In the Matter of the Complaint Against SISTER FANNIE HOWARD, 6921 S. Vernon at Chicago, Illinois 60637 P.S. Docket No. 1/101July 10, 1972
William A. Duvall Chief Hearing Examiner
APPEARANCES: H Richard Hefner, Esq. Consumer Protection Office United States Postal Service Washington, D.C. 20260 for Complainant Delars J. Bracy, Esq. 6306 South Cottage Grove Avenue Chicago, Illinois 60637 for Respondent
This proceeding was initiated by the filing on May 24, 1972, of a complaint by the General Counsel for the United States Postal Service, in which it was alleged that Sister Fannie Howard of Chicago, Illinois, is engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations in violation of Section 3005 of Title 39 of the United States Code.
Specifically, the complaint alleged that the Respondent is engaged in the sale of a product called "Instant Love Potion" upon the basis of representations that this product is an effective aphrodisiac or sexual stimulant and upon the further representation that the use of this product will assure sexual conquest. It was further alleged that the misrepresentations which the Respondent is charged with making are materially false, as a matter of fact.
An answer denying the charges set forth in the complaint was filed on behalf of the Respondent by Mr. Delars J. Bracy, an attorney located in Chicago, who has represented several respondents against whom complaints have been filed by the Postal Service.
With the answer, which Mr. Bracy filed on behalf of this Respondent, there was the following request for a change of place of hearing. This request reads as follows: "Now comes respondent and requests that the hearing in the above matter be held in Chicago, Illinois."
Mr. Bracy has represented at least four or five different respondents before this Department, and in each case a separate complaint was issued, and in each case a copy of the Rules of Practice has been sent either to the respondent or to Mr. Bracy. The provisions of the Rules of Practice in regard to a request for change of place of hearing are brief and they are clear and they can be misunderstood by no one.
If Mr. Bracy wants a hearing conducted in Chicago, he knows that the minimum requirements are that he list the names of the witnesses, that he outline the testimony to be given by those witnesses, that he outline the testimony to be given by those witnesses, and that he state reasons why those witnesses cannot appear in Washington and give their testimony. Mr. Bracy's request that the hearing be conducted in Chicago was denied because of his failure to comply with these minimal requirements which are set forth in the Rules of Practice, and with which Mr. Bracy, by reason of his experience, is well acquainted.
The Complainant presented two witnesses in regard to this proceeding, and the first witness was Inspector Gerald E. Raftery, who gave testimony in regard to the use of the mails by the Respondent.
There was received in evidence, as Complainant's Exhibit 1, an advertisement in the March 13, 1972, issue of a publication which bears the name "Screw". The character of this publication is a matter of more or less common knowledge. There is no need to besmirch this record with describing it. This is a short advertisement and the language is as follows:
INSTANT LOVE POTION
(GAG SUGAR)
Powerful, effective, designed to get action.
Looks like regular sugar--When you add a lit-
tle to a cup or glass of liquid for someone
to drink, the fun will soon begin. They'll
love you] Send $2.00.
SISTER FANNIE HOWARD
6921 S. Vernon Ave.
Chicago, Ill. 60637
The inspector testified that this product was purchased under an assumed name which is used by postal inspectors in the conduct of their investigations. In using this name a test letter was prepared ordering the product and the letter was sent through the postmaster in Smithdale, Mississippi, to the Respondent.
In response to this order, which included a money order in the amount of $2.00, there was received from the Respondent, a mailing wrapper, which was received into evidence as Complainant's Exhibit 4. This mailing wrapper was addressed to the test name Jason Robb in Smithdale, Mississippi.
Among other things, the mailing envelope contained a smaller envelope which is white and has black printing on it, and the printing on that envelope indicates that the envelope contains a quantity of "Frenchie's Spanish Fly Love Potion".
Other contents of Exhibit 4 are Exhibits 4a through 4k, which are circulars issued by the Respondent, soliciting remittances of money through the mails for various products which are related to sexual matters. Taking into consideration the Respondent's advertisement, and what the Respondent sends through the mails in response to orders received as a result of the advertisement, it is established beyond question that the Respondent does conduct its business through the mails. Also, in light of the statements in the advertisement, it is clear that the Respondent does make the representations which are set forth in paragraph 3 of the complaint.
There remains to be decided the question of whether the representations found to be made by the Respondent are true or false. In consideration of this question, it should be pointed out that this product contains, according to the Respondent's own statement, the following ingredients: white pepper, sodium bicarbonate, tartaric acid, sugar, dextrine and F.D.C., which was identified as meaning a certain kind of coloring material.
In regard to this issue, there was testimony by Dr. Vincent F. Cordaro, who by training and experience, is qualified to testify concerning the area of medicine involved in this proceeding. Dr. Cordaro testified that at one time the substance which has been commonly referred to as Spanish Fly, and which more technically is known as cantharides, was regarded as having aphrodisiac qualities. This opinion no longer is held by the medical profession, and in fact, the medical profession is of the view at this time that there is no such thing as a true aprhodisiac, which is defined to be a substance which increases sexual ability and desire. Clearly, the ingredients of Respondent's product if taken as directed will not affect anyone's sexual desire or prowess.
Although the envelope containing the white powder, which is the Respondent's product, indicates that it is a Spanish Fly potion, the statement of contents makes no mention of cantharides or Spanish Fly, so it must be presumed that there is none of this substance in the product. It is believed and it is found that the best proof of the falsity of the representations made by the Respondent is found in the language of the Respondent itself on the outside of the envelope, which has been identified as Complainant's Exhibit 4a, which contains the white powder sold by the Respondent.
In summarizing, it is found first, that the Respondent is engaged in conducting a business through the mails. It is found that the Respondent does seek remittances of money through the mails.
It is found that the Respondent does make the representations attributed to it in the complaint filed by the Complainant in this case. It is found that the evidence in this case overwhelmingly is to the effect that the representations made by this Respondent are false, and that they are materially false as a matter of fact.
It is concluded, as a matter of law, that the Respondent is engaged in conducting a scheme or device through the mails for obtaining money or property by means of false representations.
In the light of the findings of fact and the conclusion of law heretofore made, a remedial order as provided in Title 39, United States Code, Section 3005, should be issued against this Respondent.
________________