In the Matter of the Complaint Against

 SCATPAC
 P. O. Box 9301
 at Little Rock, AR 72219-0301

 P.S. Docket No. 9/150;  
 
 11/16/83
 
 Cohen, James A.  

 APPEARANCES FOR COMPLAINANT:
 H. Richard Hefner, Esq.
 W. J. Heikes, Esq.
 Consumer Protection Division
 Law Department
 United States Postal Service
 Washington, DC 20260-1112

 APPEARANCE FOR RESPONDENT:
 David R. Matthews, Esq.
 Matthews, Campbell & Stephens
 P. O. Box 38
 Lowell, AR 72745-0038

On September 22, 1983, Complainant filed a "Petition for Order Based Upon Breach of Consent Agreement" in which it alleged that Respondent has breached the terms of a Consent Agreement executed on January 14, 1981, by Roe Matthews, individually and as president of Breakaway and Associates, Inc. Complainant contends that Respondent, using the names SCATPAC and PERK UP at P. O. Box 9301, Little Rock, Arkansas 72219-0301, has resumed making the representations which it agreed to discontinue without complying with the terms and conditions of the Consent Agreement.

In its Petition, Complainant sought the issuance of an interim detention order against Respondent pending final resolution of the issue concerning the alleged breach of the Consent Agreement. On the basis of the allegations of the Petition and the attachments thereto, an interim detention order was issued on September 23, 1983. This order granted Respondent a period of ten days in which to file a reply to Complainant's Petition. On September 30, 1983, Respondent filed a response to the Petition in which it denied that it has resumed making the representations alleged in the Complaint and that it has failed to comply with any other terms of the Consent Agreement. Respondent also requested that the interim order be rescinded and that a hearing be held on the merits.

During a telephone conference with the parties, Respondent's Motion to Rescind the Interim Detention Order was denied. After discussion of the issues raised by the Petition, it was agreed there were no matters of fact in dispute and that the matter could be decided on the record.

It is undisputed that the party who signed the Consent Agreement is the party who is presently selling the SCATPAC device under the names SCATPAC and PERK UP. It is also undisputed that there have been no significant improvements or modifications to the device or that it has not undergone the testing specified in paragraph 4 of the Consent Agreement. The only issues in need of resolution are whether Respondent continues to make the representations it agreed to discontinue and whether Respondent makes fuel economy improvement claims which would require the testing specific in paragraph 4 of the Consent Agreement.

In paragraph 2 of the Consent Agreement Respondent agreed to discontinue and not resume making, either directly or indirectly, the representations alleged in paragraph 3 of the Complaint, except under the terms and conditions specified in paragraph 4 of the Consent Agreement. The representations of paragraph 3 of the Complaint which Respondent agreed to discontinue are:

"(a) The installation of the SCATPAC in a typical gasoline powered vehicle will cause a substantial increase in fuel economy. . . as much as 20%;

(b) The fuel economy claims made for the SCATPAC device are fully supported by competent scientific tests conducted by the U. S. Auto Club of Indianapolis, Indiana, the American Interplex Corporation of Little Rock, Arkansas and other independent facilities; and

(c) The SCATPAC device was developed for the express purpose of improving fuel economy in internal combustion engines."

Paragraph 4 of the Consent Agreement permits Respondent to make "fuel economy improvement claims in future advertising of any air-bleed automobile retrofit device" provided:

"(a) The device in question has first been tested by an independent laboratory approved by the Administrator of the Environmental Protection Agency (EPA) utilizing the testing procedures set forth in 40 C.F.R. Part 610 (or the then current testing procedures) as prescribed and published by the Administrator of the Environmental Protection Agency or any modification or deviation therefrom approved by the Administrator.

(b) The test data have been the subject of any evaluation program and analysis conducted by the Administrator of the Environmental Protection Agency under 40 C.F.R. Part 610 (or the then current procedures) and the Administrator's conclusions thereon have been made public; and

(c) Any fuel economy improvement claim made in advertising, including the use of customer testimonials, is kept within the ambit of the Administrator's conclusions as to the efficacy of the device."

Respondent's current advertising continues to make, either directly or indirectly, the representations alleged in paragraphs 3 (a) and (b) of the Complaint. The representation alleged in paragraph 3(a) is found on the first page of Respondent's advertising which states in bold type "Get 30 to 80 Miles More Per Tank of Gasoline." (Pet. Ex. C-2). This language, coupled with various general references to increased miles per gallon, testimonials stating substantial increases in gas mileage, and references to the product as the solution to the energy problem, would lead the ordinary reader to believe that "the installation of the SCATPAC will cause a substantial increase in fuel economy." The representation alleged in paragraph 3(b) of the Complaint is also found on the first page of Respondent's advertisement which refers to the results of a laboratory test and in bold type states "TESTED, PROVED, & CERTIFIED" (Pet. Ex. C-2).

The numerous references to increased miles per gallon beginning on the first page of Respondent's advertising materials and continuing throughout its text and also in testimonials, clearly conveys to the ordinary reader that Respondent is making fuel economy improvement claims. When making such claims Respondent was required by paragraph 4 of the Consent Agreement to have tests performed at an EPA approved independent laboratory using EPA testing procedures, the results of the tests made public and the claims made kept within the ambit of the EPA Administrator's conclusions. Respondent has not had the required tests performed and therefore has not complied with the requirements of paragraph 4 of the Consent Agreement.

Respondent's resumed use of the representations which it agreed in the Consent Agreement to discontinue and its representation of fuel economy improvement claims without compliance with paragraph 4 of the Consent Agreement constitute a breach of the terms of the Consent Agreement.

Accordingly, pursuant to the terms of the Consent Agreement an Order under 39 U.S.C. § 3005 is being issued with this Decision.