# Peak Laboratories, Inc. v. United States Postal Service

> Court of Appeals for the Fifth Circuit · August 8, 1977 · 556 F.2d 1387

URL: https://www.frixlaw.com/law-library/cases/9463898

## Case

- **Full name:** PEAK LABORATORIES, INC., Plaintiff-Appellant, v. UNITED STATES POSTAL SERVICE, Defendant-Appellee
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** August 8, 1977
- **Citations:** 556 F.2d 1387; 1977 U.S. App. LEXIS 12104
- **Precedential status:** Published
- **Opinion:** Concurrence by Clark
- **Judges:** Godbold, Clark, Hoffman
- **Cited by:** 5 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9463898

## Opinion text

CLARK, Circuit Judge,
concurring:
I concur in the judgment of the panel on the ground that Peak’s claim that the use of “Fat Off” causes fat to be redistributed is materially false.- Substantial evidence exists to support the district court’s finding in this regard. I am unable to accept, however, the conclusion that substantial evidence exists to support the finding of material falsity in Peak’s assertion that “Dr. Lester L. Morrison, in a recent project, found that Lecithin produced a decrease of as much as 30% in cholesterol in thé body.”
As the majority notes, the only evidence introduced by the Postal Service on this point was its expert medical witness’s testimony that he was of the opinion that lecithin does not decrease the total body store of cholesterol by 30%. The witness also stated that while he had not checked Dr. Morrison’s scientific references or professional qualifications, he knew of no report of a controlled, ethical evaluation which showed lecithin would consistently cause a 30% reduction of body cholesterol. No evidence was adduced, however, to establish that a Dr. Morrison was not qualified to perform the reported project, that he had not made such a test, that his findings were different from those set forth in the advertisement, that the test methods were known to or should have been known to produce inaccurate results, or that the test was conducted in an unscientific or unprofessional manner.
The typical shopper in 1977, who often marches into the market place armed with a current consumer report, would not be led astray by this assertion. One is hard pressed to find advertisements today that fail to extoll how well various products have fared in recent independent tests. This week I read that modest, inexpensive car X has been proven to ride 30% more quietly than expensive, Sybaritic car Y; that hospital tests show pill A will enter my bloodstream with its sweet, blessed relief 20% more quickly than pill B. The first advertisement could be read to say that anyone purchasing the cheaper car would *1391 secure a better car. The second ad might be thought to say pill A is better than pill B, although B’s counter-advertisement claims that its tests show there is no faster acting pain reliever on the market. I say the mind of the ordinary reader says maybe so and maybe no when it notes an advertiser report of favorable tests or studies. Although the Postal Service’s expert could not be classed as an ordinary reader, he testified he would not expect such a result. I don’t either. More importantly, I cannot accept that the quoted portion of the advertisement would leave an ordinary reader with the impression that a 30% reduction of his body cholesterol will necessarily result from taking “Fat Off.”
To say that the Postal Service could stop all advertisements which report tests or studies from entering the mails by producing an expert witness who would do no more than express an opinion disagreeing with the reported results, would give it far too great a license to pick and choose what may be delivered through the mails. Most respectfully, I disagree with that portion of the majority’s opinion here.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9463898. Public record. Not legal advice.