In the Matter of the Complaint Against ALL PRODUCTS UNLIMITED, INC. Post Office Box 162 and Post Office Box 370-162 Buena Vista Station at Miami, FL 33137 P.S. Docket No. 6/43 03/29/78 Duvall, William A. APPEARANCES: H. Richard Hefner, Esq. Law Department United States Postal Service Washington, D.C. 20260 For Complainant, Donohue, Kaufman, Shaw, Kligman & Shapiro By Theodore Kligman, Esq. 503 D Street, N.W., Washington, D.C. 20001 For Respondent
This matter is on appeal from the Initial Decision of Administrative Law Judge Quentin E. Grant recommending the issuance of a mail stop order under the provisions of 39 United States Code § 3005. Respondent has filed an AppealBrief setting forth its exceptions to the Initial Decision and Appellant has filed a Reply Brief.
Respondent takes exception to the following Finding of Fact and Conclusions of Law:
"3. A fair reading of respondent's advertising discloses that it makes the representations alleged in the complaint. Respondent's advertisement is carefully worded so as not to make an explicit promise of the effectiveness of the product. In fact it contains an inconspicuous attempt at disclaimer of such a promise. However, I find that the advertisement in its totality--particularly in the wording 'ARTHRITIS SUFFERS (sic) and those with bursitis and other rheumatic ills -- YOUR COPPER BRACELETS ARE OBSOLETE - NOW] HELP YOURSELF ... NOW] - AMAZING - OVER 5 MILLION SOLD WORLD WIDE' -- would most probably create in the ordinary mind the impression that the product is an effective means for the treatment, alleviation and/or cure of arthritis, bursitis, and other rheumatic ills."
"1. Respondent is engaged in a scheme or device for obtaining money or property through the mails by means of representations substantially as characterized in the complaint."
"3. If not directly, certainly by implication, respondent's advertisement makes the representations alleged in the complaint.
"4. Based on the foregoing finding of fact, I find that such representations are materially false in fact."
Respondent asserts that the issues are: whether there was substantial evidence in the record to support the finding that Respondent's advertisement in its totality would most probably create in the ordinary mind the impression that the product is an effective means for the treatment, alleviation and/or cure of arthritis, bursitis and other rheumatic ills; and (2) was it error to refuse to permit the taking of testimony by deposition or written interrogatories of certain Japanese doctors who have done research in the field of biological effects of magnetism and the effects of a magnetic health band on various diseases including neuralgia and rheumatism.
With reference to the first issue stated above by Respondent, Judge Grant considered Respondent's advertisement in its totality. He considered, among other things, the careful wording and the size of type used. Other features of the advertisement which stand out when one looks at it are the depiction of the arthritic hand, the admonition to buy because the bracelets are available only in "LIMITED QUANTITIES WHILE THEY LAST]", together with the assurance that purchasers will be satisfied after four weeks of use of the bracelets, and the fact that the sellers are so convinced of customer satisfaction that they offer a complete refund to anyone not satisfied. In Gottlieb v. Schaffer, 141 F.Supp. 7 at 16 (S.D.N.Y., 1956) the court referred to the language in Donaldson v. Read Magazine, 333 U.S. 178 at 189 (1948) about interpreting advertisements in the light of the effect they would most probably produce upon ordinary minds, and the court then concluded that the Postal statute 1/ was intended to protect "the gullible and the simple...even though they do not reach the level of the 'ordinary mind'." The court further stated:
"The purpose of the (Postal) statute is to protect the unwary and unsuspecting, as well as those knowledgeable or worldly-wise--those who are 'trusting as well as suspicious.'2/ The public includes 'that vast multitude *** the ignorant, the unthinking and the credulous.'3/ The fact that informed and sophisticated persons would laugh off, or even be amused by obviously false and absurd statements in an advertisement does not detract from their power to deceive the ignorant, gullible and less experienced.4/
* * *
Taking into consideration Respondent's advertisement as a whole, including but not limited to, its language, its illustrations, the juxtaposition of language, the styles and sizes of type used, what the language says, what the language suggests, and what the language does not say, it is concuded that persons of ordinary minds, as well as persons who are possessed of something less than ordinary minds, might well derive the impression that Respondent's product is an effective means for the treatment, alleviation and/or cure of arthritis, bursitis and other rheumatic ills. As the Supreme Court of the United States, per Mr. Justice Blackmun, stated: "It is not difficult to choose statements, designs and devices which will not deceive." (citing U.S. v. 95 Barrels of Vinegar, 265 U.S. 438, 443 (1924)). Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771-772. 5/ Respondent's attempt to distinguish this case from Donaldson v. Read, supra, and Vibra-Brush v. Schaeffer (S.D.N.Y., 1957) 152 F.Supp. 461, is unavailing. Judge Grant's fiding as to the impact of Respondent's advertisement on the public is fully supported by the evidence.
