In the Matter of the Complaint Against

 RUSH INDUSTRIES, INC.,
 300 Park Avenue, South at
 New York, NY 10010

 P.S. Docket No. 7/50
 
 August 10, 1979
 
 Quentin E. Grant Administrative Law Judge

 APPEARANCE FOR COMPLAINANT:
 Daniel S. Greenberg, Esq.
 Consumer Protection Office
 Law Department
 U. S. Postal Service
 Washington, DC 20260 

 APPEARANCE FOR RESPONDENT:
 Robert Ullman, Esq.
 Bass, Ullman & Lustigman
 747 Third Avenue
 New York, NY 10017

Complainant has alleged that respondent is engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations within the meaning of 39 U.S.C. 3005.

The complaint, filed on April 12, 1979, specifically alleges that by means of advertisements containing representations materially false in fact respondent seeks to induce readers thereof to remit money or property through the mails for its product, "HAIR-PLUS". The representations alleged to be false are that the product will, for most people, provide a significant benefit, over and above the user's daily diet, in:

"(a) preventing thinning hair;

"(b) preventing baldness;

"(c) causing the growth of healthy, beautiful hair;

"(d) preventing dandruff;

"(e) eliminating graying;

"(f) treating eczema (Complaint Paragraph II).

Respondent's answer to the complaint denied every material allegation therein except that it admitted that the advertisement annexed to the complaint was a true copy. Respondent also filed an amended answer setting up as an affirmative defense the allegation that by means of a Consent Agreement entered in another proceeding under 39 U.S.C. 3005, complainant has permitted the respondent therein to advertise a similar product using the same or similar representations in its advertising. Respondent contends that complainant may not in such a manner give one company an exclusive right to advertise its product using such representations. Respondent says that complainant may not by such means allow one competitor such a competitive advantage over another. Respondent says it should be allowed to make representations as to its product consistent with those consented to by complainant as to the competitor's product.

Following a hearing at which the parties presented evidence, both parties have filed proposed findings of fact and conclusions of law.

1. Based on stipulations entered into at the hearing (Tr. 3) and CX-1, I find that respondent is engaged in a scheme or device to obtain money or property through the mails for its product, "HAIR-PLUS", hereinafter called the product.

2. I find that respondent's advertisements (Ex. A annexed hereto) make the representations alleged in the complaint, directly or by implication. The general representation that the product will, for most people, provide a significant benefit, over and above the user's daily diet is found in the following wording of its advertisement:

"A Specially Formulated Mega-Vitamin Promotes New Healthy Hair ... Now feel your hair nature's way from inside your body where the growth starts. HAIR-PLUS gives you 18 essential ingredients, necessary to promote new health and beautiful hair ... Healthy hair requires specific vitamins and minerals to grow , shine, and become radiantly alive. Ordinary vitamins are not enough. (emphasis supplied)

The words underscored directly and by obvious implication convey to the ordinary mind the impression that the product contains ingredients not found in the user's daily diet which, if ingested, will effect the benefits represented in the balance of the advertisements.

The following wording of the advertisements taken together with the foregoing general representation directly or by obvious implication makes the representations alleged in the following paragraphs lettered to correspond with the subparagraphs of Paragraph II of the complaint quoted above:

(a) "THINNING HAIR?"

. . .

"FACT #4 - Inositol and Choline are needed to combat loss of hair ... ."

. . .

"FACT #6 - Lack of Folic Acid, Biotin, or Paba can cause loss of hair ... ."

(b) "APPROACHING BALDNESS?

. . .

"FACT #3 - Calcium Pantothenate ... eliminates signs of baldness ... ."

"FACT #4 - Inositol and choline are needed to combat loss of hair ... ."

. . .

"FACT #6 - Lack of Folic Acid, Biotin or Paba can cause loss of hair ... ."

. . .

(c) "... Promotes HEALTHY NEW HAIR"

. . .

"... gives you ... ingredients, necessary to promote new health and beautiful hair"

. . .

