In the Matter of the Complaint Against GEGE COSMETICS, INC., One Wolfs Lane, at Pelham, New York 10803 P.S. Docket No. 6/49 June 13, 1978 Quentin E. Grant Administrative Law Judge APPEARANCE FOR COMPLAINANT: Daniel S. Greenberg, Esq. Law Department U. S. Postal Service Washington, D. C. 20260 APPEARANCE FOR RESPONDENT: Lee H. Harter, Esq. 2822 Van Ness Avenue San Francisco, California 94109
In a complaint filed November 29, 1977, complainant alleged that respondent is 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.C. 3005.
Specifically, the complaint alleges that by means of advertisements respondent represents directly or indirectly, in substance and effect, whether by affirmative statements, omissions or implication, that respondent's product, "Gege Lotion," will (a) improve the appearance and/or condition of the uneven, unsightly discolorations of the skin commonly known as stretch marks; (b) cause stretch marks to be so improved that they will no longer be obvious and/or noticeable when the user wears revealing clothing; (c) improve stretch marks by causing them to become lighter and to begin to fade; (d) be more effective "than just an ordinary cream or lotion" and will "actually do the job"; and (e) improve stretch marks after one application.
On respondent's motion the location of the hearing was changed from Washington, D. C. to San Francisco, California. After delays caused by the change of location, late delivery of the transcript and respondent's request for extension of time to file proposed findings of fact and conclusions of law the matter is ready for decision.
Preliminarily, I will consider respondent's motions to strike the testimony of complainant's expert witness Alton McKissick and to admit the affidavit of one Fred Seiden. The motion to strike is based on respondent's contention that the sample of "Gege Lotion" tested by McKissick might have degraded due to age and exposure to light and/or air while in complainant's possession. The evidence indicates only the slightest degradation of the product, insufficient to affect the validity of McKissick's tests. The motion to strike is, therefore, denied. The motion to admit the affidavit of Fred Seiden is denied on the grounds that the competence of Mr. Seiden, by way of specific responsibility and actual knowledge, to state the formulation of "Gege Lotion" has not been adequately shown by respondent.
1. Based on the testimony of Postal Inspector Clyde Ross (Tr. 1-10) and respondent's exhibits CX-1(a) through CX-6 introduced through his testimony, all showing a test purchase of respondent's product, "Gege Lotion," I find that respondent is engaged in a scheme for obtaining money or property through the mails.
2. Based on respondent's advertisements (Exhibits A and B attached hereto) I find that respondent makes representations concerning "Gege Lotion" substantially as characterized in paragraph III of the complaint. However, I find that such representations are directed to the appearance of stretch marks, not to the underlying histophysiology thereof.
3. "Gege Lotion" is a lotion containing vitamin E acetate (0.4% by weight), methyl paraben (a preservative, not quantified), hydroquinone (1.08% by weight), and quinone (0.004% by weight) according to an analysis made by complainant's well-qualified chemist, Alton McKissick (CX-8; Tr. 11-14). The only skin lightener present is hydroquinone (Tr. 41). Any degradation of hydroquinone would appear as quinone (Tr. 16, 22). The quantity of quinone present in the sample indicates insignificant degradation of hydroquinone. It also indicates that the product has been exposed but little to light sources or oxidation by air (Tr. 15, 16).
4. The directions on the product state that it is especially formulated to help erase and soften unsightly stretch marks and should be applied daily to stretch marks.
5. Hydroquinone is known in the medical profession, particularly in the specialty of dermatology, as a skin lightener (Tr. 40). It is used in concentrations of 2 to 4 percent, commonly as a salve or cream, not a lotion, to lighten brown spots on faces and hands (Tr. 41, 42). Hydroquinone does not remove pigmentation already present but tends to inhibit the formation of new pigment (Tr. 41, 98).
6. Stretch marks are areas of perceptible change in the texture and appearance of the skin due to several causes, including pregnancy, growth spurts in puberty, obesity, Cushing's syndrome, and excessive use of topical cortisone (Tr. 34, 35, 88). Typically, stretch marks pass through three stages in color; reddish, purplish, and finally, the classic white, or silvery condition, lighter than the surrounding skin (Tr. 35, 88). Dark stretch marks are rare, only occasionally appearing in caucasians or negroes (Tr. 89). In less than 5 percent of cases of dark stretch marks is the darkness due to pigmentation (Tr. 84, 85).
