In the Matter of the Complaint Against JOEL ROBINSON, d/b/a NATIONAL FUELSAVER CORP. 667 Washington Street at Brookline, MA 02146 P.S. Docket No. 10/1; 04/26/83 Dicus, Carroll C. Jr. APPEARANCE FOR COMPLAINANT: ThomasA. Ziebarth, Esq. Consumer Protection Division Law Department United States Postal Service Washington, DC 20260-1100 APPEARANCE FOR RESPONDENT: William I. Cowin, Esq. Friedman & Atherton 28 State Street Boston, MA 02109-1781
By Order dated February 22, 1982, from the United States District Court for the District of Massachusetts (hereinafter "the Court Order"), this matter was remanded to the Judicial Officer for rehearing of all issues. The case involves the advertising representations made by Respondent, Joel Robinson, in the marketing of a device called the GASAVER. The purpose of the device is to improve automobile fuel economy.
On November 14, 1980, the Consumer Protection Division, Law Department, United States Postal Service (Complainant), filed a Complaint alleging that Respondent is engaged in a scheme to obtain money or property through the mails by means of materially false representations in violation of 39 U.S.C. § 3005, as follows:
"(3) By means of such materials, and others similar thereto, Respondent represents, directly and indirectly, in substance and effect, whether by affirmative statements, omissions or implication that:
(a) The installation of GASAVER on an automobile will cause a dramatic increase in gas mileage of up to 48% or better; and
(b) GASAVER has passed the Environmental Protection Agency's (EPA) H-74 test (emission reduction) and was granted the EPA's approval to market the system.
(c) The fuel economy claims for GASAVER are supported by scientific research tests."
After a hearing and submission of briefs, an Administrative Law Judge issued an Initial Decision on May 8, 1981, in which he concluded that Respondent made the advertising representations set out in the Complaint and that they are materially false in violation of 39 U.S.C. § 3005. Respondent appealed to the Judicial Officer and a Postal Service Decision was issued on August 13, 1981, denying the appeal. False Representation Order No. 81-175 was also issued on August 13, 1981, pursuant to 39 U.S.C. § 3005.
Thereafter, Respondent appealed the Postal Service Decision to the District Court which issued the Court Order remanding the case to the Judicial Officer. Upon receipt of the Court Order, which vacated False Representation Order No. 81-175, the case was rescheduled for hearing. Consistent with the directions of the Court Order, the case was tried de novo on all issues. In addition, the parties agreed that:
1. the case would be heard and decided by the Associate Judicial Officer, Carroll C. Dicus, Jr.;
2. Judge Dicus's decision would be the final Postal Service Decision;
3. the Complaint would be amended to add the following new allegation:
"(d.) the installation of GASAVER on an automobile will cause a significant increase in fuel economy viz. 5% or better." (Tr. 5-6, 81-82.)
A hearing was held in Boston, Massachusetts, on July 22 and 23, 1982. Complainant's only witness was John B. Heywood, Ph.D., a professor of automotive engineering at the Massachusetts Institute of Technology. Respondent presented the testimony of Harry Hyde, an automobile mechanic and driver who builds and races stock cars; John T. Brown, a ceramic engineer; Cynthia N. Rudie, Ph.D., a research chemist; Clyde M. Adams, Ph.D., a metallurgical and chemical engineer; and Joel Robinson, Respondent and inventor of GASAVER. Dr. Heywood, Dr. Rudie and Dr. Adams were each qualified and accepted as experts in his or her individual discipline. The record was reopened after the hearing to permit submission of an account of a fleet test designated Respondent's Exhibit 30 and an affidavit from Dr. Heywood in rebuttal from Complainant.
1. Joel Robinson is sole shareholder of National Fuelsaver Corporation, through which he markets GASAVER (Tr. 181-182). Mr. Robinson holds a patent for the concept of transporting platinum into a fossil fuel combustion chamber (Respondent's Exhibit Resp. Ex. 25). The first application of the concept was for furnaces (Tr. 184-185). Mr. Robinson thereafter began to develope the concept for automobiles (Tr. 186). Through application of the concept, he helped to enhance the combustion process and save fuel (Tr. 184).
2. GASAVER employs a process through which a platinum solution is continually transported into the combustion chamber of an automobile. The platinum is intended to act as a catalyst which permits combustion to occur at a lower temperature and causes more complete combustion, more efficient use of fuel and reduction of pollutants (Resp. Ex. 13; Tr. 311).
3. Because of the nature of the patent, Respondent markets only the platinum solution, providing the transport apparatus without charge. The entire package which a purchaser receives consists of the platinum solution, a plastic dispensing tank, a length of plastic hose, a funnel, a strap and a tee. The tank is strapped under the hood of an automobile, and hooked-up to the vacuum line out of the carburetor through use of the tee and plastic hose (Complainant's Exhibit Comp. Ex. 7; Resp. Ex. 24; Tr. 224-227). Respondent began marketing GASAVER in early 1979 (Tr. 224; Comp. Ex. 3).
4. Form letters prepared by Respondent and reprints of various materials prepared by others are used in advertising GASAVER (Respondent's Requests for Findings of Fact Resp. Req. for FOF ??27-47).
