In the Matter of the Complaint Against BERNARD L. SILVER d/b/a CARTWRIGHT-MITCHELL, INC., 1350 E. Flamingo Road at Las Vegas, NV 89119-5263 P.S. Docket No. 25/92 06/15/88 Cohen, James A. Judicial Officer APPEARANCE FOR RESPONDENT: Dale B. Hinson, Esq. 1101 15th Street, N.W. Washington, DC 20005-5002 APPEARANCES FOR COMPLAINANT: H. Richard Hefner, Esq. Robert Collins, Esq. Consumer Protection Division Law Department United States Postal Service Washington, DC 20260-1112
Respondent has appealed from an Initial Decision of an Administrative Law Judge which concludes that Respondent is engaged in conducting a scheme to obtain money or property through the mail by means of materially false representations in violation of 39 U.S.C. 3005.
Background
The General Counsel of the United States Postal Service (Complainant) initiated this proceeding by filing a Complaint alleging that Respondent is engaged in conducting a scheme to obtain money or property through the mail by falsely advertising that its "product Mammrae-9000 will cause the female user's breasts to grow larger." (Comp., Para. 6) In its answer to the Complaint, Respondent denied that it falsely represents its product or that it is engaged in a scheme to obtain money through the mail in violation of 39 U.S.C. 3005.
At a hearing before an Administrative Law Judge, Complainant presented the testimony of Thomas D. Grekin, M.D., an expert in the field of medicine, and Paul A. Scipione, Ph.D., an expert in consumer psychology and marketing. Respondent presented the testimony of Elaine Chipman, business manager of Cartwright- Mitchell, Inc., Lynda Maddox, Ph.D., an expert in advertising and consumer behavior, and Donald Decker, Jr., president of Cosmetic Concepts, Inc., the manufacturer of Mammrae-9000. Both parties introduced documentary evidence. Following the filing of proposed findings of fact and conclusions of law, the Administrative Law Judge issued an Initial Decision in which he found that Respondent makes the representation alleged in the Complaint and that such representation is materially false.
Exceptions & Discussion
Respondent has filed nineteen exceptions to the findings of fact and conclusions of law of the Initial Decision. Each of Respondent's exceptions has been considered, but none have been found to have merit.
Respondent's principal contention underlying the bulk of its exceptions is that its product is advertised as a cosmetic and the ordinary reader would not expect a cosmetic to cause any permanent or measurable enlargement in the size of a female's breasts. There is no persuasive evidence in the record that the ordinary reader's perception of the product as a cosmetic would cause her to ignore the emphatic and repeated assurances of "larger breasts guaranteed" and an "increase in the actual cup size." Rather, the language used in Respondent's advertisements clearly and unequivocally conveys the message, and the ordinary reader would understand, that the product will cause a measurable and more than transitory increase in the size of a user's breasts. (See I.D. FOF 10 - 11)
The evidence establishes that the results represented will not be achieved. The parties have stipulated that the use of the product Mammrae-9000 will not cause a permanent change in the size of the female breast (Tr. 22; I.D. FOF 12). In addition, the record establishes that the use of Respondent's product will, at most, cause only a slight and temporary swelling which would not be significant or measurable and would last less than 30 minutes (Tr. 38-39; I.D. FOF 13).
Respondent's additional exceptions take issue with the Administrative Law Judge's interpretation of the allegation of the Complaint, his evaluation of the evidence and the reliance he placed on the testimony of Complainant's witnesses. The entire record has been reviewed and no error has been found. The Administrative Law Judge's interpretation of the Complaint, his evaluation of the evidence and the weight he gave to the testimony of Complainant's witnesses are fully supported by the record. In addition, the Administrative Law Judge's findings of fact are supported by a preponderance of the evidence and his conclusions of law are supported by applicable court and Postal Service case law.
Conclusion
Since the use of Respondent's product will not cause a significant, measurable and/or permanent increase in breast size, Respondent falsely represents the effect of its product. Accordingly, Respondent's appeal is denied, the Initial Decision is affirmed and the Orders */ sought in the Complaint are issued herewith.
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