7. Neither of the well-qualified dermatologists who testified had ever used hydroquinone to treat stretch marks (Tr. 48, 108). It is not commonly used for that purpose in the medical profession (Tr. 55).
8. Hydroquinone is not 100 percent effective in the treatment of brown spots. Up to 64 percent of users may see some decrease in darkness of brown spots if a 2 percent concentration of hydroquinone in the form of a salve is applied twice daily over a period of six weeks. A lotion such as "Gege Lotion" with only 1.14 of hydroquinone would be less effective (Tr. 42, 49).
9. The minimum time for hydroquinone in a 2% concentration in a salve to show any lightening effect on a brown spot would be 15 days, applying the salve twice a day (Tr. 52). No perceptible lightening effect can be expected applying "Gege Lotion", containing up to 2 percent hydroquinone, to a brown spot once a day as directed (Tr. 53).
10. "Gege Lotion" will not cause a perceptible lightening of a dark stretch mark after just one application (Tr. 51, 52, 96).
11. There is nothing in "Gege Lotion" which will alter physiologically the furrows, grooves or crevices of stretch marks (Tr. 54, 107).
12. "Gege Lotion" would be no more effective than an ordinary cream or lotion in camouflaging, lightening or fading stretch marks (Tr. 57).
13. "Gege Lotion" applied to the classic, common white or silvery stretch mark will not cause any change in the appearance thereof (Tr. 73, 93). It might, applied over a long period of time, cause some lightening of the pigmented skin surrounding a white stretch mark (Tr. 91).
14. "Gege Lotion" will not alter the appearance of stretch marks so as to render them less noticeable or obvious (Tr. 75, 76, 95).
1. The meaning to be ascribed to an advertisement is based on its totality and its probable effect on the ordinary mind. See Donaldson v. Read Magazine , 333 U.S. 178, 179 (1948). In judging the meaning of an advertisement, that which is implied must be considered as well as that which is expressly stated. Aronberg v. F.T.C. , 132 F.2d 165 (7th Cir. 1943); Cates v. Haderlein , 189 F.2d 367 (7th Cir. 1951). Applying this principle to the advertisements involved in this proceeding, I find that they make representations substantially as characterized in the complaint. I treat the word "condition" as used in the complaint as relating to appearance in terms of color, not as referring to the histophysiology of the tissues of stretch marks since the advertisements do not go so far as to promise any alteration of such tissues.
2. The net of the medical testimony is that "Gege Lotion" used as directed will not alter the appearance of the common white stretch mark. There is a theoretical possibility that it might over a long period of time lighten, slightly, a dark stretch mark. But dark stretch marks are rare and among them are only a small percentage the darkness of which is caused by pigmentation which can be affected by hydroquinone. That being the case, as a practical matter "Gege Lotion" will not, even theoretically, make less noticeable any but a minuscule number of stretch marks and then only after a long period of application. Respondent has argued rather strenuously that in the case of a white stretch mark the product will improve its appearance, or make it less noticeable, by lightening the surrounding skin. There was some slight disagreement between the medical witnesses on that score. Complainant's expert testified that hydroquinone will not lighten normal skin. Respondent's doctor was of the opinion that theoretically it might lighten the skin surrounding a stretch mark but he had had no experience using hydroquinone in the treatment of stretch marks and, unlike complainant's doctor, was not at all positive about the matter. In any event I am not impressed by respondent's argument. Both its advertisements and the directions on the label of the product are confined to stretch marks per se . They do not extend to the effect of the product on adjacent areas of the skin.
3. The representations made by respondent are false in fact, and materially so because of the importance which our society attaches to all aspects of physical appearance.
4. Respondent is engaged in a scheme for obtaining money or property through the mails by means of representations materially false in fact in violation of 39 U.S.C. 3005.
5. An order pursuant to 39 U.S.C. 3005 in the form attached should be issued against respondent.