Respondent appealed the Initial Decision to the undersigned as permitted by the referenced Rules of Practice and I issued a final Postal Service Decision upholding the Initial Decision on February 1, 1977. Respondent then filed a motion for modification of the mail-stop order accompanied by a motion, which I granted, to detain, rather than return, the mail until the motion for modification had been acted upon. Thereafter both parties filed additional pleadings, affidavits and arguments. It does not appear that either party desires to file anything more and the motion for modification of the stop order is ready for decision on the record as presently constituted. By way of introduction, and stated in simplest terms, Respondent objects to the mail-stop order affecting any mail which it can show is related to the sale of its product resulting from direct mail advertising which it instituted after filing of the Complaint and which was not an exhibit in the administrative hearing leading to the stop order.
Complainant opposes the modification on both points.
Respondent's Motion for Modification of the stop order attached copies of the magazine advertisement which was in evidence in the administrative proceeding, and the direct mail advertisement, which was not in evidence in the administrative hearing. The motion contends that the direct mail advertisement does not contain any fact alleged to have been misrepresented in the administrative proceeding. Thereafter Respondent filed an amendment to its motion pleading that through inadvertence and oversight there were certain errors in the affidavit of Jack Leary, the principal one being the failure to mention that a mailer insert was enclosed. A second part of the amendment to the motion requested that multiple orders be released to Respondent for filling that portion of the order other than the Skin Vitamin capsules. Complainant's Reply to the Motion for Modification, as amended, contends that the direct mail advertising continues the representation found false in the administrative proceeding, namely, that ingestion of the tablets will improve the appearance of the skin of most users.