(dissenting).
Since I think there was substantial evidence in fact to support the findings of the Postmaster General, I believe the judgment of the court below cannot be sustained.
In the footnote below, I quote excerpts from advertisements of appellee, which were in evidence at the hearing of the Postmaster General.1 According to the Solicitor of the Post Office Department, whose findings and recommendation the Postmaster General adopted, the purchaser of appellee’s product was led to believe that (a) one could safely reduce his weight three or more pounds per week by following appellee’s prescribed treatment and without medical supervision; (b) the principal factor in accomplishing the wc’ght reduction would be a vegetable product containing a minute quantity of iodine, which was alleged by appellee to have hunger-satisfying properties; and (c) that the accompanying diet was of a lenient *792nature. The Solicitor further found, and the Postmaster General concurred, (a) that patients with chronic diseases could suffer serious results if they took the advertised treatment without medical guidance; (b) that not only did no modern scientific medical textbook or authority recommend the use of kelp as a reducing agent, but also its sole therapeutic effect was as a “nutritional supplement for increasing daily intake of iodine,” the deficiency of which element exists only in “certain limited areas of this country” ; and (c) that the diet accompanying the product, far from implementing the "adjuration to “eat plenty,” called for a daily intake of ap*proximately 1000 calories, less than one-half of the average American sustaining diet. From the foregoing, I am not prepared to say that the conclusion of the Postmaster General is patently erroneous,' nor that the basis of his conclusion is the type of “opinion evidence” which was rejected, in American School-of Magnetic Healing v. McAnnulty 1902, 187 U.S. 94, 23 S.Ct. 33, 47 L.Ed. 90.
I think the disposition of this case is dictated by Leach v. Carlile, 1922, 258 U.S. 138, 42 S.Ct. 227, 60 L.Ed. 511, as applied in Donaldson v. Read Magazine, 1948, 333 U.S. 178, 68 S.Ct. 591. The function .of our court, like that of the court below, is not to resolve contradictory inferences, but rather to determine if there was evidence to support the Postmaster General’s 'findings of fraud. 333 U.S. at page 186, 68 S.Ct. 591. Surely appellee’s advertisements cannot be said as a matter of law to be conduct which does not fall short of “that fair dealing of which fraud is the antithesis.” 333 U.S. at page 188, 68 S.Ct. at page 597. With full opportunity to do so, appellee nevertheless failed to produce any affirmative testimony tending to prove that kelp is efficacious in the treatment of obesity. Instead, appellee attempted reliance upon testimonials of users -of appellee’s treatment, which I consider to be hardly convincing as a scientific foundation for appellee’s representations. Cf. Research Laboratories v. United States, 9 Cir., 1948, 167 F.2d 410. Whether or not it might have been preferable that the modus operandi of appellee be tested through some other machinéry such as the Federal Trade Commission, I am constrained to conclude that the' Postmaster General did not here act arbitrarily or beyond his powers.
Accordingly, I should reverse the judgment of the court below. In view of the holding of the majority of this court, I need .not express, my opinion whether the scope of cross-examination permitted appellee at the ¡ administrative hearing was so unduly limited as' to warrant remand for a rehearing.-
“Reduce Lose 3 to 5 lbs. a Week. No Exercise Required. No Reducing Drugs, Absolutely Harmless. Yet Eat Plenty. Follow Kelp-I-Dine Reducing Plan. * * * Eat as You Usually Do. Don’t Cut Out fatty, starchy, foods, just Cut Down on them. * * * ”
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