In the Matter of the Complaint Against

 DERMACURE COMPANY
 144 Mason Street
 at Greenwich, CT 06830-6629

 and
 BEAUTY INNOVATIONS
 1 Wolff Lane
 at Pelham, NY 10803-1801

 and
 D & L INDUSTRIES
 1850 Union Street
 at San Francisco, CA 94123-4309

 and
 SUNSET INDUSTRIES
 130 Buena Vista Avenue
 at Yonkers, NY 10701-3547

 P.S. Docket No. 17/31;  
 
 02/24/84
 
 Bernstein, Edwin S.  

 APPEARANCE FOR COMPLAINANT:
 H. Rich ard Hefner, Esq.
 James A. Harbin, Esq.
 Consumer Protection Division
 Law Department
 United States Postal Service
 Washington, DC 20260-1100

 APPEARANCE FOR RESPONDENT:
 Lee H. Harter, Esq.
 2256 Van Ness Avenue
 San Francisco, CA 94109-2513

 BEFORE: Judge Edwin S. Bernstein

Complainant alleged and Respondent (the above parties) denied that Respondent is engaged in a scheme for obtaining money through the mails by false representations. A hearing was held in San Francisco, California on November 22, 1983. Dr. Patricia G. Engasser testified for Complainant while Respondent presented the testimony of Postal Inspector Steven R. Kline as a witness identified with an adverse party. On January 4, 5 and 19, 1984, the parties filed proposed findings of fact, proposed conclusions of law and memoranda. All of these have been considered. To the extent indicated, they have been adopted. Otherwise, they have been rejected as irrelevant or not supported by the evidence.

I. The Use of The Mails

I find that Respondent solicits remittances of money through the mails in connection with the sale of its product, Dermacure. The parties stipulated that Exhibits CX-12, CX-13, CX-15 and CX-16 are advertisements used by Respondent. (Tr. 5) These exhibits contain coupons to be mailed by purchasers. The parties' additional stipulation --that the product was shipped to persons ordering Dermacure in response to CX-7, CX-12, CX-13, CX-15 and CX-16 (Tr. 5) --proves that the coupons were used for orders of Dermacure through the mails.

II. The advertising Representations

I further find that Respondent's advertisements make the representations alleged in Paragraph 3 of the Complaint. The language in the advertisements which makes each representation is as follows:

a. Dermacure will permanently eliminate freckles, surface scars, age spots, unwanted dark marks, blotches, and discoloration.

Several of Respondent's advertisements (CX-7, 15 and 16) contain the prominent heading "Remove Skin Discolorations Forever." They continue with the promise that the produce is "Guaranteed to Rid You of Unsightly Dark Marks, Freckles, Age Spots and Surface Scars in just 2 to 5 weeks." They promise that the product "vanishes the appearance", and "gets rid of", and will "eliminate" and "make disappear" the problems named in the allegation. These promises are qualified by the adverbs "completely", "permanently", "totally", and "forever". Although parts of the advertisement represent that the product will "fade" dark marks, freckles, surface scars, age spots and discoloration, the more emphatic language which I have described, including the testimonials, leads the reader to believe that the fading will be permanent and, in fact, will eliminate these skin problems. This representation was not nullified by the barely legible language at the lower left corner of the advertisements.

b. Dermacure will fade stretch marks, dark circles under the eyes and surface scars.

Respondent admits this representation. (Brief, p. 3). The representation is expressly made at the center portion of CX-7, 15 and 16.

c. Dermacure is equally effective for all women and men irrespective of age who have the skin and complexion problems described in subparagraphs (a) and (b).

