In the Matter of the Complaint Against NAIL BUILDER and AMERICAN HEALTH PRODUCTS P. O. Box 9669 at Atlanta, GA 30319 P.S. Docket No. 7/153; 08/26/80 Duvall, William A. APPEARANCE FOR COMPLAINANT: Dani el S. Greenberg, Esq. Consumer Protection Division Law Department 475 L'Enfant Plaza West S.W. U. S. Postal Service Washington, DC 20260 APPEARANCE FOR RESPONDENT: Christopher S. Barnard, Esq. Katz, Paller & Land Suite 2000 470 East Paces Ferry Road Atlanta, GA 30305
The Consumer Protection Division, Law Department United States Postal Service (Complainant) filed a Complaint on February 15, 1980, in which it charged that Nail Builder and American Health Products, Atlanta, Georgia (hereinafter, Respondent, collectively) 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 United States Code 3005.
In the Complaint it is alleged that Respondent attracts attention to said scheme by means of an advertisement, a copy of which (1) was attached to the Complaint as Exhibit A and (2) is attached to this decision as Appendix A.
By means of this advertisement and in similar matter, the Complainant further alleges, Respondent represents, directly or indirectly, by means of affirmative statement, implication, or omission, in substance and effect:
"(a) That 'Nail Builder' (also referred to as 'C-452,' both names hereinafter subsumed under the word 'product') provides protein, and vitamins A, E, and D, in a form which will be metabolized;
"(b) That any strengthening of the nail that may result from the use of the product is due primarily to the metabolism of the aforementioned nutrients as provided by the product;
"(c) That the presence of the aforementioned nutrients causes the product to be more efficacious in strengthening the nail than other protective coatings."
Complainant alleges that the above representations are materially false as a matter of fact, and that it is on the basis of these representations that Respondent seeks to induce readers thereof to remit money or property through the mails to the Respondent.
In its Answer to the Complaint Respondent specifically denied each and every charge therein.
The matter came on for hearing on April 17, 1980, in Atlanta, Georgia. Both parties introduced evidence and participated in the examination and cross-examination of witnesses at the hearing and both parties have filed proposed findings of fact, conclusions of law, and supporting arguments.
1. Respondent is engaged in advertising and seeking remittances of money through the mails for a product variously known as C-452 and Nail Builder (hereinafter, "product"). (Comp. Ex. 1, App. A; stipulation, Tr. 4)
2. The product is a liquid marketed in a bottle. The liquid is applied to the nails by means of a brush which is attached to the underside of the cap of the bottle. The product as just described was not offered in evidence, although the above description was agreed upon by the parties, and in lieu of the product, itself, a copy of the label was introduced as Complainant's Exhibit 2. (Tr. 4) The label sets forth the following directions and list of ingredients:
DIRECTIONS
Shake well Apply conditioner for one week without polish Continue usage before each application of nail polish
INGREDIENTS
Purified Water, Natural Protein containing Cystine Gulfquat, Versene, Dowcil, hydrophilic Lanolin, Triton Vitamins A, D & E
3. Respondent does not make the representations set forth in paragraph II (a) of the Complaint. In its Brief filed after the hearing, Complainant argued as follows:
"(2) Specific Representations.
(a) That Nail Builder provides protein, and vitamins A, E, and D, in a form which will be metabolized (subparagraph II(a) of the complaint."
Respondent, after referring to the presence of proteins and vitamins in its product, goes on to state that "C-452 is a liquid protein that . . . is quickly absorbed into the nail, immediately making it stronger and adding the needed protein that stops cracking and splitting. With each daily application, nails get stronger." Respondent continues in the next paragraph, stating that C-452 is a "food" for fingernails, and that the "liquid protein is absorbed into the protein of your nail, building up its body."
The Presiding Officer may take official notice of the fact that it is well known by the lay public that proteins and vitamins are obtained through the in gestion of food, which must then be digested to be used by the body. Therefore, Respondent's advertisement implies that these ingredients will be provided in a form in which they can be used in the metabolic process, as charged in subparagraph II(a) of the complaint. 1/ This charge is based upon the same language relied upon in support of subparagraph II(a) of the complaint. 2/
(b) That any strengthening of the nail that may result from the use of the Nail-Builder is due primarily to the metabolism of the aforementioned nutrients as provided by the product (subparagraph II(b) of the complaint).
