In the Matter of the Complaint Against

 THE ROBERTSON-TAYLOR COMPANY
 Suite 290 781 W. Oakland Park Boulevard at
 Fort Lauderdale, FL 33311-1729 et al

 P.S. Docket No. 16/98;
 P.S. Docket No. 16/99;
 P.S. Docket No. 16/100;
 P.S. Docket No. 16/101;
 P.S. Docket No. 16/102;
 P.S. Docket No. 16/120;
 P.S. Docket No. 16/121

 03/31/86

 Cohen, James A.  

 APPEARANCE FOR COMPLAINANT:
 Hilda Rosenberg, Esq.;
 Consumer Protection Division,
 Law Department,
 United States Postal Service,
 Washington, DC 20260-1112 

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

Respondent has filed a consolidated appeal from three Initial Decisions issued by an Administrative Law Judge pertaining to eight of Respondent's products. In each decision the Administrative Law Judge concluded that Respondent is engaged in the conduct of schemes for obtaining money or property through the mail by means of materially false representations in violation of 39 U.S.C. § 3005.

Following issuance of the three Initial Decisions, Respondent filed with the Judicial Officer a "MOTION TO 1) COMPEL PRODUCTION OF DOCUMENT(S), 2) STAY ALL PROCEEDINGS, and 3) TO DISMISS ALL PROCEEDINGS." The Motion was denied without prejudice to Respondent's raising the issues presented in the Motion in its exceptions to the Initial Decisions. Respondent subsequently incorporated the Motion in its consolidated brief appealing the Initial Decisions and requested that each argument in the Motion be considered as a separate exception. The arguments presented by Respondent are either addressed in connection with a specific exception or following the discussion of the specific exceptions relating to each Initial Decision. Respondent's general exception in its brief relating to the scope of the false representation orders recommended in the three Initial Decisions is also separately addressed.

Respondent's arguments are frequently broadly phrased, repetitious, unrelated to the exception under which they appear or otherwise disjointly presented. However, all arguments of Respondent have been considered in connection with its appeal from the Initial Decisions.

These proceedings were initiated by Complaints filed by the Consumer Protection Division of the Law Department, United States Postal Service, (hereafter Complainant) alleging that Respondent makes materially false representations concerning certain of its products. The docket number of the proceeding and the product which is the subject of the Complaint filed in that case are as follows: 02,11,35$GDocket No.Product$G16/98 Calor-Bloc 30$G$G16/99 Derma-Tec 90 Restructuring Facial$G Treatment with Procaine$G$G16/100Medi-Tec 90$G$G16/101Derma-Tec 90 and Mamralin-BX$G Breast Augmentation Creams$G$G16/102Libutol-1500$G$G16/120Synertrim #9$G$G16/121Testorex-35

Respondent's Answer in each case generally denied that the representations were made and, if found to be made, that they were false.

At a hearing before the Administrative Law Judge, Complainant called as witnesses: Postal Inspector Gary Cantley (Tr. 44); Dr. Karl Jules Kramer, a physician board certified in internal medicine and dermatology, who is Clinical Associate Professor at the University of Miami School of Medicine (Tr. 299-300; CX-5) (P.S. Docket Nos. 16/99 & 16/100 only); Dr. James K. Smolev, a physician board certified in urology, who is Assistant Professor of Urology at Johns Hopkins University School of Medicine, and an associate in the Sexual Behavior Consultation Unit of that University (Tr. 501-04; CX-7) (P.S. Docket Nos. 16/102 & 16/121 only); and Dr. William R. Ayers, a physician board certified in internal medicine who is an Associate Professor of Medicine at Georgetown University, Medical Director of Georgetown's Diet Management Program, and Associate Dean for Undergraduate Medical Education (Tr. 112-14; CX-1) (P.S. Docket Nos. 16/98, 16/101 & 16/120 only). Respondent's witnesses were: Mitchell K. Friedlander, President of Respondent (Tr. 647), and Dr. John W. Gaul, an osteopathic physician engaged in the private practice of medicine in Florida (Tr. 421-24) (P.S. Docket Nos. 16/99, 16/101, 16/102, & 16/121 only).

In P.S. Docket No. 16/98 Complainant alleged that Respondent made the following materially false representations in its advertising:

"1. Ingestion of Calor-Bloc 30 by the ordinary obese person will increase, and maintain at the higher level, the rate at which the body burns calories.

2. Ingestion of Calor-Bloc 30 will cause a loss of fat without restriction of food intake and without exercise.

3. Ingestion of Calor-Bloc 30 is effective to produce firm muscle tissue.

4. Ingestion of Calor-Bloc 30 will, without effort or willpower on the user's part, cause development of muscle tissue, loss of weight, and reduction of fat.

5. The ingestion of Calor-Bloc 30 will prevent the food you eat from turning into unwanted fat and excess weight."

In the Initial Decision which considered these allegations, the Administrative Law Judge concluded that Respondent's advertising and promotional materials make the representations alleged in the Complaint and that those representations are materially false.

"THE ADMINISTRATIVE LAW JUDGE ERRED WHEN HE CONCLUDED THAT THE ADVERTISEMENT MADE THE ALLEGED REPRESENTATIONS. (Finding of Fact Nos. 5, 6, 7, 10, 11, 12.)"

Respondent first argues that the Administrative Law Judge's finding that its short form advertisement represents that the ingestion of Calor-Bloc 30 will prevent food from turning into unwanted fat and excess weight is "nonsensical" because an ordinary obese person knows he has to diet or exercise to lose weight. Respondent makes this same argument with respect to its more extensive advertisements (I.D. Exh. B, CX-3e).

This advertisement states in its totality:

"OVERWEIGHT?????

Calor-Bloc 30 Caloric Interchange Compound A Comprehensive Total Caloric Preventative. A must for the overweight] Prevents excess calories from being absorbed and turned into unwanted stored fat] 'Not a Starch Blocker.'" (I.D. Exh. C, CX-2e)

While it may be true that most obese persons know that weight cannot be lost without diet and/or exercise, Respondent's advertisement tells them otherwise and may, and most probably would, be believed by many ordinary readers seeking to achieve weight loss. See Gottlieb v. Schaffer, 141 F. Supp 7 (S.D.N.Y. 1956); The New Body Boutique, Inc., P.S. Docket No. 11/95 (P.S.D. M/Recon Jan. 12, 1983) at p. 4 & (P.S.D. on Pet. for Supp. Order, Nov. 30, 1982) at p. 8; The New Body Boutique, Inc., P.S. Docket No. 10/169 (P.S.D. July 7, 1982) at p. 10; Specialty Sales Co., P.S. Docket No. 11/79 (P.S.D. April 5, 1982) at p. 10. The patent absurdity of a representation is not a defense to an action under § 3005, inasmuch as the statute is intended to protect the ignorant, gullible and less experienced reader as well as the wary reader. See Fields v. Hannegan, 162 F.2d 17, 18 (D.C. Cir.), cert. denied, 332 U.S. 773 (1947); M.K.S. Enterprises, Inc. v. United States Postal Service, 459 F. Supp. 1180, 1184 (E.D.N.Y. 1978); Gottlieb v. Schaffer, supra, at p. 16. Moreover, such a representation serves to induce the purchase of the product and therefore is material. The New Body Boutique, Inc., P.S. Docket No. 11/95 (P.S.D. July 30, 1982) at p. 14; New Body Boutique, Inc. v. United States Postal Service, Civil Action No. 83-0197 (D.D.C. April 21, 1983).

Respondent also argues that its more extensive advertisements place readers on notice that some caloric restriction is part of its system. Specifically, Respondent refers to the statement "Before starting this or any other diet, consult a physician" and the "Notice" that the product is not a "starch blocker", but "is a total caloric inhibiting system that reduces the intake of all classifications of food." Further, Respondent argues that its advertisements are truthful in stating the Calor-Bloc 30 compound is "not a simple 'fad' diet", and that it requires "no strenuous exercise." Finally, it contends Complainant has manufactured out of whole cloth "implied representations" which are not supported by any evidence in the record.

Respondent's advertisements for Calor-Bloc 30 have been considered in their totality and the impression they would be likely to create in the mind of the ordinary reader. See, Donaldson v. Read Magazine, Inc., 333 U.S. 178, 188-89 (1948). While some statements in the advertisements may be literally true and may alert the sophisticated reader to the need for a calorie restricted diet and exercise, the overall impression created is that the use of the compound without diet or exercise will result in weight loss. See, Gottlieb v. Schaffer, supra. Thus, the finding made by the Administrative Law Judge that Respondent's advertisements make the representations alleged in the Complaint are correct, and Respondent's contrary contentions have no merit.

"THE ADMINISTRATIVE LAW JUDGE ERRED IN MAKING FINDINGS OF FACT ON WHICH DR. AYERS SPECIFICALLY DISCLAIMED ANY COMPETENCY TO RENDER AN OPINION. (Finding of Fact No. 14.)"