5. Respondent solicits money through the mail in marketing GASAVER (Comp. Exs. 1 and 6).
6. Advertising materials used and prepared by Respondent plainly state that GASAVER will improve fuel economy (Comp. Exs. 1 and 6). Respondent makes reference to specific improvements in a promotional letter as follows:
"The vast majority of our customers are getting 3 to 4 more miles per gallon. A few are getting as much as 6 to 8 more miles per gallon... If you would like to improve your gas mileage by 20 to 30%, simply mail us your check ... ." (Comp. Ex. 6.)
7. Other materials provided to prospective customers make reference to improvements ranging from 15% to 25% (Comp. Exs. 2, 4, 8, and 14). Also included among Respondent's promotional items is a report of a fleet test involving fifteen 1980 Chevrolet station wagons owned and operated by Transportation Management Corporation (TMC), which is not affiliated with Respondent. The one page document warns: "These test results are purely a function of miles travelled and fuel consumed. Other variables which may have influenced this study have not been defined." The document contains a chart showing changes in fuel economy of from + 6.6 miles per gallon (MPG) to - 1.6 MPG, or + 48.3% to - 12.4%. The average improvement is computed as 3.6 MPG or 28.3% (Comp. Ex. 5). Respondent has used this promotional document regularly, but has always used the entire report. Even in radio interviews and telephone conversations, Respondent has never used the 48.3% figure separately (Tr. 219-220).
8. While Respondent has not exploited the maximum improvement percentage shown in the TMC test (Comp. Ex. 5), that promotional item nevertheless plainly shows a percentage increase of 48.3% based upon an MPG improvement of 5.8. Respondent, as noted, also uses an advertisement stating that some users experience improvement in fuel economy of 6 to 8 MPG (Finding of Fact FOF 6; Comp. Ex. 6). While stating 20% to 30% is to be expected, that advertisement explains that the majority of users experience a 3 to 4 MPG improvement. Therefore, both the percentage and MPG improvements claimed for most users fall squarely within the average test results in the TMC test (Comp. Ex. 5), i.e., 3.6 MPG or 28.3%. Similarly, the upward limit on the test results of 48.3% arises from an MPG improvement of 5.8, and is achievable with less than the 6 to 8 MPG improvement referenced elsewhere in Respondent's advertising (Comp. Ex. 6). Thus, the highest MPG improvement represented in Respondent's promotional letter (Comp. Ex. 6) reinforces the percentage improvement in the TMC test report (Comp. Ex. 5). It is concluded from reading these two promotional items together that Respondent's advertising represents that GASAVER can deliver an improvement in fuel economy of up to 48.3%. Accordingly, it is found that Respondent makes the representation alleged in Complaint paragraph 3(a).
9. Respondent has used promotional materials stating that GASAVER passed the Environmental Protection Agency's (EPA) H-74 test and was granted approval to market GASAVER by EPA (Comp. Exs. 2 and 14). Respondent has not used the materials since approximately August of 1980 (Tr. 231). Nevertheless, those advertising materials plainly make the representation alleged in Complaint paragraph 3(b). But see p. 20, supra.
10. Advertising materials used by Respondent include references to work done by Mobil Oil and Brookhaven National Laboratory. In the context of the documents in which they are contained, those references constitute representations that the work of Mobil and Brookhaven is in the nature of scientific research tests which support GASAVER fuel economy claims (Comp. Exs. 4 and 14). Respondent, therefore, makes the representation alleged in Complaint paragraph 3(c).
11. Respondent concedes it makes the representation alleged in Complaint paragraph 3(d) that GASAVER will cause a significant (5% or better) increase in fuel economy (Resp. Req. for FOF 53). The representation is also implicit in the representation contained in Complaint paragraph 3(a) (see FOF 8).
12. Complainant presented the expert testimony of Dr. John B. Heywood. Dr. Heywood is a professor of mechanical engineering and director of the Sloan Automotive Laboratory at the Massachusetts Institute of Technology. It is Dr. Heywood's opinion that the typical automobile engine is 96-98% efficient in burning fuel. Only 2% to 4% of the fuel goes through the engine unburned (Tr. 24). An additional 1% to 3% of energy is available in the form of carbon monoxide (Tr. 31). Therefore, 3% to 7% of fuel energy is not released inside the engine cylinder (Tr. 31-33). It is Dr. Heywood's opinion that the theoretical limits of improvement in fuel economy are directly proportional to the inefficiency of the engine in burning unburned fuel and carbon monoxide. Thus, an engine with a 3% inefficiency in use of unburned fuel and carbon monoxide could potentially produce a 3% increase in fuel economy, while an engine with a 7% inefficiency could produce a 7% improvement (Tr. 30-34). Dr. Heywood testified that the range of inefficiency was 3% to 7% (Tr. 33) or 4% to 7% (Tr. 31). However, in a previous evaluation submitted as evidence by Complainant, he stated the range as 3% to 9% (Comp. Ex. 15). He stated that 1.5% to 5% of fuel was emitted as hydrocarbon waste and that 15-35 grams per mile of carbon monoxide were also wasted. He estimated that 15 grams would be combustible with available oxygen, representing a potential 2% improvement in fuel economy attributable to carbon monoxide in the typical automobile (id.).
