United States Postal Service(TM) 


 In the Matter of the Complaint Against: 

 FINDERHOOD, INC.,
 8 W. 36th Street,
 New York, NY  10018-8083;

 GEORGE FELDMAN,
 11 Old Colony Lane,
 Great Neck, NY  11023-1623,

 GEOFFREY FELDMAN, 
 11 Old Colony Lane,
 Great Neck, NY  11023-1623;

 AWARDS DEPOT, 
 7040 W.  Palmetto Park Road,
 Suite 500,
 Boca Raton, FL  33433-3461;

 WAREHOUSE DEPOT,
 527 Third Avenue,
 Suite 100,
 New York, NY 10016-4168,
 Attn:  Shipping Dept.   

 P.S. Docket No. 34/102

 03/20/92

 Cohen, James A., Judicial Officer

 Appearance for Complainant: Jennifer Y. Angelo, Esq., Consumer Protection
 Division, Law Department, United States Postal Service,
 Washington, DC  20260-1144 

 Appearance for Respondents: Herbert Monte Levy, Esq., Suite 4210,
 60 East 42nd Street, New York, NY  10165-0007

POSTAL SERVICE DECISION

Respondents have filed an appeal from the Initial Decision of an Administrative Law Judge which holds that Respondents are engaged in conducting a scheme or device for obtaining money or property through the mail by means of materially false representations in violation of 39 U.S.C. § 3005, and that two of Respondents' solicitations constitute nonmailable matter in violation of 39 U.S.C. § 3001(d) and 3005(a).

BACKGROUND

The Consumer Protection Division, Law Department, United States Postal Service (Complainant), initiated this proceeding by filing a Complaint, subsequently amended (hereafter referred to as the Complaint), alleging that Respondents, by the use of postcard solicitations for food processors distributed through the mail, are engaged in conducting a scheme or device for obtaining money or property through the mail by means of materially false representations in violation of 39 U.S.C. $S3005. Specifically, the Complaint, in paragraph 7, alleges that Respondents represent:

In paragraph 8 of the Complaint, Complainant alleges the above representations are materially false. Complainant also alleges in paragraphs 10 and 11 of the Complaint that Respondents' mailings are in the form of, and reasonably could be interpreted or construed as, bills, invoices or statements of account due and therefore are nonmailable under 39 U.S.C. $S3001(d).

In their Answer to the Complaint, Respondents deny they make the false representations alleged in the Complaint or that they are otherwise in violation of the provisions of 39 U.S.C. $S3005. Additionally, Respondents assert (1) the allegation of a violation of 39 U.S.C. § 300l(d) fails to state a cause of action; (2) the allegations of the Complaint conflict with the First and Fourth Amendments to the Constitution; and (3) the matter is now moot.

At a hearing before an Administrative Law Judge, Complainant presented the testimony of Postal Inspector John Marsh, Respondents presented the testimony of Respondents Geoffrey and George Feldman, and 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 concluded that Respondents make all of the representations alleged in the Complaint and that those representations are materially false in violation of 39 U.S.C. § 3005. The Administrative Law Judge also concluded that two of Respondents' solicitations, Complainant's Exhibits CX-1 and 2, constitute nonmailable matter in violation of 39 U.S.C. § 3001(d). Respondents have filed a timely appeal from the Initial Decision.

EXCEPTIONS AND DISCUSSION

In their appeal Respondents have filed 16 exceptions to the Initial Decision. Respondents concede the Postal Service decision in Card Redemption Center, P.S. Docket No. 30/35 (P.S.D. June 30. 1989), "forecloses the viability" of reversing the findings and conclusions of the Initial Decision in this proceeding insofar as they relate to the false representations found to be made in solicitations CX-1 and 2. Nevertheless, Respondents have generally excepted to those findings and conclusions and have presented Exceptions 1, 2 & 8 to preserve any appeal rights which they may have. Since Respondents have presented no arguments with respect to these exceptions and the record supports the Administrative Law Judge's findings and conclusions regarding CX-1 and 2, these exceptions will not be further considered. See Northeast Enterprises, P.S. Docket No. 7/4 at 3 (P.S.D. April 13, 1979).