Respondent argues that the Administrative Law Judge improperly adopted a "flippant comment" made by Complainant's expert, Dr. Ayers, in connection with a matter about which the expert specifically disclaimed any knowledge. According to Respondent, the Administrative Law Judge's adoption of the comment shows his "bias and prejudice" against Respondent and that "this Respondent will be found to be making false representations by this Administrative Law Judge," regardless of the evidence.

In Finding of Fact 14, the Administrative Law Judge relied on the testimony of Dr. Ayers in determining the falsity of the representations alleged in the Complaint. In Finding of Fact 14b, after discussing the need for effort, willpower and commitment by a patient to lose weight through diet and exercise, the Administrative Law Judge stated: "Persons looking for a quick fix, such as persons responding to Respondent's advertisements, are likely to fail to achieve weight loss (Tr. 176, 208)." Respondent's characterization of the testimony supporting this statement as a "flippant comment" or as dealing with a matter about which the witness "disclaimed any knowledge" is incorrect. The witness was properly qualified as an expert on weight loss matters. His testimony on the motivation of overweight persons and his reference to "quick fixes" and the high rate of failure of those seeking to lose weight quickly and easily was reliable and probative evidence and not shown to be unsupportable. Read in context, the witness's testimony could in no way be considered to be flippant or without foundation even though he had not dealt with patients who had tried Respondent's product. Thus, the Administrative Law Judge's reliance on Dr. Ayers' testimony was not error and does not establish bias or prejudice.

Both Derma-Tec 90 and Mamralin-BX Breast Augmentation Creams are creams which the user is instructed to apply over the entire breast area in order to obtain the advertised result of enlarged breasts (I.D. FOFs 18 & 19). In the Complaint, as amended, Complainant charged that Respondent's advertisements and promotional materials falsely represents:

"1. Topical application of Derma-Tec 90 Breast Augmentation Cream or Mamralin-BX will cause a noticeable enlargement of the user's breasts.

2. Topical application of Derma-Tec 90 Breast Augmentation Cream will cause a measurable, if temporary, increase in the amount of breast tissue."

In the Initial Decision the Administrative Law Judge found that Respondent's advertisements and promotional materials make the representations alleged in the Complaint and that the representations are materially false.

Respondent's exceptions erroneously refer to the product under this docket number as "Derma-Tec 90 Face Cream With Procaine." However, it is clear that the exceptions pertain either to the Derma-Tec 90 or Mamralin-BX Breast Augmentation Creams or to both creams.

"THE ADMINISTRATIVE LAW JUDGE ERRED IN FINDING THAT THE ADVERTISEMENT REPRESENTED THE PRODUCT WILL CAUSE AN INCREASE IN THE AMOUNT OF BREAST TISSUE. (Finding of Fact Nos. 22, 27)"

This exception pertains to the Administrative Law Judge's findings relating to the allegation that the use of Respondent's products will cause an increase in the amount of breat tissue. Respondent argues the Administrative Law Judge took phrases from an advertisement for Derma-Tec 90 out of context in arriving at the conclusion that Respondent makes this representation. Respondent also criticizes the Administrative Law Judge's statement that the only mechanism for breast enlargement mentioned in the advertisement in lay lanaguage is tissue building. Finally, Respondent argues it is nonsensical to think that the average reader would believe that topical application of a cosmetic cream will noticeably increase tissue within a very short time.

Respondent's advertisement (I.D. Exh. D; CX-7a) read in its entirety expressly represents that the breast will be temporarily enlarged by use of the product. This representation, coupled with the references to breast tissue would most probably lead the ordinary reader to infer that the enlargement is due to a temporary increase in the amount of breast tissue. Regardless of whether Respondent considers it "nonsensical" that the average reader would believe the application of the cream would enlarge breast tissue, it is a representation which it makes and one which may be believed by many ordinary readers. (See cases previously cited under Exception 1, P.S. Docket No. 16/98). While the advertisement does refer to other enlargement mechanisms which might be understood by the sophisticated reader, many ordinary readers would not understand that these mechanisms were unrelated to the tissue enlargement process. Accordingly, there is no merit to this exception.

"THE ADMINISTRATIVE LAW JUDGE ERRED IN CONCLUDING THAT VASODILATION WAS THE ONLY MECHANISM ADVANCED BY RESPONDENT. (Finding of Fact No. 25.)"

"THE ADMINISTRATIVE LAW JUDGE ERRED IN CONCLUDING THAT DR. AYERS EXPRESSED THE CONSENSUS OF INFORMED MEDICAL AND SCIENTIFIC OPINION, AND THAT THE REPRESENTATIONS WERE MATERIALLY FALSE AS A MATTER OF FACT. (Finding of Fact Nos. 26, 27.)"

These exceptions relate to the issue of the falsity of the representations made in Respondent's advertisements. Respondent argues that contrary to the Administrative Law Judge's findings, it represents in addition to vasodilation, manual stimulation at intimate times would produce the results represented. Respondent also argues that Dr. Ayers' opinions could not properly be relied on in arriving at the consensus of informed medical and scientific opinion since he could not answer questions relating to the effect of manual stimulation.

The question to be decided in connection with the falsity issue is whether Respondent's product will accomplish the results represented. Respondent's advertisements represent that its products Derma-Tec 90 and Mamralin-BX breast creams will cause a noticeable enlargement of a women's breasts. Therefore, the effect of stimulation is irrelevant. Both Respondent's and Complainant's witnesses testified that the products would not cause a noticeable enlargement of a female's breasts. Dr. Ayers testified, and his testimony is unrebutted, that this conclusion is in accord with the consensus of informed medical and scientific opinion. Accordingly, the Administrative Law Judge's findings on the falsity issue are supported by the record.

Synertrim #9 is a body cream which customers receive together with a brochure containing an exercise program (I.D. FOF 29). The amended Complaint alleges that Respondent falsely represents that:

"1. Topical use of Synertrim #9 will cause a loss of body weight; and

2. Topical use of Synertrim #9 will cause a reduction in size of specific body areas such as thighs, hips and buttocks; and

3. Topical use of Synertrim #9 will cause a reduction of body fat on specific body areas; and

4. The results of the use of Synertrim #9, as described in subparagraphs one through three above, will occur without exercise; and

5. The efficacy of Synertrim #9 in achieving the results, as described in subparagraphs one through four above, has been established by competent scientific tests and studies; and

6. Topical use of Synertrim #9 will firm up soft and sagging areas of the body such as the thighs and buttocks."

In the Initial Decision pertaining to this product, the Administrative Law Judge found that Respondent makes the representations alleged in the Complaint, and that those representations are materially false.

Respondent does not take specific exception to any of the findings and conclusions relating to Synertrim #9, except insofar as it generally challenges the scope of the false representation orders which the Administrative Law Judge recommended be issued in these proceedings. Nonetheless, the entire record pertaining to Synertrim #9 has been reviewed and no error warranting any change in the findings or conclusions of the Initial Decision has been found. Further, no error in the scope of the recommended False Representation Order as it relates to this product has been found. Accordingly, the Initial Decision as it pertains to Synertrim #9 is affirmed.

In the amended Complaint regarding Derma-Tec 90 Restructuring Facial Treatment with Procaine it is alleged that Respondent falsely represents:

"1. Derma-Tec 90 Facial Treatment will permanently remove wrinkles and age lines from the user's face.

2. The Procaine ingredient of Derma-Tec 90 Facial Treatment is effective to remove wrinkles and age lines from the user's face.

In his Initial Decision the Administrative Law Judge concluded that Respondent makes the representations alleged in the Complaint and that those representations are materially false.

1. "THE ADMINISTRATIVE LAW JUDGE ERRED IN CONCLUDING THAT RESPONDENT'S ADVERTISEMENTS MADE THE REPRESENTATIONS ALLEGED AND THAT THEY WERE MATERIALLY FALSE. (Finding of Fact Nos. 7, 11.)"

Respondent's arguments under this exception relate to the Administrative Law Judge's finding that it makes the representations alleged in the Complaint. Respondent argues that the Administrative Law Judge took the language of its advertisement (I.D. Exh. A; CX-1d) out of context in arriving at the conclusion that it makes the alleged misrepresentations. According to Respondent, it advertises a cosmetic cream which will enhance the appearance of the user, not one that will cause the permanent removal of wrinkles and age lines. In support of its position, Respondent relies on the language of its advertisement offering two sizes of the product, the advice that two Government agencies do not recognize Procaine as having rejuvenation powers and the references to the users "appearance."

Considering Respondent's advertisement as a whole and the effect it would most probably produce on the ordinary reader, it is concluded that it makes the representations alleged in the Complaint. The reasonable inference drawn from the language used by Respondent in its advertisement beginning with the prominent wording in the headline "WRINKLES AWAY" is that wrinkles and age lines will be permanently removed. The language of its advertisement referred to by Respondent would not alter this conclusion in the mind of the ordinary reader. Accordingly, there is no merit to this exception.

"THE ADMINISTRATIVE LAW JUDGE ERRED IN CONCLUDING THAT THERE ARE NO CLAIMS MADE FOR TOPICAL APPLICATION OF PROCAINE TO BENEFIT THE SKIN'S APPEARANCE. (Finding of Fact No. 9.)"