13. Combustion in an automobile engine requires, among other conditions, that fuel and oxygen be present in certain proportions. When the ratio is in exactly the correct proportions for complete combustion, it is called the stoichiometric ratio. When there is excess fuel, the ratio is referred to as rich. When there is excess oxygen, the ratio is referred to as lean. There must be oxygen present for fuel to burn. Over the past fifteen years, automobiles have tended to operate at stoichiometric or lean air/fuel ratios (Tr. 25-26; accord, Adams's testimony Tr. 369-371). Lean or stoichiometric air/fuel ratios reduce carbon monoxide emissions. When carbon monoxide is emitted and oxygen remains, hydrogen emissions are low (Tr. 54). It is concluded that enough oxygen is typically present in automobiles manufactured over the past fifteen years to complete combustion and burn all available fuel energy, including any fuel energy remaining from incomplete combustion (Tr. 371).
14. Dr. Heywood has evaluated the GASAVER (Tr. 35; Comp. Ex. 15). He could perceive no plausible mechanism by which platinum could be transferred from the plastic tank to the engine in amounts significant enough to accomplish the catalytic effect claimed by Respondent (Tr. 39).
15. Assuming enough air to permit complete combustion, there are three causes for fuel not burning in an automobile engine's cylinders and leaving unburned hydrocarbon. First, some of the fuel is too close to the combustion chamber walls where the temperature is not high enough to cause complete combustion. Second, as the fuel is depressed in the cylinder, part goes into areas between the piston and the cylinder wall where the temperature is also too cool to cause complete combustion. Finally, there are occasional combustion events that are incomplete because of the way the engine operated, such as when one steps on the accelerator while going uphill (Tr. 45-47; 77). It is Dr. Heywood's opinion that, even if Respondent's device transported platinum which was deposited on surfaces within the chamber, only the first category would be affected. The second category would not be affected because the regions between the piston and cylinder wall are too cool to permit combustion even with a catalyst. The third category involves fuel not at the cylinder walls where the platinum would be deposited, so it would not be affected1/ (Tr. 46-47). As the three events are approxi- mately equal in effect, the 2%-4% hydrocarbon inefficiency present could only be improved by one-third (Tr. 47). Dr. Heywood's evaluation of combustion inefficiency with respect to hydrocarbons is premised upon platinum being deposited on combustion chamber surfaces, and not in a suspended state (Tr. 44-45). He also concluded that, comparing the amount of platinum provided according to Respondent's literature to the catalytic converter, not enough platinum for catalysis could be delivered (Tr. 48-50).
16. The source of unburned fuel energy other than hydrocarbons is carbon monoxide. It is Dr. Heywood's opinion that the platinum would have to be distributed throughout the cylinder, not just deposited on the walls, to cause combustion of the carbon monoxide. According to Dr. Heywood, the flow of platinum from GASAVER is too small to accomplish this compared to the platinum in a catalytic converter, so that only a small portion would be burned, even assuming delivery of a fuel/catalyst ratio of one part platinum to one million parts fuel (Tr. 51-53). Considering both hydrocarbons and carbon monoxide, Dr. Heywood testified that only one-third of the total 3% to 7% combustion inefficiency could be improved by GASAVER if it works as claimed, for a total improvement of 1% to 2%, which he considered optimistic (Tr. 77).
17. It is Dr. Heywood's opinion that the chassis dynamometer test prescribed by EPA is to be preferred over road tests in determining fuel economy. Other test procedures are subject to inaccuracies resulting from such variables as ambient temperature (which he emphasized as important), precipitation, humidity, wind, vehicle condition, tire pressure, driving style and traffic conditions (Tr. 59-61, 64). Because of the variables, Dr. Heywood did not consider Respondent's fleet tests (Comp. Exs. 5 and 30) accurate (Tr 62; Heywood affidavit).
18. Various tests were conducted on behalf of Respondent to determine the efficacy of GASAVER. The test procedure prescribed by EPA and known as the H-74 test was performed by the Holley Carburetor Division of Colt Industries on September 27, 1978. According to Respondent, GASAVER was in the prototype stage. The test results indicate a 10% decrease in unburned hydrocarbon and carbon monoxide (Tr. 187-190; Resp. Exs. 1-3). Whether Holley's test facilities are EPA approved is not ascertainable from the record (Tr. 188). After the Holley test, Respondent learned that a break-in period of up to 1800 miles was necessary for a coating action to take place inside the engine (Tr. 190; Resp. Ex. 13). An engine dynamometer test was performed by Mr. Harry Hyde, who is an experienced mechanic and a builder and driver of racing stock cars (Tr. 130-131, 138-141). With GASAVER connected, Mr. Hyde's test showed a 14-15% improvement in fuel economy (Tr. 139).2/ The test was conducted on a Chevrolet engine that had been drive 85,000 miles which he purchased at the junkyard (Tr. 138). An unexpected result was that after the test procedure the engine was examined and it had been cleaned (Tr. 139). Mr. Hyde also performed road tests with GASAVER and noted fuel economy improvement of 10% (Tr. 135). He has performed "a lot of" road tests for Chrysler Corporation and Goodyear Tire and Rubber Company and has sufficient knowledge "to try to keep everything in the right perspective in order to get any good, sound information out of it ..." (id.). While the circumstances did not permit the degree of control necessary for maximum accuracy, Mr. Hyde is experienced at testing and could be relied upon to employ appropriate measures to obtain "sound information" (Tr. 135-137). He believes GASAVER would deliver a 10% improvement in fuel economy, although it is not clear from his testimony whether up to one-half of that would be the result of a psychological effect (Tr. 141-142). He testified "... I've bought altogether 1200 units and on everything I've put it on I haven't found less-where I've had a chance to check it - ... than 10%." (Tr. 152.)
