In the Matter of the Complaint Against ORIENTAL NURSERIES, INC. P. O. Box 522456 at Miami, FL 33152 P.S. Docket No. 9/116; 12/22/80 Duvall, William A. APPEARANCE FOR COMPLAINANT: Sand ra C. McFeeley, Esq. Law Department United States Postal Service Washington, D.C. 20260 APPEARANCE FOR RESPONDENT: Tyler Abell, Esq. David Simon, Esq. Bregman, Abell, Solter & Kay 1900 L Street, N.W. Washington, D.C. 20036
This proceeding was initiated on October 17, 1980, when the Consumer Protection Division of the Law Department of the U. S. Postal Service, the Complainant, filed a Complaint in which it is alleged that Oriental Nurseries, Inc., at Miami, Florida, is engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representation in violation of 39 U.S. Code, Section 3005.
The Complainant alleges in paragraph I of the Complaint that attention is attracted to said scheme by means of advertisements in publications of general circulation which are calculated to induce the readers thereof to remit money or property through the mails.
In paragraph II of the Complaint, Complainant further alleges that attached to the Complaint as Exhibit 1 is a copy of a recent advertisement used by Respondent which is typical of those referred to in paragraph I. A copy of the exhibit is attached to this decision as Appendix A hereto.
In paragraph III of the Complaint it is alleged that by means of such materials, and others similar thereto, Respondent represents, directly or indirectly, in substance and effect, whether by affirmative statements or omissions or by implication, that:
(a) the CHINESE EMPRESS tree will grow approximately 16 feet in height the first season;
(b) the average person planting the CHINESE EMPRESS tree may reasonably expect growth of significantly more than the typical 6 to 8 ft. in a single season;
(c) the CHINESE EMPRESS tree "thrives in areas where the temperatures can drop as low as 25 degrees below zero."
(d) the average gardener can expect the CHINESE EMPRESS tree to produce large numbers of flowers within one or two years, commensurate with the claimed growth rate of the tree.
The Complainant alleges that the aforesaid representations are materially false as a matter of fact and the Complainant concludes with the request that an order conforming with 39 U. S. Code, Section 3005 (a)(1) and (2) be issued against this Respondent.
In the Answer to the Complaint the Respondnet denies that its actions constitute or constituted a scheme and admits that attention is attracted by means of advertisements in publications of general circulation which are calculated to induce readers thereof to remit money or property through the mails. Respondent denies the applicability of the present tense "is" insofar as the advertisement appended to the Complaint is no longer in circulation.
Respondent admits the allegations in paragraph II and also the allegations in paragraph III.
Respondent concludes by requesting that the order requested by the Complainant be denied, that the Complaint in this proceeding be dismissed.
The business in which the Respondent is engaged is the sale through the mails of a product which is called the Chinese Empress, or Paulownia Tomentosa, tree. Complainant's Exhibit 1 was received in evidence and it is the advertisement on which the Complaint is based. As part of that advertisement there is an order blank by means of which remittances of money are solicited through the mails.
One question to be resolved is whether the Respondent makes the representations that are set forth in the Complaint.
As previously indicated, the first representation attributed to the Respondent is that the Chinese Empress tree will grow approximately 16 feet in height in the first season. At the very top of the advertising copy, Respondent begins to emphasize the fast growing quality and the flowering quality of this particular tree. Then it cites one case in which a tree actually grew almost 30 feet tall in only 14 short months. Underneath that is a statement the advertisement asserts: "The New York Botanical Garden reported that a weak looking sprout actually grew a full 14 feet....in only one single season." (One is prompted to wonder what a strong-looking, healthy sprout would have accomplished in that same period of time.)
In the left-hand column of the advertisement, Respondent says that "...even in the poorest of soils this AMAZING TREE THRIVES, USUALLY GROWING 6, 8 OR EVEN 10 FEET TALL FROM SEED THE VERY FIRST SEASON."