In Finding of Fact No. 9 the Administrative Law Judge stated that Rumanian Physician Dr. Ana Aslan "advocates the systemic use of Procaine, claiming it may benefit the skin's appearance. However, this claim is not made for its topical use (Tr. 397)." (I.D. pp. 7-8). This finding was based on the testimony of Dr. Kramer who Respondent contends was uninformed about the existence of Dr. Aslan's topically applied cream containing Procaine. Dr. Kramer exhibited sufficient familiarity with the work of Dr. Aslan to be able to testify generally regarding her work (Tr. 397-98). The fact that Dr. Gaul may have seen a Procaine cream formulated by Dr. Aslan does not detract from this conclusion. Dr. Gaul did not testify that the Aslan claim pertained to the cream. Moreover, Dr. Gaul's testimony that the product in issue is simply a moisturizer is consistent with the testimony of Dr. Kramer and supports his conclusion that the product will not produce the results represented. Accordingly, this exception provides no basis for altering the findings and conclusions of the Initial Decision.

"THE ADMINISTRATIVE LAW JUDGE ERRED IN CONCLUDING THAT THE REPRESENTATIONS WERE MATERIALLY FALSE AS A MATTER OF FACT. (Finding of Fact Nos. 10, 11.)"

In Finding of Fact Nos. 10 and 11 the Administrative Law Judge found that Derma-Tec 90 will not permanently remove wrinkles and age lines, the Procaine in the product is not effective to remove wrinkles and age lines and that the representations made by Respondent as alleged in the Complaint are materially false in fact. The Administrative Law Judge also found, however, that the ingredients of Derma-Tec 90 serve as a moisturizer and will "have a temporary, mild smoothing effect on some of the less pronounced wrinkles (Tr. 396, 492-93)" (I.D. at p. 8). According to Respondent this temporary mild smoothing effect on less pronounced wrinkles is all that it represents in its advertisement.

The allegations of the Complaint relate to the permanent and effective removal of wrinkles and age lines. As previously stated, the Administrative Law Judge's findings that these representations are made in Respondent's advertising is supported by the record. Therefore, the Finding that the product will have a temporary mild smoothing effect on some less pronounced wrinkles does not support its ability to achieve the results found to be represented in Respondent's advertisement.

While it may be true that some sophisticated readers would read Respondent's advertisement as representing only a temporary smoothing effect, it would at best be susceptible to two interpretations, one of which is false, and therefore misleading in violation of § 3005. See United States v. 95 Barrels of Vinegar, 265 U.S. 438 (1924); Rhodes Pharmacal Co., Inc. v. FTC, 208 F.2d 382 (7th Cir. 1953); United States Testing Authority, P.S. Docket No. 14/77 & 14/114 (P.S.D. on Supp. Order, Oct. 2, 1985; Ralph J. Galliano, P.S. Docket No. 19/15 (P.S.D. May 2, 1985). Had Respondent desired to convey the message that its product was a cosmetic cream with a moisturizer which would have a temporary smoothing effect on some less pronounced wrinkles, it easily could have chosen words which would have made this clear to the ordinary reader. It is not difficult to select words which will not deceive. See United States v. 95 Barrels of Vinegar, supra. Respondent did not, and as the drafter of ambiguous language, it is responsible for the consequences. Accordingly, there is no merit to this exception.

The Medi-Tec 90 Therapeutic Lotion and Scalp Treatment is a topically applied lotion advertised to treat baldness. The Complaint regarding this product charged that Respondent falsely represents:

"1. Medi-Tec 90 will cause the regrowth of hair on the bald or balding scalp.

2. Medi-Tec 90 is an effective remedy for male pattern baldness.

3. The user of Medi-Tec 90 may reasonably expect to see evidence of new hair growth in previously bald or thin areas of his scalp after two to four weeks of use of Medi-Tec 90."

In his Initial Decision pertaining to this product, the Administrative Law Judge found that Respondent makes the representations alleged in the Complaint and that those representations are materially false.

"THE ADMINISTRATIVE LAW JUDGE ERRED IN CONCLUDING THAT ALL THREE OF THE ADVERTISEMENTS MADE THE ALLEGED MISREPRESENTATIONS. (Finding of Fact No. 17)."

The findings in the Initial Decision relate to four different formats of Respondents advertisement: the "Baldness Cure" format (I.D. Exh. B); the revised "Baldness Cure" format (I.D. Exh. C); the "Baldness Cure" brochure (I.D. Exh. D); and the "Progressive Baldness: 3,000,000 Can Fight It" format (I.D. Exh. E). (See Findings of Fact 13, 14 & 17; CX-3C, 9C, 17C & 25C). In Finding 17, the Administrative Law Judge found that all four of Respondent's advertising formats make the representations alleged in the Complaint.

Respondent contends that these advertising formats are distinct in their entirety and that the Administrative Law Judge's "characterization of the misrepresentations was painted with too broad a brush." Respondent also contends its revised "Baldness Cure" format contains significant changes and was approved by a Postal Service representative, Clark C. Evans. Respondent further argues that the Administrative Law Judge erred in relying on a prior Postal Service Decision in arriving at the conclusion that its revised "Baldness Cure" format represents that Medi-Tec 90 is an effective remedy for male pattern baldness. Respondent also argues that the Administrative Law Judge wrongly concluded that its references to the United States Government and the American medical community were not an effective disclaimer. Finally, with regard to its "Progressive Baldness" format, Respondent argues that the Administrative Law Judge found only one misrepresentation and that was based on only a few cited phrases while other phrases were conspicuously overlooked.

Each of the advertisements has been considered in its entirety and the impression it would most probably create in the mind of the ordinary reader. Donaldson v. Read Magazine, Inc., supra. An ordinary reader would conclude, as the Administrative Law Judge found, that each of the four advertising formats makes the representation that a user of the product "may reasonably expect to see evidence of new hair growth in previously bald or thin areas of his scalp after two to four weeks of use of Medi-Tec 90." Respondent does not specifically argue that this representation is not made. Furthermore, an ordinary reader would also conclude that each advertisement represents that the product "will cause the regrowth of hair on the bald or balding scalp." This representation is expressly made in the "Baldness Cure" format, the revised "Baldness Cure" format and the "Baldness Cure" brochure (I.D. Exhs. B, C & D) and impliedly made in the "Progressive Baldness" format (I.D. Exh. E). Respondent offers no persuasive contrary arguments concerning the existence of this representation. At most, Respondent contends the Administrative Law Judge erred in finding that references in the advertisements to the U. S. Government and American medical community are not "effective disclaimers," but are "cleverly employed to strengthen the representation that the product will grow hair on bald scalps, despite the asserted negative attitudes attributed to these entities" (I.D. at pp. 12 & 13). The record supports the Administrative Law Judge's findings. Respondent's argument that testimony by Complainant's inspector/attorney and former counsel in these cases, Clark C. Evans, could well establish that these phrases were directed to be employed by Postal Service counsel is not persuasive in view of the similarity of the so-called disclaimers in the advertisements used before the alleged meeting with Inspector Evans and those used after, including the continued use of the original "Baldness Cure" format (I.D. FOF 14; compare I.D. Exhs. B and C).

Respondent's argument regarding the truthfulness of its representation of the differences between the American and European medical communities on the effectiveness of hair stimulant products is no more persuasive. A review of the record in this case as well as those portions of the record in Cosvetic Labs., et al., P.S. Docket Nos. 8/160, etc., cited by Respondent does not support Respondent's allegation that there exists and opinion of an enlightened European medical community which is contrary to that of the United States medical community. See Cosvetic Labs, et al., P.S. Docket No. 8/160, Tr. pp. 494, 499-569; Cosvetic Labs, supra, P.S.D. of July 22, 1982, at pp. 8 & 9, I.D. of Dec. 23, 1981, at pp. 23-35, 49-53.

Respondent's argument that the Administrative Law Judge erred in interpreting its "Progressive Baldness: 3,000,000 Can Fight It" format as representing that its product will cause the regrowth of hair on the bald or balding scalp is also without merit. Neither the language referred to by Respondent nor the "disclaimer" language included in the advertisement detracts from the overall impression that the use of the product will cause a regrowth of hair.

Respondent's criticism of the Administrative Law Judge for relying on a prior Postal Service Decision, Spectron Ind., P.S. Docket No. 2/8 (P.S.D. Sept. 12, 1973), in arriving at the conclusion that the revised "Baldness Cure" format represents that Medi-Tec 90 is an effective remedy for male-pattern baldness is not well taken. Spectron properly stands for the proposition that a represented cure for baldness embraces a cure for male-pattern baldness since it is the most common form of baldness (Tr. p. 314; Spectron, supra; I.D. at p. 9). It would certainly be reasonable and probable that the ordinary reader would understand a cure for baldness to apply to the most common form of baldness. Thus, it was not error to rely on Spectron or to conclude that Respondent's revised "Baldness Cure" format represents that Medi-Tec 90 is an effective remedy for male-pattern baldness.