19. A test was performed on a Hyster Lift Truck using GASAVER. A 34.7% fuel saving was reported, although hydrocarbons were only reduced by 10% (Resp. Ex. 15). The record does not contain the test procedures used.
20. Respondent also conducted tests in 1980 and 1981 to determine the quantity of unburned fuel emitted by the test vehicles. The tests were performed at Automotive Testing Laboratories (ATL), an EPA-approved laboratory, using an EPA procedure (Tr. 191-192). The 1980 tests, with the EGR valve disconnected, showed a 14% combustion inefficiency including 68 grams per mile of carbon monoxide (Tr. 195; Resp. Exs. 12A and 12B). The 1981 tests, with the EGR valve connected, showed a 17% inefficiency, including 99 grams per mile of carbon monoxide (Tr. 198; Resp. Ex. 20). Both showed hydrocarbons of approximately 2%3/ (id.; cf. Comp. Ex. 15). Other tests, on older European models, showed unburned fuel ranging from 14% to 28% (Resp. Ex. 17). These tests showed carbon monoxide emissions of 49 to 233 grams per mile (id.).
21. The only test conducted by or on behalf of Respondent showing an improvement of better than 48% was insufficiently controlled to be reliable. Other tests did not demonstrate fuel savings of a high enough percentage to support a representation of "up to 48% or better" improvement in fuel economy (see FOF 15-20). Accordingly, it is concluded that the representation made by Respondent as alleged in Complaint allegation 3(a) (FOF 8) is false.
22. Although the H-74 test prescribed by EPA was performed for Respondent on GASAVER by Holley Carburetor (FOF 18), the test procedure was not intended to demonstrate fuel economy but the effect of devices such as GASAVER on pollutants (Tr. 230). EPA does not approve or disapprove the marketing of gas-saving devices (id.). Thus, Respondent did not obtain EPA approval for GASAVER. As the record is silent regarding EPA standards for "passing" the test and whether Holley's test facility was EPA approved (Tr. 188), it cannot be concluded that GASAVER passed the EPA H-74 test. Accordingly, it is concluded that the representations made by Respondent as alleged in Complaint allegation 3(b) (FOF 9) are false.
23. Tests performed by Mobil Research and Development Corporation are cited in Respondent's advertisements. While the report of the tests demonstrates that Mobil researchers were successful using platinum in minute amounts to accomplish "virtually complete conversion" of carbon monoxide and reduced air usage in the refining process, the report is silent as to potential application to the internal combustion automobile engine (Resp. Ex. 11).
24. Respondent also cites tests performed at Brookhaven National Laboratory. However, the tests were on diesel engines and involved plating the combustion chamber with platinum. The focus of the tests was on reducing soot, not improving fuel economy (Tr. 376-377; Resp. Ex. 13).
25. The tests performed by Mobil and Brookhaven were not directed at improving fuel economy in the internal combustion automobile engine (FOF 23 and 24). The character of those tests is too far removed from the function of GASAVER to support the claims of fuel economy found in Respondent's advertising. Other tests were not scientific research tests and, as noted, either were not sufficiently controlled to be reliable or did not produce results that supported Respondent's advertising claim. Thus, it is concluded that the representation made by Respondent as alleged in Complaint allegation 3(c) (FOF 10) is false.
26. Tests were conducted at Corning Glassworks on Respondent's patented system for delivering the platinum solution to a furnace (Resp. Ex. 19). The test involved mounting a GASAVER 163 feet from a furnace. Although platinum delivery was too low to validate the test, it was possible to determine that during the test period platinum was transported in extremely small amounts (0.448 grams) (Tr. 158-160, 168-170; Resp. Ex. 19).
27. Transport of platinum using the GASAVER system was also measured in a test by F. C. Broeman Company and Dr. Clyde M. Adams, Jr., an expert witness in metallurgy and chemical engineering. In that test the concentration of platinum was reduced from 22.0 micrograms/milliliter to 14.4 micrograms/milliliter (Resp. Ex. 29). Vibrating the GASAVER appeared to improve the rate at which the platinum was transported (id.; Tr. 363). Further, the platinum appeared to be transported selectively (Tr. 360). Respondent has measured the rate at which platinum comes out of the device, and the platinum solution is depleted at the rate of approximately one ounce per 400-500 hours, or roughly six thousand miles (Tr. 287). The concentration of platinum in the solution injected by GASAVER into the combustion chamber is designed for automobiles getting 15 MPG (Tr. 289).
28. Dr. Cynthia Rudie, an expert witness in the field of chemistry with experience in using catalysts, testified for Respondent about theoretical methods of platinum transport. It is Dr. Rudie's opinion that GASAVER transports platinum through a combination of a bubbling action and sublimation (a process by which a substance changes from solid to gaseous state without passing through a liquid state) (Tr. 302, 305, 308).
