In the Matter of the Complaint Against ACU-VELOP, INC. P. O. Box 1356 at Clearwater, FL 33517 P.S. Docket No. 6/173; 08/31/79 Cohen, James A. APPEARANCE FOR COMPLAINANT: Daniel S.Greenberg, Esq. Consumer Protection Office Law Department U.S. Postal Service Washington, D. C. 20260 APPEARANCE FOR RESPONDENT: Charles B. Chernofsky, Esq. Weiss, Rothfarb & Chernofsky 6 East 43rd Street New York, New York 10017
Respondent has appealed from the Initial Decision of Administrative Law Judge Quentin E. Grant finding Respondent in violation of 39 USC § 3005. On appeal, Respondent contends that (1) the Initial Decision incorrectly holds that its First Amendment defense has no merit, and (2) there is no substantial evidence to support a finding that the breast enlargement technique is ineffective.
The complaint initiating this proceeding alleges that, by means of advertisements seeking to induce readers thereof to remit money through the mail, Respondent misrepresents that its product, the "Acu-Velop Technique" will increase breast size by activating areas of the body which naturally encourage breasts to enlarge. In its answer to the complaint, Respondent admitted publication of the advertisements but denied the remainder of the charge. By amendment to its answer, Respondent asserted, as an affirmative defense, that it is in the bookselling business and as such its advertisements are protected by the First Amendment to the Constitution. This issue, and the cases cited by Respondent in support of its position, were addressed in the Initial Decision. In that decision it was concluded that there is no constitutional bar to the application of 39 USC § 3005 to publications sold by mail.
Respondent, on appeal, contends that the conclusions reached in the Initial Decision concerning its First Amendment defense are arbitrary, capricious and not in accordance with the law. Respondent continues to allege that it is in the mail order business of selling books, and since the author of the book has the constitutional right to present her ideas, Respondent has the right to publish and advertise the book so long as it does not misrepresent the contents of the book.
Respondent is not, as it alleges, merely in the mail order business of selling books. As is found in the Initial Decision, which finding is supported by the record, its advertisements:
"...promote the sale of a technique called 'The Acu-Velop Technique, and for breast enlargement. Although the advertisements state, of course, that the technique is disclosed in a book entitled 'The Acu-Velop Book' the advertisements stress the technique itself and tout its effectiveness as a means of breast enlargement. The book is merely the means of conveying the technique to interested members of the public." (I.D. FOF No. 2.)
Respondent's advertisements (CX-1, 2, and 3) leave no doubt that it is as much in the business of selling a product, as if it were selling a mechanical device to enlarge breasts.
Respondent has cited several cases to support its position. It cites Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952), Bigelow v. Virginia, 421 U.S. 809 (1975), Smith v. California, 361 U.S. 147 (1959), and Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc, 425 U.S. 748 (1976), for the proposition that commercial speech does not lose the protection of the First Amendment. Respondent also cites Parker Publishing Co., POD No. 3/80 (P.S. Dec. 1971, Recon. Den. 1972) and attempts to distinguish Hollywood House International, Inc. v. Klassen, 508 F.2d 1276 (9th Cir. 1974) and Cecily Vane, P.S. Docket No. 4/129 (P.S. Dec. 1976).
Essentially, the same line of cases was cited and arguments made in Health Purifiers, Inc., P.S. Docket No. 6/78 (P.S. Dec 1979) which involved a similar fact situation. In that case Parker, supra, was overruled, and relying on language in Virginia State Board of Pharmacy, supra, it was held that the First Amendment does not bar the issuance of a remedial order under 39 USC § 3005. This was so even though the product involved was in book form. Health Purifiers, Inc., supra, concluded that false commercial speech in whatever form is not protected by the First Amendment. The holding of Health Purifiers, Inc., supra, is controlling here. See also Original Cosmetics Products, Inc. v. Strachan, 459 F.Supp 496 (S.D.N.Y. 1978); Wilmont Products, P.S. Docket No. 6/46 (P.S. Dec. 1979). The only question remaining is whether the results represented can be achieved by the techniques advertised. The Initial Decision found they could not, and Respondent challenges that conclusion in its remaining exceptions.
Respondent alleges that Judge Grant (1) ignored the testimony elicited from Complainant's witness, Dr. Kerr, on cross-examination; and (2) failed to properly consider the test results obtained by Respondent's witness, Dr. Beke. As a result, Respondent contends that the Initial Decision is not based on substantial evidence.
A review of the entire record reveals the appropriateness of the findings and conclusions of the Initial Decision. Dr. Kerr's statement that there is a remote possibility of a temporary increase in breast size does not establish the efficacy of the technique. Neither does the fact that uncertainty that a breast will not be enlarged by following the Acu-Velop Technique. Respondent is not required to establish the propriety of the charges of the complaint beyond all doubt. It need only establish the propriety of the allegations of the complaint by a preponderance of the evidence. This it did through the opinion testimony of Dr. Kerr. It is her opinion and the consensus of informed medical opinion that such a technique will not produce the results advertised. In the absence of persuasive contradictory testimony it was proper to rely on Dr. Kerr's opinion testimony.
Persuasive contradictory testimony was not introduced. The clinical tests performed by Respondent's witness, Dr. Beke, and his colleague are so fraught with uncontrolled variables that no reasonable conclusions could be drawn. In view of such testimony, the Administrative Law Judge did not err in giving little weight to those tests and placing greater weight on the testimony of Dr. Kerr.
For the foregoing reasons the exceptions on appeal are denied. A remedial order under 39 USC § 3005 is being issued contemporaneously with this decision.