For the reasons stated, there is no merit to Respondent's arguments under this exception.

"THE ADMINISTRATIVE LAW JUDGE ERRED IN DISCREDITING THE SCHRECK-PUROLA STUDIES, AS WELL AS REJECTING THE OFFERED TESTIMONY OF DR. SCHRECK-PUROLA. (Finding of Fact No. 20, Conclusion of Law 8.)"

In Finding of Fact 20, the Administrative Law Judge described testimony by Dr. Kramer and made findings on two papers prepared by Dr. Schreck-Purola and others concerning studies they performed on the ability of products containing Polysorbate 60 and Biotin to cause hair growth. Respondent criticizes Dr. Kramer's testimony and the Administrative Law Judge's findings based thereon. The papers were used by Complainant during direct examination of Complainant's expert, in anticipation that they would be introduced into evidence by Respondent (Tr. 295-97, 324-25). However, the papers were not introduced into evidence and therefore neither the papers nor the testimony regarding them need be considered.

This exception as well as the previous exception and portions of Respondent's Motion relate to the propriety of the Administrative Law Judge's refusal to admit into evidence portions of the transcript in Cosvetic Labs, et al, P.S. Docket Nos 8/160, etc. The portions of the Cosvetic transcript which Respondent sought to introduce in this proceeding included the testimony of Drs. Schreck-Purola and Nordstrom relating to the ability of Polysorbate 60 to cause hair growth.

Respondent argues that the ingredients for its product are essentially the same as those in the hair stimulant product discussed by Drs. Schreck-Purola and Nordstrom during their testimony in Cosvetic Labs, P.S. Docket No. 8/160, et al., and therefore that testimony should have been admitted into evidence in this proceeding. Respondent argues the Administrative Law Judge erroneously refused to receive the transcript after he had been previously overruled by the Judicial Officer for refusing to accept the transcript in New Generation, P.S. Docket No. 11/152 (P.S.D. May 13, 1983). Respondent contends the Cosvetic testimony should be evaluated along side that of the "live" witnesses, and a new hearing should be conducted by a different Judge to accept the transcript and "weigh it against the 'live' testimony."

The testimony of Drs. Schreck-Purola (Cosvetic Tr. 499-569) and Nordstrom (Cosvetic Tr. 571-648) has been reviewed together with the evidence introduced in this proceeding. The testimony of the two doctors does not establish any valid basis for altering the conclusions of the Administrative Law Judge that the representations for Respondent's product are false. The testimony of Drs. Schreck-Purola and Nordstrom was not persuasive in the Cosvetic case and is no more persuasive when considered with the evidence presented in this case. Indeed, much of the testimony of Drs. Schreck-Purola and Nordstrom supports Complainant's position, and the testimony of their expert that the two Schreck-Purola studies are not published in peer-review journals, were not performed with proper controls, and could not be accepted by the scientific and medical community as demonstrating the efficacy of the product. Thus, while the portion of the Cosvetic transcript offered by Respondent should have been admitted into evidence, the failure to admit the transcript into evidence does not provide a basis for a new hearing before another Administrative Law Judge.

Libutol-1500 is a pill advertised by Respondent to enhance sexual performance. The Complaint alleged that Respondent falsely represents that:

"1. Libutol-1500 is an effective sexual stimulant or aphrodisiac.

2. Libutol-1500 is effective in the treatment, alleviation or cure of diminished sexual drive or desire or of loss of libido."

In his Initial Decision regarding this product the Administrative Law Judge found that Respondent makes the representations alleged in the Complaint and that those representations are materially false.

"THE ADMINISTRATIVE LAW JUDGE ERRED WHEN HE CONCLUDED THAT THE ADVERTISEMENTS MADE THE ALLEGED REPRESENTATIONS. (Finding of Fact No. 5.)"

Respondent argues that the Administrative Law Judge erroneously concluded that it represents its product will "treat, alleviate or cure medical disease." According to Respondent it is unlikely that an ordinary reader would understand its advertising to offer a medical cure. Respondent further argues that its advertisements do not expressly make the representations alleged in the Complaint, that they could only be considered to be made by implication but no testimony was produced on the meaning of the advertisements, and that the Administrative Law Judge took language out of context in reaching the conclusion that the representations are impliedly made.

Similar arguments are made by Respondent in its exceptions to P.S. Docket No. 16/121, infra. The reasons and citations supporting rejection of Respondent's argument in that docket number are equally applicable here.

The Complaint does not charge, nor did the Administrative Law Judge find, that Respondent represents itself to be in the "medical business" or that its product will cure "medical disease states." The Complaint does allege, and the Administrative Law Judge correctly found, that Respondent represents that its product is effective in the "treatment, alleviation or cure of diminished sexual drive or desire or of loss of libido." To the extent "diminished sexual drive or desire or loss of libido" results from medical causes, either physiological or psychological, Respondent does represent, and the ordinary reader would understand, that its product is effective to alleviate, treat or cure a medical condition.

In reaching the conclusion that Respondent makes the representations alleged in the Complaint, the Administrative Law Judge did not quote out of context portions of Respondent's advertisements. Rather, the Administrative Law Judge correctly considered the entire tenor of the advertisements as illustrated by the portions of the advertisements he quoted. The overall impression of Respondent's advertising as found by the Administrative Law Judge is that Respondent makes the representations alleged in the Complaint. The first alleged representation, that Libutol-1500 is an effective sexual stimulant, is expressly made in Respondent's advertising by the language "[o]nce the feeling arises, Libutol-1500 will help provide the maximum stimulation needed to complete the ultimate sexual conquest." The other alleged representation is implied by the words quoted by the Administrative Law Judge, when read in the context of the remainder of the language used in the advertisements. See N. Van Dyne Advertising Agency, Inc. v. United States Postal Service, 371 F. Supp 1373, 1376 (S.D.N.Y. 1974).

Contrary to Respondent's argument, the absence of testimony regarding the meaning of Respondent's advertisements is not critical. Testimony is not needed to determine the impact of express or implied representations, as that determination may be made by the trier of fact from the promotional materials themselves. See, Peak Laboratories, Inc. v. United States Postal Service, 556 F.2d 1387 (5th Cir. 1977); Vibra Brush Corp. v. Schaffer, 152 F. Supp. 461, 468 (S.D.N.Y. 1957), rev'd on other grounds, 256 F.2d 681 (2d Cir. 1958).

Accordingly, the Administrative Law Judge properly found that Respondent's advertisements make the representations charged in the Complaint. Respondent's arguments to the contrary have no merit.

"THE ADMINISTRATIVE LAW JUDGE ERRED WHEN HE CONCLUDED THAT THE REPRESENTATIONS WERE MATERIALLY FALSE AS A MATTER OF FACT. (Finding of Fact Nos. 8, 9, 13)."

In Findings 8, 9 and 13 the Administrative Law Judge found that Libutol-1500 is not physiologically a sexual stimulant or aphrodisiac, but might have a sexually stimulating placebo effect on a person with low sexual desire. He also found that the problems of low sexual desire are generally psychogenic and must be treated psychotherapeutically. Finally, he found that the representations concerning Libutol-1500 are materially false in fact.

Respondent contends that its advertisements relate to sexual desires which are not necessarily medical conditions. According to Respondent, its product may be used effectively as a psychological sexual stimulant and therefore will achieve the results represented.

In support of its argument, Respondent refers to testimony which it attributes to Complainant's witness Dr. Smolev, but which was in fact the testimony of its own witness Dr. Gaul. Notwithstanding the source of the testimony, a fair reading of the transcript substantiates the allegations of the Complaint. As the Administrative Law Judge found, sexual dysfunction results from both organic and psychogenic causes (I.D. FOF 19). While the use of Respondent's product could produce flushing of the face, a feeling of warmth and some itching (Tr. 95-96), it will not have any physiological effect as a sexual stimulant or aphrodisiac (Tr. 460, 464, 608). At most, the use of the product might possibly have a placebo effect on a person with a low sexual desire (Tr. 608). The possibility of a placebo effect based on the use of a product does not vitiate the falseness of a representation. See Stauffer Labs, Inc. v. FTC, 343 F.2d 75, 83 (9th Cir 1965); Original Cosmetics Products, Inc. v. Strachan, 459 F. Supp. 496, 506 (S.D.N.Y. 1978), aff'd without opinion, 603 F.2d 214 (2d Cir.), cert. denied, 444 U.S. 915 (1979); Standard Research Labs, P.S. Docket Nos. 9/63 & 9/64 (P.S.D. Aug. 31, 1981) at pp. 13-14; Wilmont Products, P.S. Docket No. 6/46 (July 19, 1979) at pp. 7-8. To hold otherwise would render ineffective the provisions of 39 U.S.C. § 3005. Original Cosmetics Products, Inc. v. Strachan, supra. at p. 506.

While Respondent argues that its product is successful in treating psychological problems, it also argues that its product is not a placebo because it produces physiological effects. The physiological effects produced by the product, such as flushing, warmth and itching, are not the effects represented by Respondent's advertisements. Thus, Respondent's argument is no more than a meaningless semantical exercise. Accordingly, there is no merit to this exception.

