In the Matter of the Complaint Against BLACK MAGIC SHOP ASTRAL CO., and B.M.S. ASTRAL CO. at Minneapolis, Minnesota P.O.D. Docket No. 2/210; APPEARANCES: Ralph B. Manherz, Esq. Office of the General Counsel Post Office Department for the Complainant Kenneth P. Griswold, Esq., and Lawrence D. Cohen, Esq. Ruttenberg, Orren, Griswold and Cohen 1001 New York Building St. Paul, Minnesota for the Respondent
The Respondent in the above-named case has been charged with
violating the provisions of 39 U.S. Code 4005. 1/
The subject of the case is the advertisements that are delineated in the Black Magic Shop Catalog 1965--P.O.D. Exhibit 2-B-1--and other circulars put out by the Respondent.
The Post Office Department alleges that in these advertisements there are false representations concerning the items and books as advertised; that the advertisements are sent through the mail; that the Respondent receives money through the mail; that the representations are false and that the Respondent acknowledges the falsity thereof. Mr. Larry B. Wright, the owner of the Black Magic Shop, Astral Co., and B.M.S. Astral Co., admits that he does not believe the representations and neither does his wife, Mrs. Marlene M.Wright, who was a witness for the Respondent; but both testified that the statements made about the items in the advertisements were based on years of research--that the statements were not their own but those found in their research. Mr.Larry B. Wright is a high school graduate and his wife, Marlene, had one year of high school. One's education and experience are an element to be considered on a statement made relative to the work of "research for years." 2/ Much is made by the Respondent of the statement on the last pasge of the Black Magic Shop Catalog 1965 where there is the statement that "The Black Magic Shop makes no warranties or guarantees as to occult or mystical powers or properties of the items offered for sale in this catalog." That explanation is an element for consideration but as to how serious depends on the other facts.
In perusing the catalogue and advertisements one may see now and then that there is something said about "an old oriental legend" (page 7 of catalogue) which may indicate that the advertisement was based on what the legend tells. But for the few advertisements referring to the history of the item there are many more advertisements which make clear statements as to what the item and the book will do. One merely needs to turn the pages of the catalogue to see these extravagant, occult, and mystic statements. It is well-established law that "The law is not made for experts but to protect the public,--that vast multitude which includes the ignorant, the unthinking and the credulous, who, in making purchases, do not stop to analyze but too often are governed by appearances and general impressions"--Aronberg et al. v. Federal Trade Commission, 132 F.2d 165--and that "the mail fraud order statutes are aimed at protecting the public against fraudulent schemes--the prevention of future injury to the public. The issue of fraud under these statutes is to be determined 'in the light of the effect advertisements would most probably product on ordinary minds."--Gottlieb v. Schaffer, 141 F.Supp. 7. Throughout the catalogue the emphasis is put on the statement's unusual influence of an item; for instance, on page 16 of the catalogue one sees the advertisement subject in large letters "Occult, Curio, Perfumes--Gain Your Desires." It goes on to say, "It is said by occult authorities that perfumes of the proper type can be extremely useful in obtaining one's desires. It is known that various forces are affected by subtle aromas. Therefore, it follows that perfumes may work wonders for you. ...These perfumes should be used at least once a week in bath and on the person." Then the names of the perfumes are listed--one to keep away enemies; one to keep away hate, one to "love me", one "heavenly power", etc. Page 24 of the catalogue under title "SEALS and
TALISMANS", there is the strong connotation that certain seals will bring great fortune, good luck, power, good health, etc. It takes more than the statement on the back cover of the catalogue to overcome misrepresentations made of the various items listed in it. "The circumstances that an isolated sentence here and there in an advertisement may be literally true does not preclude a finding of fraud or an intent to deceive."--Gottlieb v. Schaffer, supra.
Advertisements other than those dealt with in the above-named case were admitted into evidence and in some there were objections by Counsel for the Post Office Department which were sustained. These advertisements were introduced by the Respondent in order to show the extent to which "far out" representations are made by some advertisers. "That others were engaged in alleged similar violations of law did not grant immunity to one charged with specific violation."--Gottlieb v. Schaffer, supra. None of these advertisements had anything to do with the above-named case.
In this case there was the violation of the statute, supra. There were representations that were false and the Respondent acknowledged the falsity of the advertisements. There were certain statements of truth which are minor when one considers the great majority of false statements made in the advertisements of the Respondent. There is no doubt that when one considers the foregoing that the Respondent had the intent to defraud. The Initial Decision is sustained. A fraud order in the above-named case is hereby issued.
12/28/65
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/ research; careful, systematic, patient study and investigation in some field of knowledge, undertaken to establish facts or principles. Webster's New World Dictionary, College Edition, 1959.