Respondents remaining exceptions pertain principally to the Administrative Law Judge's findings and conclusions relating to solicitation CX-3. However, Respondents also except to the Administrative Law Judge's conclusion that (1) certain of their solicitations are in the form of, and reasonably could be interpreted or construed as, a bill, invoice or statement of account due; (2) the matter is not moot; (3) Respondent George Feldman should be included in the cease and desist order; and (4) the cease and desist order sought in the Complaint is proper for issuance in this proceeding.

In their brief on appeal Respondents correctly point out that the Initial Decision is unclear with respect to the representations the Administrative Law Judge found were made in solicitation CX-3. However, by the solicitation language relied on by the Administrative Law Judge and the citations to the record, it is concluded the Administrative Law Judge found solicitation CX-3 makes only the false representations alleged in paragraphs 7(c), (e) & (f) of the Complaint n1. Thus, Exceptions 3, 7, 10 & 11 need not be further considered since they are premised on Respondents' belief the Administrative Law Judge may have found that CX-3 makes certain of the other representations alleged in the Complaint. Respondents remaining exceptions are discussed hereafter.

n1 Complainant also reads the Initial Decision as finding that CX-3 makes only the false representations alleged in paragraphs 7(c), (e) and (f) of the Complaint.

Exception 4

By Exception 4, Respondents contest the Administrative Law Judge's finding that CX-3 represents the product has been set aside specifically for the recipient (I.D., FOF 13, pertaining to Complaint (Comp.) #7(c)). In support of their position Respondents rely on that portion of the solicitation which states delivery of the product "requires your purchase" and "no further solicitation will be attempted." Respondents further argue that the language of the solicitation relied on by the Administrative Law Judge does not suggest that the product has been set aside specifically for the recipient. In the alternative, Respondents argue that even if the representation has been made, it is not material.

While CX-3 indicates that the food processor is being kept in a warehouse and available for shipment to the recipient, it does not either expressly or by implication represent that the product has been set aside specifically for the recipient. The notations on the solicitation, although possibly confusing, would not lead the ordinary recipient to believe the product has been specifically set aside for him. Therefore, contrary to the Administrative Law Judge's finding, Respondents' solicitation CX-3 does not make the representation alleged in paragraph 7(c) of the Complaint. See Card Redemption Center, P.S. Docket No. 30/35 at 10-12 (P.S.D. June 30, 1989). Accordingly, Respondents' exception is sustained.

Exception 5

Respondents take exception to the Administrative Law Judge's finding that solicitation CX-3 falsely represents the product being advertised is a food processor "as the term commonly is understood to mean, i.e., an electric appliance" (I.D., FOFs 17-22, pertaining to Comp. #7(e)). Respondents contend there is no common understanding a food processor is an electric appliance. In support of their position, Respondents rely on The American Heritage Dictionary which defines a "food processor," as "[a]n appliance consisting of a container with interchangeable blades that processes food, as by shredding or slicing, at high speed," but does not mention the word "electric" (RX-2). Respondents also contend the solicitation clearly describes the food processor as being "electric-free" with an "easy-lever manual handle operator."

Complainant argues the overall impression created by CX-3 is that the product is an electric food processor. Complainant points out that Webster's Dictionary defines a food processor as an "electric kitchen appliance" and that even though The American Heritage Dictionary does not use the word "electric" in its definition of a food processor, it does use the word "appliance" which is generally defined as "a household or office device (as a stove, fan, or refrigerator) operated by gas or electric current" (CX-5, p. 3). Complainant further argues that the description of the food processor is confusing and ambiguous and does not clearly convey to the recipient that the product is not electric. Finally, Complainant argues that Respondents' cheap plastic product is unlikely to process anything "at high speed."