"THE ADMINISTRATIVE LAW JUDGE ERRED WHEN HE CONCLUDED THAT SMOLEV'S TESTIMONY WAS IN ACCORD WITH THE CONSENSUS OF THE MEDICAL COMMUNITY (Finding of Fact No. 12)."

In support of this exception Respondent refers to the arguments it made in its motion to dismiss this proceeding. Essentially, Respondent contends that Dr. Smolev's testimony that his opinions are in accord with the consensus of the medical community should be disregarded because he had not personally used the product nor read studies by others who used the product.

Dr. Smolev's education, experience and research of the literature qualify him to testify as an expert in this proceeding and to express his understanding of the consensus of opinion of the medical community. Respondent's arguments do not discredit Dr. Smolev's testimony. It is not essential that an expert use or test a product in order to testify concerning its effect and the consensus of medical opinion. E.g., The New Body Boutique, Inc., supra. Dr. Smolev's opinions and his testimony concerning the consensus of informed medical opinion was sufficient to establish a prima facie case that the representations concerning the product were false. See, e.g., United States Health Club, Inc. v. Major, 292 F.2d 665 (3d Cir. 1961), cert. denied, 368 U.S. 896; Athena Products, Ltd., P.S. Docket No. 12/136 (P.S.D. May 6, 1983). Respondent has not rebutted that prima facie case. Peak Laboratories, Inc. v. United States Postal Service, supra; G.H.P. Laboratories, Inc., P.S. Docket No. 10/149 (P.S.D. Nov. 30, 1981), at p. 9. Instead, much of the testimony of its own witness, Dr. Gaul, supports Dr. Smolev's opinions. (See, e.g., Tr. 460-64, 467-70). To the extent any of Dr. Gaul's testimony may be considered as conflicting with that of Dr. Smolev, Dr. Smolev's testimony, by virtue of his superior qualifications, is more persuasive. Cf. Baslee Products Corp. v. United States Postal Service, 356 F. Supp. 841 (D.N.J. 1973) at 850. Accordingly, there is no merit to this exception.

Testorex-35 is a pill advertised to enhance male sexual performance. The Complaint, charged in Paragraph III that Respondent falsely represents:

III ...

"1. Ingestion of Testorex-35 will effectively treat, alleviate or cure impotence or sexual dysfunction for the average adult male.

2. Ingestion of Testorex-35 will cause a male to have improved sexual performance.

3. Ingestion of testosterone is a medically acceptable form of treatment for male impotence or sexual dysfunction."

In his Initial Decision regarding this product, the Administrative Law Judge concluded that Respondent's advertising and promotional materials make all of the representations alleged in the Complaint, that the representations alleged in paragraphs III-1 and 2 are materially false, but that Complainant had failed to sustain its burden of proof that representation III-3 was false.

"THE ADMINISTRATIVE LAW JUDGE ERRED WHEN HE CONCLUDED THAT RESPONDENT'S ADVERTISEMENTS MADE THE REPRESENTATIONS COMPLAINED OF, AND THAT THEY WERE MATERIALLY FALSE. (Finding of Fact No. 15, 25.)"

Respondent argues that a person of ordinary mind reading its advertisements in a publication of general circulation would not interpret them as presenting a "medical cure, treatment, or alleviation of medical problems." Respondent also argues that neither of the representations found by the Administrative Law Judge to be false are explicitly made in its advertisements and no testimony was presented that a person of ordinary mind would construe the advertisements as alleged.

Similar arguments were made by Respondent and rejected in connection with P.S. Docket No. 16/102 and in the arguments challenging the constitutionality of these proceedings. The reasoning and citations of authority for rejection are equally applicable to this docket number.

Respondent advertises that its product will have beneficial effects on conditions which have medical causes. To this extent it does represent, and the ordinary reader would understand, that Respondent was advertising a cure or treatment for a "medical problem." The representations need not be explicitly made, but may be made by implication. See e.g. Donaldson v. Read Magazine, Inc., supra; N. Van Dyne Advertising Agency, Inc. v. United States Postal Service, supra. Evidence other than the advertisements themselves is unnecessary to establish whether the representations are made, their effect on the ordinary mind and their materiality. Rhodes Pharmacal Co., Inc. v. FTC, supra; Baslee Products Corp. v. United States Postal Service, supra; Vibra-Brush Corp. v. Schaffer, supra; Ralph J. Galliano, supra; Kimberly Jewels, Inc., P.S. Docket No. 9/65 (P.S.D. July 23, 1981). Respondent's advertisements, considered in their totality, would most likely be understood by the ordinary reader as making the representations charged in paragraphs III-1 and 2 of the Complaint. Accordingly, this exception has no merit.

"THE ADMINISTRATIVE LAW JUDGE ERRED IN CONCLUDING THAT COMPLAINANT FAILED TO SUSTAIN ITS BURDEN OF PROOF ON THE FALSITY OF REPRESENTATION III-3 OF THE COMPLAINT. (Finding of Fact No. 25)."

In Finding of Fact 25, the Administrative Law Judge found that Complainant had failed to sustain its burden of proving the falsity of the representation alleged in paragraph III-3 of the Complaint. Respondent argues that the representation is true, and should be found to be true in this administrative proceeding. According to Respondent in the absence of a finding of truthfulness, Complainant may change experts and "continue to harass Respondent by repeatedly bringing this charge of falsity."

In finding that Complainant failed to meet its burden of proof on the one charge of falsity, the Administrative Law Judge relied solely on the record made in this proceeding. He was not required, nor did the evidence warrant, that he find that the representation is true. In attempting to convert the finding into an affirmative ruling, Respondent is requesting a finding and ruling which could bar unspecified future charges of falsity. This request goes beyond the necessary scope of this proceeding. Therefore, Respondent's request is denied.

"THE ADMINISTRATIVE LAW JUDGE ERRED IN CONCLUDING THAT THERE IS NOTHING IN THE MEDICAL LITERATURE RELATING ZINC TO SEXUAL DYSFUNCTION EXCEPT FOR INSIGNIFICANT STUDIES INVOLVING UREMIC PATIENTS. (Finding of Fact No. 21)."

Respondent argues that the Administrative Law Judge erred in Finding 21 because he wrongfully refused to allow Respondent to cross-examine Complainant's expert regarding two articles and failed to admit the articles into evidence. According to Respondent, the two articles conclusively show that zinc is related to sexual dysfunction. Respondent further argues that Complainant's conduct during discovery improperly precluded Respondent from obtaining the evidence it needed to lay a proper foundation for the two articles.

The Administrative Law Judge denied Respondent's attempt to cross-examine Dr. Smolev about the two articles because the expert could not testify, and Respondent made no showing, that the articles appeared in authoritative medical journals (Tr. 573-74). The Administrative Law Judge did not err in this regard nor was his ruling prejudicial to Respondent. Further the record does not establish that Complainant's conduct during discovery precluded Respondent from obtaining the evidence it needed to lay a proper foundation.

Respondent did not establish through its own witness that either of the articles were published in authoritative journals nor did it seek to offer either of the two articles into evidence through its own expert. In addition, Respondent's expert was unaware of any studies showing the use of zinc for treating impotence other than in uremic patients (Tr. 489). Respondent made an offer of proof with respect to one of the articles by reading into the record a portion of the article which it claimed established that there are other researchers who have shown a relation between zinc and sexual drive (Tr. 576). Taking Respondent's offer of proof as fact, Finding 21 would be modified by adding to the first sentence concerning the relationship of zinc to sexual dysfunction that a study has shown "sexual drive was diminished during a zinc-restricted period as compared to the stabilization and the zinc-repletion periods, but an objective assessment was unobtainable." (Tr. 576). This change in the finding does not suffice to impeach Dr. Smolev's credibility nor to warrant any change in the conclusion that the representations alleged in the Complaint are false. Respondent made no offer of proof concerning the second article. Without such an offer, no error has been shown with regard to that article. See, Cosvetic Labs., et al., P.S. Docket No. 8/160 (P.S.D. July 22, 1982), at pp. 12-13.

Accordingly, Respondent's exception provides no basis for altering the Administrative Law Judge's conclusions with respect to Testorex-35.

"THE ADMINISTRATIVE LAW JUDGE ERRED IN CONCLUDING THAT SMOLEV'S TESTIMONY WAS IN ACCORD WITH THE CONSENSUS OF THE INFORMED MEDICAL COMMUNITY (Finding of Fact No. 24)."

Respondent argues that Dr. Smolev "cannot be adjudged an expert" because he "does not know nutrition, and cannot evaluate a nutritional supplement." Respondent criticizes Dr. Smolev's testimony because he did not use the products and did not perform a search of the nutritional literature. Respondent further criticizes Dr. Smolev's testimony because he based his opinion on the absence of any evidence of the efficacy of the products and their ingredients in the scientific and medical literature he reads, and because he did not know what two of the ingredients were.

