Before MacKINNON and WALD, Circuit Judges and HAROLD H. GREENE,* United States District Judge for the District of Columbia.
UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT
Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 79-2105).
We are called upon in these consolidated cases to determine whether the Postal Service properly concluded that two companies breached the terms of consent agreements which prohibited them from making certain claims in the advertising of their products. One of the companies, Sean Michaels, Inc. (Sean Michaels), markets the "Sean Michaels Bust Expander," an "exercise device designed to improve and enhance the female user's bust features." Appellants' Brief at 4. The other, Sara Michaels, Inc. (Sara Michaels), markets the "Sara Michaels Protein for the Bust," a "food supplement designed to improve and enhance the female user's bust features through the process of excess caloric engorgement." Id. I. BACKGROUND
Each of the consent agreements prohibited the respective company from making representations that the Postal Service had determined were false after investigation and hearing. Sean Michaels was precluded from representing that its product (1) would increase the size of the female user's breasts, (2) would increase, on the average, the female user's bustline by 31/2 inches in 14 days or 5 inches in 21 days, *fn1 (3) is a new invention that utilizes a principle called "pectoral isolation" and differs substantially from other so-called bust developers, and (4) would achieve these advertised results if the user exercises three minutes or less per day.
The Sara Michaels consent agreement prohibited that company from representing that its product (1) contains a unique combination of amino acids not readily available in an ordinary balanced diet, (2) would increase the female user's bustline by 3 to 4 inches in 2 to 3 weeks when used in conjunction with the daily, one-minute exercise program, (3) would cause the female user's breasts to become "larger, firmer and fuller" when used in conjunction with the exercise program, and (4) makes a material and substantial contribution to the claimed benefits.
Both companies modified their advertising after entering into the consent agreements, but the Postal Service believed that the new advertising continued to include the representations proscribed by the agreements. As authorized by the agreements, the Service sought sanctions *fn2 from a Postal Service judicial officer. That officer found that both companies had violated their consent agreements and granted the sanctions. The companies filed a complaint in district court to review the administrative decision. The district court granted the Postal Service's motion for summary judgment. II. ANALYSIS
The question before the judicial officer was whether appellants violated the terms of the consent agreements, see American Consumer, Inc. v. United States Postal Service, 427 F. Supp. 589, 591 (E.D.Pa.1977), not whether the representations made in the later advertising were false. The district court concluded that the administrative decision was not "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." App. at 14. We affirm the district court, but wish to make clear that the consent agreements permit the appellants to represent certain things concerning their products.
In its original determination of the falsity of Sean Michaels' representations, the Postal Service concluded that "the average female user of (Michaels') product may experience some increase in roundness, height and firmness of her breasts." App. at 33. Although Sean Michaels claims that this is the thrust of its new advertising, the judicial officer could have reasonably concluded that statements such as "I really got big in just 14 days," App. at 66, and "I just know my bustline increased like mad," id., accompanied by "before and after" pictures implying substantial increases in breast size constituted a violation of the consent agreement. Also, an answer attributed to "Sean" in the advertisements to the question, "why does yours work for me while others didn't?" "(b)ecause it uses a method we call pectoral isolation," App. at 65-66 continues to make the prohibited representation that the product "is a new invention that utilizes a principle called "pectoral isolation' and differs substantially from other so-called bust developers." *fn3
Were the breach of the consent agreement supported only by statements from Sean Michaels' advertising such as "I went from hopeless to fantastic in less than two weeks," App. at 66, and "I guess you could say with the Sean Michaels Bust Expander it's what's up front that counts," App. at 65, we may have a more difficult case, since no particular increase is mentioned. And, the statement, "My busts became rounder, firmer, fuller and had more lift," App. at 66, is probably outside the scope of representations prohibited by the consent agreement. Since the advertisements did contain representations violative of the agreement, however, we decide that the judicial officer's determination was proper.
We also conclude that the judicial officer did not act arbitrarily or capriciously in determining that the Sara Michaels consent agreement was breached. Like the Sean Michaels' advertisements, the Sara Michaels' advertisement includes a "before and after" picture that implies a significant increase in the size of the breast will result from the use of the product, App. at 261. We might hesitate to find that the accompanying statement, "In less than 15 days I went from tragic to terrific using the fantastic Sara Michaels Protein for the Bust," alone violates the consent agreement, but the advertisement also includes the statement, "I felt my breasts becoming firmer, fuller, and they had more lift." This violates the plain terms of the consent agreement. Furthermore, two paragraphs of the advertisement, which are set out in the ...