This is followed by the statement that these trees "grow so quickly you won't believe your eyes. Yes, so fast you can actually measure its growth with a yardstick from week to week." Then there is a sentence in which it is said: YES, THE 'CHINESE EMPRESS' ACTUALLY GROWS 8, 10, 14 OR EVEN 16 FEET IN ONLY 1 SINGLE SEASON]"
Depending on the circumstances, the word "actually" has several meanings, one of which is "really it does or seems to" do thus and so, and then there is a stronger meaning which is "as a matter of fact it grows as high as 16 feet in only one season." The representation set forth in paragraph III (a) of the Complaint is made by Respondent.
Based upon the same language from the advertisement the Respondent does make the representation that is set forth in paragraph III (b) of the Complaint.
The representation in III (c) of the Complaint has as its main part certain language in quotation marks. That language indicates that the Respondent represents that this tree "thrives in areas where the temperature can drop as low as 25 degrees below zero." The only place in this advertisement where this low temperature is discussed is in the right-hand column about two or three paragraphs from the bottom of the advertisement. There, Respondent says: "It even thrives in shaded or sheltered areas where the temperature can drop as low as 25 degrees below zero." (Underscored language was omitted from charge.) In view of the language appearing in the advertisement but omitted from the charge, I find that the Respondent does not make the representation which is set forth in paragraph III (c) of the Complaint.
In paragraph III (d) of the Complaint it is charged that Respondent represents that the average gardener can expect the Chinese Empress tree to produce large numbers of flowers within one or two years commensurate with the claimed growth rate of the tree.
At first, this charge might appear to present a problem due to a possible lack of sufficient precision to be fully informative to the Respondent as to the nature of the charge that was being made. But when one looks at this advertisement, as a prospective purchaser does, he cannot help being impressed by the two salient features of the advertisement. One such feature is that the tree is of extremely rapid growth in height, and the other is that it has a wealth of beautiful flowers when it blooms. With respect to a tree that is capable of such rapid growth, that produces such flowers as depicted, and is advertised with such appealing statements as those contained in the advertisements, the average reader can easily, and I hold does, believe that within oen or two years he will have a tree in his lawn that is quite tall and that when it blooms, it will be covered with beautiful blossoms.
Some of the language which creates that impression reads as follows: "NOW YOU CAN HAVE THE MOST BEAUTIFUL FLOWERING SHOW AND SHADE TREE EVER SEEN ON THE FACE OF THE EARTH]] Yes the 'CHINESE EMPRESS' PRODUCES THOUSANDS OF THE MOST BEAUTIFUL ORCHID COLORED FLOWERS YOU HAVE EVER SEEN."
Down a little bit lower in the advertisement there is another powerful quotation: "When in bloom your tree will produce DAZZLING ARRAYS OF GORGEOUS BOUQUETS OF FLOWERS resembling GIANT SNAPDRAGONS AND FOX GLOVES...these breathtaking bouquets fill the air with fragrances equal to any exotic perfume. That's right, friends, just imagine, not only will you have the FASTEST GROWING TREE IN
AMERICA...but you have your very own FLORAL MASTERPIECE that will transform your garden into a paradise for a lifetime."
That does not say that one is going to enter this paradise this year or next year or the year after that, but the whole atmosphere and thrust of this advertisement is that as the result of unusually fast growth, full blossoms will be realized within a year or two, and certainly when a tree gets to be 16 or 30 feet tall, if it is ever going to blossom, one would expect it to blossom by the time it reaches those heights.
We must now turn to the question of whether these representations are true or false.
With respect to the representations found in paragraphs III (a) and III (b), with the exception of the testimony of Mr. Levy, reliance must be placed on the record made in P.S. Docket No. 8/24. Dr. Santamour stated quite frankly he does not know what the growth rate of the Chinese Empress tree is (Tr. 35). There were at least three witnesses who testified on this point in the earlier case, in which this present Respondent was also the Respondent. In that earlier proceeding the Complainant's witness, Dr. Michael A. Dirr, made the following statement in regard to this issue:
"In the mid-South area seedlings will grow from six to eight feet in height in their first season and sometimes, depending on the geographical location and other favorable factors, as much as ten feet in the first year. In succeeding years however the growth will be slower." (P.S. Docket No. 8/24, Tr. 31-32)
On this same subject, the substance of the testimony by Dr. Donald H. Graves, the principal witness for the Respondent, was that no other tree that he knows of will equal Paulownia's growth of up to eight to ten feet in the first year. He stated further, that during the second year there will be diameter growth of this tree but there will be less growth in height. (id., Tr. 141-163)
Dr. Graves cited one case in which a student grew a tree that was over 16 feet tall at the end of its first season and over 20 feet tall when it was cut in September of its second year. Dr. Graves stated, and repeated, that the growth of this tree was an "exception" and he knew of no other tree that had grown at so rapid a rate. (id., Tr. 125-127)
On this point, also, Respondent's witness Bill Romeka had about six trees out of a planting of 15,000 that grew to a height of 12 feet in one season. Mr. Romeka stated, however, that the other 14, 994 trees grew to seven or eight feet in height in that same season. (id., Tr. 201) The experience related by Mr. Romeka is in accordance with the expert testimony of Drs. Dirr and Graves above summarized.