Respondent's contentions have no merit. Dr. Smolev's training and experience (CX-7) were sufficient to qualify him as an expert and it was proper for the Administrative Law Judge to rely on his testimony to establish the consensus of informed medical opinion (I.D. FOF 24).

Dr. Smolev's lack of specialized knowledge in the field of nutrition does not detract from his expertise regarding sexual behavior. His testimony that nutritional deficiencies have not been shown to be a cause of the conditions about which Respondent makes representations is persuasive. Further, his lack of familiarity with certain of the ingredients in Respondent's product is unimportant in view of the lack of evidence that those ingredients would have any possible effect on the conditions he was discussing. Dr. Smolev's testimony was persuasive of the existence of the consensus of informed medical opinion which established a prime facie case which Respondent has not rebutted either by contradictory evidence or by persuasively discrediting Dr. Smolev's testimony.

As found by the Administrative Law Judge, Dr. Smolev was well qualified to testify in this proceeding and his qualifications were significantly superior to those of Respondent's witness. Therefore, it was proper to rely on Dr. Smolev's testimony. Accordingly, there is no merit to this exception.

"THE ADMINISTRATIVE JUDGE ERRED IN CONCLUDING THAT THE ALLEGED REPRESENTATIONS WERE MATERIALLY FALSE IN FACT. (Finding of Fact No. 25.)"

Respondent argues that because of the placebo effect of the use of Testorex-35, its representations are not false. As previously stated in connection with the exception regarding Libutol, the possibility of a placebo effect arising from the use of a product does not vitiate the falseness of a representation. See Stauffer Labs. v. FTC, supra; Original Cosmetics Products, Inc. v. Strachan, supra; Standard Research Labs, supra; Wilmont Products, P.S. Docket No. 6/46 at pp. 7-8 (July 19, 1979).

Accordingly, there is no merit to this exception.

Respondent contends that the scope of the Administrative Law Judge's proposed False Representation Orders far exceeds the jurisdiction of the Postal Service and would prohibit receipt of any mail for the products regardless of whether they are based on the advertisements which were introduced into evidence in these proceedings. Respondent also argues that the False Representation Orders are directed against trade names for a variety of products which are totally unrelated to the products which are the subject of these proceedings. Finally, Respondent contends that the inclusion in the False Representation Orders of the address of its principal place of business which is one of its mailing addresses, is improper because, as a postal user, it has a right to receive mail at its place of business.

Complainant objects to Respondent's attempt to narrow the scope of the False Representation Orders except with respect to one product. According to Complainant, the scope of the Orders is justified by the record established in these proceedings.

While Respondent argues that the False Representation Orders would prohibit receipt of mail for products marketed by means of advertisements not subject to this proceeding, it has not shown that such advertisements are being used. As Complainant correctly points out in its brief, if revised advertisements are used which do not violate the terms of the Orders issued in these proceedings, the Orders may be modified by means of a properly filed and supported Motion for Modification under 39 C.F.R. § 952.29.

Respondent's argument that it is improper to include its principal place of business address within the scope of the False Representation Orders is not persuasive. Respondent seeks remittances to this address and therefore there are sufficient mail order contracts to warrant issuance of the False Representation Orders against Respondent at the address of its principal place of business. See The New Body Boutique, Inc., supra.

Although Respondent argues that it markets a variety of unrelated products under trade names subject to the False Representation Orders, it specifically refers only to Medi-Tec 90 and the unrelated product Medi-Tec 90 Therapeutic Shampoo and Scalp Cleanser. Complainant does not oppose a modification of the False Representation Order to assure the exclusion of the latter product from the terms of the False Representation Order. Accordingly, the Order in P.S. Docket No. 16/100 will be so modified. Respondent has not otherwise shown that the False Representation Orders should be modified because they would improperly affect additional unrelated products.

Respondents exceptions to the scope of the False Representation Order are denied except insofar as they pertain to the exclusion of Medi-Tec 90 Therapeutic Shampoo and Scalp Cleanser.

I

THE INHERENT FLAWS WHICH DENY DUE PROCESS TO RESPONDENT

A. There is no Subpoena Power by which Respondent can bring in the testimony of witnesses - either favorable to its case, or adverse to Complainant's case.

Respondent argues that the Postal Service lacks authority to issue subpoenas and that this lack of subpoena authority deprives it of its due process rights. According to Respondent, its inability to subpoena witnesses prevented it from obtaining evidence to support its defenses of misconduct and estoppel. Respondent also argues that improprieties were committed by the presiding Administrative Law Judge regarding these defenses.

Respondent correctly points out that the Postal Service is not authorized to issue subpoenas in proceedings brought under 39 U.S.C. § 3005. See 39 C.F.R. § 952.19. Despite this lack of authority, proceedings under 39 U.S.C. § 3005 have been consistently held to be constitutional. E.g. Donaldson v. Read Magazine, Inc., supra; Public Clearing House v. Coyne, 194 U.S. 497 (1904); United States Postal Service v. Athena Products, Ltd., 654 F.2d 362 (5th Cir. 1981), cert. denied 456 U.S. 915 (1982); ViAids Laboratories, Inc. v. United States Postal Service, 464 F. Supp. 976 (S.D.N.Y. 1979). Furthermore, Respondent has cited no case, and no case has been found, in which the lack of subpoena power has been held to support a challenge to the constitutionality of a federal administrative adjudication. See Johnson v. United States, 628 F.2d 187 (D.C. Cir. 1980); Delong v. Hampton, 422 F.2d 21 (3d. Cir. 1970). Accordingly, the lack of authority to issue subpoenas does not, in itself, constitute a denial of due process.

Respondent claims it was prejudiced by the lack of subpoena power because it could not compel the testimony of a Postal Inspector who would support its defenses of misconduct and estoppel in connection with P.S. Docket No. 16/100. There is no merit to this claim. Although the Postal Service lacks authority to issue a subpoena, it otherwise possesses inherent power to compel the attendance of its own employees at a hearing conducted under 39 U.S.C. § 3005. See John C. Roche, P.S. Docket No. 5/112 (P.S.D. July 19, 1977). The presiding Administrative Law Judge in these cases recognized that he could order the Postal Inspector to appear at the hearing (Tr. 19-20, 187-88). However, he concluded that the evidence establishing estoppel or misconduct which Respondent sought to present through the testimony of the Inspector (as well as another witness who had voluntarily agreed to appear at the hearing) did not pertain to an issue in these proceedings (Tr. 187-88). Thus, the remaining question is whether the Administrative Law Judge's ruling excluding misconduct or estoppel as issues was proper.

The defense of misconduct cannot properly be assessed because no proffer was made at the hearing. In the absence of a proffer there is no basis for concluding that the Administrative Law Judge's ruling was erroneous. However, the entire record has been reviewed and no misconduct has been found. Thus, there is no basis for altering the Initial Decision.

With regard to its defense of estoppel, Respondent sought to amend its Answer to assert estoppel as an affirmative defense in P.S. Docket No. 16/100. At the hearing Respondent made a proffer that certain of the advertisements for Medi-Tec 90 (P.S. Docket No. 16/100) had been submitted to the Inspector and that the Inspector, if present at the hearing, would testify he had no problem with those advertisements (Tr. 208-10, 644-45).

In its brief, Respondent further argues that if present at the hearing the Inspector would testify he advised Respondent to remove the word "pattern" from its revised "Baldness Cure" format advertisements in order to eliminate any representation of effectiveness regarding male-pattern baldness.

While the record does not reflect a clear ruling on the motion to amend the Answer, and while evidence to support the estoppel argument should have been allowed, neither serves as a basis for altering the conclusions reached in the Initial Decision or in this Opinion. The Administrative Law Judge implicitly ruled on the motion when he stated that estoppel was not in issue and that he was not going to order the Inspector to appear at the hearing (Tr. 187-88). Thus, Respondent did have a ruling on its motion.

Estoppel is a proper issue on which evidence should be allowed even though it will not ordinarily be applied against the United States when the interests of the public are at stake. See e.g., Heckler v. Community Health Services, 467 U.S. 51 (1984); United States v. Lazy FC Ranch, 481 F.2d 985, 989 (9th Cir. 1973); United States v. An Article of Drug, 520 F. Supp. 467, 470 (S.D. Tex. 1981); Organized Fisherman v. Andrus, 488 F. Supp. 1351, 1356 (S.D. Fla. 1980); Pacific Shrimp Co. v. D.O.T., 375 F. Supp. 1036 (W.D. Wash. 1974). The interests of the public are at stake in a proceeding under of 39 U.S.C. § 3005. See Donaldson v. Read Magazine, supra at p. 184; Commissioner v. Heininger, 320 U.S. 467, 474 (1943); James E. Smith, P.S. Docket No. 14/61 (P.S.D. Nov. 9, 1983). Respondent has not established that it could prevail on this defense even if the facts asserted in its proffer were established by a preponderance of the evidence. Respondent did not assert that the Inspector possessed authority to approve the wording of an advertisement or that there was detrimental reliance sufficient to overcome the public interest protection afforded by 39 U.S.C. § 3005.

