In the Matter of the Complaint Against VITAHAIR, Box 1344 at Hallandale, FL 33009 P.S. Docket No. 6/76 May 24, 1978 Quentin E. Grant Administrative Law Judge APPEARANCE FOR COMPLAINANT: H. Richard Hefner, Esq. Law Department U. S. Postal Service Washington, D.C. 20260 APPEARANCE FOR RESPONDENT: Marvin I. Moss, Esq. 12550 Biscayne Boulevard North Miami, Florida 33181
In a complaint filed on March 7, 1978, complainant alleged that the respondent is engaged in the conduct of a scheme for obtaining money through the mails by means of false representations in violation of 39 U.S.C., 3005.
The specific allegations of misrepresentation together with the advertisements incorporated in the complaint are attached hereto as Exhibit A.
On motion of respondent, the location of the hearing was changed to Miami, Florida, and the hearing was continued to this date (April 26, 1978).
In accordance with timely notice given the parties, I am rendering this oral decision.
1. On the basis of the testimony of Postal Inspector Olin Broadwater (Tr. 7-45) and respondent's principal Joel Heim (Tr. 116-122), together with evidence of a test purchase of the product, Vitahair, by complainant (CX 1-9) I find that respondent is engaged in conducting a scheme for obtaining money or property through the mails.
2. The product Vitahair (CX-5) consists of tablets, which according to the label thereon, contain the following ingredients:
Vitamin A -- 5,000 USP units.
Vitamin D -- 400 USP units.
Vitamin B1 -- 2 mg.
Vitamin B2 -- 2.5 mg.
Vitamin C -- 50 mg.
Vitamin B6 -- 1 mg.
Vitamin B12 -- 1 mcg.
Niacinamide -- 20 mg.
Pantothenic Acid -- 1 mg.
Iron -- 15 mg.
For the purposes of this decision, I assume that the product contains the ingredients listed on the label. No test or analysis of the product by complainant is required where the ingredients are so identified. Respondent's principal did not deny the correctness of such listing when he testified.
3. A fair reading of respondent's advertisements discloses that respondent makes representations concerning the product substantially as alleged in paragraphs a, c, and d of paragraph III of the complaint. I do not find that the advertisements represent that the product will prevent loss of hair as alleged in paragraph III(b).
4. Complainant called as an expert witness Dr. Stephen Howard Mandy, a well-qualified doctor of medicine, board-certified in dermatology with a special interest in human hair. In his private practice, 10 percent to 20 percent of his patients, about equally divided between males and females, present hair problems. Almost all of these patients have unsuccessfully tried vitamins or minerals to cure these problems prior to visiting Dr. Mandy. Dermatological treatment involves knowledge of nutrition including, of course, vitamin and mineral requirements of the human diet. Dr. Mandy possesses such knowledge.
5. According to Dr. Mandy, hair is composed of a group of amino acids called keratin, the product of hair follicles. Growth of hair is the result of replication of the cells of hair follicles (Tr. 51, 52). Hair grows at a constant, unalterable rate (Tr. 62).
Dr. Mandy testified that certain of the ingredients of Vitahair are essential to hair growth. The net of his testimony, however, is that Vitahair contains no vitamins or minerals not found in adequate amounts in the diet of the average person. Although some people may have iron deficiency anemia to one degree or another, such deficiency is rarely, if ever, so severe as to affect the hair of the head. Dr. Mandy has never seen a patient whose hair problems manifested any nutritional deficiency (Tr. 61, 62). Nutritional deficiencies so severe as to cause hair problems would be found only in seriously ill persons (Tr. 101, 102).
6. On the basis of Dr. Mandy's testimony, I find that there is nothing in the product Vitahair not present in the diet of the average person which will promote the growth of hair, which will nourish the hair beyond the nourishment provided by the normal daily nutritional intake or which will assure healthy, beautiful hair (Tr. 61, 66).
7. Dr. Mandy's opinions are in conformity with the consensus of informed medical opinion (Tr. 68). Excerpts from treatises and texts and articles referred to by respondent in cross examination of Dr. Mandy do not controvert Dr. Mandy's opinion with respect to growth of human hair.
8. Because of the concern most people have about the appearance of their hair, I find that the representations made by respondent are material.
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, 189 (1948). In judging the meaning of an advertisement, that which is implied must be considered as well as that which is expressly stated. Arnberg v. F.T.C. , 132 F.2d 165 (7th Cir. 1943); Cates v. Haderlein , 189 F.2d 369 (7th Cir. 1951). Applying this principle to the advertisements involved in this proceeding, I find that these advertisements make representations substantially as alleged in the complaint except as to prevention of loss of hair.
2. Such representations are materially false in fact.
3. Respondent is engaged in conducting 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.
4. Respondent has not satisfied me that it has been prejudiced in presenting its defense by lack of time. It has not shown, to my satisfaction, that of the eight doctors and 42 lay witnesses named in its request for change of place of hearing none could have been produced at the hearing on this date. As to the proposed witness who is recovering from a heart attack, I understand that he was to testify as to the composition of the Vitahair pills, but since the ingredients are listed on the label of the product, I am unable to see how the absence of that witness has prejudiced respondent.
5. An order pursuant to 39 U.S.C., 3005 in the form attached should be issued against respondent.
I.
Public attention is attracted to said scheme by means of advertisements calculated and intended to induce readers thereof to remit money through the mails to Respondent.
II.
Attached hereto as Exhibits "A" and "B" are copies of the advertisements referred to in paragraph I. above.
III.
By means of the aforementioned advertisements, Respondent expressly or impliedly represents to the public in substance and effect, that:
(a) "VITAHAIR" will promote growth of hair.
(b) "VITAHAIR" will prevent loss of hair.
(c) "VITAHAIR" will nourish hair.
(d) "VITAHAIR" will assure healthy, beautiful hair.
IV.
The aforesaid representations are materially false as a matter of fact.
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