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BASLEE PRODS. CORP. v. USPS

March 21, 1973

BASLEE PRODUCTS CORP., Plaintiff,
v.
UNITED STATES POSTAL SERVICE and Philip O'Donnell, Postmaster, Bayonne, New Jersey, Defendants


Lacey, District Judge.


The opinion of the court was delivered by: LACEY

Plaintiff (hereinafter Baslee) seeks to enjoin defendants' mail stop order, issued under 39 U.S.C. § 3005 on an administrative determination of false advertising. Jurisdiction lies under 39 U.S.C. § 409. *fn1" Immediately before me are cross motions for summary judgment.

 Defendants (hereinafter Postal Service) filed an administrative complaint against Baslee on June 8, 1972, charging it was obtaining monies through the United States mails by false representations in violation of 39 U.S.C. § 3005.

 Pending final determination of the administrative proceeding, the Postal Service, pursuant to 39 U.S.C. § 3007, obtained from this Court a preliminary injunction directing the interim detention by the Postal Service of Baslee's mail. *fn2"

 Baslee answered the administrative complaint by denying the charges. A trial-type hearing was held at the United States Postal Service in Washington, D.C. before a Judicial Officer, who, in his decision and order, sustained the departmental complaint as to nine of the ten misrepresentations allegedly made by Baslee. *fn3"

 Baslee now seeks in this Court to enjoin the enforcement of that administrative order, claiming that:

 1. Material error was committed by the Judicial Officer in refusing to consider and give weight to Baslee's expert testimony;

 2. Substantial evidence is lacking in the record of material false representation;

 3. The scope of the Judicial Officer's order is unreasonable and unnecessarily broad.

 SCOPE OF REVIEW

 Judicial review of the Judicial Officer's decision 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. 5 U.S.C. § 706 (1970); Consolo v. Federal Maritime Commission, 383 U.S. 607, 618-621, 16 L. Ed. 2d 131, 86 S. Ct. 1018 (1966); NLRB v. Brown, 380 U.S. 278, 291-292, 85 S. Ct. 980, 13 L. Ed. 2d 839 (1965); Universal Camera Corp. v. NLRB, 340 U.S. 474, 496-497, 71 S. Ct. 456, 95 L. Ed. 456 (1951); 4 K. Davis, Administrative Law Treatise § 29.01, at 114 (1958). Cf. Stein's v. Pilling, 256 F. Supp. 238 (D.N.J. 1966), aff'd per curiam, 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).

 Moreover, in examining the record below to determine whether there is the requisite supportive evidence, this Court must, in evaluating the advertisement in issue, determine its effect as a whole upon the ordinary mind of the general public. Donaldson v. Read Magazine, Inc., 333 U.S. 178, 189, 68 S. Ct. 591, 92 L. Ed. 628 (1948). See also Spiegel, Inc. v. F.T.C., 411 F.2d 481, 483 (7th Cir. 1969), where the court stated that "the meaning and 'impression upon the mind of the reader arises from the sum total of not only what is said but also of all that is reasonably implied.'" In United States Retail Credit Association, Inc. v. F.T.C., 300 F.2d 212, 219 (4th Cir. 1962), it was stated:

 
In adjudging the falsity of advertising representations, regard must be had, not to fine spun distinctions and arguments that may be made in excuse, but to the effect which such representations might reasonably be expected to have upon the general public.

 See also Colgate-Palmolive Company v. F.T.C., 310 F.2d 89, 91 (1st Cir. 1962): ". . . advertisements are not judged by scholarly dissection in a college classroom."

 THE ADMINISTRATIVE RECORD

 The advertisement at issue is set out in full at the conclusion of this opinion as Appendix I.

 The Postal Service complaint charged that Baslee's violations of 39 U.S.C. § 3005 were as specified in ten false representations allegedly made in the advertisement [Complaint, paras. 3(a)-(j)]. The Judicial Officer's opinion set forth these representations or specifications, accompanying each with what he deemed appropriate and supportive excerpts from the advertising. *fn4"

 The Representations Charged

 Baslee challenges the Postal Service procedure of setting out, in the several specifications, the meaning (as inferred by the Postal Service) to be drawn from various portions of the advertisement. Rather, states Baslee, only the precise words used should be determinative of truth or falsity. Baslee further contends that the Postal Service has unfairly distorted the true meaning of the words used in the advertisement. Its position, as thus stated, requires analysis of each of the specifications of falsity.

 The first false representation charged was in specification a. It provides as follows: "'The Marvex Plan' is a scientifically sound and effective remedy for obesity."

 The Judicial Officer found supportive language for this "summing-up" in the following language of the advertisement:

 
Remember this method of weight loss is Tested and Proven and is currently being used by a LEADING NEW YORK INTERNIST on his over-weight patients. And it was originally discovered by the United States Department of Agriculture, so you are not experimenting with a new gimmick or theory.
 
* * *
 
Keep in mind that the MARVEX PLAN is safe, effective and simple, and best of all, really works to get rid of that fat and keep it off.

 Baslee, in attacking this specification, states it had never represented that its Marvex Plan was a "remedy" or "permanent remedy" for obesity, while conceding that it "did represent that the Marvex Plan is a scientifically safe and effective method for losing weight without emphasis on caloric intake." (Plaintiff's Brief, pp. 16, 17).

