In the Matter of the Complaint Against

 U. S. HEALTH CLUB at
 Bergenfield, New Jersey (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).  

 P.O.D. Docket No. 2/134; 

 APPEARANCES:
 Ralph B. Manherz, Esq.
 Office of the General Counsel
 Post Office Department
 for the Complainant

 Solomon H. Friend, Esq.
 Bass & Friend
 342 Madison Avenue
 New York, New York 
 for the Respondent

The Post Office Department in the above-named case has charged the Respondent with false and fraudulent use of the United States

mail in violation of 39 U.S. Code 4005. ¹/ The Respondent admitted that he employs the use of the mails in his business enterprise and that the exhibits which are attached to the complaint are true copies of advertising material employed by him in his business enterprise. But he denies that these representations are false and fraudulent.

On June 25, 1964, after the hearing in the above-named case the Respondent moved to dismiss the proceedings against the two products involved in the case--"Naturetic" and "Powerin". The Hearing Examiner did not rule on this motion, but his Initial Decision shows his disposition of the motion. The Respondent stated that because his client was willing to discontinue the representations concerning the two products and would file an affidavit setting out that fact that there were grounds for dismissal of action against "Naturetic" and "Powerin". It is not the function of the Hearing Examiner to negotiate settlement of these cases but it is understood that compromise agreements are as a usual matter of practice discussed between Respondent's counsel and representatives of General Counsel's office in every case. The Hearing Examiner saw fit not to grant the motion, but disposed of it on the merits of the case in his Initial Decision.

A hearing was held on December 3, 1963. The Judicial officer sustains the ruling of the Hearing Examiner in dismissing paragraph 3(j) of the amendment to the complaint which reads: "That the product 'Royal Jelly' being advertised and sold through the mails by the Respondent provides a worthwhile and substantial 'food supplement' to users." There is nothing in the representations advertising Royal Jelly that describes it as being a worthwhile and substantial food supplement to users. ²/ The Hearing Examiner in his decision said that the Complainant to help prove his charge had relied upon the "image" of Royal Jelly in the mind of the public as possessing therapeutic value. It is true "that representations of fraud may be made not only by expressed words but by all of the reasonable inferences and implications which are present in the ad." But the inferences made by the Complainant must be reasonable. One cannot pull interpretations of an ad out of the air, there must be a reasonable basis for the interpretation. That is not shown in the charge by the Complainant.

The Complainant's exhibits which were advertisements of persons or companies other than Respondent but relating to Royal Jelly were rejected as evidence by the Hearing Examiner Tr. 41, 42, and 43. That ruling is hereby affirmed on the basis that the Respondent could not be held responsible because of what other companies' advertisements claimed.

In the complaint it is charged that the preparation "Naturetic" being offered for sale through the mails will "prevent nagging backaches" in users, where "caused by internal irritations deep inside the urinary tract". Dr. Kenneth Campbell, a witness for the Post Office Department, has the duty to review labeling and to evaluate the validity of the therapeutic claims in the light of current knowledge and medical practice for the Food and Drug Administration. Dr. Campbell is a graduate of Boston University School of Medicine, Boston, Massachusetts, in 1940. He has served in the military and at this time is serving in the part-time practice of medicine in College Park, Maryland. Dr. Campbell said he knew the ingredients of "Naturetic" and to the questions concerning the efficacy of each ingredient he answered in the

negative. He testified that the symptoms of nagging backaches caused by internal irritations deep inside the urinary tract or by impaired kidney functions are serious in many cases and are determined by the physician after a history, a physical, and special laboratory procedures--Tr. 58.

The Respondent used "The Dispensatory of the United States of America," a reputable reference according to the Respondent and Dr. Campbell, to cross-examine Dr. Campbell. The ingredients of "Naturetic" were alluded to in this publication as having been used. Dr. Campbell maintained throughout that these ingredients used for the purposes which are described in the product of "Naturetic" were used empiraically in the past but have been abandoned and discarded for such purposes. Dr. Campbell Tr. 72 said that his testimony was in conformity with a well-informed medical opinion on these subjects. Not at any time did the Respondent show that the ingredients are being used at the present time for the purposes advertised in the Respondent's product. The Respondent has the responsibility to find out why ingredients of "Naturetic" are not being used and have been abandoned before he advertises the efficacy of his product. I hereby affirm the Initial Decision relative to the product "Naturetic".