29. Dr. Rudie explained that the platinum would decompose in the engine because of the high temperature and be disbursed into the air stream (Tr. 309). It would enter the combustion chamber in very finely divided states, in Dr. Rudie's opinion. The presence of platinum reduces the temperature at which combustion takes place. Dr. Rudie believes platinum would exist in the combustion chamber in both a suspended state and upon surfaces. Catalysis can occur in both states. In her opinion, the catalytic effect of platinum in the GASAVER process would result from both the suspended and surface platinum. She believes platinum would enter the combustion chamber in sufficient amounts to make the GASAVER process effective (Tr. 310-315). However, Dr. Rudie's calculation that GASAVER delivers 147 square meters of surface area per 1000 miles is based upon one part platinum to one million parts fuel (Tr. 316-318). GASAVER claims to deliver one part platinum to ten million parts fuel (Tr. 257).
30. Platinum has several effects upon the combustion process. It is most effective in converting carbon monoxide to carbon dioxide (Tr. 311, 319). It will affect the decomposition of molecular oxygen to atomic oxygen, the latter being the state to which oxygen must be brought to undergo combustion (Tr. 319). Platinum will have a smaller effect on hydrocarbon decomposition (Tr. 320).
31. It is Dr. Rudie's opinion that the presence of carbon monoxide as a waste material means complete combustion has not been achieved and that the amount of oxygen that would have been used for the remaining fuel is still available (Tr. 323). However, she concedes carbon monoxide would also be present if there had been inadequate oxygen for complete combustion (Tr. 326).
32. Dr. Adams, an expert in metallurgy and chemical engineering, with considerable experience in combustion (Tr. 353-356), believes that GASAVER delivers platinum to the combustion chamber and, once there, part of it plates the firing chamber and part remains in a suspended state (Tr. 363-363, 365-368). It is his opinion that modern automobiles run on stoichiometric to lean air/fuel ratios, but some oxygen remains available after the combustion event in a fuel rich engine. However, the closer to stoichiometric an engine's air/fuel ration, the greater the fuel economy resulting from the presence of platinum as a catalyst (Tr. 369-371). Further, if the air/fuel ratio is stoichiometric to lean and there is incomplete combustion in the form of carbon monoxide, there must be oxygen available (Tr. 371). Because water is a waste product of combustion, Dr. Adams believes the oxygen therein if combined with carbon monoxide has potential for energy release. The energy release would be about half that of carbon monoxide burning in the presence of oxygen taken from air (Tr. 379-380). He does not believe the automobile engine is 95% efficient in its use of fuel (Tr. 377), and he believes the combustion even occurs too fast "for all the molecules to get acquainted" (Tr. 371). He testified that unburned fuel from incomplete combustion caused by stepping on the accelerator while going uphill would not be helped by a catalyst because the sudden introduction of excess fuel results in an air/fuel ratio that would be too rich (Tr. 370). Cf. FOF 15.
33. There is no direct evidence of record on the specific quantity of platinum necessary to catalyze the combustion process in an automobile engine. Mobil has been successful in the refining process with "minute" amounts (Resp. Ex. 11). The amount referred to, according to Respondent, is one part platinum to ten million parts fuel (Tr. 257), although it is not clear from Respondent's Exhibit 11 how that conclusion was reached, and whether an appropriate analogy to the automobile engine exists. Dr. Rudie's calculations on the surface area of platinum provided by GASAVER contained an anomaly with regard to the catalyst/fuel ration, thereby reducing the weight to be given her conclusion (FOF 29). Dr. Heywood's contrary conclusion is based upon comparisons with the automobile catalytic converter and not upon data on the general qualities of platinum as a catalyst (FOF 15-16). Dr. Rudie testified that one part platinum to ten million parts fuel was adequate in her experience to obtain the desired catalytic effect (Tr. 346-347). While her calculation of the surface area of platinum available for catalysis was in error, she also testified that catalysts with surface areas as small as one square meter per gram have high conversion rates (Tr. 318-319, 331). Platinum has a surface area of 750 square meters per gram (Tr. 318).
34. Based upon Findings of Fact 12-23, it is concluded that Respondent has conducted tests which, although in some ways flawed, have consistently shown improvements in fuel economy; that GASAVER transports platinum to the combustion chamber in amounts which it is probable are adequate for catalysis; that combustion inefficiencies of 14% to 17% are more probable than not; and that one-third of the combustion inefficiencies present could be removed by platinum catalysis. Therefore, it is concluded that it is more probable than not that GASAVER would produce a 5% improvement in fuel economy.
Respondent argues that Complaint allegations 3(a), (b) and (c) are not made in its advertising. The burden of proof is upon Complainant. Mark Eden v. Lim P. Lee, 433 F.2d 1077 (9th Cir. 1970). In determining whether representations are made, the advertisement is to be read in its entirety and in light of its effect on the ordinary mind. Donaldson v. Read Magazine, 333 U.S. 178 (1948). Under that standard it is concluded that Complainant has established by a preponderance of the evidence that the representations alleged in Complaint paragraphs 3(a), (b) and (c) are made and that they are materially false. (See Findings of Fact 8, 9, 10, and 21-25).
Respondent has raised several points under Complaint paragraphs 3(a), (b) and (c). With particular regard to Complaint allegation 3(b), it is argued that Respondent discontinued as of August 1980 the use of the advertising materials in which EPA approval is reported. While an advertisement discontinued that long ago might not support issuance of a False Representation Order standing alone, discontinuance of a particular advertisement is generally insufficient to render the issue moot. Profit and Churches of the New Octave, P.S. Docket No. 6/5 (P.S.D. Oct. 14, 1977). See also United States v. W. T. Grant Co., 345 U.S. 629, 633 (1953).