The Administrative Law Judge correctly found that the term "food processor" is commonly understood to mean an electric appliance, and that the description of the food processor in CX-3 does not adequately convey to the ordinary reader that the product offered is not operated by electricity. Despite the use of the terms "electric free" and "easy-lever manual handle operator," the overall impression created in the mind of the ordinary recipient by Respondents' solicitation CX-3 is that the product offered is an electric food processor. See Donaldson v. Read Magazine, Inc., 333 U.S. 178, 189 (1948) (advertisement as a whole may be completely misleading even though every sentence separately considered is literally true); American Genealogies, Inc. v. United States Postal Service, 717 F. Supp. 895, 897 (D.D.C. 1989); Alaska Employment, P.S. Docket No. 7/166 at 17 (P.S.D. April 30, 1981); United States/Great Lakes Fed. Surplus Depository, P.S. Docket No. 7/136 at 6 (P.S.D. Mar. 31, 1981). At best, the language of Respondents' solicitation CX-3 is ambiguous or capable of more than one meaning, and since one of the meanings is false, the advertisement will be held to be misleading. See United States v. 95 Barrels of Vinegar, 265 U.S. 438, 443 (1924); Rhodes Pharmacal Co., Inc. v. F.T.C., 208 F.2d 382, 387 (7th Cir. 1953), rev'd in part, 348 U.S. 940 (1955); Card Redemption Center, P.S. Docket No. 30/35 at 6 (P.S.D. June 30, 1989); Great Lakes Yellow Pages, Inc., P.S. Docket No. 25/79 at 8 (P.S.D. July 15, 1988); Ralph J. Galliano, P.S. Docket No. 19/15 at 9 (P.S.D. May 2, 1985).

It is undisputed that Respondents' product is not electrically powered. Moreover, as Complainant points out, Respondents' plastic product is unlikely to process anything at high speeds. Thus, Respondents' solicitation CX-3 misrepresents the nature and character of their product. The misrepresentation is material because it would tend to persuade recipients to purchase the product. See Chaachau v. American Central Ins. Co., 241 F.2d 889, 893 (5th Cir. 1957); A.C.L., P.S. Docket No. 36/90 at 17 (P.S.D. Dec. 28, 1990), aff'd on recon. (P.S.D. May 15, 1991); The National Gold Mint, P.S. Docket No. 22/165 at 16 (P.S.D. May 1, 1987), aff'd on recon., (P.S.D. Sept. 30, 1987). Accordingly, the Administrative Law Judge did not err in concluding that Respondents' solicitation CX-3 falsely represents that their product is an electric food processor. Respondents' Exception 5 is therefore denied.

Exception 6

Respondents next take exception to the Administrative Law Judge's finding that solicitation CX-3 represents "the product is substantially more valuable than the $14.77 required to receive it" (I.D., FOFs 23-25, pertaining to Comp. #7(f)). Respondents argue the Administrative Law Judge relied on language included in CX-1 and/or CX-2 to make this finding, even though the same language is not found in CX-3. Respondents also contend the Administrative Law Judge erred in finding that the retail value of their product is "clearly not substantially more than $14.77" (I.D. at 11-12) since no evidence of the retail value of the product was introduced into the record.

Complainant acknowledges that the Administrative Law Judge referred to language not included in CX-3, but contends the Administrative Law Judge found this representation to be made because recipients would believe an electric food processor was more valuable than the $14.77 required to receive it. Complainant also argues it is common knowledge that an electric food processor is more valuable than $14.77, and therefore, additional evidence was unnecessary.

While the Administrative Law Judge did refer to language included in CX-1 and/or CX-2 and not in CX-3 to support his findings, he nonetheless concluded that all three solicitations represent that the product is more valuable than the $14.77 required to receive it. Moreover, as Complainant contends, the Administrative Law Judge found that recipients would believe they were receiving an electric food processor which is substantially more valuable than the $14.77 they were required to pay.

As previously concluded, solicitation CX-3 represents that the product offered is an electric food processor. The Administrative Law Judge found, and Respondents do not appear to disagree, that an electric food processor is substantially more valuable than $14.77. Thus, the Administrative Law Judge properly concluded that solicitation CX-3 makes the representation alleged in paragraph 7(f) of the Complaint.

Respondents, however, strongly disagree with the Administrative Law Judge's finding that the retail value of their "product is clearly not substantially more than $14.77" (I.D., FOF 25). According to Respondents, no evidence was introduced which would support this finding. While no testimony was presented concerning the retail value of Respondents' food processor, evidence was introduced establishing that the wholesale price of the product ranged from $2.80 to $4.00 (Tr. 93, Stipulation, #6). Further, the product itself was introduced into evidence (CX-7). Based on the wholesale price of the product and the product itself, it is clearly reasonable to conclude that Respondents' food processor is not substantially more valuable than the $14.77 required to receive it. Therefore, the representation that the recipient will receive a product which is substantially more valuable than the price charged is false. The misrepresentation is material since it would serve to induce the purchase of the product. See Chaachau, 241 F.2d at 893; A.C.L., at 17 (P.S.D. Dec. 28, 1990); The National Gold Mint, at 16 (P.S.D. May 1, 1987).

