The opinion of the court was delivered by: LACEY
This matter comes on by way of cross motions for summary judgment.*
Plaintiff seeks injunctive relief against enforcement of what it alleges is an illegal mail stop order, issued by defendants under 39 U.S.C. § 3005, after an administrative determination of false advertising. This Court has jurisdiction under 39 U.S.C. § 409.
Defendants (hereinafter sometimes referred to collectively as "Postal Service") initiated administrative proceedings against the plaintiff by filing a Postal Service complaint on May 17, 1972, charging a violation of 39 U.S.C. § 3005 by magazine advertisements allegedly constituting a scheme for obtaining money through the mails by means of false representations.
The answer of the plaintiff in the administrative proceeding was filed on June 7, 1972. It denied that the representations charged were made by the plaintiff and also denied that the representations made in its advertising material were materially false.
The administrative hearing took place in Washington, D.C. on June 13, and 14, 1972, before Judicial Officer Adam G. Wenchel, whose decision was that plaintiff was soliciting money through the United States mail through false representations, in violation of 39 U.S.C. § 3005. However, the effective date of the administrative order was voluntarily deferred by the Postal Service when plaintiff commenced the instant proceeding for judicial review.
The parties have submitted extensive briefs, and oral argument was held herein on September 11, 1972, and September 15, 1972.
My review of the decision of the Judicial Officer is limited to determining whether there is, considering the record as a whole, substantial evidence to support his findings of fact, and whether he has committed errors of law. See 5 U.S.C. § 706(2)(A); Consolo v. Federal Maritime Commission, 383 U.S. 607, 618-621, 86 S. Ct. 1018, 16 L. Ed. 2d 131 (1965); NLRB v. Brown, 380 U.S. 278, 291-292, 85 S. Ct. 980, 13 L. Ed. 2d 839 (1964); Universal Camera Corp. v. NLRB, 340 U.S. 474, 497, 71 S. Ct. 456, 95 L. Ed. 456 (1954); Mark Eden v. Lee, 433 F.2d 1077, 1083 (9th Cir. 1970); 4 Davis, Administrative Law Treatise (1958), § 29.01, 114. Cf. Stein's v. Pilling, 256 F. Supp. 238 (D.N.J. 1966), aff'd. 379 F.2d 554 (3d Cir. 1967); Pinkus v. Reilly, 71 F. Supp. 993 (D.N.J. 1947), aff'd. 170 F.2d 786 (3d Cir. 1948), aff'd. 338 U.S. 269, 70 S. Ct. 110, 94 L. Ed. 63 (1949).
THE ADMINISTRATIVE RECORD
The advertisement at issue reads as follows;
LOSE 10 POUNDS IN 2 WEEKS OR YOUR MONEY BACK. Skini-minis are completely safe, contain no amphetamines or habit forming drugs. The answer is quite simple. The timed released ingredient helps fill your stomach, helps keep you from over eating and helps you shed those unwanted pounds.
Skini-minis also contain 100% of the adult daily requirement of iron and Vitamins B1, B2 and C, since many people watching their weight don't always get their vitamins.
Take one Skini-mini daily. If you haven't lost at least 10 pounds at the end of a 2-week period let us know and we'll return your money no questions asked.
The Postal Service administrative complaint charged that this advertisement violated 39 U.S.C. § 3005 in that the plaintiff herein by "materially false" representations, represented:
1. That the purchaser of Skini-Minis can, through their daily use, lose ten pounds in two weeks;
2. That Skini-Minis ingredients produce sufficient bulk in the stomach to give its users a full feeling and thereby allows its users to avoid excessive caloric intake which will have some substantial effect on desired weight loss;
3. That Skini-Minis are an effective aid to appetite control; and
4. That Skini-Minis will have a substantial and material contribution to a weight loss of at least ten pounds in two weeks without the necessity of adhering to a dietary regimen.
In his Findings of Fact the Judicial Officer found that representations 1, 3 and 4 were in fact made in the advertisement. As to representation 2, he stated: "While I believe that representation 2 is substantially made, I do not make a finding with respect to it." [Postal Service Decision at p. 9] Counsel on oral argument, and this Court, are in agreement that by this the Judicial Officer meant that he did not find that representation 2 was in fact made by the advertisement involved.
There is abundant support for the administrative finding that representations 1, 3 and 4 were made, as charged by defendants. Given a fair, reasonable and pedestrian construction, and read in its totality, Donaldson v. Read Magazine, 333 U.S. 178, 189, 68 S. Ct. 591, 92 L. Ed. 628 (1948), Stein's v. Pilling, supra, 256 F. Supp. at 243, the advertising matter obviously represents that through daily use of Skini-Minis one can "lose ten pounds in two weeks"; that the product is "an effective aid to appetite control"; and that the product "will have a substantial and material contribution to a weight loss of at least 10 pounds in 2 weeks without the necessity of adhering to a dietary regimen." Indeed, on this proceeding, plaintiff has not seriously argued against this portion of the administrative determination. I find substantial evidence to support the Judicial Officer's findings in this regard.
