasticity." So this language clearly indicates to the reader that the use of this product has some restorative effect and if it has that restorative effect then it clearly would produce cumulative results, as indicated in the Complaint.
Other language in the advertisement used by this Respondent is as follows: "Great new break-through by cosmetic nutritionist can now give you continuous and progressive skin revitalization." This language, in addition to providing support for the second charge, discussed immediately above, clearly provides ample basis for charging that the Respondent represents that this product will effect its claimed beneficial results because it is a product of newly discovered scientific principles. That is what the words, "new break-through," suggest.
The Courts have held many times that advertising literature is to be interpreted in the light of the effect the advertisement would most probably produce on ordinary minds. This rule of interpretation is found, among other places, in the cases of Donaldson v. Read Magazine, 333 U.S. 178, at pages 188 and 189; and Durland v. United States, 161 U.S. 306, pages 313 and 314. Also, it has been said that laws are made to protect the trusting as well as the suspicious. That language is found in Federal Trade Commission v. Standard Education Society, 302 U.S. 112 at page 116. The application of that rule to the advertising language used by this Respondent leads inevitably to the conclusion that the Respondent does make the representations which are set forth in the Complaint.
The next question is whether these representations are true or false and this is the area in which Dr. Tromovitch expressed himself clearly and unequivocally on this record. Wrinkles are caused by advancing years associated with the cumulative effects of sunlight damage. the sunlight is injurious to the dermis of the skin and some think, also, that wrinkles are, at least in part, the result of frowning. The methods of treatment followed by the medical profession, when wrinkles are present, are primarily three. The first is surgical face lift, which is a procedure by which the skin is stretched so that the wrinkles are pulled out of the tissue. The second method is a chemical peeling process in which carbolic acid and other chemicals are used to remove some of the surface tissue of the skin. The third procedure is dermabrasion, a process in which wire brushes or diamond wheels or other similar instruments are used.
It was the testimony of the medical expert that medical science, even with all of these procedures available, can not remove wrinkles completely. When asked for a statement as to the effect of the use of Respondent's product by a person who had wrinkles, the doctor replied that it would have the same effect as any oil which would produce a temporary moisturizing effect. The skin, in many instances, would look a little less wrinkled. This would not be a permanent effect and it would not last beyond a few hours. In an example the doctor said that if 100 women were taken and told to apply this cream to one side of the face and not to apply it to the other, that the percentage of women who would be benefited by this procedure would not exceed five per cent. In those cases in which the women were benefited the effect would not be on the wrinkles, but the effect would be only upon the appearance of the wrinkles and that benefit would be very transient in nature, not extending beyond a matter of a few hours.
Pock marks are depressed scars which, in some cases, result from a previous illness of chicken pox or small pox and some are due to the scars of acne. Acne marks have the same shape as those scars left by chicken pox and small pox, but acne is a condition which destroys the cirium of the skin and produces the depressions in the skin. The method of choice of the medical profession in the cases of pock marks is dermabrasion, and there, again, that method for treatment is not 100 per cent successful.
If a person attempts to use this Respondent's product on pock marks he is doomed to disappointment because it would have no effect in the direction of erasing those pock marks. What has been said with respect to pock marks is also true with respect to the treatment of acne pits. One alternative that the profession may offer for people with acne pits is that they could remove the depression of the skin by surgery, but that person would have to be willing to accept in exchange for the acne pit a slight scar, which would protrude from the surface of the skin. Again, the effect of the use of the product in this case by persons who have acne pits on their skin would be nothing in terms of removal or erasure of the pits.
Stretch marks result from the stretching of the skin in pregnancy, or they occur at times with people who are overweight, or they sometimes occur in persons who have experienced too rapid growth. Technically, it is the stretching of the skin beyond the skin's ability to return by virtue of its own elasticity to its original shape. The use of Respondent's product on stretch marks would provide no beneficial effect to the user.
The only deleterious effect that might follow from the use of the Respondent's product would be a possible allergic reaction. This would happen in a very small number of cases.
There is no cumulative benefit from repeated use of Respondent's product.
Dr. Tromovitch testified that since vitamins were discovered they have been used singly and in various combinations on the skin to determine if they would have a beneficial effect in conditions such s have been discussed heretofore, but they have been found to be without benefit in these situations. Therefore, there is no newly discovered scientific principle which has produced the product that is being sold by this Respondent.
The Respondent argues that she has done nothing wrong despite the fact that the Respondent heard the testimony of the medical expert that her product will not accomplish the results which she promises in her advertising material.
The Respondent has stated that she sells her product under an absolute money back guarantee and that this negates any intent to deceive or any purpose of misrepresenting her product to any individual.
The Courts have also addressed this subject. In the case of Borg-Johnson Electronics v. Christenberry, 169 F. Supp. 746 at page 751, the United States District Court for the Southern District of New York stated in 1959 that:
"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 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."
The owner of the Respondent also said that the Respondent does not sell the product for pock marks in people who have had small pox, but that nevertheless the skin of such a person never fails to respond. That statement is made in the face of the testimony of a medical expert who stated that that kind of a feature of the skin simply will receive no benefit from the use of the Respondent's product.
In view of the medical testimony which is in this record, and which is unopposed by any competent testimony of any sort on this record, it is found as a fact that the claims heretofore found to have been made by this Respondent for its product are false and materially false as to matters of medical fact.
Upon the basis of all of the foregoing considerations it is concluded, as a matter of law, that the Respondent is engaged, as charged, 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.
Accordingly, an order of the type provided for in 39 U. S. Code 3005 should be issued against this Respondent.
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