"FACT #7 - HAIR PLUS contains every ingredient described above plus 10 more beneficial ingredients to promote healthy, beautiful hair"

(d) "FACT #2 - ... Lack of zinc can also cause dandruff

... ."

(e) "FACT #3 - Calcium Pantothenate ... eliminates ... greying."

(f) "FACT #4 - Inositol and choline are needed to combat ... eczema."

. . .

"FACT #6 - Lack of Folic Acid, Biotin, or Paba can cause ... eczema."

3. Complainant's medical witness was Gloria Troendle, M.D., employed since 1976 by the Food and Drug Administration as a Reviewing Medical Officer. In that capacity she reviews new drug applications and applications for exemptions from new drug requirements for studies on drugs. She has been reviewing particularly lipid lowering drugs and nutrients, the nutrients including vitamins, minerals, and amino acids (Tr. 12). Dr. Troendle is not a dermatologist or a trained nutritionist (Tr. 51). However, she studied nutrition in medical school in connection with courses in physiology, internal medicine, and pediatrics. Some of her FDA studies have involved the subject of the amount of vitamins and minerals in the user's daily diet, particularly in connection with total parenteral (intravenous) nutrition (Tr. 49, 50). She regularly reads articles on nutrition in the New England Journal of Medicine, Lancet, Journal of the American Medical Association, and other recognized and respected periodical medical publications (Tr. 57, 58). Although Dr. Troendle admitted that she hadn't had much contact with nutrients as related to hair, she nevertheless thought she would know if vitamins were recommended for hair because of the importance of such a recommendation (Tr. 61). Dr. Troendle is considered to be the physician who is the authority on nutrition in her office in the FDA (Tr. 48). She is the liaison person for the FDA's Bureau of Drugs with the nutritional advisory group of the American Medical Association. In preparation for testifying in this matter she spent some time reading in dermatology texts for information as to the relationship of vitamins and nutrients to hair and skin (Tr. 56). She also talked with Drs. Evans and Sanders, both dermatologists, and other doctors in FDA (Tr. 57). As to the effects of nutrient deficiencies she read some articles in her files, "The Recommended Dietary Allowance", and Goodman & Gilman's Fourth Edition text entitled "The Pharmacological Basis of Therapeutics" (Tr. 63, 64).

While acknowledging her lack of special expertise in dermatology and the fact that she had only one day to do special preparation for her appearance as a witness she nevertheless believed that her testimony as to the issues here was consistent with the consensus of medical opinion, generally, and, in particular, medical opinion to the functions of the ingredients (Ex. B annexed hereto) in respondent's product (Tr. 39, 63).

4. I find that Dr. Troendle was qualified to testify in this matter. Since respondent produced no witness to rebut Dr. Troendle's testimony, such testimony stands as the only medical opinion evidence in the record.

5. Dr. Troendle testified that there are no known clinical deficiencies in the United States of choline bitartrate, inositol, vitamins B1, B2 and B6, niacin, biotin, P.A.B.A., and iodine. There is no widespread deficiency of calcium pantothenate. There is no deficiency of B-12 except among some strict vegetarians and persons lacking the "intrinsic factor" in the gastrointestinal system. The only deficiency of folic acid is occasionally seen in pregnant women. But most pregnant women under a doctor's care are placed on nutritional supplements. There are known deficiencies of iron among infants, teenage girls who are on faddish diets, and pregnant women, although the latter are generally on dietary supplements. There are no known deficiencies of copper and manganese except in medical patients fed intravenously. There may be some deficiencies of zinc, but this is not clear except that low zinc levels have been found in persons who do not have good senses of smell or taste.

6. Dr. Troendle testified that deficiencies in calcium pantothenate, choline bitartrate, inositol, vitamin B-12, folic acid P.A.B.A., cooper and zinc would play no part in any of the hair or skin conditions covered by the representations alleged in the complaint. She testified that a clinical deficiency of vitamins B1, B2, and B6 or of niacin or biotin might be seen in dermatitis which could involve associated hair problems. But, she testified, there are no known deficiencies in these ingredients except for the limited case of a few pregnant women. Dr. Troendle testified that a marked deficiency of iron could produce a change in appearance and feeling of hair, but that anemia, requiring medical care, would precede such changes.

