In the Matter of the Complaint Against

 SMITH PROMOTIONS
 P. O. Box 2469
 at Newark, NJ 07114

 WARREN'S MAILING SERVICE
 P. O. Box 4004
 at Newark, NJ 07112

 and

 SMYRE'S
 P. O. Box 953
 at Newark, NJ 07101

 P.S. Docket No. 3/58;  

 02/17/82

 Dicus, Carroll C. Jr.  

 APPEARANCE FOR COMPLAINANT:
 H. Richard Hefner, Esq.
 Consumer Protection Division
 United States Postal Service
 475 L'Enfant Plaza West, SW 
 Washington, DC 20260

 APPEARANCE FOR RESPONDENT:
 Hamlet E. Goore, Jr., Esq.
 Hamlet E. Goore, Jr. & Associates
 15 Prospect Street
 East Orange, NJ 07018

On November 19, 1981, Complainant filed a "Petition for Order Based Upon Breach of Consent Agreement" in which it alleges that Respondent has breached the terms of a Consent Agreement executed on behalf of Respondent on July 24, 1974. In the Petition Complainant contends that Respondent has resumed making the representations concerning their envelope stuffing program which Respondent agreed to discontinue. In accordance with the terms of the Consent Agreement Complainant also seeks issuance of a False Representation Order as authorized by 39 U.S.C. § 3005(a) (1) and (2) against:

Warren Smyre, Practical Products

Box 316

Irvington, NJ 07111

Attached to the Petition are various exhibits which establish a prima facie case that Respondent has breached the terms of the Consent Agreement. On November 23, 1981, an interim detention order was issued against the above name and address on the strength of the exhibits to the Petition. The interim detention order remains in effect pending resolution of the issues raised in the Petition.

Respondent filed a reply to the Petition on December 7, 1981, in which violations of its constitutional rights are alleged and a hearing was requested. On December 10, 1981, an Order was issued by the Judicial Officer in which Respondent was asked to specify the matters on which evidence was to be taken. After further correspondence and a conference call, it was agreed that the issues would be adequately presented by briefs and affidavits. No affidavits or other exhibits were submitted by Respondent.

In its brief, Respondent concedes that a Consent Agreement waives the right of a party to litigate on the merits, and that the determination to be made here is whether the Consent Agreement was violated. However, Respondent argues, the Consent Agreement should be interpreted in concert with the original Complaint and exhibits.

Such a process of interpretation, it is argued, must lead to a consideration of whether the conduct prohibited by the Consent Agreement, under the present circumstances, constitutes misrepresentation.

It is agreed that the original Complaint and the exhibits supporting it are appropriate for consideration in interpreting the Consent Agreement. However, they serve to define what representations are addressed therein, not whether they are false:

"As a result of the consent agreements the plaintiff is bound by the procedures set forth in the agreements for determining whether a breach has been committed. In addition, the plaintiff has waived its right to litigate whether the present or former advertisements were actually fraudulent. The only question that remained for the judicial officer as a result of the agreement was whether the consent agreement was violated."

American Consumers v. United States Postal Service, 427 F.Supp. 589, 591 (E.D. Pa. 1977). Accordingly, the truth or falsity of the representations will not be considered.

Respondent also contends that its present representations do not violate the Consent Agreement. In support of this Respondent has compared certain claims in its present advertising, which Complainant has cited as examples of continuing representations, with the original Complaint. It is argued that such a comparison must lead to the conclusion that the representations are not the same as those in the original Complaint. In essence, the rhetoric of the present representations is toned down. However, earning "big money" is a phrase comparable in meaning to a promise that income will "skyrocket." Likewise, insertion of the phrase "securing envelopes" does not materially alter the representation that the fundamental enterprise is envelope stuffing. The new advertisements also are replete with information that would lead the consumer of ordinary mind to conclude that Respondent provides all materials -

e.g. "You will not be required to buy any envelopes or postage stamps. We will gladly furnish all circulars without charge..." Of primary importance in finding that the representations continue is the failure of Respondent ot provide the essential information that its program requires participants to purchase advertising to solicit other participants. It is argued that certain subtle changes alert the reader to this. However, without such a disclosure a person of ordinary mind would hardly interpret an unspecific term such as "securing envelopes" and cryptic references to "instructions" to change the representations substantially, but would continue to perceive the advertisements as describing an enterprise where envelopes are stuffed on a "piece work" basis. The changes made by Respondent cannot be considered alterations sufficiently material to change the elemental message of the advertisement from that of its predecessor.

Accordingly, it is concluded that Respondents have breached the terms of the Consent Agreement and that the False Representation Order against the named addressee as named by Complainant should issue. Such a False Representation Order is therefore being issued contemporaneously with this Order.