As opposed to that evidence we have statements by Mr. Levy, who is the president of Oriental Nurseries, the Respondent. Mr. Levy stated that he had not training as a horticulturist. (Tr. 115) He had four trees sent to him from his supplier. He planted two of those trees and gave the other two away. Mr. Levy took a series of photographs of those trees which show remarkable growth. (Tr. 101-110) One of them may well have reached a height of approximately 16 feet in one growing season. (RX-4)
On the other hand, the second tree did not reach that growth. If a person had bought that second tree hoping for a 16-foot tree at the end of the first season, he would have been disappointed in the growth rate of the second tree. But be that as it may, one cannot take individual instances of this sort and give them greater weight than that given to the testimony of experts of the kind and quality and character that we had in these proceedings. These isolated instances are somewhat comparable to the situation in which a cancer patient in remission says he took aspirin and cured his cancer.
Mr. Levy's kind of evidence is easily identifiable as anecdotal and probative only with respect to the particular tree photographed - not as to all trees sold all over the country. The fact of the matter is that Mr. Levy lives in Southern Florida where the soil tends to be sandy and the atmosphere, the air, the climate, is subtropical and ideal for growing almost anything. (Tr. 113) Hence, the testimony of Mr. Levy is not the type of evidence given by the experts. Specifically, the testimony by Mr. Levy, accompanied by the photographs is, when given all the weight to which it is entitled, just simply not enough to overcome the testimony of the expert witnesses for both parties in the earlier proceeding.
The last charge in the Complaint relates to the flowering capacity of the Chinese Empress. The testimony in the earlier proceeding by Dr. Dirr, who was the Complainant's expert, is that the time that it takes the average Paulownia tree to blossom is from three to six years. Complainant's witness in this proceeding, Dr. Santamour, said eight to ten years was a fairly standard time frame for considerable effective flowering. He added that the faster the vegetative growth, the more retarded the production of flowers. (Tr. 36) In any event, three to six years is the average time, according to the testimony of Respondent's expert witness in the previous case, that it takes a Chinese Empress tree to blossom.
Having found that the Respondent makes the representation which is set forth in paragraph III (d) of the Complaint, the testimony in the earlier proceeding coupled with the testimony of Dr. Santamour in this case, that it takes eight to ten years for a Chinese Empress tree to produce blossoms, is convincing and persuasive evidence that the representation in paragraph III (d) of the Complaint is false.
The representations that have been found to be made by the Respondent and found to be false are material representations. They are of the kind and character which prompt readers of Respondent's advertisements to remit money and purchase this product to see if they can have one of these lovely fast-growing, flowering trees.
In his closing argument Respondent's counsel cited, among other cases, the case of Lynch v. Blount, 330 F. Supp. 681, S.D.N.Y. (1971); aff'd. 404 U.S. 1007 (1972). That case had primarily to do with whether certain court proceedings had to be initiated before the
Postal Service could file an administrative complaint against a Respondent. That procedure was held to be necessary in cases involving obscenity back in the time when the Postal Service was engaged in work related to obscenity. In any event, in Lynch v. Blount that type of court procedure was held not to be necessary in a misrepresentation situation. The Court did say that "stop orders will not be upheld by the Courts whenever a person has resorted to a little exaggeration or mere puffing. The false statement must be material and it must be substantial to warrant the imposition of the drastic remedy." The overstatement by the Respondent of the growth and flowering characteristics of the Chinese Empress tree within a period of one or two years remove such overstatement from the category of "a little exaggeration or mere puffing."
