In the Matter of ) October 27, 1967 ) HEALTH ) WORLD HEALTH CENTER ) JAMES WESLEY, NUTRITIONIST, and ) JAMES WESLEY ) 340 Harvey Lake Road ) ) at ) P.O.D. Docket No. 2/173 ) Highland, Michigan ) ) (hereinafter called Respondent) ) being engaged in conducting a scheme for ) obtaining money through the mails in ) violation of 39 U. S. Code 4005. ) POST OFFICE DEPARTMENT WASHINGTON, D.C. 20260 Duvall, William A.
On August 27, 1964, a complaint was filed charging that James Wesley, in that name and under the names James Wesley, H.S., at P. O. Box 86, Detroit, Michigan, was obtaining money through the mails by means of false and fraudulent pretenses, representations and promises in contravention of the provisions of Section 4005 of Title 39, United States Code. In effect, the Complainant charged Mr. Wesley with the fraudulent sale through the mails of a spurious cure for arthritis.
On September 8, 1964, there was served on James Wesley a notice that the hearing in regard to the complaint would be held commencing at 10:00 a.m. on September 25, 1964. A copy of the Rules of Practice accompanied the notice of hearing.
On September 16, 1964, a letter was received from the Respondent in which he made a general denial of the charges stated in the complaint and with which he transmitted copies of what purported to be testimonials by satisfied customers. Mr. Wesley made no request, as provided for in the Rules of Practice, that the hearing be transferred to some other city nor did he indicate whether he would appear at the hearing, whenever or wherever it should be held.
There was received from Mr. Wesley on September 25, 1964, a letter in which he indicated he could not appear in person or by counsel at the hearing, but, still, he made no request for a transfer of the hearing.
The hearing subsequently was held on October 13, 1964.
At the hearing, certain evidence was received which now will be briefly summarized. A postal inspector gave testimony and identified exhibits which established the use of the mails by the Respondent. There was also received in evidence, after identification by the postal inspector, a letter dated February 24, 1964, to the Respondent in which it was stated that, based upon the consensus of informed medical and scientific belief, it was the opinion of the General Counsel of the Post Office Department that the Respondent's enterprise contravened the provisions of 39 U. S. Code 4005. The Respondent answered the letter saying that he would voluntarily discontinue the use of the then current advertising material as of that date (February 29, 1964).
Testimony was also given at the hearing by a qualified chemist to the effect that the product sold by the Respondent contained pyridoxine hydrochloride (Vitamin B6) and a cereal-type product. Also part of Respondent's merchandise was a diet consisting of, among other things, poultry, fish, milk, eggs, butter, cheese, buttermilk, beef liver one time a week, sparing use of salt and starches, advice to drink coffee and tea and advice to eat fruit.
The last witness to testify at the hearing was a well qualified doctor of medicine who said in effect that "Formula 7" (the products and the diet sold by the Respondent) were "worthless" and "laughable." The doctor testified, further, that in certain types of arthritis the prognosis is that of increasing crippling, and that in all cases the proper therapeutic measures, including diet, should be especially tailored to the individual needs of each patient. The doctor testified that contrary to the last statement, for example, is the recommendation of a diet containing foods which would be unsafe for persons having gouty arthritis because such food could produce kidney damage.
The issuance of a fraud order was recommended in the Initial Decision and the Judicial Officer did issue such an order on November 13, 1964 (Order No. 64-262).
By petition dated October 5, 1967, the General Counsel of the Post Office Department seeks the issuance of a fraud order supplementing the earlier one and applying to the names and the address set forth in the caption hereof.
Evidence in support of this petition has been presented as follows:
1. An advertisement from the April 25, 1967, issue of Capper's Weekly which reads -- "ARTHRITIS CAN BE helped. Health, 340 Harvey Lake Road, Highland, Michigan."
2. A test letter of inquiry in response to the above-quoted advertisement.
3. A reply to the letter of inquiry. The reply (1) bears the letterhead "World Health Center, 340 Harvey Lake Road, Highland, Michigan;" (2) closes with the words "World Health Center, James Wesley, Nutritionist" and the signature "James Wesley"; (3) describes a "Health Formula" as (a) containing "Protein, Pyridoxine & 30 Vitamins & Minerals" and (b) consisting of 2 parts - a concentrated powder and tablets and diet directions; and (4) clearly represents the "Health Formula" as being efficacious in treating and curing arthritis, as well as producing generally improved health.
