In the Matter of the Complaint That ) November 23, 1962 ) SCIENCE OF LIFE ) JOHN D. HANCOCK ) P. O. Box 39673 ) ) at ) ) Los Angeles, California ) P.O.D. Docket No. 2/87 ) (hereinafter called Respondent), is ) engaged in conducting a scheme for ) obtaining money through the mails in ) violation of 39 U.S. Code 4005 ) formerly 39 U.S. Code 259 and 732). ) APPEARANCES: Ralph B. Manherz, Esq. Office of the General Counsel Post Office Department for Complainant Klayton W. Kirby P. O. Box 39673 Los Angeles, California for Respondent Bosone, Reva Beck
The Respondent in the above named case is charged with conducting a fraudulent scheme by obtaining remittances of money through the mails in violation of 39 U.S. Code 4005. 1/
The Respondent in this case advertises his products by distributing to the public through the mails certain advertising which describes the merits of the products and solicits the readers to remit the sums of $10 or $20 for various amounts of "Stagg Bullets" and for a so-called "free" "bottle of genuine Passionola." The Respondent offered no testimony at the hearing. He stipulated at the hearing that the advertising material which had been sent through the mails (copies of which are attached hereto) offered by the Complainant be admitted as evidence.
When one glances at and reads the advertised material he sees first of all the words "Stagg Bullets for Men." Then his attention is called to the paragraph referring to a man 57 years of age who had fathered his first child--a boy; that this man had discovered "Stagg Bullets."
In the advertisement of the "Passionola" product one sees first of all a picture of a shapely girl in a bikini bathing suit and on the next page there is a man in a lounging position surrounded by what looks to be hula girls. The advertisements of the two products, which are beamed to attracting men and so designating them, along with the pictures, the choice of words and the twists of the words "stag" and "passion" describe products "Staff Bullets for Men" and "Passionola" not as blood builders or tonics but as products that can make a man--regardless of age--romantic, young, potent, and as "virile as the gods." (See attached copies of advertisements.) The word sex is not used but one does not need a magnifying glass to see it.
In Vibra Brush Corp. v. Schaffer, 152 F.Supp. 461, the Court held ". . . it is not each separate word or a clause here and there of an advertisement which determines its force, but the totality of its contents and the impression of the entire advertisement upon the general populace *** the ultimate effect upon the reader results not only from the total of what is stated, but also from what is reasonably implied." See also; Gottlieb v. Schaffer, 141 F. Supp. 7. I agree with the Hearing Examiner when he said, "Measured by these standards it must certainly be held that, irrespective of the omission of the words 'sex' or 'sex act,' the whole effect or impact of these advertisements implies a renewal or intensification of sexual prowess."
Dr. Ralph Weilerstein was the first and only witness called by the Respondent. Dr. Weilerstein has a long list of qualifications among which are that he is a specialist in internal medicine; that he is an Assistant Clinical Professor of Medicine at the University of California; and is also a full-time employee stationed at San Francisco as Associate Medical Director of the United States Food and Drug Administration.
It was stipulated by the parties that the products advertised contained what is stated on the labels. Dr. Weilerstein testified that he was familiar with the ingredients so listed and with their therapeutic actions--that there wasn't anything unknown in these ingredients to the medical profession--Tr. 21. He further stated--Tr. 23--"In summary, as far as the 'Stagg Bullets' are concerned the product contains several of the B Vitamins, a little simple carbohydrate, a little iron and a little caffeine as you would get from your coffee and a little aspirin, a little iron and a little Vitamin C-like product." As to the Passionola product the doctor said, ". . . it contains sugar which of course is a sugar that we all know as a sweetening agent, the content of the bottle is 8 fluid ounces. I imagine the bulk of this is water, juices of Passion fruit. Passion fruit has nothing to do with passion in the sense that sex is involved. Passion fruit is so called by the appearance of the flower which resembles that of Christ on the Cross."--Tr. 23. To the questions asked by Complainant's attorney as to the effect of Stagg Bullets and Passionola in increasing sexual vitality Dr. Weilerstein answered there was none. To the question, "Doctor, is there anything in Stagg Bullets which would produce anything more than the drink of a cup of coffee to the user in the way of physical reaction?", the doctor answered, "No, sir."--Tr. 27. He answered the same to questions about Stagg Bullets being an effective treatment for any of the causes of sexual or physical debility.
To the question by Complainant "Of what value, doctor, is the Passionola product in the treatment of sexual deficiencies?", the answer was "It would have no value in the treatment. It might be a refreshing drink when used as directed."--Tr. 28.
When the witness was asked, "Doctor, are the opinions that you have expressed here today in consonance with the consensus or universality of scientific, medical opinion concerning ingredients of this type for treatment of the conditions indicated?" he answered, "They are."--Tr. 28.
Mr. Klayton W. Kirby appearing for the Cinema Enterprises, Inc. cross-examined Dr. Weilerstein but the doctor's views based upon his practice, observation, and studies were not shaken in his testimony.
There was no testimony offered by the Respondent. He did, however, add some facts to his appeal from the initial decision of the Hearing Examiner. These statements, of course, must be disregarded since they were not made in the hearing and there can be no cross-examination on them.
Upon the undisputed testimony of Dr. Weilerstein I must conclude that the claims of the Respondent relative to the products "Stagg Bullets" and "Passionola" are false, and that there is the intent to deceive. Reilly v. Pinkus, 338 U.S. 269, held that "An intent to deceive might be inferred from the universality of scientific belief that advertising representations are wholly unsupportable." See also Owen Laboratories v. Schroeder, 284 F.2d 445 and U.S. Health Club v. Major, 292 F.2d 665.
It was stipulated that the advertisements (copies of which are hereto attached), were sent through the mail; the testimony adduced at the hearing showed the advertisements to be false if the advertisements advertised products that would stimulate and increase sexual activity; the representations set out in paragraph 3 of the complaint, designated as (a), (b), (c), (d), (e), and (g), are false; it makes no difference that the Respondent advertised an offer of a refund to dissatisfied customers. Harris v. Rosenberger, 145 F.449.
It then follows as a conclusion of law that the Respondent is conducting a fraudulent scheme in violation of 39 U.S. Code 4005; that the initial decision is hereby confirmed; and that a fraud order in this case is hereby issued against the Respondent.
1/ § 4005. Fraudulent and lottery matter
(a) Upon evidence satisfactory to the Postmaster General that any person is engaged in conducting a scheme or device for obtaining money or property through the mail by means of false or fraudulent pretenses, representations, or promises; or engaged in conducting a lottery, gift enterprise, or scheme for the distribution of money or of real or personal property by lottery, chance, or drawing of any kind; the Postmaster General may--
(1) direct postmasters at the office at which registered letters or other letters or mail arrive, addressed to such a person or to his representative, ot return the registered letters or other letters or mail to the sender marked "fraudulent" or "lottery mail"; and
(2) forbid the payment by a postmaster to such a person or his representative of any money order or postal note drawn to the order of either and provide for the return to the remitters of the sums named in the money orders or postal notes.
(b) The public advertisement by a person engaged in activities covered by subsection (a) of this section, that remittances may be made by mail to a person named in the advertisement, is prima facie evidence that the latter is the agent or representative of the advertiser for the receipt of remittances on behalf of the advertiser. The Postmaster General is not precluded from ascertaining the existence of the agency in any other legal way satisfactory to him.
(c) As used in this section and section 4006 of this title the term "representative" includes an agent or representative acting as an individual or as a firm, bank, corporation, or association of any kind.