May 18, 1970
In the Matter of the Complaint Against
MEDIC AID LABORATORIES
P.O. Box 762
at
Skokie, Illinois 60076
P.O.D. Docket No. 3/32
APPEARANCES:
H. Richard Hefner, Esq.
Louis A. Arturo, Esq.
Office of the General Counsel
Post Office Department
for the Complainant
Denver H. Graham, Esq.
Leo A. Roth, Jr., Esq.
1314 19th Street, N.W.
Washington, D. C.
For the Respondent
INITIAL DECISION OF HEARING EXAMINER
This matter comes before Hearing Examiner Jesse B. Messitte upon complaint filed February 5, 1970, by the General Counsel, Post Office Department, alleging Respondent violates 39 U. S. Code 4005. In summary, the complaint says Respondent obtains money through the mail by false representations in advertising that the product, Bold Bull Tablets, is an effective sexual stimulant and further that Bold Bull Tablets will heighten and increase the enjoyment of sexual intercourse.
39 U. S. Code 4005
In pertinent part 39 U. S. Code 4005 states:
"*** False representations ***
"(a) Upon evidence satisfactory to the Postmaster General that any person is engaged in conducting a scheme *** for obtaining money *** through the mail by means of false representations ***, the Postmaster General may issue an order which --
(1) directs any postmaster at an office at which *** letters or mail arrive, addressed to such person *** to return such letters or mail to the sender appropriately marked as in violation of this section ***; and
(2) forbids the payment by a postmaster to such a person *** of any money order or postal note *** and provide for the return to the remitters of the sum named in the money order or postal note.
* * * * * * *"
On the whole record, including pleadings, testimony and exhibits received at the oral hearing, and post-hearing briefs, this Hearing Examiner makes Findings of Fact and arrives at Conclusions of Law, all as set forth below.
Findings of Fact
A. Respondent receives money through the mail by means of advertising distributed to the public to induce readers to make remittances for Bold Bull Tablets.
1. Such advertising appeared in the October 12, 1969, issue of the publication known as the National Informer. A copy is attached, marked Appendix A and made part hereof. The same advertising appeared in the November 30 issue of the National Informer. Similar advertising appeared in 1970 issues of various publications.
2. Postal Inspectors saw Respondent's advertising. An inspector purchased, under a test name, for a ten dollar money order sent by mail, a bottle of Respondent's Bold Bull Tablets.
B. Respondent makes the advertising representations contained in Appendix A hereto. Accordingly, Respondent makes the representations substantially as alleged in paragraph (3) of the complaint and more specifically set forth in subparagraphs "a" and "b" of that paragraph.
1. The words used in the advertising taken separately and in conjunction with the advertising as a whole give the impression to ordinary readers that Respondent is making the representations alleged in the complaint's paragraph (3).
2. Thus, Respondent represents Bold Bull Tablets are an "effective sexual stimulant" and "will heighten and increase the enjoyment of sexual intercourse."
(a) The very name "Bold Bull Tablets" is highly suggestive of sexual vigor, considered by many as characteristic of a bold bull.* And it is well known that the word "bull" is sometimes used colloquially to mean a human male of unusual sexual prowess.
(b) And says Respondent's advertisement, so the point can hardly be missed by any male reader looking for something to improve his sex life, "Experience a greater drive than you ever thought possible. Be the man you always hoped to be. Satisfy the woman in your life. For 100 days of added pleasure."
(c) Respondent's insertion in very recent advertisements of the words "Not an Aphrodisiac" does not significantly change the representations made in the advertisement as a whole and as alleged in the complaint.[1]
(d) Respondent's witness, Dr. William Stahr, Ph.D. in literature, and English teacher, supplied no creditable information or opinion, to contradict in any substantial respect the finding, above made, that to the average or ordinary reader Respondent's advertisement conveys the impressions as stated in paragraph (3) of the complaint.
(e) The publications, in which Respondent's advertising appear, emphasize sex matters and thus give an even deeper and unmistakable sexual coloration to the content of Respondent's advertising than when standing apart from the surrounding features and advertising content of the publications.
C. Respondent's advertising representations, as set forth in the complaint's paragraph (3) are false.
1. Highly qualified physicians observed, and the Hearing Examiner specifically finds, that Bold Bull Tablets are vitamin pills and contain only what would be present in the average diet of a reasonably health person.
2. Highly qualified physicians noted, and the Hearing Examiner specifically finds, that Bold Bull Tablets are not in fact sexual stimulants and will not heighten or increase enjoyment of sexual intercourse.
II
Conclusions of Law
A. Impressions given by advertising representations are those which the advertisement as a whole would probably have upon ordinary minds. See: Donaldson v. Read Magazine, Inc., 833 U.S. 178, 189 (1948).
B. The mere presence of a disclaimer may not be (and here is not) sufficient to counteract misleading impressions conveyed to the ordinary reader by the whole advertisement. See: Farley v. Simmons, 99 F.2d 343, 346 (CADC, 1938).
C. Complainant has presented substantial evidence (testimony and exhibits) to support essential allegations of the complaint, and there is no persuasive contrary evidence in the record. Complainant has met the legal requirements of a prima facie case and burden of proof. See: Shaw v. Duncan, 194 F.2d 779, 781-2 (CA 10, 1952).
D. The proceeding herein meets all pertinent requirements of the Administrative Procedure Act (5 U. S. Code 500 et seq.) and the due process clause of the Constitution. Respondent has made no showing to contradict or alter this conclusion in any respect.
E. Intent to defraud is no longer a requirement for the issuance of a remedial order under 39 U. S. Code 4005, as amended.
**********
A remedial order under 39 U. S. Code 4005 should issue in the form submitted herewith.
Jesse B. Messitte
Hearing Examiner