4. A copy of a letter in which an order was placed for "Health Formula."
5. Health Formula, accompanied by a letter dated July 21, 1967, and various circular matter.
By letter dated October 5, 1967, the Judicial Officer advised Mr. Wesley that the aforesaid petition had been filed. The Judicial Officer also told Mr. Wesley that if within 10 days he would make an adequate showing of the existence of a genuine issue of material fact, the matter would go to hearing. Failure to make such a showing, Mr. Wesley was told, would result in the determination on the record thus far compiled as to whether the supplemental fraud order should issue.
Mr. Wesley responded to the Judicial Officer's letter with the documents which are attached hereto as Appendix A with sub-appendices A-1 through A-7. The only issues suggested in this material were decided in the earlier case, and it is significant that the Respondent did not (1) assert the existence of a genuine issue of material fact or (2) request a hearing.
Consideration of all of the foregoing information and examination of the documents in both the former and the present cases lead to the following findings and conclusions:
1. Fraud Order No. 64-262 was issued on November 13, 1964, forbidding the delivery of mail and the payment of money orders to James Wesley and James Wesley, H.S., at P. O. Box 86, Detroit, Michigan.
2. The issuance of Fraud Order No. 64-262 was predicated on the finding, after notice and hearing, that the Respondent (Wesley) in the sale of a product called "Formula 7" was
engaged in a scheme for the sale through the mails of this product upon the basis of false and fraudulent representations in contravention of the provisions of Section 4005, Title 39, U. S. Code.
3. Evidence has been received which supports the conclusion that Respondent, under his own and other names, and from the address 340 Harvey Lake Road, Highland, Michigan, has resumed the enterprise previously found to be fraudulent. The evidence supporting this conclusion includes, but is not limited to the following facts and items:
A. The name of the promoter is the same as in the former proceeding and the signatures on the letters from James Wesley are sufficiently similar to indicate that they were written by the same individual.
B. The promoter, both in the literature which was part of the evidence in the earlier proceeding and, also, in the literature recently submitted in support of the present petition, says that his product (1) contains "Proteins, Pyridoxine & 30 Vitamins & Minerals" and (2) consists of 2 parts - a concentrated powder and tablets and diet directions.
C. The circular which purports to contain copies of correspondence from a "William Reers, 526 E. 59th St. So., Wichita, Kansas 67216" (1) was Government Exhibit E in the earlier proceeding; (2) is Government Exhibit 5 in support of the pending petition; and (3) is Appendix A-7 to this decision and it was sent in by James Wesley, along with other material in Appendix A, on October 12, 1967, in response to the notice of hearing sent to James Wesley on October 5, 1967.
In Appendix A Mr. Wesley makes certain imperious demands and he repeats his claim of being able to cure arthritis - despite competent expert medical testimony (1) that some arthritis is incurable and (2) that each arthritic patient should have proper, individualized medical attention (P.O.D. Docket No. 2/173, pp. 36, 38, transcript of hearing, October 13, 1964). In these documents (Appendix A with sub-appendices) Mr. Wesley, in fact, admits the resumption of the enterprise heretofore found to be fraudulent.
From all of the foregoing facts and circumstances, it is clear that James Wesley has resumed, under his own and other names, the fraudulent scheme which was the subject of Fraud Order No. 64-262, dated November 13, 1964. The products are essentially the same and the representations on the basis of which the products were and are offered for sale are essentially the same. (Kirby v. Shaw, No. 19882, C.C.A. 9, decided March 24, 1966.) This is a striking example of the situation which Section 201.30 of the
Rules of Practice (39 C.F.R. 952.30) 1/ was intended and designed to correct.
The supplemental fraud order sought in the petition is herewith issued against the names Health; World Health Center; James Wesley, Nutritionist, and James Wesley, at 340 Harvey Lake Road, Highland, Michigan.
When the General Counsel or his designated representative shall have reason to believe that a person is evading or attempting to evade the provisions of any such order by conducting the same or a similar enterprise under a different name or at a different address he may file a petition with accompanying evidence setting forth the alleged evasion or attempted evasion and requesting the issuance of a supplemental order against the name or names allegedly used. Notice shall then be given by the Docket Clerk to the person that the order has been requested and that an answer may be filed within 10 days of the notice. The Judicial Officer, for good cause shown, may hold a hearing to consider the issues in controversy, and shall, in any event, render a final decision granting or denying the supplemental order.
1/ Sec. 952.30 Supplemental orders.