With the Respondent's product "Powerin" it is a different story. The main ingredient of "Powerin" is caffeine. It was admitted by the Respondent and Dr. Campbell that the average cup of coffee contains 100 to 150 milligrams of caffeine Tr. 97. The Respondent in sustaining the validity of the representations in

the advertisement of this product used several textbooks to show that a dosage of 170 milligrams of caffeine in the product "Powerin" would prove the efficacy of the product. Dr. Campbell maintained that it would not--that its efficacy depends upon an individual's tolerance of caffeine. In disagreeing with what the ingredients of "Powerin" would do, Dr. Campbell said that his testimony was in conformity with scientific opinion. Tr. 110. The Respondent in cross-examination used--Respondent's Exhibit 3--excerpts from "A Manual of Pharmacology and Its Applications to Therapeutics and Toxicology", 1940 and fifth edition Tr. 131 by Torald Sollmann, M.D., who is a Professor of Pharmacology in the School of Medicine of Western Reserve University, Cleveland. Dr. Campbell admitted that he used Dr. Sollmann's book as a reference work. Dr. Campbell's attention was called to page 271 of the book which reads: "A cup of coffee or strong tea contains about 0.1 grams of caffeine." Dr. Campbell was further referred to the following sentences:

"Its effects are somewhat modified by the associated products (the volatile products causing more psychic stimulation, the tea tannin and coffee oil deranging digestion); but essentially the actions are those of the alkaloids. ³/ They consist of increased mental and physical efficiency, physical stimulation, comfort, and relief from muscular and mental fatigue and from their attendant unpleasant sensations" Tr. 132.

Dr. Campbell responded Tr. 133 "As I have said before, on a person not used to caffeine, it may have a mild stimulating effect, but it is not a panacea, as some of these texts that you are citing to make it appear that it is." The Respondent went on to quote from Professor Sollman's book, page 256--Respondent's Exhibit 3--"In man, moderate doses of caffeine to 0.3 grams produce a quicker and clearer flow of thought, disappearance of drowsiness and fatigue, a more sustained intellectual effort; more efficient appreciation of sensory impressions, and more perfect association of ideas." Dr. Campbell did not agree because he said the information Tr. 138 went back to 1872--an old reference by a Mr. Kraepelin. Dr. Campbell inferred that Professor Sollman was old also Tr. 139. But in Respondent's Exhibit 4, an acknowledged and reputable textbook entitled "Pharmacology and Therapeutics" (1962) by Professor Arthur Grollman who is a consultant to the United States Food and Drug Administration and is a member of the Revision Committee of the United States Pharmacopeia, Dr. Campbell's attention was called to page 220 and was asked if he agreed with the following statement: Tr. 147

"In man, caffeine stimulates the central nervous system in particular that part associated with the physical function. The ideas become clearer, the thoughts flow more easily and rapidly, and fatigue and drowsiness disappear. Not infrequently, however, connected thought is rendered more difficult for impressions follow each other so rapidly that attention is distracted and it requires more and more effort to limit it to a single object. The capacity for physical exertion is augmented, as has been demonstrated by soldiers on the march, and by experiments with the ergograph."

Dr. Campbell said he was forced to disagree with that statement.

On page 221 Tr. 154 the Respondent went on to read from Dr. Grollman's book "Kraepelin showed that both tea and coffee facilitate the reception of sensory impressions, and also the association of ideas, especially in fatigue, while the

transformation of intellectual conceptions into actual movements i retarded. This he regarded as due to stimulation of the highest or controlling functions of the brain, caffeine acting on the same parts as are first affected by alcohol, but by altering them in the opposite direction." To this excerpt Dr. Campbell responded ⁴/ "all it states is that the authors of these textbooks keep repeating or perpetuating the same kind of old information that should be discarded." Yet Dr. Campbell agreed that the textbooks cited in cross-examination by the Respondent were reputable.

I reach a different decision in the case of "Powerin" from that of "Naturetic" because in the product "Powerin", the main ingredient being caffeine, there are apparently is no consensus of medical opinion. There is a definite conflict. 5/ It would seem from the textbooks of 1872 to 1962 the medical theory on caffeine has been about the same and has not been abandoned.

There isn't any doubt about the advertisement of "Powerin" indulging in exaggeration and that it amounts to hyperbole and puffing but hyperbole and puffing don't make advertising matter fraudulent. Degrees are always arguable.

Dr. Campbell said that when one is driving a car and is tired, if he stops for a cup of coffee he gets a lift. "Powerin" contains 170 milligrams of caffeine. If one is tired and takes a cup of coffee which in the testimony was described as containing from 100 to 150 milligrams of caffeine, one gets a lift mentally and physically. That lift as indicated is within a short time. How short a time and how great a lift may depend upon the person.

Since caffeine, the chief ingredient of "Powerin", is described in the textbooks, and Dr. Campbell admits they are reputable, as doing what the advertisement says even though there is hyperbole and putting there can be no charge of fraud. The Hearing Examiner's decision on "Powerin" is hereby not affirmed.

A fraud order will issue against the product "Naturetic."

09/09/65

Bosone, Reva Beck

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, to 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.

2/ See attached ads.

3/ A substance taken from plants and animals, and used in certain drugs such as caffeine.

4/ Reilly v. Pinkus, 338 U.S. 275.

5/ Reilly v. Pinkus, 338 U.S. 269.