Respondent contends the paragraph 3(c) representation is not made because it has never used the expression "scientific research tests" in its advertisements. This was considered in concluding in Finding of Fact 10 that Respondent makes representation 3(c). In this regard, the references to the Mobil Oil and Brookhaven Laboratory studies in Complainant's Exhibits 4 and 14 are in a context which do not need the specific expression "scientific research studies" to create the impression that they are, indeed, scientific research studies. Thus, under the Donaldson standard, Respondent's argument is unpersuasive.
As noted above, the burden of proof is on Complainant. Respondent points out that the burden must be met by substantial evidence pursuant to the Administrative Procedure Act (APA), 5 U.S.C. § 556(d). In Postal Service cases under 39 U.S.C. § 3005, the standard employed has been the "preponderance of the evidence" test. Telex & twx Directory, P.S. Docket No.13/6 (P.S.D. April 1, 1983). Moreover, the Supreme Court has held the legislative history of the APA makes it clear that Congress intended to adopt a preponderance of the evidence standard of proof. Steadman v. Securities and Exchange Commission, 450 U.S. 91 (1981). That standard has been applied in this proceeding.
Respondent also argues that 39 U.S.C. § 3005 does not apply here because Respondent "has for the most part simply reported the result of observed phenomenon," citing Kurzon v. United States Postal Service, 539 F.2d 788 (1st Cir. 1976). While Respondent's report of the Transportation Management Corporation test results in Complainant's Exhibit 5 contains information that " o ther variables which may have influenced this study have not been defined", other advertising materials such as the newsletters and reprints provided to prospective customers (Comp.
Exs. 1-4, 6-12) do not contain such a notice. The combination of advertising materials used by Respondent would lead the ordinary reader to conclude that reliance, objective test data was being reported and that the results represented are achievable.
Respondent's arguments that the representations, if made, are not false is not persuasive as to Complaint allegations 3(a), (b) and (c), as detailed in Findings of Fact 21-25. A preponderance of the evidence leads to the conclusion that the advertising materials of Respondent contain materially false representations and not matters about which there is "good faith disagreement" over scientific principles. Respondent's Constitutional guarantees of free speech under the First Amendment do not extend to commercial advertising which is false or misleading. Virginia State Board of Pharmacy v. Virginia Citizens Consumers Council, 425 U.S. 748 (1976).
Complainant alleges that GASAVER will not cause a 5% improvement in fuel economy. Through the testimony of Dr. Heywood, Complainant has presented evidence that:
a. It is unlikely that enough oxygen is available to permit the claimed catalytic effect;
b. The GASAVER system contains no plausible mechanism for transporting amounts of platinum sufficient to accomplish the claimed catalytic effect;
c. The combustion inefficiency of modern automobiles is only 3% to 7%;
d. Tests conducted by Respondent contained too many variables to be accurate;
e. Even if sufficient platinum for catalysis reached the combustion chamber and enough oxygen for combustion remained, GASAVER would only be effective in improving one of the three equal constituents of combustion inefficiency, thereby achieving an improvement of 1% to 2%.
Each point is addressed below in sequence.
a. Based upon Dr. Heywood's testimony that most automobiles in the past fifteen years have operated on stoichiometric to lean air/fuel ratios, it is concluded that there is sufficient oxygen available in most automobiles for catalysis to take place (FOF 13). This is because a stoichiometric ratio provides enough air for complete combustion, while a lean ratio provides an excess of air for complete combustion.
b. The Corning and Broeman test results and the testimony of three witnesses for Respondent established that platinum is transported by GASAVER (FOF 26 & 27). The two tests show delivery of platinum in smaller platinum/fuel ratios than the 1:10,000,000 testified to by Respondent. Complainant urges that the amounts delivered in those tests should be persuasive of its position that inadequate platinum is delivered by GASAVER. However, conditions of those tests differed from the conditions to be found in use in an automobile engine, and Respondent testified to making measurements in automobiles showing that approximately one ounce of the platinum solution was depleted per 400-500 hours or roughly six thousand miles of driving, using a platinum concentration based upon 15 MPG. While the Corning and Broeman tests cast some doubt on Respondent's claimed delivery rate, they are not persuasive.
Further, the record does not establish what ratio of platinum to fuel is necessary for catalysis. Dr. Heywood's testimony that GASAVER could not deliver sufficient amounts of platinum is based on his comparison with the catalytic converter which does not use a renewable source of platinum. However, Dr. Rudie testified that she believed enough platinum was transported to cause catalysis and to improve fuel economy as claimed. While her calculations are of little probative value because she erred on the surface area of catalyst delivered per 1000 miles, she also testified to the existence of successful catalysts with surface areas of one square meter per gram, which is 1/750th that of platinum. Thus, even accepting Complainant's calculations that reduce the platinum delivery to 1/20th that computed by Dr. Rudie,4/ the surface area available appears to be adequate compared to certain other catalysts. Further, although the record is inconclusive on this point, Dr. Rudie's educational background and experience with catalysts tends to make her testimony on this issue somewhat more probative than Dr. Heywood's. It is concluded that a sufficient quantity of platinum to permit catalysis is probably transported by GASAVER.