Accordingly, Respondent's argument in support of this exception does not provide a basis for altering the conclusions reached in the Initial Decision.

"B. There are no standards by which to determine the effect of an advertisement either upon persons of the ordinary mind, or to the special category of people to whom it is directed; nor are there any standards to determine if a representation is 'material.'"

Respondent asserts that there was no consumer or expert testimony regarding the meaning of its advertisements or how they would be construed by ordinary readers to whom they were directed. Respondent argues that without such evidence the Administrative Law Judge's interpretation is arbitrary and capricious under the Administrative Procedure Act, 5 U.S.C. § 706. Respondent also contends 39 U.S.C. § 3005 is unconstitutional because the evidentiary standard established by that provision is too vague to give adequate notice of conduct which would constitute a materially false representation. Respondent's final argument under this exception concerns reorder rates and the materiality of its representations.

The statutory standard, "evidence satisfactory to the Postal Service" has been a part of the Postal false representation law since before the turn of the century and although it has been reviewed by the courts on numerous occasions, it has never been held to be unconstitutional. See e.g., Donaldson v. Read Magazine, supra; Public Clearing House v. Coyne, supra; American School of Magnetic Healing v. McAnnulty, 187 U.S. 94 (1902); United States Postal Service v. Athena Products, Ltd., supra; ViAids Labs, Inc. v. United States Postal Service, supra; M.K.S. Enterprises, Inc. v. United States Postal Service, supra; N. Van Dyne Advertising Agency, Inc. v. United States Postal Service, supra. Accordingly, there is no merit to Respondent's argument that § 3005 is unconstitutional.

Although the statutory standard of "evidence satisfactory to the Postal Service" leaves to the discretion of the agency the quantity and quality of evidence necessary to support the issuance of orders under § 3005, the agency has consistently required a preponderance of the evidence in order to find a violation of the statute. See e.g., Electronic Development Lab, P.S. Docket No. 18/157 (P.S.D. on Recon., Nov. 8, 1985); Contemporary Mission, Inc., P.S. Docket No. 8/159 (P.S.D. June 30, 1981); United States Great Lakes Federal Surplus Depository, P.S. Docket No. 7/136 (P.S.D. March 31, 1981); Standard Research Laboratories, P.S. Docket No. 7/48 (P.S.D. April 4, 1980); Michigan Bulb Co., P.S. Docket No. 7/43 (P.S.D. Oct. 30, 1979); U.S. Zip Code Service, P.S. Docket No. 2/171 (P.S.D. April 15, 1974). This standard is employed both by the Administrative Law Judges in reaching their Initial Decisions and on review of Initial Decisions by the Judicial Officer in issuing the final agency decision. See Atlas Publishing, Inc. v. United States Postal Service, 602 F. Supp. 407, 409-410 (S.D. Fla. 1983). Thus, the statutory standard as applied in Postal Service proceedings is clearly defined.

The Supreme Court in Donaldson v. Read Magazine, Inc., supra, established the standard for interpreting advertisements under the Postal false representation statute. The Court in Donaldson held that advertisements are to be considered as a whole and in the light of their probable impact on a person of ordinary mind. Donaldson v. Read Magazine, Inc., supra; see Peak Laboratories, Inc. v. United States Postal Service, supra. In determining the probable impact of advertisements on a person of ordinary mind, testimony in addition to the advertisements, while admissible, is unnecessary. See Peak Laboratories, Inc. v. United States Postal Service, supra; Vibra Brush Corp. v. Schaffer, supra; Telex & twx Directory, P.S. Docket No. 13/6 (P.S.D. April 1, 1983). Therefore, it was not error for the Administrative Law Judge to apply the ordinary reader test based on his review of the advertisements without the benefit of expert or consumer testimony. While Respondent may interpret certain of its advertisements differently, particularly it refers to those relating to Libutol-1500, Derma-Tec 90 Facial Treatment, and Mamralin-BX, the record supports the Administrative Law Judge's interpretation. The advertisements themselves, could and in this case did, constitute a preponderance of the evidence regarding the probable impact of the advertisements on the ordinary reader. The Administrative Law Judge's interpretation of the advertisements was not arbitrary or capricious or violative of the requirements of the Administrative Procedure Act.

The section of the Administrative Procedure Act cited by Respondent pertains to court review of administrative decisions and does not establish standards for agency evaluation of the evidence.

Although Respondent's attempt to introduce expert testimony relating to interpretation standards was denied, it was not because the Administrative Law Judge considered the testimony irrelevant. Rather, the Administrative Law Judge had required the exchange of witness lists prior to the hearing, but Respondent failed to mention the expert in its proposed list. For this reason the Administrative Law Judge denied Respondent's request to call the witness (Tr. 15-17, 187). Since Respondent had not established good cause for its failure to list the witness, the Administrative Law Judge did not abuse his discretion in refusing to allow the witness to testify.

In a motion separately filed, Respondent requested that the hearing be reopened to receive evidence from an expert who conducted marketing studies for Respondent which would show that a money back guarantee is a material representation inducing customers to buy the product. The motion was denied because Respondent had not shown the evidence could not have been presented at the hearing before the Administrative law Judge and that there is a justifiable basis for reopening the evidentiary record. A review of the complete evidentiary record in these cases and consideration of Respondent's exceptions further substantiates the denial.

Respondent also argues there are no standards for determining the materiality of a representation. There is no merit to this argument. A representation is material if it has the tendency to induce the purchase of a product. See The New Body Boutique, Inc., supra; Standard Research Labs, supra; see also F.T.C. v. Colgate-Palmolive Co., 380 U.S. 374 (1965). The representations used by Respondent which have been found to be false would have a tendency to induce the purchase of the product. Therefore, they are material.

Respondent's final argument under this exception relates to the reorder rate for its product Libutol. Respondent argues that the reorder rate establishes efficacy. However, the reorder rate, absent evidence of reasons therefor, does not establish efficacy or customer satisfaction. See Wilmont Products, supra.

For the reasons stated herein, Respondent has not shown that the Initial Decisions in these proceedings should be reversed.

"C. There was no evidence of any complaints by consumers; Respondent guarantees its products with a refund guarantee so that customers cannot be victimized." (Resp. Motion at 7).

Contrary to Respondent's arguments, the lack of evidence of consumer complaints does not violate its due process rights nor invalidate an administrative proceeding under 39 U.S.C. § 3005. The Postal false representation statute does not require proof of consumer complaints in order to protect the public from false advertising. See Standard Research Labs, supra. The decisive factor is whether there is a scheme to obtain money through the mail by means of materially false representations, not whether complaints have been filed. Farley v. Heininger, 105 F.2d 79, 84 (D.C. Cir.), cert. denied, 308 U.S. 587 (1939); Contemporary Mission, Inc., P.S. Docket No. 8/159 (P.S.D. June 30, 1981). Therefore, the absence of evidence of consumer complaints does not warrant any change in the findings in these cases. Respondent's argument that the absence of consumer complaints suggests there may be other reasons for these proceedings in unfounded where the record supports the charges in the Complaints. See The New Body Boutique, Inc., supra.

Respondent asserts it enjoys very good customer relations and has a complete refund policy, including postage and handling, which prevents customers from being hurt by purchasing its products. The availability of a refund is not the principal motivation for a purchase and it does not cure representations otherwise found to be false. Borg-Johnson Electronics, Inc. v. Christenberry, 169 F. Supp. 746, 751 (S.D.N.Y. 1959); New Body Boutique, Inc., supra.

Accordingly, Respondent's arguments under this exception are denied.

II

"DUE PROCESS VIOLATIONS IN THE PROCEEDINGS"

"A. The transcript was wrong and falsely certified."

This issue was raised in a previously filed motion and decided against Respondent in a Postal Service Decision. See The Robertson-Taylor Co., P.S. Docket No. 16/98, et al (P.S.D. July 12, 1984). That decision disposes of Respondent's contentions here. The transcript and evidentiary record have been further reviewed since the issuance of the prior decision and the conclusions reached in the decision reinforced. Accordingly, there is no merit to this contention.

"B. There has been wholesale suppression of evidence by the Postal Service."

1. Complainant misled this forum and Respondent, and suppressed evidence.

Respondent asserts that Complainant willfully suppressed evidence, that one of its witnesses either perjured himself or otherwise misled the Administrative Law Judge and Respondent, and that Complainant lied in response to a discovery request and responded to another without full disclosure. Respondent's allegations are lacking in merit and totally irresponsible. At best, the record shows lack of knowledge on the part of one witness about a test purchase and a failure of Complainant to discover the existence of a document which had been requested by Respondent. No willful misconduct has been shown and no genuine prejudice has even been asserted.

Therefore, there is no basis for this exception.

"2. The testimony of Drs. Schreck-Purola and Nordstrom should have been received into evidence."

Respondent's arguments pertaining to this exception have been addressed elsewhere in this opinion. (See specific exceptions in P.S. Docket No. 16/100). As previously stated, Respondent's arguments regarding the testimony of Drs. Schreck-Purola and Nordstrom provide no basis for altering the findings and conclusions of the Initial Decision.

