In the Matter of the Complaint Against

 THE HOUSE OF RENEE ADVANCED BEAUTY PRODUCTS
 SPECIALTY BEAUTY COMPANY
 One Wolfs Lane
 at Pelham, NY 10803

 and

 FOREVER BEAUTIFUL BEAUTY INNOVATIONS
 Suite 609 1255 Post Street
 at San Francisco, CA 94109

 P.S. Docket No. 10/9;
 
 10/28/81
 
 Cohen, James A.

 APPEARANCE FOR COMPLAINANT:
 ThomasA. Ziebarth, Esq.
 James A. Harbin, Esq.
 Consumer Protection Division
 Law Department
 U.S. Postal Service
 Washington, DC 20260

 APPEARANCE FOR RESPONDENT:
 Lee H. Harter, Esq.
 2256 Van Ness Avenue
 San Francisco, CA 94109

Respondents have appealed from an Initial Decision of an Administrative Law Judge which holds that with regard to the sale of "GeGe Lotion," Respondents are engaged in a scheme for obtaining money through the mail by means of materially false representations in violation of 39 U.S.C. § 3005.

On November 24, 1980, the Consumer Protection Division, Law Department, United States Postal Service, filed a Complaint against House of Renee and Advanced Beauty Products as Respondents. Thereafter, Forever Beautiful, Beauty Innovations and Specialty Beauty Company were added as Respondents by order of the Administrative Law Judge. The Complaint alleges that Respondents, by means of two typical advertisements attached to the Complaint, falsely represent that:

"(3) By means of advertisements ..., Respondent represents, directly or indirectly, in substance and effect, whether by affirmative statements, omissions or implication that:

(a) GeGe lotion will remove stretch marks from the stomach, thighs, hips, breasts and buttocks of users of the product;

(b) GeGe lotion will remove stretch marks from the bodies of users of the product; and

(c) GeGe lotion is not an ordinary cream or lotion but effectively is an effective treatment for stretch marks.

"(4) The aforesaid representations are materially false as a matter of fact."

In their Answer to the Complaint, Respondents denied all of the allegations of the Complaint. Respondents did admit, however, that the two advertisements attached to the Complaint are copies of their recent advertisements.

At a hearing held before the Administrative Law Judge to take evidence on the allegations in the Compliant, Respondents moved to dismiss the Complaint contending that their advertisements do not make the alleged representations (Tr. 6-17). After considering the arguments of the parties, the Administrative Law

Judge denied the motion, finding that the alleged representations were in fact made, either directly or by implication (Tr. 18-19).

The product which is the subject of this proceeding, GeGe Lotion, contains various ingredients which would be expected to be found in a pigmented moisturizing cream (Tr. 37). Hydroquinone is the active ingredient in GeGe Lotion which decreases melanin pigmentation (Tr. 33-34, 37, 75-76). At the hearing, both parties presented the testimony of an expert witness, each of whom testified about the cause and appearance of stretch marks and the effect of Respondent's product on such marks. Complainant presented the testimony of Karl Jules Kramer, M.D., a practicing physician specializing in dermatology. Respondents presented the testimony of Peter A. Pollat, M.D., also a practicing physician specializing in dermatology. On the basis of the testimony and the documentary evidence presented, the Administrative Law Judge found that Respondents make the representations alleged, that those representations are material and that they are false. Accordingly, he concluded that Respondents are engaged in activities which are in violation of 39 U.S.C. § 3005.

Respndents have stated 4 exceptions to the Initial Decision, each of which is addressed below.

Respondents' first exception relates to all of the representations alleged to be false in paragraph 3 of the Complaint. Paragraphs 3(a) and (b) of the Complaint allege that Respondents' product will remove stretch marks from specific parts of the body and the entire body. Paragraph 3(c) alleges that the product is an effective treatment for stretch marks. In the Initial Decision, the Administrative Law Judge reiterated the ruling made at the hearing that the representations alleged to be made were contained in Respondents' advertising (I.D., FOF 2, COL pp. 7-8). Respondents contend that the Administrative Law Judge erred in reaching this conclusion.

Respondents first argue that their advertisements do not state, and cannot be interpreted as representing, that GeGe Lotion will "remove stretch marks." According to Respondents their advertisements represent only that GeGe Lotion will cause stretch marks to become lighter and fade. While it is true Respondents' advertisements do not use the word "remove", the specific portions of the advertisements referred to by the Administrative Law Judge in the Initial Decision, when read in the context of the totality of the contents of the advertisements, would most probably lead the ordinary reader to conclude that GeGe Lotion will remove stretch marks.

Respondents next argue that phrases were taken from the advertisements out of context and that the advertisements represent only that the product will improve the cosmetic appearance of stretch marks. Although the Administrative Law Judge referred to specific portions of the advertisements which he found make the alleged representations, nonetheless, the test he applied in interpreting Respondents' advertising was the totality of the contents of the advertisements and their effect on the ordinary mind (I.D., pp. 5-8). The Administrative Law Judge did not err in referring to specific portions of Respondents' advertisements or in applying the "totality of the contents" test. Neither did he err in the application of the test to Respondents' advertising and in reaching the conclusion that Respondents make the representations alleged in the Complaint.

Respondents also argue that the offer of a 20, 40, and 80-day supply of their product indicates to the ordinary reader that the product does not remove stretch marks. Contrary to Respondents' argument, the reference to the various sizes of the product would not detract from a reader's belief that removal would take place. An ordinary reader would most probably interpret the availability of various sizes of the product as indicating that removal may take longer in some cases than in others.