Accordingly, the Administrative Law Judge did not err in finding that Respondents falsely represent the value of their product. Respondents' Exception 6 is therefore denied.

Exceptions 9 & 12

By these exceptions Respondents contend the Administrative Law Judge erred in considering the testimony of one consumer witness while at the same time refusing to consider Respondents' testimony that only a small number of complaints have been received. According to Respondents, their consumer complaint evidence should have been admissible with respect to the existence of the representations alleged in the Complaint, their effect on ordinary minds and their materiality.

The testimony of the one consumer witness referred to by Respondents related to the interpretation of solicitation CX-2 which is not being considered on appeal. This testimony was properly admitted into evidence by the Administrative Law Judge. n2 The testimony of Respondents' witness concerning the number of complaints received was also properly admitted into evidence n3 (Tr. 40-47, 83-84). However, in finding that Respondents' solicitation CX-3 makes the representations alleged in paragraphs 7(c), (e) and (f) of the Complaint, the Administrative Law Judge was persuaded by the language of the solicitation itself, not the absence of consumer complaints. On appeal, the testimony concerning the small number of complaints has been considered, but based on the language of the solicitation itself, it is concluded that CX-3 represents that the product available is an electric food processor which is substantially more valuable than the $14.77 required to receive it. See Vibra Brush Corp. v. Schaffer, 152 F. Supp. 461, 468 (S.D.N.Y. 1957), rev'd on other grounds, 256 F.2d 681 (2d Cir. 1958); Associated Writers Guild of Am., P.S. Docket No. 12/180 at 9 (P.S.D. June 6, 1990); Health Care Products, Inc., P.S. Docket No. 28/90 at 4-5 (P.S.D. June 27, 1990) (holding the advertisement itself is the most persuasive evidence of the representations made); The American Mint, P.S. Docket No. 23/110 at 15 (P.S.D. June 16, 1987). Accordingly, Respondents' Exceptions 9 and 12 are denied. n2 Under 39 C.F.R. § 952.18(a), the Federal Rules of Evidence may be relaxed to extent the presiding officer deems proper to ensure a fair hearing. The Administrative Law Judge did not abuse his discretion in admitting into evidence the former testimony of one consumer witness. See The National Gold Mint$S, at 12 (P.S.D. May 1, 1987); Richard W. Verret, P.S. Docket No. 20/18 at 7-10 (P.S.D. Dec. 31, 1986).

n3 Although evidence of consumer complaints is not required to establish a violation of 39 U.S.C. § 3005, Farley v. Heininger, 105 F.2d 79, 84 (D.C. Cir.), cert. denied, 308 U.S. 587 (1939); Ron Cooper, P.S. Docket No. 35/112 at 5 (P.S.D. Feb. 7, 1992); The Washington Mint, Inc., P.S. Docket No. 30/42 at 17 (P.S.D. June 1, 1989), such evidence is admissible and may be relied on to prove the existence and effect of a false representation. Card Redemption Center, P.S. Docket No. 30/35 at 14 (P.S.D. June 30, 1989).

Exception 13

Respondents take exception to the Administrative Law Judge's Conclusions of Law 12 and 13, that solicitations CX-1 and 2 are in the form of, and reasonably could be interpreted or construed as, bills, invoices, or statements of account due. Respondents' contend that even if the solicitations reasonably could be interpreted or construed as bills, invoices or statements of account due, neither is "in the form of" a bill, invoice or statement of account due as required by 39 U.S.C. $S3001(d)(4). Respondents further contend that nothing in CX-1 and 2 suggests that any amount was actually due, unless a consumer wanted delivery of the food processor.

The Administrative Law Judge concluded that CX-1 and 2 could reasonably be interpreted as bills, invoices or statements of account due, but that CX-3 could not because of a disclaimer appearing on that solicitation. The Administrative Law Judge's conclusion was correct with respect to CX-2, but not with respect to CX-1 and 3.