This representation is made by the language in CX-7, 15 and 16, "Discover Why Women (and Men) of All Ages Are Using Dermacure to Eliminate Their Skin and Complexion Problems". Additionally, one of the three quoted testimonials is by a man. The impression conveyed is that the product will have the same or an equal effect on individuals without regard to their sex. The fact that it is offered to treat age marks indicates its represented value to individuals of advancing age. Other problems --stretch marks and circles under eyes --also may be found in older people while most of the problems can be found in people who are not of advanced age. Thus, the problems addressed cover a gamut of age groups. Respondent argues that its offer of a refund negates this representation. (Brief, p. 4) I do not agree. See: Borg-Johnson Electronics, Inc. v. Christenberry, 169 F. Supp. 746 (S.D.N.Y. 1959); Farley v. Heininger, 105 F.2d 85 (D.C. Cir. 1939).

d. Dermacure is effective in eliminating or fading the skin and complexion problems described in subparagraphs (a) and (b) with once-a-day use for two to five weeks and occasional use thereafter.

The advertisements (CX-7, 15 and 16) contain the following words in large type and conspicuous contrasting color:

"Guaranteed to Rid You of Unsightly Dark Marks, Freckles, Age Spots and Surface Scars in Just 2 to 5 Weeks --Or Double Your Money Back."

The advertisements then state, "In Only 2 to 5 Weeks Your Skin Can Look Even Toned and Flawless, without a Trace of Discoloration." The five week period is stressed in several other parts of the advertisements such as twice in the lower left corner paragraph before and after the words, "See How Miraculous Dermacure Vanishes Away Undesirable Dark Marks and Blotches." Ten lines above the coupons, the advertisements state that just daily applications are needed.

e. Dermacure differs radically from all other cosmetic or skin care products and is singularly effective for the purposes specified in Respondent's advertisements.

The uniqueness of Respondent's product is represented to the average reader by the phrases in the advertisements, "A Most Incredible Achievement in Cosmetic Science", "The Most Phenomenal Skin Treatment Ever Created]", "Unlike Other Products That Hide Embarrassing Marks", "At Last the Ultimate Skin Beautifier is Finally Here", "An astounding discovery that has revolutionized the skin care industry]", "CAUTION: Do Not Confuse Dermacure With Inferior Imitations", and "the wonder formula - Dermacure". Read together, these convey the alleged impression.

III. The Truth or Falsity of The Representations

I further find that the representations alleged in subparagraphs (a) through (e) of Paragraph 3 of the Complaint are materially false based upon the following evidence:

(a) Dermacure will permanently eliminate freckles, surface scars, age spots, unwanted dark marks, blotches, and discoloration.

The sole expert witness at the hearing was Dr. Patricia G. Engasser, who has excellent qualifications as a dermatologist. She is board-certified in Dermatology and has practiced in that specialty for over 19 years. She has taught Dermatology at Stanford University since 1968 and at University of California, San Francisco, since 1971. She is presently a Clinical Assistant Professor in dermatology in both universities. She has served as President of the San Francisco Dermatologic Society and has lectured and written extensively in the field of Dermatology. Her writings include an article on bleaching creams in a 1981 edition of the Journal of the American Academy of Dermatology. (CX-1, Tr. 8-12) She treats approximately 28 to 35 patients a day, four days a week. (Tr. 30) Dr. Engasser testified credibly, consistently, and reliably. I further find, as she stated without contradiction, that her testimony represents an informed consensus of medical and scientific opinion on the subjects at issue.

Complainant introduced a copy of Dr. Engasser's article regarding bleaching creams (CX-2), but only as evidence of her qualifications and not as evidence of the accuracy of anything in the article. (Tr. 14-15) Respondent presented two articles which evaluated the useof hydroquinone, an active ingredient in Dermacure, as a depigmenting agent. The articles were by Spencer (RX-2) and Arndt and Fitzpatrick (RX-3).