 The Oxford Universal Dictionary (rev. 1955) has the following pertinent definitions:

 
Remedy . . . 1. A cure for a disease or other disorder of body or mind; any medicine or treatment which alleviates pain and promotes restoration to health. 2. A means of counteracting or removing an outward evil of any kind; . . .

 The same authority defines "Obesity" as "The condition of being obese; corpulence" and "Obese" is defined as "Very fat or fleshy; corpulent."

 Given Baslee's concession, I perceive no valid distinction of substance between what plaintiff concedes its advertisement was addressed to, that is, a "method for losing weight," and the specification's language, "remedy for obesity," judged against the overall background of the advertisement's total language and pictorial display of a very fat woman who claims to have "Lost 69 lbs. of Ugly Fat . . . In Only 30 Days!!!" Indeed, plaintiff's expert was, on direct examination, given this question:

 
Dr. Fredericks, in your opinion, is the Marvex Plan a sound method to permit an obese individual to lose weight while eating all the fattening foods? . . . [emphasis supplied]
 
The Witness: The answer is yes. (Tr. 217) *fn5"

 As to Baslee's contention that it "makes no claim for treatments and cures!" (Plaintiff's Brief, p. 24), the language of the advertisement, fairly read, does just that: ". . . this method of weight loss is Tested and Proven and is currently being used by a LEADING NEW YORK INTERNIST on his overweight patients."; "You must lose as much weight as you want and keep it off!"; "THIS AMAZING METHOD WORKED ON 100% OF ALL CASES TESTED!!"; "'MARVEX' Formula"; "Take only 1 MARVEX tablet daily with your breakfast following the enclosed method . . . and just watch the fat literally fall away. That's correct, no swallowing of 3 or 4 pills a day. Just take 1 tablet with this plan and your own body does the work for you." [emphasis in original]

 Accordingly, I find that the Judicial Officer properly determined that the representation of specification a was made.

 I further find that the Postal Service proceeded properly, and according to law, in gathering together from the advertisement various phrases, and their innuendoes and suggestions, embodying them in a sensible and coherent format, and utilizing one test: what is "the meaning and 'impression upon the mind of the reader [that] arises from the sum total of not only what is said but also of all that is reasonably implied[?]'" Spiegel, Inc. v. F.T.C., supra, 411 F.2d at 483. After all, as I have already stressed, to hold that the law is otherwise would be to provide immunity to the master of the artful phrase, who was able to convey a subtle but penetrating message by seemingly innocuous but carefully contrived verbalisms.

 Baslee also complains that there is nothing in the record to support the proposition "that the impressions produced by plaintiff's advertisement in the minds of ordinary men and women are those alleged in the administrative complaint rather than the ordinary meaning of the words actually used." (Plaintiff's Brief, p. 17). I assume that, by this, Baslee would claim probative testimony was required to establish the Spiegel connection. I know of no such requirement nor does Baslee cite me to any authority supporting this theory of law.

 Baslee also attacks specification b, which provides:

 
'The Marvex Plan' will overcome, treat and cure obesity while permitting the obese person to eat all the fattening foods he may desire.

 Clearly this specification reflects the message that Baslee's advertisement intended to convey to the ordinary reader. In addition to the excerpts cited by the Judicial Officer (see footnote 4, specification b), the advertisement, in bold face capital letter type, states: "THE MORE HIGH CALORIE FATTENING FOODS YOU CONSUME THE FASTER YOU LOSE WEIGHT!"

 There are three broad categories of foods: protein, fat, and carbohydrates. Baslee's advertising of its Marvex Plan, I find, was obviously worded to convey the idea that its "METHOD" was different because, by taking "1 MARVEX tablet daily with your breakfast," you can, without any restriction in diet, lose all the weight you want. The fact is, however, the "PLAN" itself carries a very definite limitation -- on carbohydrates. Yet the advertising clearly states that under the "PLAN" the more "HIGH CALORIE FATTENING FOODS YOU CONSUME THE FASTER YOU LOSE WEIGHT!" It cannot be denied that carbohydrates are "HIGH CALORIE FATTENING FOODS"; but Baslee argues that its advertising really means "Fat" and not "FATTENING," and that the two words are often used interchangeably, citing in support of this the hearing testimony of the Postal Service expert, Dr. McGavack. It is true that Dr. McGavack did use one word when he clearly meant the other, and he then promptly admitted he had erred. In any case, Baslee can hardly rely on such nice distinctions when its entire advertisement emphasizes that every kind of food can be eaten, without restriction.

 Clearly, therefore, specification b is accurate, and the Judicial Officer properly found the representation therein was made.

 The advertisement references made by me in the foregoing paragraphs are also applicable to, and abundantly support, the Judicial Officer's finding that Baslee made the representation found in specification c, which provides:

 
An obese person may accomplish losses of weight more quickly by consuming increased quantities of fattening foods while adhering to 'The Marvex Plan'.

 Next, the Postal Service charged in specification d that Baslee's advertisement was false in representing that "'The Marvex Plan' is safe for use by all persons in normal health." The pertinent advertising language reads: "If you are in normal health and Want To Lose Pounds And Inches of Unwanted Ugly Fat that's ruining your appearance and shortening your life . . . well here at last is your opportunity!" At a widely separated point in the advertisement appear the words "Keep in mind that the MARVEX PLAN is safe, effective and simple, and best of all, really works to get rid of that fat and keep it off." It could well be argued that the draftsman of this language purposely widely separated the two quoted portions and that the claim of safety is really not limited to those users who are "in normal health," but ...


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