In the Matter of the Complaint Against CHARLES C. CUNARD, 30 Montrose Avenue, Brooklyn, NY 11206 and 1626 N. Wilcox Hollywood, CA 90028 and 210 Fifth Avenue, New York, NY 10010 and 2331 South Hill Street, Los Angeles, CA 90007 and LAWRENCE LARRABEE, 663 Fifth Avenue, New York, NY 10022 P.S. Docket Nos. 12/124 & 12/129 01/22/82 Bernstein, Edwin S. Administrative Law Judge APPEARANCE FOR COMPLAINANT: Thomas A. Ziebarth, Esq. Consumer Protection Division Law Department United States Postal Service Washington, DC 20260 APPEARANCE FOR RESPONDENT: Charles Davis Lawrence Larrabee Labs 663 Fifth Avenue New York, NY 10022BEFORE: Judge Edwin S. Bernstein
Complainant alleged and Respondents denied that Respondents are engaged in conducting schemes to obtain money through the mail by means of false representations in violation of 39 United States Code 3005. By Order dated December 18, 1981, I granted Complainant's Motion to Consolidate the cases and scheduled the hearing for December 29, 1981. Respondent failed to appear at the hearing, although duly notified, and I received Complainant's evidence. Mr. Gilbert Lee Barta and Dr. Vincent F. Cordaro testified for Complainant.
I find that Respondents solicit money through the mail in connection with the sale of their products, Placenta Big Bosom Creme with Magnum Cup Expander and Aero Plus 31. Postal Inspector Barta's testimony (Tr. 10-11, 22-26) and Complainant's Exhibits (CX) 1 through 7 support this finding.
I also find that Respondents' advertisements make the representations alleged in Paragraph 3 of the Complaints.
Except for the addresses in the coupon the advertisements in Docket No. 12/124 (CX-1 through 4) are identical. The language in the advertisements which makes each representation is as follows:
"(a) PLACENTA BIG BOSOM CREME WITH MAGNUM CUP EXPANDER will produce gains of 6 inches and 3 cup sizes in the female user's breasts in only 10 days."
The advertisements' headings read "Increase Your Bust up to 6" and 3 Cup Sizes." At the side of the headings are four silhouettes of women labeled "Day 2", "Day 4", "Day 7" and "Day 10", which show increasingly larger breasts. This conveys the impression of dramatic improvement in ten days. Additionally, the advertisements promise that the products "will develop your cup size from A to D."
Finally, the testimonial of Ms. Gravet reinforces the representations by stating "Thanks to Dr. Monet's new fantastic 'bosom enhancers' I have gained 6 inches and 3 cup sizes in only 8 days. Now I measure 39D. Bless you."
"(b) The breast enlargement claims made in subparagraph (a) are supported by competent scientific tests conducted under medical supervision."
The second paragraph of the advertisements supports this allegation. That paragraph reads:
"Yes, thanks to a woman doctor, French Gynecologist Dr. Monique Monet and her superior concept developers of 'Living Fluids' that replaces the dried out moisture that causes bosoms to be small and shapeless, and 'Placenta' big bosom creme that enlarges and increases the size and shape of the bosom, with extra 'magnum cup expander' that will develop your cup size from A to D."
"(c) PLACENTA BIG BOSOM CREME WITH MAGNUM CUP EXPANDER will be furnished with sic a reasonable time to persons remitting the purchase price (viz. within 30 days as required under Federal Trade Commission's Trade Regulation Rule on Mail Order Merchandise, 16 C.F.R. 435.1)."
The cited Federal Trade Commission regulation regarding mail order advertisements requires a mail order merchant, unless he sets forth a different time, to fulfill an order within 30 days. I find that people buying through the mail have a right to expect that their order will be fulfilled within 30 days as a reasonable period of time.
The coupon also states and therefore represents that the seller will "rush me" the products.
The allegations in Paragraph 3 of Docket No. 12/129 are supported for the following reasons:
"(a) AERO-PLUS 31 will cause a substantial enlargement of the female user's breasts. . . . '3 full cup sizes' . . . in seven days". The heading of CX-5, the advertisement in that case, reads "ENLARGE YOUR BOSOM 3 FULL CUP SIZES IN ONLY 7 DAYS."
Additionally, the last sentence of the advertisement represents that the purchaser will "Know the Pleasure and Final Fulfillment of going from an A to D cup."
"(b) AERO-PLUS 31 will be furnished within a reasonable time to persons remitting the purchase price (viz. within 30 days as required under Federal Trade Commission's Trade Regulation Rule on Mail Order Merchandise, 16 C.F.R. 435.1)."
As previously found with respect to Paragraph 3(c) of Docket No. 12/124, in the absence of a specified time period, a purchaser has a right to assume that delivery will be made within the reasonable time period of 30 days. I also note that the advertisement promises "Guaranteed Delivery."
I further find that all of the above representations are materially false. I found Dr. Cordaro to be an experienced, well informed, credible witness. His testimony, including his statement that his testimony is consistent with the consensus of informed medical opinion, was uncontradicted and believable. Dr. Cordaro stated unequivocably that he knew of no product, except for large doses of estrogen, that would increase the size of a woman's breasts. Furthermore, he knew of no product that would accomplish the results claimed for Respondents' products in ten days.
Dr. Cordaro further testified that he knew of no product, sold without prescription, that would affect women's breast sizes at all. He further testified that if such a product appeared it would constitute a significant medical breakthrough and, therefore, any medical tests to support the product's claims would be widely known.
Inspector Barta's testimony supported the allegations that Respondents failed to deliver the products within a reasonable period of time. He stated that the Postal Service ordered Respondents' products on several occasions but never received any products (Tr. 10-11), although Respondents negotiated the money orders that were transmitted (Tr. 18-20).
1. Since Respondents have sought remittances of money through the mail, the jurisdictional requirement of 39 U.S.C. 3005 has been fulfilled.
2. The representations made by an advertisement are considered to be those that the purchaser to whom it was directed, presumed to be of ordinary intelligence, would understand from viewing the advertisement as a whole. What has been omitted and what may be reasonably implied from the advertisement are considered in assessing its meaning. Donaldson v. Read Magazine, Inc., 333 U.S. 178, 184, 188 (1948).
3. The average person reading Respondents' advertisements would interpret them substantially as characterized in Paragraphs 3 of the Complaints.
4. The representations specified in Paragraphs 3 of the Complaints are materially false.
5. Complainant has established its case by a preponderance of the reliable and probative evidence of record. S.E.C. v. Savoy Industries, 587 F.2d 1149, 1168 (D.C. Cir. 1978).
Therefore, I conclude that Respondents are engaged in conducting schemes for obtaining money through the mail by false representations in violation of 39 U.S.C. 3005 and that a False Representation Order, substantially in the form attached, should be issued against Respondents.