c. Dr. Heywood believes that automobile engines are 96% to 98% efficient and, therefore, even allowing 1% to 3% for carbon monoxide, that only 3% to 7% of fuel energy is unburned in modern automobiles. While Dr. Heywood's credentials as an expert on the internal combustion automobile engine are formidable and he was a most credible witness, as were Respondent's witnesses, his testimony on this point is contradicted by Dr. Adams's view that automobile engines are not 95% efficient. While Dr. Adams's expertise is less than Dr. Heywood's on the automobile engine, Dr. Adams has considerable experience with combustion, and his views must be given some probative weight. Further, Dr. Heywood's prior evaluation showing a 3% to 9% range (1.5% to 5% hydrocarbon) also indicates some degree of inconsistency. Most important, however, is reliable test data submitted by Respondent showing 14% and 17% inefficiencies. See FOF 12, 20 and 32. Although the air/fuel ratios of the vehicles used in the tests are not disclosed, they are of recent vintage and, based upon Dr. Heywood's testimony, should be stoichiometric. As the tests were conducted at an EPA-approved facility following an EPA procedure, the results of the tests constitute direct, empirical rebuttal evidence that is probative and persuasive. The test data, Dr. Adams's views, and Dr. Heywood's prior evaluation combine to persuade that Dr. Heywood's 3% to 7% range is too low. Although the test data presents a small base, it is nonetheless the most reliable evidence on point. Thus, based on this record, it is more probable than not that combustion inefficiency in the 14% to 17% range is typical in the present automobile population.
d. While the emission test data is reliable, various tests performed with GASAVER, and particularly the fleet tests, are flawed. No controls were provided on variables such as ambient temperature which could have affected results. These tests are of limited probative value. Several tests described in the record, while not conclusive, are less flawed and entitled to greater weight. Tests performed by Holley Carburetor on a unit described by Respondent as a "prototype" demonstrated a 10% reduction in hydrocarbon and carbon monoxide. Although Holley's test facility may not have been EPA approved, these tests employed an EPA procedure and appear reliable. They demonstrate a potential improvement in fuel economy of less than 5%, however. Respondent claims that since that test he has learned that a "break-in" of up to 1800 miles is necessary to permit the combustion chamber to be coated with platinum, an essential part of his theory of operation.
Another test was performed on an engine dynamometer which showed an improvement in fuel economy of 14% to 15%. While that test was not well-documented, was performed on a well-worn engine and did not use the preferred test instrument - a chassis dynamometer - it is nonetheless probative, as the method appeared fundamentally sound, and the improvement demonstrated was three times the amount at issue and should accommodate within that margin any errors in procedure. Mr. Hyde, who performed the test, was a most credible witness. An experienced mechanic and racing driver with impressive practical knowledge and experience, he appeared to understand how to set up a test procedure and what conditions would affect fuel economy test results. He described a road test he conducted where he obtained a 10% improvement (FOF 18). Mr. Hyde testified that he has purchased 1200 units, and based upon his observations, a 10% improvement in fuel economy would result from use of GASAVER. It is not clear, however, whether that estimate included an improvement of up to 5% for a change in driving habits resulting from increased awareness of fuel economy. Such psychologically induced improvement would be analogous to the "placebo effect" in medical products and would not overcome the falseness of representations. Cf. Original Cosmetic Products, Inc. v. Strachan, 459 F.Supp. 496, 506 (S.D.N.Y. 1978), aff'd, 603 F.2d 214 (2d Cir. 1979). Even allowing for the full 5%, however, Mr. Hyde's testimony still supports the 5% improvement at issue in Complaint allegation 3(d).
While Complainant has cast doubt on Respondent's fuel economy claims by establishing various deficiencies in testing procedures, it has thereby succeeded only in diminishing the probative value of the test evidence of Respondent, and not in directly establishing its own position to the contrary. The test evidence, though flawed, nonetheless supports Respondent's position and not Complainant's. In particular, the testimony of Mr. Hyde is, on balance, supportive of a 5% improvement.
e. Through Dr Heywood's testimony, Complainant presented evidence that there are three causes for combustion inefficiency related to hydrocarbons and that GASAVER could improve only one, resulting in maximum fuel savings, when combined with a small improvement in carbon monoxide waste, of 1% to 2%. The underlying premise for the 1% to 2% maximum is his testimony that the hydrocarbon inefficiency present ranges from 2% to 4%, and carbon monoxide 1% to 3%. Respondent has presented persuasive rebuttal evidence showing inefficiency of 14% to 17%. See (c), above.
There is no dispute about platinum's effectiveness as a catalyst. Thus, the underlying premise of GASAVER is sound. There is persuasive evidence that platinum is transported, and, although the evidence on the amount transported is less persuasive, it is still more probable than not that the amount is adequate based upon this record. Dr. Heywood's own testimony leads to the conclusion that sufficient oxygen is present in modern automobiles for catalysis. Given these findings, it has not been shown that GASAVER does not "work as claimed" insofar as the theory of operation is concerned.