"3. Clark Evans should have been compelled to testify."

Respondent's arguments pertaining to this exception have been addressed elsewhere in this opinion and need not be further addressed here. No reversable error was committed by the Administrative Law Judge with regard to the testimony of Inspector Evans.

C. THE RECORD IS REPLEAT WITH FALSE STATEMENTS.

Under this exception Respondent reiterates allegations which have been previously made and rejected. The allegations previously considered will not be addressed further. Respondent additionally argues that Complainant's expert, Dr. Kramer, is the Postal Service traveling expert whose testimony was so slanted that at times it became false. In support of its position, Respondent refers to an apparent inconsistency in the witnesses' testimony concerning the ingredients in the product Bio-Scal, the witnesses' testimony concerning the listing of Medi-Tec 90 in a standard medical reference, and the witnesses' testimony on the percentage of baldness arising from causes other than alopecia areata.

The apparent inconsistency in the testimony of the witness regarding the ingredients of Bio-Scal may, as the witness testified and Complainant argues, result from the different contexts in which the questions eliciting the testimony were asked (See Tr. 324-26, 365-66). However, regardless of the possibility of an inconsistency, the record does not support an allegation of slanted or false statements. The testimony on the listing of Medi-Tec 90 in a standard reference and the testimony regarding the percentage of baldness other than alopecia areata reflects no impropriety of any sort and most certainly could not be considered to be "so slanted that at times it became false." (See Tr. 363-64, 314-15, 375).

The qualifications and testimony of Dr. Kramer have been carefully reviewed. Dr. Kramer is well qualified to testify on the efficacy of skin and hair products and possesses significantly superior qualifications to those possessed by Respondent's expert. Thus, the Administrative Law Judge properly relied on the testimony of Dr. Kramer.

Respondent argues that Complainant's counsel falsely represented that Respondent's president was not the subject of a criminal investigation (see Tr. 22-23). The records does not reflect any false representations in this regard and furthermore no prejudice has been shown.

For the reasons stated, there is no merit to this exception.

"D. The Administrative Law Judge is relying upon affidavits in violation of the Rules of Practice of these proceedings, and in violation of Respondent's right to confront witnesses against it."

Respondent alleges the Administrative Law Judge, over its objection, wrongfully admitted into evidence affidavits from two of Complainant's employees in violation of 39 C.F.R. § 952.18(g) and the 6th Amendment to the Constitution.

The two affidavits (CX 100 and 101) relate to the identification of publications in which advertisements for Respondent's products Mamralin-BX, Medi-Tec 90, Libutol and Testorex-35 appeared. Respondent's argument that the admission into evidence of the affidavits violates its 6th Amendment right to confront its accusers is without merit. The 6th Amendment confers no rights on a party in an administrative (non-criminal) proceeding. Cf., E.R.R., P.S. Docket No. 7/89 (P.S.D. Feb. 22, 1980); The Doctor's Diet Plan, P.S. Docket No. 6/77 (P.S.D. Recon. April 18, 1979); Vitahair, P.S. Docket No. 6/76 (P.S.D. Recon. Jan. 26, 1979). Thus, its assertion of a violation of the 6th Amendment is unfounded.

The record concerning these affidavits (Tr. 30-44, 59, 188-89) has been reviewed. No prejudice to Respondent is apparent. The advertisements which were discussed in the affidavits were submitted to Respondent prior to the hearing. Respondent had an opportunity to dispute their authenticity, but did not do so. Extensive evidence of authenticity of the publication is not required under Rule 902(6) of the Federal Rules of Evidence. The Administrative Law Judge received the affidavits as an exception to the hearsay rule under Rule 803(24). This was within his discretion and was not precluded by 39 C.F.R. § 952.18(g). Allowance of these affidavits to assist in authenticating exhibits to avoid a burdensome record was warranted under the circumstances and cannot equate to the denial of the testimony of Drs. Schreck-Purola and Nordstrom which related to the truth or falsity of the representations. Accordingly, there is no merit to this exception.

"E. Postal Service employees, in violation of statute and regulation, have smeared this Respondent in the press; this trial in the press, as well as unfair methods in this forum, have contributed to a denial of due process."

Respondent alleges that certain attorneys of Complainant provided information to an author of an article linking Respondent with another promoter of baldness cures which appeared in the June 1983 edition of the Washingtonian Magazine. Respondent contends that Complainant is trying this matter in the press, "going to all lengths to drive Respondent out of business" and "is out to crush this Respondent." Respondent repeats its assertion of suppression of evidence, violation of its right to confront witnesses, the use of false statements, and the inaccuracy of the transcript.

These latter assertions have been previously considered and found to be without merit. Respondent's arguments here are not persuasive that upon further consideration any different result should be reached. The principal issues in these proceedings are whether Respondent makes the representations alleged in the Complaints and whether those representations are materially false. Press coverage of Respondent's business activities did not have an effect on the determination of these issues. There is no support in the record that Complainant is trying to drive Respondent out of business. Complainant's initiation of these proceedings is justified by the finding that Respondent is in violation of 39 U.S.C. § 3005 in connection with the promotion of its products subject to these proceedings. Accordingly, there is not merit to this exception.

III.

"THE POSTAL PROCEDURES FOR PRESENTING, OPPOSING AND RULING ON MOTIONS ARE INCONSISTENT AND ARBITRARY."

Respondent contends there are no set procedures for presenting, opposing and ruling on motions, and Complainant has made motions which the Administrative Law Judge has granted without affording Respondent an opportunity to state its opposition. Respondent asserts that these are unfair ex parte communications.

The Administrative Law Judge is responsible for ruling on all motions during the pendency of a proceeding in which he is the presiding officer. See 39 C.F.R. § 952.17, particularly subsections (b)(3) and (4). Summary rulings which are made on the record do not constitute unfair ex parte communications. A review of the record shows that rulings which were made without affording the opposing party an opportunity to comment were made because of time constraints occasioned by the necessity to assure a timely hearing. All motions and rulings thereon were provided to the opposing party. Respondent has had full opportunity to present its objections to adverse rulings in its brief to the Administrative Law Judge prior to the issuance of the Initial Decisions and on appeal to the Judicial Officer. New Body Boutique, Inc. v. United States Postal Service, supra. Respondent has not established that there is reversable error as the result of the rulings of the Administrative Law Judge or that there has been a denial of due process or arbitrary decision-making in the circumstances of these proceedings. See 5 U.S.C. § 554(c)(1).

IV.

"PLAINTIFF'S CUSTOMERS HAVE A RIGHT OF PRIVACY AND OF ASSOCIATION TO ORDER AND REORDER THE PRODUCTS."

Respondent contends that its customers, especially those who reorder its products, have a constitutional right to privacy which will be violated by an "unnecessary intrusion" into their right to shop by mail. Respondent is not a proper party to assert a violation of privacy rights of unidentified customers. Athena Products, Ltd., supra. at 20. However, as pointed out in Athena Products, Ltd., supra, at 21, inherent in court rulings upholding the constitutionality of 39 U.S.C. § 3005, is recognition that no constitutional rights are violated, including any right to privacy by members of the public. Furthermore, as previously discussed, the existence of customers who will reorder a product does not preclude application of the statute. See also, Delta Enterprises, P.S. Docket Nos. 14/72-75 (P.S.D. July 3, 1984), at p. 21. Respondent's argument that reordering customers cannot be induced by false representations is fallacious in view of a possible placebo effect or a belief that further use may bring about the results represented. Neither belief would vitiate the falsity of the representations.

V.

"THE POSTAL SERVICE'S VIEW OF MISREPRESENTATION - BASED ON THE 'CONSENSUS OF INFORMED MEDICAL OPINION' - IS NOT A CORRECT STANDARD TO APPLY IN THESE PROCEEDINGS."

Respondent's arguments under this heading have been addressed elsewhere in this decision. To reiterate, it is well established that proof of the falsity of representations may be based on evidence of the consensus of informed medical opinion. None of Respondent's arguments concerning Complainant's expert witnesses in these proceedings detracts from the probative effect of their testimony concerning that consensus.

Based on review of the entire record it is concluded that no prejudicial error has been committed in these proceedings. Further, there is no basis for granting Respondent's requests for the production of certain documents or for a new trial. Many of Respondent's procedural objections are frivolous, raise irrelevant matters, and avoid the two essential substantive questions -- whether the alleged representations were made and whether they are materially false. A preponderance of the evidence supports the findings and conclusions of the Initial Decisions that the representations have been made and that they are materially false.

After consideration of the entire record and Respondent's exceptions to the Initial Decision, it is concluded that as to each of Respondent's products subject to these proceedings Respondent is engaged in a scheme to obtain money through the mail by means of materially false representations. Accordingly, the False Representation Orders authorized by 39 U.S.C. § 3005 are being issued with this decision. The order pertaining to Medi-Tec 90 excludes the Medi-Tec 90 Therapeutic Shampoo and Scalp Cleanser.