In the Matter of the Complaint Against: 

 WESTERN VITAMINS AND HEALTH PRODUCTS, INC.,
 a corporation, Sioux Falls, SD 57105-6514

 and

 P.O. Box 1184, Sioux Falls, SD  57101-1184

 P.S. Docket No. 30/121

 08/08/91

 Cohen, James A., Judicial Officer

 APPEARANCE FOR COMPLAINANT: Elizabeth P. Martin, Esq.,
 Thomas P. Kuczwara, Esq., Consumer Protection Division,
 Law Department, United States Postal Service,
 Washington, DC 20260-1144 

 APPEARANCE FOR RESPONDENT: Dennis M. Gronek, Esq.,
 Gronek & Armstrong, 49th Floor, 227 West Monroe Street,
 Chicago, IL 60606-5001

Respondent has filed a motion to set aside False Representation Order No. 91-2, issued on January 4, 1991. Complainant opposes Respondent's motion.

On December 14, 1990, Complainant filed a Petition alleging that Respondent had breached the terms of an Agreement Containing Consent Order to Cease and Desist (hereafter Consent Agreement) by resuming the distribution of advertisements for its product PROS-Tx using representations which it had agreed to discontinue. Respondent filed a reply to the Petition agreeing to the issuance of the false representation order attached to the Petition, but requesting that the order be modified to allow it to open all detained mail in the presence of a Postal Service representative and to take immediate possession of mail clearly not related to orders for the product PROS-Tx. In support of its request for issuance of a modified false representation order, Respondent represented that it had ceased advertising and selling PROS-Tx and that its existing inventory had been voluntarily destroyed. Complainant did not oppose Respondent's request and on January 4, 1991, False Representation Order No. 91-2 was issued with the modification requested by Respondent.

In its request to set aside False Representation Order No. 91-2, Respondent alleges that the procedure for opening the mail has become burdensome to both the Postal Service and Respondent and that the false representation order is no longer needed to protect the public. According to Respondent, it has discontinued the advertising and sale of PROS-Tx and no orders for the product have been received for several months. Respondent represents that if any orders are received they will be voluntarily returned to sender unfilled.

In opposing Respondent's motion, Complainant points out that Respondent previously failed to comply with the terms of the Consent Agreement and there is no reason to believe it will not resume the advertisement and sale of PROS-Tx in the future. Complainant therefore requests that the false representation order remain in effect to assure that the public is adequately protected from future misrepresentations concerning the PROS-Tx product.

False representation orders will not be revoked unless there has been some showing that the orders have completely served their purpose, or that an agreement of the parties obviates the need for such orders. Judy Harris Pearson, P.S. Docket No. 34/73 at 2 (P.S.D. Jan. 18, 1991); George M. Ernst, Jr., et al., P.S. Docket No. 13/88 at 3 (P.S.D. May 1, 1984). The burden is on the party seeking revocation to show that the scheme resulting in the issuance of the order has been discontinued, that there is no possibility of recurrent false representations, and that there is no risk of future harm to the public. Judy Harris Pearson, at 2; see also Erwin Koltay, et al., P.S Docket Nos. 26/101 & 30/82 at 2-3 (P.S.D. Sept. 29, 1989), and cases cited therein. Even if Respondent has discontinued advertising and selling PROS-Tx, the abandonment of the illegal activity and the promise that it will not be resumed is insufficient to show that there is no cognizable danger of recurrent violation without a showing of a change in circumstances which would make resumption of the activity impractical or impossible. Judy Harris Pearson, at 2-3; Professional Opportunity Magazine, Inc., et al., P.S. Docket No. 33/55 at 6 (P.S.D. Sept. 14, 1990), and cases cited therein. Moreover, inconvenience or hardship to the individual whose mail is being detained is not a sufficient basis to modify the protection to the public afforded by a false representation order. Judy Harris Pearson, at 3; See also Erwin Koltay, at 3.

Respondent has failed to demonstrate that any change in circumstances has occurred since the false representation order was issued or that the public will be adequately protected if the false representation order is set aside. Accordingly, Respondent's request to set aside False Representation Order No. 91-2 is denied.