In the Matter of the Complaint Against

 NUTRIENT LABORATORIES, INC.
 P. O. Box 80308 at
 Chamblee, Georgia 30341 and
 P. O. Box 4283 at
 New Windsor, New York 12550 and
 P. O. Box 81105 at
 Atlanta, GA 30366 and
 P. O. Box 95543 at
 Atlanta, Georgia 30347 and
 P. O. Box 2511 at
 Newburgh, New York 12550

 P.S. Docket No. 5/48;  
 
 06/20/77
 
 Lussier, Edward F.  

 APPEARANCES FOR COMPLAINANT:
 Daniel S. Greenberg, Esq.
 Law Department
 United States Postal Service
 Washington, D.C.

 APPEARANCES FOR RESPONDENT:
 Jack Paller, Esq.
 Lee H. Harter, Esq.
 Katz, Paller & Land
 Atlanta, Georgia

The instant proceeding is before the undersigned upon the motion of the Respondent, Nutrient Laboratories, Inc., to modify the mail-stop order issued against it on February 1, 1977. The history of the case may be summarized quite briefly. In July 1976 a Complaint was docketed alleging that Respondent was 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. Code § 3005. The case was processed in accordance with the applicable Rules of Practice in such proceedings, 39 C.F.R. Part 952, and after a hearing before Administrative Law Judge Quentin E. Grant an Initial Decision was issued by him recommending issuance of a mail-stop order under 39 U.S.C. § 3005. Respondent appealed the Initial Decision to the undersigned as permitted by the referenced Rules of Practice and I issued a final Postal Service Decision upholding the Initial Decision on February 1, 1977. Contemporaneously with the issuance of that decision, I issued Mail-Stop Order No. 77-5.

This stop order, as all mail-stop orders, identified the particular scheme, in this case the sale of a product called "The Skin Vitamin," and contained the standard instructions for return of mail to senders. Respondent then filed a motion for modification of the mail-stop order accompanied by a motion, which I granted, to detain, rather than return, the mail until the motion for modification had been acted upon. Thereafter both parties filed additional pleadings, affidavits and arguments. It does not appear that either party desires to file anything more and the motion for modification of the stop order is ready for decision on the record as presently constituted.

By way of introduction, and stated in simplest terms, Respondent objects to the mail-stop order affecting any mail which it can show is related to the sale of its product resulting from direct mail advertising which it instituted after filing of the Complaint and which was not an exhibit in the administrative hearing leading to the stop order. Further, it objects to the mail-stop order precluding it access to mail which involves a multiple order, i.e., an order for "The Skin Vitamin" which includes an order for other product(s). Complainant opposes the modification on both points.

Respondent's Motion for Modification of the stop order attached copies of the magazine advertisement which was in evidence in the administrative proceeding, and the direct mail advertisement, which was not in evidence in the administrative hearing. For ease of reference there are attached hereto as Exhibits "A" (the magazine advertisement), "B" (the direct mail advertisement), and "C" (the envelope for the direct mail advertisement). The motion contends that the direct mail advertisement does not contain any fact alleged to have been misrepresented in the administrative proceeding.

In support of its motion Respondent filed an affidavit of Mr. Jack Leary, president of Nutrient Laboratories, Inc., attesting to the fact that the direct mail advertisement attached to the motion does not contain anything objected to in the original Complaint and was "the only information which the mailer customer receives, nothing more nothing less." He further attests that the direct mail advertising was not sent to anyone who "received the objected advertising". Thereafter Respondent filed an amendment to its motion pleading that through inadvertence and oversight there were certain errors in the affidavit of Jack Leary, the principal one being the failure to mention that a mailer insert was enclosed. For ready reference a copy of that mailer insert is attached hereto as Exhibit "D". A second part of the amendment to the motion requested that multiple orders be released to Respondent for filling that portion of the order other than the Skin Vitamin capsules.

