In the Matter of the Complaint Against

 NATURE LIFE PRODUCTS, INC. 

 and

 NATURE'S HARVEST, INC.,
 95 M South Hoffman Lane at
 Central Islip, NY 11722

 P.S. Docket Nos. 10/99 and 10/100
 
 April 10, 1981
 
 Edwin S. Bernstein Administrative Law Judge

 APPEARANCES FOR COMPLAINANT:
 Thomas A. Ziebarth, Esq.
 Daniel E. Lewis, Esq.
 Law Department
 Consumer Protection Division
 U. S. Postal Service
 Washington, D.C.  20260

 APPEARANCE FOR RESPONDENT:
 Fred M. Schwartz, Esq.
 420 Jericho Turnpike
 Jericho, NY 11753

The Complaints in these consolidated cases alleged that Respondents are engaged in conducting a scheme for obtaining money through the mails by means of false representations in violation of 39 U. S. Code 3005. By Order dated March 11, 1981, served upon Respondent's Counsel on March 13, 1981, this matter was scheduled for hearing on March 23, 1981. When Respondents failed to appear at the hearing, I heard testimony and received other evidence on behalf of Complainant, and made the following bench decision at the hearing:

This is my decision from the bench in Postal Service Docket Numbers 10/99 and 10/100. In these cases, REspondents filed answers but failed to appear at the hearing. Therefore, pursuant to Rule 11, 39 CFR Section 952.11, Respondents have defaulted.

Today we heard testimony of two witnesses for Com- plainant: Dr. Sorell Schwartz and Mr. Gilbert L. Barta. Based upon that testimony and Complainant's Exhibits 1 through 7, I find that Respondents have violated 39 U. S. Code Section 3005 as alleged in the Complaints. As substantiated by the testimony of Mr. Barta, a U. S. Postal Service Inspector presently assigned to the Special Investigations Division who investigated Respondents and their products, Respondents sought remittances of money through the U.S. mails. Complain- ant's Exhibit 1 contains an order blank which invites prospective customers to remit monies through the mail. A business reply envelope was included.

Inspector Barta testified that when he sent money through the mail, he received the product. Complainant's Exhibit 4 contains a similar mail coupon for Respondent's product which is covered in Docket No. 10/100. Complain- ant's Exhibit 1 refers to 10/99. Similarly, with respect to 10/100, money was remitted and the product was obtained through the mail.

Paragraphs 3(a) through (e) of the Complaint in Docket No. 10/99 allege that Respondent represented that its product, RNA+13 tablets, can retard the aging process, help consumers look and feel younger in a few weeks, replenish the cell's supply of ribonucleic acid or RNA, effectively help people who are suffering from arthritis, diabetes, emphysema, and heart disease, reduce breath- lessness and fatigue, help to combat skin disorders including acne, psoriasis, and brown spots, improve heart function, increase resistance to viral diseases, significantly contribute to energy levels, and cause wrinkles to disappear.

The advertisement contained in Complainant's Exhibit 1 makes the representations referred to in paragraph 3 of the Complaint. At page 4 there is a reference to the Stay Young Diet and No Aging Diet and the De-Aging Plan. Page 5 refers to a No Aging Plan. The advertisement at page 7 indicates that RNA+13 taken as directed for 2 weeks will make people begin to look and feel younger. Page 2 indicates that the high nucleic acid nutrition plan has resulted in patients actually looking younger and that RNA+13 can take perhaps years off your appearance. Page 2 also indicates that RNA may significantly contribute to increased energy levels, may improve heart function, that it contributes toward helping combat many skin disorders, that it may improve resistance to viral diseases, may improve memory and alertness, may cause reversal of tissue degeneration.

Page 5 contains a list of many things that the produce allegedly does including "reduce breathlessness and fatigue, combat many skin disorders including acne, psoriasis, brown spots, improve heart function, increase resistance to viral diseases (that means the flu), improve memory and alertness, significantly contribute to increased energy levels, even cause wrinkles to disappear.

Page 1 indicates that "it is possible to replenish our RNA supply. That's why the diet was devised and that's why RNA+13 could make a big difference in your life." Page 4 states, "In other words, you can help replace the RNA your body has lost." Page 5 states, "Accounts of nucleic acid therapy successfully used by doctors to treat heart disease, diabetes, arthritis, and other degenerative diseases associated with aging."

In summary, the advertisement used by Respondent Nature Life Products, Inc. for RNA+13 overflows with the representations alleged in paragraph 3 of the Complaint in Docket No. P.S. 10/99.