Although CX-1 contains the statement "amount due $14.77," this statement appears at the bottom of the card and would not lead the ordinary recipient to believe they had received a bill or invoice from Respondents. The placement of the amount due language and the "We're Sorry" format similar to a failed delivery notice, rather than a bill or invoice, removes CX-1 from the coverage of 39 U.S.C. § 3001(d). However, CX-2 shows the amount due in bold black numbers in "Dollars" and "Cents" boxes appearing in the middle of the solicitation and is similar in appearance and format to a bill or invoice. The bold black arrow pointing to the "Payment amount," and the requirement for return of the notice with payment within 48 hours, coupled with the tear-off return portion also showing the payment amount in bold black numbers in "Dollars" and "Cents" boxes conveys the impression that the solicitation is a bill or invoice and that a sum of money is due and owing to Respondents.

Solicitation CX-3 also contains the bold black numbers in "Dollars" and "Cents" boxes appearing in the middle of the solicitation which is stated to be the "Payment amount"; the bold black arrow pointing to the payment amount; the requirement to return the notice with payment within 48 hours; and the tear-off return portion typical of bills or invoices. The tear-off portion of the solicitation again contains the "Payment amount" in bold black numbers in "Dollars" and "Cents" boxes as might be found on a bill or invoice. While CX-3 contains the words "delivery . . . requires your purchase" which the Administrative Law Judge found acts as a satisfactory disclaimer to dispel the impression of a bill or invoice, I am persuaded by the format and language of CX-3 that it would most probably be understood by an ordinary recipient to be a bill, invoice or statement of account due. n4

n4 Based on the conclusion that CX-3 is in the form of and reasonably could be construed as a bill, invoice or statement of account due, I would also find that this solicitation makes the representations alleged in paragraphs 7(b) and (d) of the Complaint.

Since neither CX-2 nor CX-3 contains the disclaimer required by 39 U.S.C. § 3001(d) or Domestic Mail Manual $S123.41, these solicitations are nonmailable and constitute prima facie evidence that Respondents are engaged in a scheme or device to obtain money through the mail by means of materially false representations. See 39 U.S.C. § 3001(d) and 3005(a). Accordingly, Respondents' Exception 13 is sustained with respect to CX-1 but denied with respect to CX-2.

Exception 14

Respondents take issue with the Administrative Law Judge's Conclusion of Law 14 stating that their voluntary cessation of the alleged scheme does not render this matter moot. Citing United States v. W. T. Grant Co., 345 U.S. 629, 632 (1953), Respondents contend they have proven the allegedly illegal behavior cannot reasonably be expected to recur because they modeled their postcard solicitations CX-1 and 2 after solicitations upheld in the Initial Decision in Card Redemption Center, P.S. Docket No. 30/35 (I.D. Sept. 13, 1988); discontinued using solicitations CX-1 and 2 when they became the subject of a § 3005 complaint; voluntarily discontinued CX-3 when it also came under Postal Service attack; and drafted additional solicitations RX-6 and 7, which the Administrative Law Judge improperly refused to consider. Complainant in response disputes Respondents' assertions that they believed CX-1 and 2 were legal under the Card Redemption Center Initial Decision and that they discontinued using solicitations CX-1, 2 and 3 immediately upon learning the Postal Service considered them to be in violation of 39 U.S.C. $S3005.

The Administrative Law Judge correctly concluded that Respondents have not met their burden of proving that the allegedly wrongful behavior will not recur. See United States v. W. T. Grant Co., 345 U.S. at 632-33. As stated in Professional Opportunity Magazine, Inc., P.S. Docket No. 33/55 at 6 (P.S.D. Sept. 14, 1990):

In the present proceeding, Respondents' abandonment of the use of CX-1 and 2, the use and abandonment of solicitation CX-3 (which continued to falsely represent their product), and their proposed revised solicitations, RX-6 and 7, clearly establish that no change in circumstances has occurred making resumption of Respondents' practice impractical or impossible. Also, the fact that Respondents relied on the Initial Decision in Card Redemption Center in drafting CX-1 and 2, and abandoned the use of these solicitations and CX-3 after the Postal Service initiated this § 3005 proceeding, does not establish that there is no danger of recurrent violations. See Professional Opportunity Magazine, Inc., at 6-7 (P.S.D. Sept. 14, 1990); Paul W. Schuette, P.S. Docket No. 29/177 at 5-6 (P.S.D. Mar. 16, 1989); CM/NA, Comm'n Mailers of North America, P.S. Docket No. 20/33 at 9-10 (P.S.D. Aug. 29, 1986); Electronic Dev. Lab, P.S. Docket No. 18/157 at 5 (P.S.D. Sept. 6, 1985), aff'd on recon., (P.S.D. Nov. 8, 1985).