Complainant's Reply to the Motion for Modification, as amended, contends that the direct mail advertising continues the representation found false in the administrative proceeding, namely, that ingestion of the tablets will improve the appearance of the skin of most users. It further alleges that the advertisements are sent to persons who have previously ordered the product and have, therefore, been influenced by the earlier advertisements. In support of the latter contention Complainant attached an affidavit of a postal inspector attesting that the direct mail advertising was sent to the same fictitious name and address used by him to respond earlier to the magazine advertisement. Complainant further objected to releasing multiple orders to Respondent but stated its willingness to have the postmaster indicate on the returned mail which item was found to be falsely represented.

Next, Respondent filed a further pleading requesting immediate release of all detained mail related to the direct mail advertising, contending that there is no authority to hold such mail and further that should the direct mail advertising be found by the Judicial Officer to continue the false representations that decision can have only prospective effect. It added the further argument that there is no proof that the product being sold by the direct mail advertisement is the same product being sold by the magazine advertisement. Finally, it amplified its motion for access to multiple order mail to argue that failure to turn such mail over to Respondent was a deprivation of due process of law. Complainant's Reply to the last mentioned motion takes issue with it on all points.

There has been ample time and opportunity for the parties to argue the basic issue of whether the representations contained in Respondent's direct mail advertising continue any representations found false in the administrative proceeding. Respondent has chosen to concentrate on its other contentions, which will be taken up in due course. Complainant appears to rely principally on the mailer insert although it submits that the very name of the product carries with it the false representation referred to previously. The matter does not require lengthy discussion or detailed analysis. It is clear from a comparison between the advertisements that the direct mail advertisement continues the representation, found false in the administrative proceeding, that ingestion of the tablets will improve the appearance of the skin of most users. That the representation was made by the magazine advertisement was admitted by Respondent in its answer to the original Complaint. As I view the direct mail advertising, Respondent conveys the same representation through the use of testimonials in the direct mail advertisement that it did in the magazine advertisement through use of narrative.

Respondent's concern evidenced by the Leary affidavit attesting to his strict adherence to avoid sending the direct mail advertisement to those who responded to the magazine advertisement, apparently to avoid the possible taint of the earlier advertising, was, to say the least, inappropriately executed in practice. Sending the direct mail advertisement to the same name and address used by the Postal Inspector, and in evidence in the administrative proceeding, is fair indication of that fact. Moreover, the use of the same company name, the same trade name of the product, and the same mailing address would all tend to cause an identification in the perspective purchaser's mind with the previous advertising. However, establishment of such a nexus is not necessary here where the direct mail advertisement, standing alone, so clearly contains the same flaw as the former magazine advertisement.

The statute upon which the mail-stop order is premised is 39 United States Code § 3005 which reads in pertinent part as follows:

"? 3005. False representations; lotteries

"(a) Upon evidence satisfactory to the Postal Service that any person is engaged in conducting a scheme or device for obtaining money or property through the mail by means of false representations, or is engaged in conducting a lottery, gift enterprise, or scheme for the distribution of money or of real or personal property, by lottery, chance, or drawing of any kind, the Postal Service may issue an order which--

"(1) directs the postmaster of the post office at which mail arrives, addressed to such a person or to his representative, to return such mail to the sender appropriately marked as in violation of this section, if the person, or his representative, is first notified and given reasonable opportunity to be present at the receiving post office to survey the mail before the postmaster returns to the sender; and

"(2) forbids the payment by a postmaster to the person or his representative of any money order or postal note drawn to the order of either and provides for the return to the remitter of the sum named in the money order or postal note.

* * * * * * *

The action of the local postmaster in carrying out the order is basically ministerial. The mail-stop order applies to mail to a named addressee at the specific address shown to have been used in connection with the false representation scheme and concerning the product being sold. All the postmaster has to ascertain is that the incoming mail is addressed to that name and address. Unless it is clear from the face of the envelope or, if the Respondent chooses to open it within the temporary holding period, from the contents, that it has nothing to do with the sale of the product which has been falsely represented, it is returned to the sender appropriately marked. Requests for refund or return of merchandise are given to the addressee.