The advertisement for the product RNA+Plus, which is the subject of Docket No. P.S. 10/100 against Nature's Harvest, Inc. similarly substantiates each contention with regard to representations that are contained in the Complaint for that docket number. The representations similarly are that the tablets of RNA+Plus can retard the aging process, help consumers looke and feel younger in a few weeks, replenish the cell's ribonucleic acid; can be effective for people suffering from such degenerative diseases associated with aging as arthritis, diabetes, and emphysema; are effective in reducing breathlessness and fatigue, helping to combat many skin disorders including acne, psoriasis, and brown spots, improving heart function, increasing resistance to viral diseases, improving memory and alertness, significantly contributing to increased energy levels, causing wrinkles to disappear; and RNA+Plus tablets represent a medical breakthrough constituting a radical new approach to health and nutrition.

The advertisement contained in Complainant's Exhibit 4 indicates in bold letters that it is a No Aging Diet, that it is a Fabulous Stay Young Dietary Program, and repeats this language with respect to "no aging" several times. It states that books and magazines reported that this special diet, rich in nucleic acid, may reduce breathlessness and fatigue, help combat many skin disorders including acne, psoriasis, brown spots, improve heart function, increase resistance to viral diseases, improve memory and alertness, significantly contribute to increased energy levels, cause wrinkles to disappear, make some people feel and appear 10 to 15 years younger.

It further states that if you are over 60, RNA could make a big difference in the way you feel, "even if you already suffer from arthritis, diabetes, emphysema, aging complications." It states that the Fabulous Stay Young Dietary Program is based on one of the most significant scientific breakthroughs in our time and shows amazing results in just weeks.

Thus, I find that with respect to Docket No. 10/100, Complainants Exhibit 4, the advertisement used by Respondent, substantiates the alleged representations referred to in paragraph 3 of the Complaint.

I find that these representations are material. Based on these representations, individuals order the product, purchase the product, and expect beneficial results from the product. I further find that the representations are false or designed to mislead.

I was impressed by the testimony of Dr. Sorell Schwartz. As indicated by his curriculum vitae, he has excellent credentials. He is presently a Professor of Pharmacology at Georgetown University. I thought that he testified persuasively and effectively, and I credit his testimony. Dr. Schwartz indicated that both RNA+13 and RNA+Plus are multivitamin and mineral products; the products are similar except that RNA+Plus contains more minerals and different quantities of vitamins. Dr. Schwartz indicated that if one ingests RNA orally, it will have no therapeutic or nutritional effect. Specifically in Complainant's Exhibit 3, Dr. Schwartz's report filed with respect to RNA+13, he stated, "To date, orally administered RNA is not utilized by the cell as a nucleic acid." And similarly, in Complainant's Exhibit 6 in which he referred to Respondents' other product RNA+Plus, Dr. Schwartz wrote, "exogenously administered RNA is not utilized by the cell as a nucleic acid."

Dr. Schwartz indicated that the body processes its own RNA, but RNA that is eaten such as that contained in this product does not add to the RNA in the body. I accept this conclusion. Therefore, I find that the RNA with respect to these products does not help the body. The other ingredients in these products are a combina- tion of vitamins and minerals. I further accept Dr. Schwartz's testimony that vitamins and minerals such as these would only be effective in helping people who are vitamin and mineral deficient and that the percentage of people having vitamin and mineral deficiencies is less than one percent. Even individuals who have vitamin and mineral deficiencies would not be helped with regard to many represented cures of these products.

Specifically, vitamin and mineral supplements would have no effect in helping arthritis, diabetes, emphy- sema, heart disease, breathlessness, acne, psoriasis, brown spots, age spots, viral diseases, wrinkles due to old age, or memory. Although vitamin and mineral sup- plements might help individuals who have deficiencies in combating fatigue, feeling more energetic, and in skin disorders and wrinkles which are related to vitamin deficiencies, these are but a small portion of the alleged effects of these products, and even these effects would only be helpful in that less than one percent of the population that may have a vitamin deficiency.

Therefore, I find that the representations as referred to in paragraphs 3 of the Complaints in these cases are false. I note that some of the representa- tions use the word "may" rather than "will." I think in the context in which these representations are contained in the advertisements, the "may" does not negate the impression that the average person has. And that impression, in my opinion, is that the product will tend to accomplish the claims that are preceded with the word "may."

In this connection it is noted that the meaning of representations made in a sales presentation is to be judged from a consideration of the presentation in its totality and the impression it would most probably create in the ordinary mind. 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 impression that 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 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).

Applying these standards and these rules, I find that Respondents' representations in their advertisements in CX-1 and CX-4 are false representations within the meaning of 39 U.S. Code, Section 3005 as alleged.

Therefore, an Order of the type authorized by 39 U.S. Code, Section 3005 in the form that I will attach to the written decision in this matter should be issued against Respondent.

I affirm that decision.