Baslee Products Corp. v. United States Postal Service

• Decision Date: 21 March 1973
• Docket Number: Civ. A. No. 1469-72.
• Citation: 356 F. Supp. 841
• Parties: BASLEE PRODUCTS CORP., Plaintiff, v. UNITED STATES POSTAL SERVICE and Philip O'Donnell, Postmaster, Bayonne, New Jersey, Defendants.
• Court: U.S. District Court — District of New Jersey

356 F. Supp. 841

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

Civ. A. No. 1469-72.

United States District Court, D. New Jersey.

March 21, 1973.

Herbert J. Stern, U. S. Atty., by Stephen E. King, Asst. U. S. Atty., Newark, N. J., for plaintiff.

Herbert Alterman, Passaic, N. J., Bass & Ullman, New York City, by Robert Ullman, New York City, of counsel, for defendants.

OPINION

LACEY, District Judge:

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. § 409.¹ Immediately before me are cross motions for summary judgment.

BACKGROUND

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.²

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.³

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 (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.⁴

The Judicial Officer then found that all representations but that in specification f had been made in the subject advertisement, and that these were false. He then concluded that Baslee "is engaged in conducting a scheme or device for obtaining money through the mail by means of false representations within the meaning of 39 U.S.C. 3005." The parties are in accord in interpreting this determination as being applicable to all of the specified representations (except, of course, specification f).

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 overweight 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)⁵

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...