Although Respondents contend they have acted in good faith, their conduct belies their words. As is often stated, "[i]t is not difficult to choose statements, designs and devices which will not deceive." United States v. 95 Barrels of Vinegar, 265 U.S. 438, 443 (1924). See also Paul, Marbin & Co., Inc., P.S. Docket No. 28/190 at 13-14 (P.S.D. Oct. 20, 1989); Card Redemption Center, P.S. Docket No. 30/37 at 10 (P.S.D. July 27, 1989).

Further, the Administrative Law Judge did not err in failing to consider whether RX-6 and 7 make the representations alleged in the Complaint. While these solicitations may be reviewed to determine whether there is a danger of recurrent violation, the Administrative Law Judge correctly pointed out that neither the Judicial Officer nor the Administrative Law Judges issues advisory opinions or approves proposed advertisements. See A.C.L., P.S. Docket No. 36/90 at 2-3 (P.S.D. Feb. 27, 1992); George M. Ernst, Jr., P.S. Docket No. 13/88 at 2 (P.S.D. May 1, 1984), aff'd, Many Interested Savers, Inc. v. United States Postal Service, Civil Action No. 84-304 (E.D. Ky., Feb. 20, 1986); Paul Harvey, P.S. Docket No. 8/10 at (P.S.D. Aug. 29, 1980).

Accordingly, Respondents' have not established that the Administrative Law Judge improperly concluded that this case is not moot. Respondents' Exception 14 is therefore denied.

Exception 15

Respondents argue that Respondent George Feldman should not be included in any cease and desist order issued in this proceeding because he does not manage or control the corporation, did not participate in the drafting, nor even have knowledge of the advertisements at issue in this proceeding. Although George Feldman is the Chief Executive Officer of Finderhood, Respondents contend he occupies this position in title only. Respondents further argue that it is unnecessary to subject George Feldman to the terms of the Cease and Desist Order and that to do so would deprive Mr. Feldman of property without due process of law in violation of the Fifth Amendment. Complainant responds that George Feldman was involved in the operation of the corporation and should be subjected to the Cease and Desist Order. According to Complainant, the Order could be circumvented if it is not binding on George Feldman in his individual capacity.

The Administrative Law Judge correctly concluded that George Feldman should be included in any Cease and Desist Order issued in this proceeding. As the Chief Executive Officer of Respondent Finderhood, a closely held corporation, George Feldman should be held responsible for the conduct of the corporation even though he did not participate or have knowledge of the solicitations in issue. In addition to, or as part of being Chief Executive Officer, Mr. Feldman had access to the corporation's bank account; provided counsel to his son Geoffrey Feldman who operates the business on a day to day basis; and in his son's absence, had certain responsibilities in connection with the operation and control of the corporation (see Answer to Comp.; Tr. 103-05). By corporate position and function, George Feldman was sufficiently involved in the operation of Respondent Finderhood to be held responsible for its conduct even though he may not have been involved in the formulation or approval of the deceptive practices. See W. G. Charles Co., P.S. Docket No. 19/103, et al. at 12-17 (P.S.D. Jan. 28, 1985), and cases cited therein. See also Health Care Products, Inc., P.S. Docket No. 28/90 at 10 (P.S.D. March 3, 1989), deniedon recon. (P.S.D. June 27, 1990). Under the facts presented in this case, no possible basis exists for finding that the inclusion of George Feldman in the cease and desist orderissued in this proceeding will violate his due process rights. Accordingly, Respondents' Exception 15 is denied.

Exception 16

Respondents argue that the Cease and Desist Order sought in the Complaint and recommended for issuance by the Administrative Law Judge is overly broad because it applies to the sale of any product, not just a food processor. According to Respondents, 39 U.S.C. § 3005 limits the scope of a cease and desist order to the productsubject to the Complaint and does not permit the issuance of a broader order, as authorized under the Federal Trade Commission statute. Thus, Respondents argue that the court cases involving Federal Trade Commission actions may not be relied on in this § 3005 proceeding. Alternatively, Respondents contend that a broad cease and desist order is unwarranted because they are unlikely to resume the prohibited activities, as is evidenced by their good faith effort to eliminate misstatements in their solicitations and their lack of past § 3005 violations. Respondents also argue that the issuance of a broad cease and desist order would violate their rights under the First and Fifth Amendments of the Constitution.