Respondent also offered a one page medical opinion by Sorell L. Schwartz, Ph.D. This was marked as RX-1 and retained as a rejected exhibit. I excluded RX-1 as hearsay not within a hearsay exception. (Tr. 141-145) Following the hearing on November 28, 1983, Respondent again moved to admit RX-1. I adhered to my ruling to exclude the document by Order dated November 29, 1983. Respondent argued that Dr. Schwartz' statement is an admission against interest (Tr. 142-145; Brief; pp. 5-7), citing no cases. Presumably, Respondent's position is based on Federal Rule of Evidence (FRE) 801(d)(2), which states that an admission by a party opponent is not hearsay. However, Dr. Schwartz' relationship with the Postal Service does not fall within that rule's definition. Dr. Schwartz was consulted as a potential witness. He submitted a written opinion but was not used as a witness. Respondent argues that since Dr. Schwartz has testified for the Postal Service in numerous other cases, a relationship has been established which binds the Postal Service to Dr. Schwartz' views in this matter. I do not agree. Dr. Schwartz does not represent the Postal Service and his views were not adopted by that agency in this case. Therefore, the statement is hearsay. Respondent has not shown that the opinion is admissible under any exception to the hearsay rule specified in FRE 803 and I find that it does not come within anyof these exceptions.

As I indicated at the hearing, if Respondent wanted to utilize Dr. Schwartz' views, it should have attempted to present Dr. Schwartz' testimony either at the hearing, by deposition or by written interrogatories. Respondent, having failed to offer Dr. Schwartz as a witness can not introduce this one page document which is not subject to clarification or cross-examination.

Therefore, the only expert opinions which may be considered are Dr. Engasser's testimony and the articles at RX-2 and RX-3.

As indicated by Dr. Engasser's testimony, there are three layers within the skin. (Tr. 25) The main factor determining skin color is melanin content. (Tr. 28) Except where there is something like a mole, melanin is produced only in the upper layer of skin or epidermis. (Tr. 25, 30) Skin that has too much pigment or melanin content is hyperpigmented. The two active ingredients in the Dermacure product are 2% hydroquinone and octyldimenthyl PABA (or parameno benzoic acid). (Tr. 17-18, 35-36) PABA is a sunscreen. (Tr. 21, 33-34) Hydroquinone has been used for years to lighten hyperpigmentation of the skin by blocking melanin production. (Tr. 31-32) This occurs only in the epidermis. Hydroquinone can not affect melanin that exists in the dermis, the layer of skin below the epidermis. (Tr. 34)

Dr. Engasser testified that Dermacure will not permanently eliminate freckles (Tr. 37), scars on the skin (Tr. 39), or dark marks, blotches, or discolorations. (Tr. 41-42) This testimony was credible and not contradicted by any other evidence. (Tr. 121) Therefore, I find it to be the case.

(b) Dermacure will fade stretch marks, dark circles under the eyes and surface scars.

Dr. Engasser testified without contradiction and I find that Dermacure will not effect stretch marks, which are tears in the fibrous tissue in the dermis (Tr. 42-43); will not cause to face dark circles under the eyes, which are due to skin puffiness rather than to the effect of melanin (Tr. 43); and will not affect scarred fibrous tissues. (Tr. 39) She testified that most scarring is due to hypopigmentation or a reduced amount of pigment and that scars are lighter than the surrounding skin. Thus, interference with melanin production will not fade scars. (Tr. 39) Neither RX-2 nor RX-3 contradicted these conclusions.

(c) Dermacure is equallyeffective for all women and men irrespective of age who have the skin and complexion problems described in subparagraphs (a) and (b).

Dr. Engasser testified credibly that Dermacure would not be equally effective for all men and women irrespective of age who have the skin and complexion problems described in subparagraphs 3a and 3b of the Complaint and I so find. Dr. Engasser stated that there is a good deal of variability in predicting success with hydroquinone and that it is very difficult to know which persons will respond to the drug's effects. (Tr. 44-45) RX-2 and RX-3 also substantiated this conclusion.

(d) Dermacure is effective in eliminating or fading the skin and complexion problems described in subparagraphs (a) and (b) with once-a-day use for two to five weeks and occasional use thereafter.

