In the Matter of the Complaint Against ALL PRODUCTS UNLIMITED, INC. at Miami, Florida (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. 2/157; APPEARANCES: Abraham Levine, Esq. Office of the General Counsel Post Office Department for the Complainant Stanley M. Dietz, Esq. 401 Third Street, N.W. Washington, D.C. for the Respondent
The Complainant in the above-named case alleges that a fraudulent scheme is being conducted in violation of 39 U.S. Code 4005 1/ by the Respondent in that the Respondent is now and has been obtaining remittances of money through the mails by means of false and fraudulent pretenses, representations and promises.
The complaint sets out the following allegations:
(1) That public attention is attracted to said scheme by means of advertising matter widely distributed to the public and which is calculated and intended to induce readers thereof to remit money through the mails to Respondent.
(2) That attached as exhibits and made a part hereof are copies of advertising matter mentioned in paragraph (1) above; Exhibits "A", "A-1," and "A-2," to the complaint as amended, are hereto attached.
(3) That by means of the advertising matter mentioned in paragraph (2), and in similar matter, the Respondent represents to the public in substance and effect:
a. That Respondent's product, advertised in Exhibits "A" and "A-1" attached hereto, is a "SEX ENERGIZER NATURE PEP TABLETS FOR MARRIED MEN AND WOMEN", (i.e., said product furnishes marital partners natural sexual vitality, vim, and vigor required for the normal and successful completion of the sexual act);
b. That where "LACK OF SEX URGE" is "DUE TO FATIGUE OR ASTHENIA", the ingestion of aforesaid product, as advertised in Exhibit "A-1" attached hereto, will result in one's libido becoming "STRENGTHENED", (i.e., where a lack of diminution of one's libido is due to fatigue or debilitating disease, the sole use of and reliance upon the use of said product will result in a cure, correction and/or adequate treatment for aforesaid condition or conditions);
c. That the ingredients of aforesaid product have a direct and significant physiological effect on one's sex organs, (e.g., "SEX ENERGIZER" ... "SEX URGE" ... "*** for Married Men and Women" ... "For strength and night pep in your home life," etc.);
d. That the sole use of and complete reliance upon the aforesaid product, advertised in Exhibits "A" and "A-1" attached hereto, and in similar advertising matter, will effectively and safely overcome sexual deficiencies, irregularities, and abnormalities for all married couples, regardless of the pre-existing physiological or psychological conditions and without the need for medical consultation and/or supervision;
Dr. Kenneth Duncan Campbell called by the Complainant is the chief of the Liaison Section, Food and Drug Administration, Post Office Department. He examines promotional material offered for drugs, devices, and foods going through the mail to determine whether or not the claimed benefits are of medical value, have a sound medical basis, truthful Tr. 256. Dr. Campbell said that the product "Jems" offered as a sex energizer is offering a "therapeutic agent" or a "therapeutic effect" Tr. 268 that a "doctor's secret sex formula" is a product being offered for a therapeutic effect or purpose. Dr. Michael Miller, a psychiatrist, had testified that the strychnine dosage in "Jems" is a therapeutic dosage--that this dosage would produce a muscular contractility. But Dr. Campbell in supporting his testimony said "All leading textbook and pharmacology and modern teachings on the action of strychnine emphasize that, when you have a dosage sufficient to bring about stimulation of the spinal cord, an increase of transmission of nerve impulses down to the spinal cord and the anterior horn cells in the spinal cord, it is a toxic rather than a therapeutic manifestation. About the only use that strychnine has now is as a rat poison or as a -- because of its bitter taste -- as a stomachic." Tr. 271. He maintained that his testimony was consonant with the predominant, prevailing medical and scientific view in this country Tr. 271. He agreed with the other doctors that the caffeine content of the product would be equivalent to the taking of one or two cups of coffee.
The Respondent called Dr. Michael M. Miller who specializes in Psychiatry. He alleged that the strychnine is effective in lower parts of the central nervous system--that it is a mild stimulant--
that the strength of which would depend upon the number of tablets taken of the product. His testimony varied very little from that given by the doctors who testified for the Complainant. While he talked about mild stimulants he concluded Tr. 122 that the ingredients here are a tonic--that the major effect is the effect of suggestion--"that the psychological suggestive effect, in my opinion, would in most cases largely outweigh the pharmacological effect." Tr. 123.
