In the Matter of the Complaint Against COSVETIC LABORATORIES P. O. Box 10101 Atlanta, GA 30319 P. O. Box 14048 Atlanta, GA 30324 P. O. Box 95543 Atlanta, GA 30347 P. O. Box 10225 Atlanta, GA 30319 HEAD START P. O. Box 10064 Atlanta, GA 30319 P.S. Docket No. 7/38; 08/21/80 Cohen, James A. APPEARANCE FOR COMPLAINANT: DanielS. Greenberg, Esq. Consumer Protection Division Law Department U. S. Postal Service Washington, DC 20260 APPEARANCE FOR RESPONDENT: Christopher S. Barnard, Esq. Katz, Paller & Land 470 East Paces Ferry Road Suite 2000 Atlanta, GA 30305
On March 21, 1980, Respondent filed a Motion for Modification of Mail Stop Order No. 80-6. The Mail Stop Order which Respondent seeks to have modified was issued on January 29, 1980, as the result of a finding that Respondent, by means of advertising for its products which are variously identified as "The Nail Vitamin," "The Nail System Vitamins" and "Vitamins for Your Nails," was engaged in a scheme or device for obtaining money through the mail in violation of 39 U.S.C. § 3005. The Motion for Modification seeks to allow Respondent to receive its mail unopened as normal, and require it to intercept, segregate and return to the Postmaster orders subject to the Mail Stop Order. The grounds presented for this request are that Respondent has not for the last several months advertised for the products subject to the Mail Stop Order at the addresses covered by the Mail Stop Order, and that the number of orders for its products do not justify the time and expense that is required for
Respondent and the Postal Service to open all of the mail at the affected post offices to intercept the small number of orders received.
During the period granted for responding to Respondent's Motion for Modification, Complainant filed a Petition for Supplemental Order alleging that Respondent is soliciting orders for "The Nail System Vitamins," and "Vitamins for Your Nails" at new addresses. Thereafter, Complainant filed a reply to Respondent's Motion for Modification. In its reply Complainant suggests that a ruling on the Motion be withheld pending resolution of its Petition for Supplemental Order. According to Complainant:
"...If the Judicial Officer ultimately rules that a supplemental order should issue, said ruling would seem to be a prima facie indication that Respondent cannot be trusted to receive the mail unopened and to comply with any order issued..."
While not necessarily agreeing with Complainant's position on the relationship of its Petition and Respondent's Motion, the Petition will be addressed first.
I. PETITION FOR SUPPLEMENTAL ORDER
Complainant alleges in its Petition that Respondent is evading the provisions of Mail Stop Order No. 80-6 through the mail order sale of "The Nail System Vitamins" and "Vitamins for Your Nails" at seven different addresses. Respondent has filed a reply to the Petition in which it opposes the issuance of a supplemental order but does not take issue with the facts which serve as the basis for the Petition. For the purpose of deciding the issue raised by Complainant's Motion, the following findings of fact are made.
A. FINDINGS OF FACT
On January 29, 1980, Respondent was found to be in violation of 39 U.S.C. § 3005 and Mail Stop Order No. 80-6 was issued. Mail Stop Order No. 80-6 prohibits the delivery of mail and payment of postal money orders to Respondent in connection with the activity described as "advertisements seeking to induce readers thereof to purchase 'The Nail Vitamin,' 'The Nail System Vitamins,' and 'Vitamins for your Nails.'" The Mail Stop Order was modified on March 17, 1980, in accordance with a stipulation of the parties.
The magazine, The Body Forum, in the issues for July, August October-December 1979, and January and April 1980, contained business reply envelopes and order blanks for numerous products including those subject to Mail Stop Order No. 80-6. The issues of the magazine containing the business reply envelopes and the order blanks do not contain any statements touting the products subject to the Mail Stop Order.
B. DECISION
Complainant alleges that the offer of the products for sale on the order blanks enclosed in The Body Forum magazine, coupled with Respondent's previous claims for the products, constitute a proper basis for the issuance of a supplemental order. According to Complainant it is reasonable to expect that persons will order the products based on their recollection of the claims previously made, or will reorder the products when apprised of their availability, irrespective of the presence or lack of accompanying statements. Alternatively, Complainant argues that if it were to be shown that some people might order the products based on the product name alone, the name implicitly promises the results previously made explicit and found to be false.
Respondent denies that it is evading or attempting to evade the provisions of Mail Stop Order No. 80-6. It also denies that it is proper to assume that consumers would order its products because of past representations. In addition, it alleges that the names of its products have not changed, that it was not previously alleged that the names were a false representation of efficacy and, therefore, complainant is barred from making that allegation at this time.
In order to support the issuance of a supplemental order, Complainant must show that Respondent is evading or attempting to evade the provisions of a mail stop order by conducting the same or a similar enterprise under a different name or at a different address. In this regard Complainant recognizes that it must show that the same promoter is selling an essentially similar product by means of claims essentially similar to those previously found to be false.
Complainant has not sustained its burden of establishing that Respondent sells its products by means of representations previously found to be false. It is undisputed that Respondent makes no representations concerning the efficacy of its products with the solicitations which are the subject of the Petition. Under such circumstances the subsequent solicitation of the previously advertised product is not alone sufficient to establish that persons receiving the solicitation will purchase the product on the basis of their recollection of claims previously made.
While the name of a product can certainly be a representation of efficacy, it has not been persuasively shown to be in this case. That is, it has not been persuasively shown that the names of Respondent's products impliedly make the representations which in the Initial Decision and Postal Service Decision were found to be made by Respondent's advertising. Accordingly, Complainant's request for a supplemental order is denied.
II. MOTION FOR MODIFICATION
Complainant's only defense to Respondent's Motion is the position it took in connection with its Petition for Supplemental Order. Since it has been held that a supplemental order should not be issued, the parties are instructed to work out a viable modification to Mail Stop Order No. 80-6. If within 15 days from receipt of this Decision the parties are unable to arrive at an agreeable modification, Respondent should so notify the undersigned so that further appropriate action may be taken.