I turn now to the more seriously disputed administrative determinations, that the aforesaid representations were false, and to the sub-issue of the efficacy of the advertised product.
Of the ingredients of the product Skini-Mini, the only two related to the advertising claims, and with which we need be concerned, are benzocaine and sodium carboxymethylcellulose (SCMC). The former is claimed to alleviate hunger pains in the stomach; the latter is said to cause hunger-sensation reduction by creating a feeling of stomach fullness. There was sharp disagreement among the medical experts called by the respective parties over the effectiveness of the two ingredients, particularly in the quantities involved in the product when used as recommended.
One of the cornerstones of the Judicial Officer's opinion is as follows:
Considering the evidence as a whole, I find that benzocaine in the quantity here involved would not appreciably affect the users' appetite or hunger. . . . [Postal Service Decision at p. 8].
I find substantial evidence to support the administrative determination that "benzocaine in the quantity here involved would not appreciably affect the user's appetite or hunger."
Dr. Cardaro, associated with the Food and Drug Administration, testified for the Postal Service that benzocaine did not "have a medically recognized use as an anesthetic for the stomach," and that benzocaine, being insoluble in water, and therefore safe for topical application on the skin and some mucous membranes, would because of its insolubility in water not be available as an anesthetic in the stomach if taken with water.
To support its claim of benzocaine's efficacy in dealing with hunger, plaintiff relied principally on its counsel's cross examination of Dr. Cardaro. However, the Judicial Officer, being in a better position to judge demeanor and other subjective indications of credibility, obviously concluded that Dr. Cardaro's credibility remained substantially unaffected by cross examination. I cannot override this determination on the record presented. See NLRB v. Scoler's Inc., 466 F.2d 1289 (2d Cir. 1972); Universal Camera Corp. v. NLRB, 340 U.S. 474, 496, 71 S. Ct. 456, 95 L. Ed. 456 (1951); Mak-All Manufacturing Inc. v. NLRB, 331 F.2d 404, 405 (2d Cir. 1964).
Plaintiff's only other proffer on the issue of benzocaine's effectiveness came in the form of brief testimony from plaintiff's expert, Dr. Tesler, who stated (174):
. . . Here, in a capsule such as this which is swallowed, it would directly reach the stomach, and the effect on the gastric mucosa of a topical anesthetic would be basically to a (sic) decrease gastric acid secretion which would likewise tend to decrease hypermotility or hyperperistalsis, of the stomach, (sic) is increased the activity of the stomach, and secondarily, it could have an effect on so-called hunger pains, and again, tend to decrease appetite.
Given the testimony of Dr. Cardaro, supported and supplemented by the other medical expert called by the Postal Service, Dr. Crowell, as weighed against the plaintiff's evidence, and in the light of the entire record, there is clearly a basis in substantial evidence for the Judicial Officer's finding on benzocaine.
It was with respect to the efficacy of the other principal ingredient of Skini-Minis, SCMC, that plaintiff made its vigorous stand. Again, however, I find substantial evidence in the record as a whole to support the determination of "false representations" by the Judicial Officer, and his finding on the sub-issue of efficacy, that SCMC in the prescribed dosage quantity would be ineffective. Dr. Crowell testified on the Postal Service's direct case that plaintiff's product is inefficacious. Licensed in several jurisdictions, he specializes in internal medicine. In about 1955 he established an obesity clinic at George Washington Hospital and maintained this clinic until 1969. His practice over that period of time has dealt to a substantial degree with the treatment of obesity, including development of reducing programs for patients. At the clinic studies were run on the efficacy of certain drugs in the treatment of obesity, although, like Dr. Tesler, plaintiff's expert, Dr. Crowell has never conducted or participated in a study of the principal ingredients of Skini-Minis.
Dr. Crowell testified (as did the other experts) that weight is lost only by restricting caloric intake or increasing physical activities so as to burn more calories than one's particular intake happens to be (15-17); that SCMC had a medically recognized use as a laxative (52) but not for treatment for obesity; that the ingestion of that product "in the dosages indicated on this label" would have no effect on appetite (22); and that singly, or collectively, taking of any, or all, of the ingredients in Skini-Minis in the dosages indicated would have only a minimal effect, or no effect, on hunger (24), and would be of no influence on a person's ability to lose weight (34).
The greater portion of plaintiff's cross examination of Dr. Crowell was designed to attack the Doctor's qualifications and credibility. To the extent that an administrative determination on credibility can and should be reviewed in the light of Scoler's, Universal Camera, and Mak-All, supra, there is sufficient evidence in the record to enable this Court to say that the Judicial Officer would have been justified in crediting Dr. Crowell's foregoing testimony ...