The Respondent called Mr. Raymond Malcom Grimmer, Jr., a pharmacist, who said that he knew the ingredients of the product, the subject of this case, and that nux vomica is prescribed by physicians today Tr. 170 but he didn't know for what use it is prescribed. Tr. 175.
There is very little diversity in the testimony of the three doctors--the most that was said for the product is that it is a tonic. The prevailing opinion was that the ingredients are not effective on the sex glands and in the sexual life of a married couple, 2/ that the effect, if any, is psychological. The latter was stressed by the Respondent's witness, Dr. Michael Miller.
Mr. S. Sidney Hoffman, principal stockholder and officer of All Products Unlimited, Inc., the Respondent in this case, was called to testify. He delineated the story of how the company began. He said he was formerly in the advertising business and was introduced to a Dr. Porias whom he later went to see and with whom he had a conversation about sex. He said the doctor proposed that it would be a wonderful thing if a pill could be marketed to help people, because there are so many people affected with "this" particular trouble. Tr. 291. A partnership was formed with him and Mrs. Hoffman and Dr. Porias and his wife. Later on the doctor and his wife withdrew from the partnership.
Mr. Hoffman said that the pills are not in any way a cure for any disease or physical affliction. He admitted that the pills had no effect upon the sex organs--that he was concerned about "the urge that we are interested in particularly, because that is the thing, where a person, who has lack of sex urge, who is tired, when we come in with a tonic, they feel better ... that 80 per cent have the psychological feeling." Tr. 294. He spoke of the visit of the Food and Drug Administration Inspectors who had called twice and inspected his operation but from whom he had never heard again.
Dr. J. P. Porias of Miami, Florida, was not called as a witness. Consequently there is nothing in the record as to his qualifications and his experience. Mr. Hoffman was formerly an advertising man. Being a former advertising man he would be familiar with the technique of advertising and where to put the advertisements. He described why there was an advertisement in the colored newspapers--that he learned that the word "nature" to colored people meant their sex organ. Tr. 347.
Mr. Hoffman was frank in his admissions proving that he knew better than to advertise the product of "Jems" as he did. He knew
the ads did not tell the truth--that the ads were to stir the psychological desire for sex. Knowing that the ads were misrepresentations 3/ of the effect of the product, he placed advertisements in newspapers to be read by colored people yet he openly admitted that the product had no effect on the sex organs.
Since the product "Jems" was to be taken into the body, Mr. Hoffman and Dr. Porias had the responsibility of making sure that what they advertised had the effect described. (In the Jeffries v. Olesen case, 121 F.Supp. 463, the product was visible and the layman could see what it was.) In the case of a pill or something taken into the body, the layman cannot see the effect--he trusts that which is said about the product.
The evidence in this case is substantial 4/ in showing that the product "Jems" does not do what the advertising says. The Respondent admits this. The doctors all agree that this product is not an aphrodisiac--that the most that can be said about it is that it is a tonic and this was said by Respondent's witness, Dr. Michael Miller. The doctors who testified for the Complainant said their testimony relative to the effect of the ingredients in the consensus of informed medical opinion. There was agreement that the ads could have a psychological effect. A look at the ads and a review of the testimony show conclusively that the ads go far beyond "puffing." To hold that there is no fraudulent scheme in this case would be to say that regardless of the admitted falsity of an ad, so long as there is a possible psychological effect on some people there is no fraud. This would be going "way out." Every object, every word, has some psychological effect. Here there must be physical capacity first. Do these ingredients help the physical capacity? Even the Respondent says they do not.
While the Initial Decision is well argued, I cannot affirm it. The evidence in my opinion predominantly supports 5/ the Complainant's exceptions to it. The representations are false and there is the intent to deceive on the part of the Respondent. The exceptions to the Initial Decision are hereby sustained and a fraudulent order will issue.
06/29/66
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/ McAnnulty case, 187 U.S. 94, does not apply here.
3/ Leach v. Carlile, 258 U.S. 138.
4/ U.S. Health Club, Inc. v. William Major, 292 F.2d 665.
5/ U.S. v. 95 Barrels of Vinegar, 265 U.S. 438.