In the Matter of the Complaint Against NUTRITION HEADQUARTERS, INC., 104 West Jackson Street, at Carbondale, IL 62901-1408 P.S. Docket No. 12/156 August 31, 1987 James A. Cohen Judicial Officer APPEARANCE FOR COMPLAINANT: Thomas A. Ziebarth, Esq. Consumer Protection Division Law Department United States Postal Service Washington, DC 20260-1112 APPEARANCE FOR RESPONDENT: Robert Ullman, Esq. Bass & Ullman 747 Third Avenue New York, NY 10017-2803
Respondent has filed a Motion for Revocation of False Representation Order No. 83-126, issued on August 5, 1983, relating to the sale of its product Manotex. False Representation Order No. 83-126 was issued based on the conclusion in the Postal Service Decision of the same date that Respondent's representation of Manotex as effective for relieving certain symptoms of Benign Prostatic Hypertrophy (BPH) was materially false in violation of 39 U.S.C. 3005. This decision was upheld in Nutrition Headquarters v. United States Postal Service , Civil Action No. 83-3190 (D.C., Dec. 7, 1984), aff'd, (D.C. Cir., Mar. 4, 1986) (per curiam). Respondent asserts, without contradiction by Complainant, that a competitive product called Prostex which has the same formulation as Manotex is being sold through the mail by means of advertising using representations found to be false in connection with the sale of Manotex.
In May, October, and December 1986, Respondent's counsel wrote to the Postal Service requesting that it take action against the sale of Prostex through the mails by means of such representations. To date Complainant has not formally initiated a proceeding against advertisers of Prostex under 39 U.S.C. 3005.
Respondent asserts that Complainant is guilty of discriminatory and unevenhanded enforcement of this statute by "consciously allowing, through its inaction, another advertiser to enhance its sale of the same formulation with the same representations." Respondent contends that failure of the Postal Service to act against Prostex, in effect, denies Respondent due process because it violates the requirement of fundamental fairness in the administration of the law. It also argues that such an approach is arbitrary and capricious and constitutes an abuse of discretion. On this basis, Respondent requests that the mail stop order now in effect against Manotex be revoked or stayed, pending conclusion of any 3005 proceeding that may be brought against Prostex so that it may market Manotex on a "competitively evenhanded basis with . . . Prostex."
Complainant admits that due process requires fundamental fairness and evenhandedness, but denies that it has violated this requirement or that it is "consciously allowing" the making of false representations by anyone, in particular, advertisers of Prostex. Complainant points out that although various factors have to be taken into consideration in determining whether a 3005 action will be initiated, Respondent's complaint about Prostex has been referred to the Postal Inspection Service, an investigation involving a mail order vendor of Prostex is nearing completion, and the filing of a formal Complaint may be expected in the near future.
Respondent has not established that False Representation Order No. 83-126 should be stayed or revoked. The fact that the Postal Service has not proceeded against Prostex or other violators simultaneously does not constitute a basis for revocation of a false representation order. Sara Michaels, P.S. Docket No. 5/95, (P.S.D. Feb. 2, 1978); see Moog Industries, Inc. v. FTC , 355 U.S. 411, 413 (1958). It has been consistently stated that it is no defense in a proceeding under 39 U.S.C. 3005 that others are engaged in similar practices. Gottlieb v. Schaffer , 141 F. Supp. 7, 19 (S.D.N.Y. 1956); Universal Life Church, Inc. , P.S. Docket No. 7/62 (P.S.D. Feb. 14, 1980); Black Magic Shop , P.O.D. Docket No. 2/210 (D.D. Dec. 28, 1965); Collegiate Distributors Co ., P.O.D. Docket No. 1/249 (D.D. June 16, 1960); see FTC v. Universal-Rundle Corp. , 387 U.S. 244 (1967);
According to Complainant, action against Prostex is presently being considered. However, even if the Postal Service does not proceed against Prostex, such a decision would not, in and of itself, show that the Postal Service has acted unfairly or violated Respondent's constitutional rights.*/ The decision to initiate a proceeding requiring adjudication under a statutory provision is generally a matter of agency discretion and the agency is not required to proceed against every violator. Heckler, Secretary of Health and Human Services v. Chaney, 470 U.S. 821 (1985); Water Transport Association v. ICC, 715 F.2d 581 (D.C. Cir. 1983), quoting Moog Industries, Inc., supra.; Sara Michaels, P.S. Docket No. 5/95 (I.D. Aug. 23, 1977), aff'd Sara Michaels , P.S. Docket No. 5/95 (P.S.D. Feb. 2, 1978). The Law Department, not the Judicial Officer, makes these determinations within the Postal Service. The Judicial Officer will not ordinarily withhold the issuance or stay the effectiveness of orders authorized by 3005 because the prosecutorial arm of the Postal Service has not instituted proceedings against other violators of the law.
Respondent has not shown that the False Representation Order issued in this proceeding should be stayed or revoked. Accordingly, Respondent's motion is denied.