7. Dr. Troendle testified that there could be subclinical deficiencies, not manifested by external signs and symptoms, of some of the ingredients of respondent's product but that they have not been well substantiated (Tr. 72, 73).

8. Dr. Troendle testified that the ingredients of the product are probably necessary to the growth of the cells which produce hair in the beginning but they have a certain limited role. They are necessary up to a certain amount in order to supply certain enzymes and coenzymes, etc., but once that amount is attained, no more is necessary. Therefore, respondent's product could be useful only for persons with a deficiency.

9. Dr. Troendle testified that her understanding of the term "User's daily diet" as used in the complaint is a diet adequate and sufficient in all nutrients, vitamins, minerals, and protein (Tr. 133). In her opinion the diets of most people are adequate to meet nutritional requirements and to allow them to function without deficiencies (Tr. 150).

10. In Dr. Troendle's opinion respondent's product will not provide a significant benefit over and above the user's daily diet in achieving any of the results represented as alleged in the complaint.

11. Respondent's exhibits RX-1 through RX-9 are received on the issue of selective prosecution or discriminatory enforcement raised in respondent's amended answer. The product in the Cosvetics proceeding (P.S. No. 2/137) was similar but far from identical to respondent's product. Respondent's advertising makes numerous representations concerning specific hair and skin problems (dandruff, greying, eczema) that go beyond the advertising employed by respondent in Cosvetics and advertisements relating to other products (RX-9).

1. The meaning of advertising representations is to be judged from a consideration of an advertisement in its totality and the impression it would most probably create in ordinary minds. Donaldson v. Read Magazine , 333 U.S. 178 (1948); Vibra-Brush Corp. v. Schaffer , 152 F. Supp. 461 (S.D.N.Y., 1957); Borg-Johnson Electronics v. Christenberry , 169 F. Supp. 746 (S.D.N.Y., 1959). Express representations are not required. It is the net impression which the advertisement is likely to make upon purchasers to whom it is directed which is important, and even if an advertisement is so worded as not to make an express representation, if it is artfully designed to mislead those responding to it the mail fraud statutes are applicable. G. J. Howard v. Cassidy , 162 F. Supp. 568. See also Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council , 425 U.S. 748 (1976).

2. Applying the foregoing tests to respondent's advertising, I conclude that it makes representations substantially as characterized in the complaint.

3. Dr. Troendle's qualifications were adequate, if not outstanding, to permit her to testify on the efficacy issues in this case. I conclude that her testimony and opinions on that issue, unrebutted by any expert testimony on respondent's behalf, constitute substantial evidence on which to reach a decision in favor of complainant.

4. The excerpts from USDA and other documents and publications read by respondent's counsel during his cross-examination of Dr. Troendle, may have tended to establish certain nutritional deficiencies in limited segments of the population. But none of them established with any degree of persuasiveness deficiencies in any of the ingredients of respondent's product such as to cause in any significant portion of the population hair and skin problems of the kinds covered by respondent's representations.

5. I conclude from Dr. Troendle's testimony that there are no deficiencies in the United States today of any of the ingredients of the product such as would cause the hair and skin problems mentioned in respondent's representations. I further conclude from her testimony that respondent's product will not for most people provide a significant benefit over and above the user's daily diet in effecting the claims made in respondent's advertising.

6. The representations charged in the complaint are materially false in fact.

7. Respondent's affirmative defense of discriminatory and unfair enforcement of the statute fails because its advertising in important respects is substantially different from and goes far beyond that involved in the case on which respondent relies, Cosvetics Laboratories , P.S. Docket No. 2/137. Such defense is dismissed.

8. Respondent is engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations within the meaning of 39 U.S.C. 3005.

9. An order pursuant to 39 U.S.C. 3005 in the form attached should be issued against respondent.