In the Matter of the Complaint Against BABA DISTRIBUTING 19125 Beckwith Terrace at Irvine, CA 92715-3502 and SPORTS RESEARCH, CORP. 3425 Mulldae Avenue at San Pedro, CA 90732-4719 at P. O. Box 1471 San Pedro, CA 90733-1471 and at 761-B Basin St. San Pedro, CA 90731-1301 P.S. Docket No. 16/144; P.S. Docket No. 16/145; 08/31/84 Cohen, James A. APPEARANCES FOR COMPLAINANT: Kenneth N. Hollies, Esq. John R. Mallory, Esq. Consumer Protection Division Law Department United States Postal Service Washington, DC 20260-1112 APPEARANCE FOR RESPONDENTS: Kenneth J. Poole, Esq. #3 Del Amo Fashion Center Torrance, CA 90503
On July 6, 1984, Respondents filed a Motion for Reconsideration of the Postal Service Decision dated June 28, 1984. The return portion of False Representation Order No. 84-50, which was issued with the Postal Service Decision, was temporarily stayed pending review of the motion. On July 16, 1984, and August 17, 1984, Respondents filed additional arguments and exhibits with respect to the Motion for Reconsideration. Complainant opposes this motion. All of Respondents' arguments and exhibits have been considered. For the reasons set forth below, the Motion for Reconsideration is denied.
Respondents first argue that the Complaints should not have been considered amended to include in the allegations of Paragraph 3 the requirement for vigorous exercise in combination with the use of Respondents' product. Respondents contend that they were prejudiced by the testimony of Complainant's experts because "the entire basis of their testimony was the use of BBF without exercise." These arguments are rejected. As indicated in the Postal Service Decision, the issues were fully litigated at the hearing with the understanding by all parties that BBF was to be used in combination with vigorous exercise. The record reveals that the witnesses testified on this basis (e.g. CX-8 & 9; Tr. 15-16, 20, 26-27, 30-31, 37-38, 53, 57, 60, 68-70, 125, 131, 135-36) and that Respondent's demonstration was premised on the combination of the product and vigorous exercise (Tr. 68-70). Thus, no showing of prejudice has been made, nor could be made on this record.
Respondents also argue that the error made by the Administrative Law Judge with respect to the use of Wesson Oil in the courtroom demonstration was prejudicial rather than harmless. They contend that he was unable to make an objective evaluation of the evidence. This argument is also rejected. It was concluded in the Postal Service Decision that the error was harmless, and Respondents have shown no error of fact or law in that decision. Moreover, all evidence was reviewed de novo on appeal and it was determined that the demonstration failed to rebut Complainant's prima facie case even when viewed in a light most favorable to Respondents.
Respondents are also requesting reconsideration on the ground that new advertisements are now being used which do not make the representations contained in the Complaints. Respondents contend that these advertisements make certain new claims for BBF which are allegedly supported by recent independent studies. However, even assuming the new advertisements no longer make the representations set forth in the Complaints, there is no evidence that consumers are not still responding to the original advertisements. It is appropriate to continue the False Representation Order in effect until it is clear that the public no longer needs its protection. See George M. Ernst, Jr., P.S. Docket No. 13/88 (P.S.D. on Motion to Revoke FRO, May 1, 1984); Rejuvnir, Inc., P.S. Docket No. 3/105 (P.S.D. on Motion for Recon., Jan. 30, 1975). Moreover, a request for reconsideration is not the appropriate means 1/ to obtain a ruling on new advertising materials. 2/
Finally, Respondents submitted new evidence which they allege establishes the efficacy of their product. The new evidence has been examined to determine whether it would tend to rebut the prima facie case established by Complainant. The only relevant evidence is found in the studies by Robert A. Wiswell, Ph.D., (Exhs. E & F) and Charles E. Wexler, M.D. (Exh. AA). Both of these studies conclude by means of thermographic techniques that BBF causes an increase in circulation and blood flow in the skin where BBF is applied. However, neither study rebuts the informed medical consensus that BBF is ineffective to accomplish the results represented in Respondents' advertising which are the subject of this proceeding.
Since the Respondents have not demonstrated any error of fact or law in the Postal Service Decision, it is concluded that the Motion for Reconsideration should be denied. Accordingly, Supplement A to False Representation Order No. 84-50 is hereby revoked.
1/ See 39 C.F.R. § 952.29. See also George M. Ernst, Jr., P.S. Docket No. 13/88 (P.S.D.s on Motion to Revoke FRO, Nov. 18, 1983 and May 1, 1984).