In the Matter of the Complaint Against

 N. STIMPSON
 225 S.W. 91st Street
 at Gainesville, FL 32601

 and

 COLFAX PUBLICATIONS,
 Post Office Box 1135
 at Newberry, FL 32669

 P.S. Docket No. 11/80
 
 October 16, 1981
 
 Edwin S. Bernstein Administrative Law Judge

 APPEARANCES FOR COMPLAINANT:
 Clark C. Evans, Esq.
 H. Richard Hefner, Esq.
 Consumer Protection Division
 Law Department
 U.S. Postal Service
 Washington, DC 20260-1100

 APPEARANCE FOR RESPONDENTS:
 Grafton B. Wilson, II, Esq.
 Schwartz and Wilson
 P. O. Box 1202
 Gainesville, FL 32602

 BEFORE: Judge Edwin S. Bernstein

Complainant alleged and Respondents denied that Respondents are conducting a scheme to obtain money through the mails by means of false representations in violation of 39 United States Code 3005. I held a hearing in Washington, D.C., on July 30, 1981. Roy H. Spradley, Jane Ruth Lee and Roger H. Lourie testified for Complainant. No witnesses testified for Respondents.

I find that Respondents solicit money through the mails in connection with their business that is the subject of this proceeding. Respondents admitted this in Paragraph I of their Answer, Ms. Lee's testimony substantiated this (Tr. 32-35), and Respondents' advertising (CX-M) also supports the conclusion.

I also find that Respondents made the representations alleged in Paragraph III of the Complaint and that, as alleged, the representations are false.

The legal test to be applied to interpretation of advertising representations is the probable impact of the advertisement, taken as a whole, upon ordinary minds. An advertisement may be deceptive because its statements are untrue or because statements which should be contained are omitted. The total impression of an advertisement may be false although each word individually is true. Donaldson v. Read Magazine, Inc. , 333 U.S. 178 (1948); Vibra-Brush Corp. v. Schaffer , 152 F. Supp. 461 (S.D. N.Y. 1957).

Representations are material if their natural effect is to induce readers of the advertising to purchase the program or product. F.T.C. v. Colgate-Palmolive Co. , 380 U.S. 374, 387 (1965).

False advertising representations are not protected by the freedom of speech guarantees of the First Amendment to the Constitution. Lynch v. Blount , 330 F. Supp. 689 (S.D. N.Y. 1971), aff'd 404 U.S. 1007 (1972); Hollywood House International v. Klassen , 508 F.2d 1276 (9th Cir. 1975); and Virginia State Board of Pharmacy, et al, v. Virginia Citizens Consumer Council, Inc., et al. , 20 U.S. 971 (1976). Nor is the effect of false advertisements dispelled by a money back guarantee or an offer to refund payment in the event of customer dissatisfaction. Harris v. Rosenberger , 145 F. 749 (8th Cir. 1906); G. J. Howard v. Cassidy , 162 F. Supp. 568 (E.D. N.Y. 1958); Farley v. Heininger , 105 F.2d 79 (D.C. Cir. 1939); and Borg-Johnson Electronics v. Christenberry , 169 F. Supp. 746 (S.D.N.Y. 1959).

Applying these principles, I find that, as alleged, Respondents have made the following representations for the reasons set forth.

(a) "Payment of a 'good faith' deposit of $25.00 will allow immediate participation in Respondent's promotion without further substantial financial investment by the homeworker."

This representation is made by the following language in Respondents' advertisements:

"IN ORDER TO GET YOU STARTED IMMEDIATELY, we must require that you send a good faith deposit of only $25.00 for instruction material." (CX-B and CX-M.)

"You will not be required to buy any envelopes or postage stamps. We will gladly furnish all circulars without charge for as long as you wish to participate." (CX-B and CX-M.)

" . . . to cover your small expense involved in receiving the envelopes . . ." (CX-B and CX-M.)

Additionally, Respondents' omission of specific data concerning further financial outlays implies to the reader that such expenses will be either non-existent or inconsequential compared to the initial fee of $25.00.

(b) "Only a limited number of persons will be selected to participate in Respondent's promotion."

This representation is made by the following language in Respondents' advertisements:

"Don't put off another minute because our quota for mailers may soon be filled." (CX-B and CX-M.)

(c) "Principal requisites for participants to earn sizeable monetary compensation from Respondent are:

1) payment of the $25.00 'deposit,' followed by

2) stuffing circulars into envelopes and forwarding said materials to Respondent."

This representation is made by the following language in Respondents' advertisements:

"WE'LL PAY YOU 60[ PER ENVELOPE STUFFED AND submitted to us according to our instructions]]"

(CX-B and CX-M.)

"NOW] As an independent mailer working with us

YOU could earn BIG MONEY and respect in your own mailing business, substantially consisting of

SIMPLE-PLEASANT-PROFITABLE STUFFING-MAILING

PRE-ADDRESSED STAMPED ENVELOPES at home]" (CX-B and CX-M.)

The representation that sizeable monetary compensation is available is also conveyed by the phrases "good pay," "big money" and "large profit" in Respondents' advertisements (CX-A, CX-B and CX-M.)

(d) "Amounts of earnings are primarily determined by whatever amount of time participants wish to devote or can devote to the stuffing of circulars into envelopes."

This presentation is made by the following language in Respondents' advertisements:

"There are no quotas set on the amount of stuffed envelopes you can submit. You can send as many as you are able to send and you have our assurance that you will definitely be paid promptly no less than 60[ for each envelope submitted. . ." (CX-B and CX-M.)

"Send us 25 - we'll send a check for $15.00; send us 100 - we'll send a check for $60.00; send us

500 - we'll send a check for $300.00 and on and on]]" (CX-B and CX-M.)

Contrary to what the purchaser was originally led to believe before he sent his money to Respondents, his work does not substantially consist of stuffing envelopes. He is required to place classified advertisements, at his expense, to generate inquiries regarding Respondents' work-at-home typing service. Responses would consist of stamped, self-addressed envelopes sent by the public according to instructions in the classified advertisement. The homeworker is then instructed to stuff the stamped, self-addressed envelopes with Respondents' typing circular (pages 18 and 19 of CX-L) and send all materials to Respondents. The homeworker will, therefore, be primarily involved in solicitation activities involving potentially large advertising expenses - not in stuffing envelopes. Therefore, the participant is required to establish and operate a business enterprise. This requirement was not disclosed by Respondents' pre-purchase advertising materials.

Homeworkers are paid for the number of envelopes their advertisements generate, not for the amount of work or time they devote to the promotion. The sine qua non of the program is the expense and placement of classified advertisements. This vital fact was omitted from Respondents' advertising materials. This material omission constitutes a misrepresentation of Respondents' program.

Mr. Roger Lourie, a graduate of Columbia School of Business who had extensive experience and expertise in direct mail marketing and the use of mailing lists, testified persuasively and without contradiction. He stated that it would take an extraordinary effort for an individual who responded to Respondents' advertisement to make a profit (Tr. 81). To do this would also require marketing expertise that the average person does not possess (Tr. 83).

Furthermore, Respondents represented that only a limited number of persons will be chosen to participate in their program. However, by addressing the general public via a classified advertisement (CX-A) and stating therein that no experience is required, Respondents are not attempting to limit the number of participants. Additionally, limiting the number of participants would be detrimental to Respondents' financial interests. Respondents are in business to make a profit. Limiting of participants would not rationally serve that purpose.

Therefore, I find 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.C. 3005. Accordingly, a mail stop order, substantially similar to the form attached, should be issued against Respondents.