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N. VAN DYNE ADVERTISING AGENCY, INC. v. USPS

January 15, 1974.

N. VAN DYNE ADVERTISING AGENCY, INC., d/b/a Soberin Aids Co., Plaintiff
v.
UNITED STATES POSTAL SERVICE et al., Defendants.



The opinion of the court was delivered by: WEINFELD

EDWARD WEINFELD, District Judge.

The plaintiff brings this action to enjoin the defendant (hereafter the Postal Service) from enforcing a mail stop order which denied mail privileges to "Soberin Aids," a product advertised by plaintiff as allegedly helpful to "break the drinking cycle." Soberin Aids consists of syrup of ipecac, an emetic which usually induces nausea, followed by vomiting. Plaintiff has advertised "Soberin Aids" in magazines and solicited mail orders at $10 per purchase.

The Postal Service filed an administrative complaint charging that plaintiff was engaged in a scheme or device to obtain money through the mails by means of false representations in violation of 39 U.S.C., section 3005. *fn1" The complaint was directed toward plaintiff's advertisement in a magazine, which under the caption "DRUNK" in large block letters, reads:

 "DOCTOR'S MARVELOUS MEDICAL DISCOVERY!

 "World Famous Since 1943"

 Thousands have been helped to break the drinking cycle INEXPENSIVELY. This Doctor's Medical Discovery helps promote an Aversion (dislike) to all alcoholic drinks. May be used secretly in Whiskey, Wine, Beer, Gin etc.Comes to you ready to use with instructions. This is a HOME METHOD GUARANTEED PURE. Not represented as a Treatment or as a permanent "Cure", but it is a Doctor's recognized method for interrupting the drinking cycle for weeks, months and years. Time varying with the individual. A happy SOBERIN AIDS user writes: "Please send me another bottle of SOBERIN AIDS, I had a bottle of Soberin Aids two years ago and my family lived in peace. Now, my husband has started to drink again. Please rush me this wonderful medicine. God Bless You." Mrs. N. K. - Sidney, N.S. Canada DO NOT WAIT. ORDER SOBERIN AIDS NOW! GUARANTEED or MONEY Back. Pay postman $10.00 plus c.o.d. & postage or Save $1.20 in C.O.D. & postage by sending $10.00 with order.

 SOBERIN AIDS CO. DEPT MR46,

 P.O. Box 405, Montvale, N.J. 07645"

 The Postal Service complaint charged that the advertisement and the promotional matter that was sent to a purchaser with the product contained six false material representations. A hearing was held over a two-day period before an administrative law judge, at which plaintiff was represented by counsel and offered its defense. Upon the conclusion of the hearing the administrative law judge sustained the Postal Service charges as to three of the six alleged false representations. He found that the advertisement contained false material representations that Soberin Aids (1) may be used safely; (2) helps promote an aversion to all alcoholic drinks; and (3) is part of a medically recognized method for treating alcoholics over long periods. Upon appeal the judicial officer of the Postal Service upheld the decision of the administrative law judge only as to items 1 and 2 and sustained plaintiff's exception to item 3; accordingly, an appropriate mail stop order was issued. *fn2" Thereupon plaintiff commenced this action seeking judicial review pursuant to the Administrative Procedure Act *fn3" and a permanent injunction against the enforcement of the mail stop order. The matter is now before the court on plaintiff's motion for summary judgment. The parties are in agreement that there are no triable issues of fact and that upon the record the matter is ripe for summary judgment.

 Although plaintiff during the course of the administrative proceedings raised various substantive and procedural issues in resisting the Postal Service charges, it limits its appeal in this court to an attack upon the two administrative findings that plaintiff falsely represented Soberin Aids may be used safely and that it helps promote an aversion to all alcoholic drinks. It contends that these determinations of false material representations are not supported by substantial evidence and are erroneous as a matter of law.

 The Postal Service, "upon evidence satisfacotry" *fn4" to it, is authorized to deny the use of the mails to those engaged in schemes or devices to obtain money through false representations. The power so vested in the Postal Service may not be interfered with by the courts unless it has exceeded its authority or is palpably wrong. *fn5" As this court has observed previously with respect to the power to review the agency determination:

 "And even though the court, as the original trier of the facts, might have reached a different conclusion, it may not substitute its own judgment if there is substantial evidence to support the findings of fact made by the [Postal Service]. Thus the court's power to upset a finding by the [Postal Service] that the mails are being used in furtherance of a fraudulent scheme is restricted to those instances where there is no substantial evidence reasonably to support [its] conclusion." *fn6"

 Against the background of these principles we consider plaintiff's attack upon the mail stop order.

 The first inquiry is whether, as found by the administrative law judge and upheld on review by the judicial officer, plaintiff's advertisement represents that its product, Soberin Aids, "may be safely used." Plaintiff, in its challenge to this finding, argues that its advertisement does not "expressly claim its product is safe for all persons. In fact, plaintiff's advertisement does not mention safety at all." It complains that the agency decision on this issue was reached without evidence as to the meaning of the advertisement other than the advertisement itself; and finally, it contends that even if it be found that the advertisement ...


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