Complainant contends the cease and desist order recommended by the Administrative Law Judge should be issued. Complainant argues that the Postal Service statute authorizes the issuance of such an order; the court cases involving the Federal Trade Commission provisions may be relied on in § 3005 proceedings; a narrower cease and desist order would frustrate the purpose of the Postal Service statute; and the issuance of such an order would not violate Respondents' constitutional rights.

Contrary to Respondents' contention, the cease and desist order recommended for issuance by the Administrative Law Judge is not overly broad or beyond the authority of the Postal Service to issue. In order to give any reasonable meaning to the protection afforded to the public, the "scheme" referred to in § 3005(a)(3) must be viewed in terms of the entire promotion and not just the specific product being sold. Cf. American Geneologies, Inc. v. United States Postal Service, 717 F. Supp. 895, 899-900 (D.D.C. 1989). Thus, the application of the cease and desist order to the sale of any product, not just a food processor, is consistent with the language and purpose of the statute and well within the authority of the Postal Service to issue.

Cases involving the Federal Trade Commission may be used as guidance in Postal Service proceedings inasmuch as the enforcement powers of the Postal Service were modeled after those of the Federal Trade Commission. See American Genealogies, Inc., at 898-99. Therefore, the Administrative Law Judge did not err in relying on court cases reviewing Federal Trade Commission actions in arriving at the conclusion that the cease and desist order sought in this proceeding should be issued (I.D., COL 20).

Broad cease and desist orders issued by the Federal Trade Commission have been consistently upheld by the courts. Leo Deboub, P.S. Docket No. 19/185 at 25 (P.S.D. July 10, 1986). See, e.g., F.T.C. v. Mandel Bros., 359 U.S. 385, 392-93 (1959); F.T.C. v. National Lead Co., 352 U.S. 419, 431 (1957); F.T.C. v. Ruberoid Co., 343 U.S. 470, 473 (1952); Remoratron Int'l Corp. v. F.T.C., 884 F.2d 1489, 1498-1501 (1st Cir. 1989);Sterling Drug, Inc., v. F.T.C., 741 F.2d 1146, 1155-58 (9th Cir. 1984), cert. denied, 470 U.S. 1084 (1985); Bristol-Myer Co. v. F.T.C., 738 F.2d 554, 559-64 (2d Cir. 1984), cert. denied, 469 U.S. 1189 (1985). Relying on the Federal Trade Commission cases and the language and purpose of the Postal Service statute, orders containing such broad provisions (sometimes referred to as fencing-in provisions) have been issued in § 3005 proceedings. See, e.g., Paul W. Schuette, P.S. Docket No. 29/117 (P.S.D. Mar. 16, 1989); American Geneologies, Inc., P.S. Docket No. 27/83 (P.S.D. May 27, 1988), aff'd, 717 F. Supp. 895 (D.D.C. 1989); Leo Deboub, P.S. Docket No. 19/185 (P.S.D. July 10, 1986). In this proceeding, the Administrative Law Judge properly considered Respondents' various revisions of their solicitations and the possibility of recurrent violations and correctly concluded that a cease and desist order applying to more than the sale of food processorswas necessary to protect the public from future violations of the § 3005 requirements.

The Administrative Law Judge also correctly concluded that the issuance of such an order does not infringe on Respond- ents' constitutional rights. See Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771-72 (1976); Konigsberg v. State Bar, 366 U.S. 36, 49-56 (1961). Respondents' reliance on Board of Trustees of the State Un. of N.Y. v. Todd Fox, 492 U.S. 469 (1989), to support their constitutional arguments is misplaced. That case, unlike the present proceeding, did not involve misleading commercial speech.

Accordingly, Respondents Exception 16 is denied.

Conclusion

After consideration of the entire record, it is concluded that Respondents' solicitations CX-1 and 2 make the representations alleged in paragraphs 7(a)-(h) of the Complaint, that solicitation CX-3 makes the representations alleged in paragraphs 7(b), (d), (e) and (f) of the Complaint, and that all of the representations found to be made are materially false. In addition, it is concluded that solicitations CX-2 and 3 are in the form of and reasonably could be interpreted or construed as, a bill, invoice, or statement of account due in violation of 39 U.S.C. § 3001(d). Accordingly, the orders sought in the Complaint and authorized by 39 U.S.C. § 3005 are issued with this Decision.