Earlier, counsel for the Respondent made some reference to the freedom of speech provisions of the First Amendment of the Constitution, but in Virginia State Board of Pharmacy, et al. v. Virginia Citizens Consumer Council, Inc., et al., 425 U.S. 748 (1976), the Court, through Mr. Justice Blackman, stated: "Untruthful speech, commercial or otherwise, has never been protected for its own sake."
Complainant moved on December 9, 1980, for reconsideration of the finding that Respondent does, and did, not make the representa- tion expressed in paragraph III (c) of the Complaint. Alterna tively, Complainant moved to amend the Complaint so as to include "..." after "thrives in" in charge III (c) so that the reader would know that some language had been omitted.
With respect to the motion for reconsideration, the character of this charge would be changed by treating it as if the omitted language had been included. Hence, the nature of Respondent's defenses would have to be changed. Proof would be required on such questions as the frequency and duration of the drops in temperatures to 25 degrees below zero. Proof would also be required on such matters as the kind and degree of shade and shelter that would be required in such weather. These matters were touched upon (Tr. 66-76), but they would need to be explored in greater depth. More important, however, is the fact that Respondent did not make the representation attributed to it in the Complaint, and there simply is no way in which Complainant could sustain its burden of showing the contrary. Accordingly, upon reconsideration, the finding complained of is affirmed.
Insofar as amending the Complaint in the manner requested is concerned, the request, coming, as it did, a week after the hearing had been held and the record had been closed, is just too late. The re-opening of the record to enable the Respondent to meet the amended charge would unduly and needlessly prolong the proceeding. The motion to amend the Complaint is denied.
With respect to the matter raised in the Answer to the Complaint about the present use of the advertisement, the fact that a Respondent has discontinued a practice previously alleged as being improper or illegal does not make moot a proceeding involving that practice pending against that Respondent. The authority for this statement is United States v. W. T. Grant Company, 345 U.S. 629 at 632 (1953). That case has been followed in a number of District and Circuit Court cases as well as in the Supreme Court, among which latter cases are United States v. Phosphate Association, 393 U.S. 199, at page 203 (1968); Allee, et al. v. Madrano, et al., 416 U.S. 802, at page 811 (1974); and Hampton v. Mow Sun Wong, 426 U.S. 88, at page 98 (1976).
Based on the foregoing findings of fact it is concluded as a matter of law as follows:
1. Respondent is engaged in the solicitation of remittances of money through the mails in order to accomplish sales of the Chinese Empress tree.
2. In engaging in the aforesaid business Respondent utilizes advertisements designed to attract the attention of readers and to persuade persons to buy the product.
3. In determining the meaning of advertising matter, the piece of advertising material must be considered as a whole and in the light of the effect it would most probably produce on ordinary minds (Donaldson v. Read Magazine, 333 U.S. 179 and VIbra-Brush Corporation v. Schaffer, 152 F. Supp. 461).
On this point Respondent's counsel argued that the quality of publications in which Respondent's products were offered and in which some of its advertisements were published have a readership which is above average in its intellectual qualifications and that, therefore, what the effect of the advertisement would be on the ordinary person would not necessarily be determinative in this case. The problem with that argument, as Complainant's counsel pointed out, is that there is no showing in this record that any advertisements appeared in some of those magazines. There is an exhibit here which shows that the advertisement did appear in the National Inquirer, about the readership of which Respondent's counsel made no representations.
In any event, I conclude that even had the advertisement appeared in some of these other publications which were mentioned in the record there would be many people among the readers of those other publications who would be misled by the advertising matter used in this case.
4. The Respondent does make the representations set forth in paragraphs III (a), (b), and (d) of the Complaint.
5. The representations found to have been made by Respondent are material representations because they are of the character which are calculated to induce readers to make remittances of money to Respondent to purchase the advertised product.
6. The material representations found to have been made by Respondent are false as a matter of fact.
7. The Respondent is engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representation within the meaning of Section 3005 of Title 39, United States Code.
Based upon all the foregoing considerations, an order of the type provided for in Section 3005 of Title 39, United States Code, substantially in the form attached hereto, should be issued against this Respondent.