To require the postmaster to make a judgment as to whether mail is in response to advertisements which contain false representations is not advocated by either party and is clearly impractical. What Respondent urges in effect is that unless the mail is in response to the magazine advertisement which was in evidence in the administrative proceeding, the mail-stop order cannot apply to it. Thus it would have it that any order for "The Skin Vitamin" shown, by virtue of the order blank and envelope, to be related to the direct mail advertisement must be released to it even if that advertisement continues the false representations and that my decision so holding has applicability and effect only on mail received in the future.

The theory does not withstand close analysis. To begin with it requires the presumption that the purchaser was not influenced by the false representations in the magazine advertisement. Secondly, it would permit the scheme, already found to be in violation of the statute, to continue unabated, absent resort to a court order, whenever there is a consecutive string of repetitive advertisements differing in any respect whatsoever from the original. To so limit the scope of the mail-stop order would effectively destroy the very protection to the public that it is intended to provide. It would make almost as much sense to say that once an order is issued a Respondent need only allege that it has changed the ingredients in its product and, therefore, pending the outcome of the decision on that issue the mail-stop order should not apply and it should receive all orders.

On the contrary, once the false representation scheme has been established under the statute and related administrative procedure and the mail-stop order has been issued forbidding in effect Respondent's further use of the mails to reap the benefits of the false representations, the burden shifts. If Respondent can show that it has reconstituted the product so that the representations are no longer false or that the orders are not tainted by the representations charged in the Complaint and found false in the administrative proceeding the stop order will be revoked or modified as appropriate. 39 CFR § 952.29 specifically provides for a Respondent moving for modification or revocation of a mail-stop order and, as here, the questionable mail can be detained pending outcome of the decision on the matter.

Respondent relies upon the case of Kirby v. Shaw, 358 F.2d 446 (1966) for its right to continue to receive orders for the product despite the prior proceeding until a final decision is rendered finding the direct mail advertising continues the misrepresentations. However, in Kirby both the facts and the problems were quite different. There a mail-stop order had been issued and thereafter the Postal Service sought a supplemental order to extend the original order to add a new named promoter and a new named product. Since the order was being sought to be amended, Complainant as proponent of the order was held to have the burden of proof. There was a material issue of whether the products were identical upon which the promoter requested, and was denied, the opportunity to present specified scientific proof. The case is clearly distinguishable and not controlling.

Respondent has not shown that the stop order should be modified to permit it to receive delivery of orders for "The Skin Vitamin" in envelopes related to the direct mail advertisement. It has not alleged or offered to show that the orders involve a product other than the one which was the subject of the administrative proceedings. It has not shown why it should be entitled to receive the mail simply because it uses multiple order forms. In this latter connection, see Rejuvnir, Inc., P.S. Docket No. 3/105, M/R January 30, 1975, and Rejuvnir v. USPS, Civil Action 75-182 (D.C. D.C. 1975).

Neither party has seen fit to enlighten the undersigned as to the extent of the problem regarding multiple orders. Complainant's counsel has, however, orally advised me that Respondent's counsel has requested that any decision adverse to Respondent be stayed to permit an opportunity to seek judicial review. Accordingly, the following is ordered:

1. Respondent's motion for modification of the mail-stop order is denied.

2. Respondent's motion for immediate release of it of the mail received by the postmaster prior to this decision is denied.

3. Respondent's motion for release of multiple orders to it is denied.

4. The mail will be detained for an additional 20 days within which time Respondent may seek judicial review of this decision and failing such the mail will be returned. If, during that 20-day period, given all of the pertinent surrounding facts and taking into account the full protection of the public and avoidance of

unnecessary workload to the postmaster, a reasonable procedure can be demonstrated for the handling of multiple orders, the undersigned will consider an appropriate modification of the stop order.