Similarly, the reader may or may not know the definition of "efficacious." However, the basic concept presented by the advertisement is that use of the product will cause the results promised. It matters not that the reader, instead of understanding the product to be "efficacious," understands merely that "it works."
Complainant's recitation of the contents of Respondent's advertisement is correct so far as it goes, but it stops considerably short of conveying the essence of the entire advertisement. For example, in Complainant's first quotation from the advertisement. For example, in Complainant's first quotation from the advertisement there is a glaring omission. The entire language from which this quotation from the advertisement there is a glaring omission. The entire language from which this quotation is excerpted, with Complainant's omission underscored for easier identification, is as follows:
"C-452 is a liquid protein that you simply brush on. It is quickly absorbed into the nail, immediately making it stronger and adding the needed protein that stops cracking and splitting."
Next, Complainant attributes to Respondent the statement that C-452 is a "food" for fingernails, and so forth. Complainant, if the quotation was to be used, should have said:
C-452 is a '"food"' for fingernails.
The simple use of the above-added single quotation marks indicates that the Respondent was using the word "food" in something other than its normal usage. If Respondent's advertisement is to be quoted, it should be quoted in such was as to, so nearly as possible, give it its true flavor and connotation.
Above and beyond what thus far has been said about the language used by Respondent in relation to its product, the advertisement must be considered as a whole. Donaldson v. Read Magazine, 333 U.S. 178, 188. In so doing, one is immediately face-to-face with the largest and most prominent feature of the advertisement - the large photo in the upper right-hand corner of Appendix A which shows the fingers of a right hand holding a cap to which is appended a small brush with which some substance, presumably the product, is being applied to the fingernails of a left hand.
Taking into consideration all of the foregoing factors, it is unrealistic and unreasonable to construe Respondent's advertisement as representing that the use of its product as directed in any way involves, or that the ingredients will be provided in a form in which they can be used in, "the metabolic process." For example, in the body of the argument on page 4, Complainant argues in favor of taking official notice of the fact, allegedly well known by the lay public, that "proteins and vitamins are obtained through the ingestion of food, which must then be digested to be used by the body." When, by word and picture, readers are told of the application of a "food" to the surface of the fingernails, it is overstretching to argue that the average reader is going to believe that the process of metabolism, as Complainant says that process is understood by the lay public, is going to play a part in producing a result from such application. The two concepts -- brushing on and ingesting -- are separate, distinct, and mutually exclusive. The impact of the verbal description and photographic depiction of "brushing on" far outweighs whatever connotation there might conceivably be of "ingesting and metabolizing." Perhaps the problem might be less exacerbated and the pitfall could have been completely avoided if the practice of closer adherence to Respondent's actual advertising language had been followed. There is misrepresentation in Respondent's advertisement, but it is not found in the statement attributed to the Respondent in paragraph II(a) of the Complaint. 3/
4. The second misrepresentation alleged in the Complaint is:
"(b) That any strengthening of the nail that may result from the use of the Nail-Builder is due primarily to the metabolism of the aforementioned nutrients as provided by the product (subparagraph II(b) of the complaint)."
I find that Respondent does not make the misrepresentation alleged in paragraph II(b) of the Complaint, and this finding is based upon the same reasoning relied upon in support of Finding of Fact Number 3 of this Decision.
5. Respondent does represent, directly or indirectly, by means of affirmative statement, implication, or omission, in substance and effect:
"(c) That the present of the aforementioned nutrients causes the product to be more efficacious in strengthening the nail than other protective coatings."
This finding is based upon the following language appearing in Respondent's advertisement:
"***Fingernails you've always dreamed of. C-452 is a result of years of liquid protein research. It contains 100% natural organic protein, vitamins A, E and D and all formulated in a simple, easy to use liquid.
* * *
"Guaranteed
We know that C-452 works where others have failed so we can make a full money back guarantee within 30 days."
6. This case now turns on the question of whether the above representation is true or false.
7. The Respondent called as a medical expert Irwin I. Lubowe, M.D., Diplomate of the American Board of Dermatology and Syphilology, Life Member of the American Board of Dermatology and Syphilology, Fellow of the American College of Allergists, and Emeritus Professor of Dermatology with New York Medical College and Metropolitan Hospital. Dr. Lubowe's curriculum vitae was received in evidence as Respondent's Exhibit 1.
