In the Matter of the Complaint Against MAGIC LIFT ZENITH PRODUCTS, and VITAMIN VILLAGE all at 932 N. Main Street Orange, California 92667 P.S. Docket No. 4/42; 10/13/78 Cohen, James A. APPEARANCE FOR RESPONDENT: Marvin Jabin, Esq. B701 South Atlantic Boulevard Monterey Park, California 91754 APPEARANCE FOR COMPLAINANT: Sandra C. McFeeley Consumer Protection Office Office of General Counsel U.S. Postal Service Washington, D. C. 20260
The Consumer Protection Office, Law Department United States Postal Service, hereinafter referred to as Complainant, has filed a petition for mail stop order based upon breach of a Consent Agreement entered into on November 14, 1975, on behalf of Respondent, Hazel Enterprises, Inc., by its principal officers. The petition alleges that Hazel Enterprises, Inc., Zenith Products, and Vitamin Village, at 932 N. Main Street, Orange, California 92667, are engaged in the conduct of an enterprise through the mails in violation of the terms of the Consent Agreement. Complainant sought in the petition an interim order as described in section 4(b) of the Consent Agreement, which was issued by Acting Judicial Officer William A. Duvall on April 6, 1978.
Respondent filed a reply denying the allegations of the petition.
The parties have executed and filed a stipulation which resolves certain of the factual issues initially raised in this proceeding. The issues remaining in dispute relate to the circumstances under which the advertisements identified as Exhibits 1A and 1B to the petition were sent to a Postal Service inspector and whether the exhibits make representations which, under the terms of the Consent Agreement, Respondent agreed to discontinue.
The parties have filed a Consent Agreement applicable by its terms to Vitamin Village, along with a motion to indefinitely suspend further proceedings with respect to that named Respondent only. Accordingly proceedings with respect to Vitamin Village are indefinitely suspended.
1. The Consent Agreement alleged to be breached provides that Respondent will permanently discontinue representations that its product Magic Lift will:
a) give the user the appearance of being ten to twenty years younger;
b) make wrinkles vanish;
c) be as effective as cosmetic surgery for making wrinkles vanish and giving the appearance of being ten to twenty years younger; and
d) with repeated use will have a cumulative effect to make wrinkles vanish and give the appearance of being ten to twenty years younger.
2. Paragraph II of Complainant's Petition has been verified by Inspector C. O. Havens as reflecting his actions with respect to the advertisement and product that are subject of this proceeding. No contradictory evidence has been offered, and I conclude that the advertisements attached to the Petition and identified as Exhibits 1A-1C were sent unsolicited to Alice Castellow, P.O. Box 212, Grand Canyon, Arizona 86023, a test name used by Inspector C. O. Havens.
3. In response to Exhibits 1A and 1B, Inspector Havens made a test purchase and on August 15, 1977, received by mail a parcel addressed to Alice Castellow, P.O. Box 212, Grand Canyon, Arizona 86023, and bearing the return address, Vitamin Village, 932 N. Main Street, Orange, California 92667. The contents of the parcel included a jar labelled "MAGIC-LIFT POWDER COSMETIC FACE LIFT, Net Weight 2oz." The label, directions for use and appearance of the product are identical to the product Magic Lift described in Exhibit A of the Complaint docketed as No. 4/42, July 17, 1975.
4. Complainant asserts that Respondent's revised advertisement, Exhibit 1B, continues to represent that:
a) Magic-Lift will make wrinkles vanish;
b) Magic-Lift will be as effective as cosmetic surgery for this purpose; and
c) the repeated use of Magic-Lift will have a cumulative effect for these purposes.
The precise words "Magic-Lift will make wrinkles vanish" are not found in the advertisement. However, the representation is clear from the use of before and after pictures and from certain language in the body of the advertisement. In paragraph 5(b) (i) of the agreement it was agreed that the interpretation of any advertisement alleged to breach the agreement would "be based upon the overall tenor of the advertisement including...claims of or allusions to the results enumerated in paragraph 1(b)...whether said claims or allusions appear in narrative or pictorial form." At the top of the advertisement are the words "MAGIC LIFT - The Incredible Cosmetic Face Lift" followed by "before and after" pictures. The "before" picture depicts a woman with a rather unhappy countenance which implicitly is due to the fact that her face is very wrinkled. The "after" picture shows the same woman without wrinkles and a much more pleasant facial expression. In the context of Respondent's advertising, these pictures clearly convey to the reader that it was the application of Magic Lift that caused the woman's wrinkles to vanish.
Should any uncertainty about the product's wrinkle-removing powers remain for the reader, it is removed by the following "questions and answers" that appear beneath the pictures:
"Q. I'VE HEARD THAT NOTHING BUT SURGERY CAN REMOVE WRINKLES. WHAT ABOUT IT?
A. That was absolutely true before MAGIC LIFT. And it is still true that only surgery can remove all your wrinkles instantly."
This "question and answer" makes two representations: that Magic Lift will remove (i.e. "vanish") wrinkles, and that Magic Lift is as effective as cosmetic surgery for this purpose. Respondent then goes on to represent that the repeated use of the product will have a cumulative effect for the purpose of removing wrinkles as effectively as cosmetic surgery.
Q. HOW OFTEN SHOULD I USE MAGIC LIFT?
A. Many people use a MAGIC LIFT Facial every day until desired results are obtained, then once or twice a week, or whatever is needed, for a maintenance program." The above quotations from Respondent's current advertisement leave the prospective purchaser to conclude that Magic Lift will take somewhat longer than surgery to remove wrinkles, but will be no less effective.
Upon reviewing the advertisement, its pictures, text and the tenor and thrust of its message, I find as a fact that Respondent has made the representations alleged in paragraph III of Complainant's Petition; namely, that Magic Lift will make wrinkles vanish, that it will do so as effectively as cosmetic surgery, and that repeated use of the product will have a cumulative effect for these purposes.
1. The Consent Agreement of November 14, 1975, sets forth, in paragraph 5, conditions by which issues arising from any alleged breach shall be resolved. Under these conditions it is presumed that Respondent's revised advertisement, Exhibits 1A and 1B, post-dated the date of the agreement (paragraph 5(a) (ii)) and Respondent has submitted no evidence to the contrary.
2. Paragraph 5(b) (i) provides that any advertisement allegedly in breach of the agreement shall be interpreted upon its overall tenor. The average person reading Respondent's advertisements would interpret them substantially as characterized in paragraph III of the Petition.
3. Respondent's revised advertisement was sent by Respondent thorough the mails and solicited money or property from the reader.
4. Respondent continues to conduct a scheme for obtaining money through the mails by means of substantially the same representations agreed to be permanently discontinued by the Consent Agreement of November 14, 1975, thus warranting as to the trade styles Zenith Products and Magic Lift the issuance of an appropriate mail stop order.
Accordingly, the petition is granted and the requested mail stop order is being issued herewith.