What has been said with respect to the exception to Finding of Fact No. 1 is equally applicable to, and dispositive of, the exceptions to Conclusion of Law Nos. 1 and 3.
Concerning the exceptions to Conclusion of Law No. 4, the only competent medical evidence in the record is that which was adduced by Complainant through two thoroughly competent medical expert witnesses. In Swift v. Southern Railway Company, C.A. 4, 1962, 307 F.2d 315, Judge Haynsworth stated for the unanimous court: "(The trial judge) is not required to accept as an expert opinion the speculation of every lay witness who is willing to venture it." Also, in Elliot Works v. Frisk, (S.D. Iowa, 1932) 58 F.2d 820, 825, the court said: "Opinions of experts when founded upon known scientific facts are not to be considered the same as opinions of laymen, but are considered by the courts as substantive evidence." The medical experts called by Appellant testified that based upon their general medical knowledge and experience, which is consonant with the consensus of informed medical opinion, Respondent's product, if used as directed, would not produce the results claimed for it. Judge Grant naturally, properly and necessarily accepted as controlling the evidence given by the two medical doctors, rather than the evidence of the five lay witnesses called by Respondent.
Simultaneously with the issuance of this decision, there is issued an order denying a Motion filed after the hearing requesting that the hearing be reopened to permit Respondent to obtain the testimony of a doctor in San Juan, Puerto Rico, who is reported in a Miami newspaper to use magnets in treating athletes for muscular disorders and in treating patients for a wide variety of ills including falling hair, bone calcification, fatigue and other conditions. For many of the reasons for which that motion was denied, the ruling of Judge Grant denying Respondent's motion to permit the taking of testimony by deposition or written interrogatories of some Japanese doctors who have done research in the field of biological effects of magnetism and the effects of a magnetic health band on various diseases including neuralgia and rheumatism is sustained.
Without belaboring the point, there is no showing as to who the Japanese doctors are or what their qualifications or standing are; there is no showing as to the reputability of the publications in which their writings appear; there is no showing that the devices used by the Japanese doctors are similar or comparable to the devices being sold by the Respondent; and to accomplish the taking of testimony by deposition or interrogatories would require an inordinate amount of time. The ruling denying this request by Respondent was correct.
Upon the basis of a review of the entire record, Respondent's exceptions are disallowed and the Initial Decision is hereby affirmed. A mail stop order is being issued concurrently with this decision.
03/29/78
Duvall, William A.
1/ Similar to the one now in effect, except that to prevail under the present statute the Postal Service need prove only that material representations made by the advertiser are false.
2/ This quotation appears in fn. 24 of the opinion of the Court and it is repeated in Mr. Justice Stewart's concurring opinion.
3/ Federal Trade Commission v. Standard Education Society, 302 U.S. 112, 116; see also Florence Mfg. Co. v. J.C. Dowd & Co., 2 Cir. 178 F.73.
4/ Charles of theRitz Distributors Corp. v. Federal Trade Commission, 2 Cir., 143 F.2d 676, 679.