Respondents further argue that their advertisements do not represent that GeGe Lotion is an effective treatment for stretch marks. They contend that, at best, the advertisements only represent that the lotion is an effective "cosmetic treatment for stretch marks, not a stretch mark remover." Since it has been concluded that the advertisements do represent removal to the ordinary reader, it was proper for the Administrative Law Judge to conclude that the advertisements create the impression that Respondents' product is an effective treatment, cure or remedy, for stretch marks. See Aronberg v. Federal Trade Commission, 132 F.2d 165, 168 (7th Cir. 1942).

For the foregoing reasons, it is concluded the Administrative law Judge properly found that Respondents' make the representations alleged in the Complaint. Therefore, Respondents' contentions under Exception 1 are without merit.

Respondents argue that GeGe Lotion will improve the appearance of stretch marks and, therefore, is an effective treatment for stretch marks. They contend that the Administrative Law Judge came to a contrary conclusion because he "totally misread the testimony when he concluded 'if applied until absorbed GeGe Lotion will not change the "skin's" pigment or act as a covering lotion. (Tr. 38, 52)'" (I.D. p. 3)

The quoted statement does appear on page 3 of the Initial Decision and is supported by the transcript citation. In the Conclusions of Law portion of the Initial Decision the Administrative Law Judge goes on to state:

"GeGe does not remove stretch marks. It will lighten skin, but it will lighten skin around the stretch marks as much as the stretch marks. This tends to make stretch marks no less conspicious then they were before. Also GeGe applied as directed until absorbed is not a covering agent. Thus, GeGe neither removes nor significantly improves the appearance of stretch marks. Therefore, the advertisements are false and misleading." (I.D. p. 8)

These concusions are also supported by the record. However, there is also testimony that, if applied heavily, GeGe Lotion would have a slight covering effect on areas of the skin (Tr. 39, 56). Nonetheless, the record supports the finding that no improvement in appearance would result because there would still be a contrast with normal skin tone and the stretch marks would continue to have different surface characteristics than the surrounding skin (Tr. 58-59, 83-84). Thus, the record does not support a finding that GeGe Lotion will improve the appearance of stretch marks either by reducing pigment or covering the stretch marks. Furthermore, the issue is not whether the lotion will improve the appearance of stretch marks or serve as a temporary cover for such marks, but whether it is an effective treatment for stretch marks. Therefore, even if it were concluded GeGe Lotion would provide some slight cosmetic improvement in the appearance of stretch marks there would be no grounds to voerrule the Initial Decision. Accordingly, Respondents' Exception II is without merit.

In its Answer to the Complaint, Respondents alleged as affirmative defenses both the statute of limitations and laches. At the hearing Respondents conceded there was no applicable statute of limitations (Tr. 98). However, Respondents maintain that the doctrine of laches should preclude Complainant from obtaining a mail stop order in this proceeding. According to Respondents, Complainant was aware of the use of one of the advertisements which is the subject of this proceeding while a prior proceeding involving GeGe Lotion was pending and should have included the advertisement in that proceeding. By Complainant's failure to include the advertisement in the prior proceeding, Respondents contend they have been prejudiced by having to incur additional litigation costs.

Respondents have not established that the doctrine of laches should apply in this case. Courts have taken note that advertisers continue to do business and thus are enriched so long as their advertisements are not challenged. Institute For Weight Control v. Klassen, 348 F.Supp. 1304, 1316 (D. N.J. 1977). Therefore, it was to Respondents' benefit, not detriment, that its advertisement was not the subject of the prior Complaint.

Furthermore, it has recently been held that "the necessity of defending a suit is not the type of 'prejudice' against which the defense of laches protects." United States Postal Service v. Athena Products Limited, Civil Action 81-358A (N.D. GA, Mem. Op. March 30, 1981) aff'd, 654 F.2d 362 (5th Cir. 1981). Accordingly, Respondents' Exception III is without merit.

In their request for admissions, Respondents asked for an admission or denial of the following statement:

The House of Beauty advertisement could have been included in the then-pending proceedings in GeGe Cosmetics, Inc., P.S. Docket No. 6/49.

Complainant's response to that admission was:

There was neither a test purchase nor a laboratory analysis based on the advertisement. Therefore, deny.

Respondents argue that Complainant's admission that it could not add a respondent to a 1978 proceeding because it had not made a test purchase or a laboratory analysis precludes it from adding Beauty Innovations or Specialty Beauty Company as respondents in this proceeding since no test purchase or laboratory analysis was made with respect to those parties.

Complainant's admission does not establish a rule of law binding in this proceeding. Under appropriate circumstances, a test purchase and laboratory analysis may be unnecessary. Such circumstances exist in this case. It is conceded that the advertisements used by Beauty Innovations and Specialty Beauty

Company are identical to the advertisements used by the other Respondents in this case. In addition, the product name is the same and the remittances solicited by Beauty Innovations and Specialty Beauty Company are to be mailed to addresses which are the same as those of other Respondents (Tr. 61-70). Furthermore, the testimony estabishes that there is no effective treatment for stretch marks (Tr. 33, 76, 81, 89). On such facts a prima facie case has been made by Complainant, and stands unrebutted on the record. It, therefore, was not improper to include Beauty Innovations and Specialty Beauty Company as respondents. Accordingly, Respondents' Exception IV is without merit.

After consideration of the entire record and Respondents' exceptions, it is concluded that Respondents are engaged in a scheme to obtain money through the mail by means of materially false representations. Accordingly, Respondents' appeal is denied and a remedial order under 39 U.S.C. § 3005 is being issued contemporaneously with this decision.