As I have previously found, Dermacure is not effective in eliminating the problems specified in subparagraphs (a) or in fading the problems specified in (b). With regard to its represented once-a-day use, Dr. Engasser testified that the general recommendation is to apply such creams twice daily (Tr. 44), and usually such creams must be used for about three months to achieve any effect. (Tr. 44-45) The Spencer article (RX-2) also contemplated twice daily applications and discussed reaching a plateau of depigmentation at the end of two months. (p. 1) The Arndt-Fitzpatrick article (RX-3) referred to twice daily applications and stated that, where effects occurred, initial changes ranged from three weeks to three months. (p. 1)

(e) Dermacure differs radically from all other cosmetic or skin care products and is singularly effective for the purposes specified in Respondent's advertisements.

As Dr. Engasser testified, there are a large number of products that contain two percent hydroquinone as well as combinations of hydroquinone and sunscreens. These products do not differ substantially from Dermacure. (Tr. 46) In arguing that while other similar products may be sold over the counter, Dermacure differs radically from other skin products sold through the mail (Brief, p. 12), Respondent's counsel attempts to read into his client's advertising a qualification that does not exist there. If Respondent intended to make such a qualified representation, it could have included language to that effect. Having failed to do so, it can not amend its advertising in a post-hearing brief.

1. The meaning of an advertising representation is to be judged from a consideration of the advertisement in its totality and the impression it would most probably create in ordinary minds. Donaldson v. Read Magazines, 333 U. S. 178 (1948); Vibra-Brush Corp. v. Schaffer, 152 F. Supp. 461 (S.D.N.Y. 1957); Borg-Johnson Electronics v. Christenberry, 169 F. Supp. 746 (S.D.N.Y. 1959).

2. An advertisement as a whole may be completely misleading although every sentence separately considered is literally true. This may be because things are omitted that should be said, or because advertisements are composed or purposefully printed in such a way as to mislead. Donaldson v. Read Magazine, supra.

3. The average person reading Respondent's advertisements would interpret them substantially as characterized in Paragraph 3, subparagraphs (a) through (e) of the Complaint.

4. The effect of false representations is not dispelled by a money-back guarantee. Borg-Johnson Electronics v. Christenberry, supra.

5. The Postal Service need not show actual victims in a proceeding of this type. See: Norton v. U. S., 92 F.2d 753 (9th Cir. 1937).

6. In the context of Respondent's advertisements, a mild disclaimer in small print will not refute otherwise emphatic representations. See: Gottlieb v. Schaffer, 141 F. Supp. 7 (S.D.N.Y. 1956); Vibra-Brush v. Schaffer, supra; Black Magic Shop Astral Co., P.O.D. No. 2/210 (1965); Virtu Imports, Inc., P.O.D. 3/2 (1968); Manuel Garcia Imports, P.S. 5/127 (1977).

7. RX-1 was properly rejected as an exhibit as inadmissible hearsay.

8. The representations found to have been made by Respondent are material representations because they are the kind and character which would persuade readers to order and pay for Respondent's products.

9. Complainant has established that Respondent makes the representations alleged and that these representations are materially false by a preponderance of the reliable probative evidence of record.

10. Reorders of Dermacure should be included within the scope of a False Representation Order. False representations in the advertisements that induced the original order are likely to influence purchasers to reorder. Many purchasers may reorder based upon the advertisement's promises, despite lack of results, in the hope that results will be achieved with more time. Reorders may also result from persons obtaining satisfactory results through a psychological placebo effect. The public is entitled to protection from products whose sole benefit is a placebo effect. Original Cosmetics Products, Inc. v. Strachan, 459 F. Supp. 496, 503 (S.D.N.Y. 1978), 603 F.2d 214 (2d Cir. 1979), cert. denied, 444 U. S. 915 (1979).

Therefore, I conclude that Respondent is conducting a scheme for obtaining money through the mail by means of materially false representations within the meaning of 39 U.S.C. Section 3005 with respect to the sale of Dermacure and that an Order, substantially in the form attached, should be issued against Respondent.