Questions still remain regarding the amount of inefficiency in automobile engines and the effectiveness of an operationally sound GASAVER in improving efficiency. Regarding hydrocarbons, Dr. Heywood's testimony that only one of the three causes of inefficiency would be affected stands unrebutted. It is concluded, therefore, that one-third of the hydrocarbon inefficiency would be affected by GASAVER.
Likewise, as to the actual percentage of hydrocarbon ineffiency, there is nothing in the record to dispute the range of inefficiency estimated by Dr. Heywood to be 2% to 4% in testimony and 1.5% to 5% in Complainant's Exhibit #15. The dispute centers on carbon monoxide, as emissions shown in Respondent's exhibits are well in excess of the 15-35 grams per mile estimated by Dr. Heywood. Undisputed testimony in the record indicates that platinum is especially effective in catalyzing carbon monoxide. Catalysis requires the presence of oxygen. Dr. Heywood's testimony indicated that he believed high carbon monoxide emissions meant inadequate oxygen, and that as more oxygen is made available - i.e., when air/fuel ratios are stoichiometric or lean - more complete combustion occurs and carbon monoxide emissions are reduced. Where oxygen remains, hydrogen emissions are small (FOF 13). The test data does not show hydrogen emissions. However, testimony on the ATL tests established the age of the vehicles, that they were perfectly tuned, that the tests followed EPA procedures and that ATL's facility was EPA-approved. This leads to the conclusion that their air/fuel ratios were probably stoichiometric. Thus, there should be oxygen available to burn the carbon monoxide. This is consistent with the testimony of Dr. Adams and Dr. Rudie (FOF 31 and 32), while not contradicting Dr. Heywood's testimony on the air/fuel ratios of automobiles in the past 15 years (FOF 13).
Respondent has established, through reliable test data, inefficiency of 14% and 17%, wherein the waste attributable to hydrocarbon is approximately 2%. Thus, carbon monoxide emissions are, respectively, 12% and 15%. While Dr. Heywood believed the surface area of catalyst produced by GASAVER would cause very little of the carbon monoxide to burn, his testimony is based upon comparison with the surface area present in a catalytic converter and not upon platinum's catalytic properties generally. As noted supra, the available oxygen was probably adequate. Thus, GASAVER must be evaluated on the probability that enough oxygen and platinum are available to catalyze a portion of the carbon monoxide. With adequate oxygen and platinum available, if conditions in the combustion chamber were sufficient to burn even one-third of the carbon monoxide (the percentage Dr. Heywood estimated for hydrocarbon), a total improvement of 5% to 6% would be obtainable when added to the approximately 1% improvement from combustion of hydrocarbons obtainable in the cited examples by application of the one-third estimate of Dr. Heywood. Given platinum's undisputed effectiveness with carbon monoxide, such a result has not been disproved.
In summary, while the record in this case is less than conclusive on elements of Complaint allegation 3(d), it is more probable than not that GASAVER would improve fuel economy by 5%. Theoretical considerations presented by Complainant, based upon this record, fail to establish by a preponderance of the evidence that a 5% improvement in fuel economy would not result from use of GASAVER. First, while the adequacy of the amount of platinum transported is inconclusive, test data and expert testimony by Respondent have presented a reasonable evidentiary foundation to support the probability of Respondent's theory of GASAVER's operation, and there is no dependable basis upon which to conclude there would be inadequate oxygen available for catalysis. Second, Complainant has focused much of its attention upon the limitations of the internal combustion engine and its capacity to be improved with regard to fuel economy. While Complainant's evidence persuades that those limitations make it unlikely that increases of the magnitude expressly represented in Respondent's advertising are attainable, it does not persuade that those limitations are sufficiently small that GASAVER would be incapable of producing the modest improvement in dispute in Complaint allegation 3(d), even applying Dr. Heywood's estimate of a one-third improvement from use of a functionally sound GASAVER. Finally, while the flaws in Respondent's fuel economy test data have been noted and their probative value weighed accordingly, certain tests were sufficiently controlled and provided results with sufficient margin for error that they lend support to the probability of an improvement of the magnitude at issue here. Thus, it is concluded that the falsity of Complaint allegation 3(d) has not been established.
It is concluded that Respondent's advertising materials make the representations alleged in Complaint paragraphs 3(a), (b), (c) and (d), and that the representations in Complaint paragraphs 3(a), (b) and (c) are false. Complainant has not proved that the representation in Complaint paragraph 3(d) is false. Accordingly, it is found that Respondent is engaged in a scheme to obtain money through the mail by means of materially false representations. A False Representation Order under 39 U.S.C. § 3005 is being issued with this decision.
1/ Dr. Adams appeared to agree that this category would not be improved by catalysis, but because the resulting air/fuel ratio would be too rich (FOF 32).
2/ Mr. Hyde apparently conducted three other dynamometer tests of GASAVER with improvements of from 10%-14%, and disassembled three additional engines and found them cleaned by GASAVER. The record does not contain sufficient information to form any conclusions about the tests (Tr. 142; 151-152).
3/ Grams per mile of hydrocarbons
2640 grams per mile - MPG
4/ Dr. Rudie used 2 strokes per cycle and a platinum/fuel ratio of 1:1,000,000. Complainant's calculations are based upon 4 strokes per cycle and a platinum/fuel ratio of 1:10,000,000. (Complainant's Proposed Findings of Fact and Conclusions of Law Comp. Prop. FOF , pp. 28-29).