In the Matter of the Complaint Against NA-TAN PRODUCTS CORP., 139 Dodd Street at Weehawken, New Jersey 07087 P.S. Docket No. 1/9October 10, 1971
Thomas A. Ziebarth and James J. Robertson,Esq., Office of the General Counsel, U. S. Postal Service, for Complainant. Sidney Schreiberg, Esq., New York, New York, for Respondent Before: John Lewis, Hearing Examiner
This proceeding was initiated by a filing of a complaint by the General Counsed States Postal Service on August 17, 1971, charging the above-named respondent with conducting a scheme or device for obtaining money or property through the mail by means of false representations, in violation of 39 U.S. Code, Section 3005. In substance, the complaint charges respondent with having made false representations concerning the nature of its product, which it describes in its advertisements as Hormonex Youth Formula 21, and specifically concerning the ability of said product to improve or increase a person's sexual desire and capacity for sexual activity. Respondent appeared by counsel in this proceeding and filed an answer in which it denied the allegations of the complaint.
Pursuant to notice duly given, a hearing for the reception of evidence was convened on October 8, 1971 in Washington, D.C. Both parties appeared by counsel and were afforded full opportunity to be heard, and to examine and cross-examine witnesses. Counsel for complainant called two witnesses, (1) a Postal Inspector through whom they sought to establish that respondent's method of operation involved the obtaining of money through the mail by means of statements made in advertising and (2) a physician through whom they sought to establish the falsity of the representations allegedly made in the respondent's advertising matter. Counsel for respondent elected not to offer any testimony or other evidence, but relied on the cross-examination of the government's medical witness as establishing the failure of complainant's counsel to establish a prima facie case.
At the close of the hearing, counsel for the parties indicated that they did not desire to file written proposed findings of fact and conclusions of law, and had no objection to the rendering of an oral decision, in accordance with the request therefor previously made in the motion of counsel for complainant.
After having carefully considered the evidence in this proceeding, and based on the entire record, including the complaint and the answer, the exhibits and the testimony of the witnesses, I make the following decision:
FINDINGS OF FACT
A. The Alleged Solicitation of Money Through the Mail .
1. Respondent is engaged in the business of selling certain tablets which it designates in its advertising matter as "Hormonex Youth Formula 21." Public attention is directed to said tablets by direct mail advertising sent to potential customers. As part of said direct mail advertising, respondent includes an order form for use in ordering said tablets.
2. The order form supplied by respondent requires that customers ordering the tablets must make payment by cash, check or money order, since C.O.D. orders are not accepted. The record establishes that respondent does, in fact, obtain money through the mail from customers who complete and mail the order form together with payment for respondent's product.
B. The Alleged Representations .
3. The offer to sell respondent's product is made in a one-page leaflet, a copy of which will be attached to this decision as Appendix A, such leaflet having been received in evidence in this proceeding as Complainant's Exhibit 1B. The leaflet contains a number of statements with regard to the ability of respondent's product to affect sexual desire, power and activity of the users of the product, and contains reference to so-called "case histories" of individuals who have used the product and have had their sexual interest and activity significantly and markedly improved and restored.
4. The complaint alleges that respondent has represented, both directly and indirectly, that its Hormonex Youth Formula 21 will affect a person's sexual activities and desires in various specific ways, and quotes from the leaflet itself. Although there are eight sub-paragraphs of paragraph three of the complaint setting forth the specific representations which are made in the advertising literature, these, in essence, involve different ways of stating or alleging that the users of respondent's product will obtain a benefit from the use thereof and, specifically, that the product will restore, improve, increase or promote sexual capacity, ability, vitality and desire through causing the release or secretion of certain hormones by the endocrine glands or otherwise affecting the glands which control sexual capacity or desire. I find that the advertisement does, in fact, make such representations through the statements appearing in the complaint, which are incorporated by reference herein, and by other statements which appear in the leaflet attached to this decision as Appendix A.
C. The Alleged Falsity of the Representations .
5. It is my finding that the uncontradicted and credited testimony of the medical witness called by counsel for the complainant establishes that the representations made by respondent, as above found, are materially false for the following reasons:
a. The product in question, although referred to in the advertisement as Hormonex Youth Formula 21, is also sold under the designation Geriatric Formula No. 2. No countervailing evidence having been offered by respondent, it is appropriate to find that the product designated in the respondent's advertising matter as Hormonex Youth Formula 21 and Geriatric Formula No. 2 are one and the same product. In any event, this is the product, namely Geriatric Formula No. 2, which customers responding to the advertisement for Hormonex Youth Formula 21 receive after sending in the order form.
b. The testimony of the medical witness, Dr. Anderson, establishes that the product in question is essentially a multi-vitamin capsule which will have no direct beneficial effect on sexual capacity, ability, vitality or desire. None of the ingredients in the multi-vitamin capsule are calculated to have any beneficial effect on sexual desires or capacity.
c. At best, the product may serve to improve a person's general healthy in those instances where he is suffering from multi- vitamin deficiency and to the extent that his impairment of health has affected his sexual activities or desires, the product could conceivably have some beneficial effect. However, this is an indirect and atypical result of the use of these tablets. Typically, individuals suffering from vitamin deficiencies do not suffer from any impairment of their sexual capacity, ability, or desires, and in the generality of cases of individuals suffering from vitamin deficiency, the taking of such tablets would not significantly affect or improve the sexual desires or activities of such individuals. As the testimony of Dr. Anderson indicates, in those areas where there are large numbers of individuals from dietary deficiencies, not only do such individuals, as a noncomitant thereof, not suffer from any lack of sexual interest or ability, but on the contrary they typically tend to have larger families and engage in a greater amount of sexual activities than individuals not suffering from vitamin deficiencies. Furthermore, the indicated treatment for individuals suffering from vitamin deficiency normally is the prescribing of specific vitamins, in quantities prescribed by a physician, to overcome such vitamin deficiencies, and the use of tablets such as those herein involved would have no significant beneficial effect on such individuals.
d. Although, as has been indicated, multi-vitamin capsules may have some beneficial effect on individuals who are suffering from multiple vitamin deficiency and whose multiple vitamin deficiency has affected their sexual interest and ability, this is not the usual or typical case. It is also established by the testimony that tablets of this type might be indicated as a placebo for individuals who will not follow a normal dietary regimen and there again, to the extent that their dietary deficiency has affected their sexual activity, the tablets could be of some benefit. However, this does not establish the truth of the representations made in the advertising material. The tablets are advertised and sold not as multi-vitamin tablets which may have a derivative beneficial effect by improving the general health, and are not sold as a placebo, but are specifically sold as a product which will have a direct and specific effect in the improvement on restoration or promotion of sexual capacity, ability, vitality and desire. That is the entire pitch of the advertising and of the representations made. The uncontradicted testimony shows that the tablets contain no ingredients which will rejuvenate the sexual glands or stimulate hormonal activity or will in any way have any direct beneficial effect on the sex glands and sex activity. The products are not sold as a multi-vitamin product to improve one's general health, but as a product calculated to directly improve sexual desire and capacity. This the product will not do.
CONCLUSION OF LAW
Respondent has engaged in conducting a scheme or device for obtaining money or property through the mail by means of false representations, in violation of 39 U.S. Code, Section 3005. It is accordingly recommended that an order in the form attached, as provided for in 39 U.S. Code 3005, should be issued.
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*/Transcribed from oral decision rendered at hearing held October 8, 1971.