In Answer to the question "Are you familiar with any other products besides the Nail Builder in which protein is a constituent ingredient," (Tr. 21) Dr. Lubowe replied:
"There is a product on the market I believe that's called RPP in which -- and which contains hydrolized protein, and in 1966 it was granted a U. S. patent by the United States Patent Office, and it was found to be favorable in reducing the brittle nails and softness of the nails. It's still being sold today.
* * *
"I have before me a chapter in a book called The Manufacture of Cosmetic Products by Dr. De Navarre. And Chapter 49 is entitled Nail Preparations, and the author is Henry J. Wing, and on page 995, there is a statement made that patent has been granted for a hydrolized protein as a nail application. And in the bibliography, the patent number is mentioned. I do not have that here though." (Tr. 23)
Based on the foregoing testimony, the use of hydrolized protein in preparations for use on the fingernails is not new.
8. The medical expert called by Complainant to testify was H. Jordan Whyte, M.D., who is a graduate as an M.D. from the Medical School of Otago University in New Zealand. He trained in dermatology at the Mayo clinic in Rochester, Minnesota, subsequent to which he was Assistant Professor of Dermatology at Dartmouth College in New Hampshire, then at the University of Pittsburgh and more recently at Emory University where he is currently Clinical Associate Professor of Dermatology. He is also in private practice in Marietta. Dr. Whyte is engaged in teaching Dermatology about three half days a week in the Emory training program to residents in Dermatology. Dr. Whyte's memberships include, among other profess- ional organizations, British Medical Association, Philadelphia and Atlantic Dermatologic Societies, American Academy of Dermatology and Society for Investigative Dermatology. (Tr. 119; Comp. Ex. 3)
9. Respondent's product probably would help in relieving brittleness of nails rather than help strengthen them, but that would be by virtue of the incorporation of lanolin in the product. The addition of protein and vitamins A, D and E plays no part in improving the strength of the nails. The presence of protein and vitamins A, D and E in the product does not cause the product to be more efficacious in strengthening the nail than other protective coatings that do not have them. (Tr. 127)
10. Both medical witnesses stated that their testimony was in accord with the consensus of medical opinion. (Tr. 28, 128) I find that the testimony of Dr. Whyte is the more accurate and reliable, for reasons some of which will now be indicated.
In a number of instances, only two of which will suffice to illustrate the point, Dr. Lubowe made statements which are contrary to the views of recognized and accepted medical experts in the field of dermatology. At one point Dr. Lubowe said that the nail plate is a live tissue. (Tr. 35) Later, (Tr. 38-39) when confronted with a statement to the contrary from the first edition of the text "Dermatology in General Medicine," a thoroughly reliable and reputable book by a number of recognized medical and scientific authors, Dr. Lubowe agreed that the nail plate is dead. (Resp. Ex. 5, p. 334) The second edition (1979) of the same text contains the same statement as the first edition. (Comp. Ex. 4, p. 421) A statement by Dr. Lubowe that the epidermis and the nail plate are very similar (Tr. 44 was withdrawn in the face of evidence that the epidermis and the nail plate are dissimilar. (Tr. 47)
No such problem arose in connection with the testimony of Dr.Whyte. To the contrary, Dr. Whyte had discussed his opinions with one of the authors of the chapter in the textbook cited above and he found that their views on the matters involved in this proceeding coincide. (Tr. 128)
11. The competent, credible evidence of Complainant requires the conclusion that Respondent's representation that the presence of proteins and vitamins A, D and E in its product causes the product to be more efficacious in strengthening the nail than other protective coatings is false.
Respondent is engaged in conducting a scheme or device for obtaining money or property through the mail by means of false representations within the meaning of Section 3005 of Title 39, United States Code.
An order of the type contemplated by 39 United States Code 3005 should be issued against the Respondent under the names shown in the style hereof.
1/ Indeed, although it is not necessary to a resolution of this question, Complainant submits that the mere mention of these ingredients implies their presence in a form in which they can be utilized as part of the metabolic process.