In the Matter of the Complaint Against TAINES RESEARCH CORPORATION, 218 Cortel you Road, at Brooklyn, New York 11218 P.S. Docket No. 1/119July 28, 1972
William A. Duvall Chief Hearing Examiner
APPEARANCES: James J. Robertson, Esq. Consumer Protection Office Law Department United States Postal Service Washington, D.C. 20260 for Complainant Joseph S. Paglino, Esq. 1270 N.E. 162nd Street North Miami Beach, Florida 33162 for Respondent
There was received by a colleague or Inspector McHale's an
unsolicited piece of circular matter in which the Respondent's
product "Smoke-Stop Tablets," was advertised. In this circular
matter certain representations are made with regard to this product
and there is an order blank attached to the circular matter in which
various amounts of the product could be ordered for various amounts
of money.
Inspector McHale did order the product through the postmaster at
Thurmont, Maryland, and remitted a money order in the amount of
$5.98.
In response to this order, there was received Complainant's
Exhibit No. 5 which is a mailing cover, bearing the return address of
the Respondent and addressed to H. Cooper, which was the test name
under which Inspector McHale ordered the product. Enclosed in
Exhibit C-5 was Exhibit C-4, which is a plastic container showing on
the label that it contains Smoke-Stop Tablets. And it also bears the
name of Taines Research Corporation, the Respondent herein. Exhibit
C-5 is postmarked New York, May '72, and it has been stamped,
indicating receipt by Inspector McHale on May 22, 1972.
The foregoing exhibits establish clearly that the Respondent is
engaged in conducting its business through the mails.
In the complaint it is charged that the Respondent makes the
following representations in regard to the product: (1) That
Respondent's product will permit the user thereof to break the
tobacco habit without the necessity of exercising will-power or
self-control. The basis for this charge is found on the side of the
Respondent's circular on which appears the representation of a man in
bed being fed intravenously. The specific language on which this
charge might have been based, although there is other language to the
same effect in the circular reads: "NO Plans, Books, Systems,
Methods, Self-Control, Will-Power, Runaway Appetite."
The next charge, Number 2, is that the Respondent represents that
the use of its tablets will permit the user to permanently break the
smoking habit after just four days' use. On the same side of the
circular as was referred to before, there is the following language:
"MEDICAL AUTHORITIES REPORT: 'PROOF POSITIVE THAT THIS MIRACLE
SUBSTANCE WILL MAKE YOU STOP SMOKING IN JUST 4 DAYS]'"
And then there is another statement alongside of that, "Or--Your
Money Refunded."
The third representation that Complainant charges Respondent with
making in regard to his product is that the user of Respondent's
product will be free of the urge to use tobacco. On the advertising
circular there is the following language: "THIS AMAZING TABLET WILL
END YOUR URGE TO SMOKE -- AND KEEP YOU FREE FROM THE TOBACCO HABIT."
The fourth charge of the complaint is that the Respondent
represents that its product will curb the desire for food while the
user thereof is breaking the tobacco habit. On the reverse side of
Respondent's circular, there is the following caption: "STAY SLIM
WITHOUT YOUR TOBACCO APPETITE." And following that caption is this
language: "Often, when folks try to stop smoking, they substitute
their 'tobacco urge' for food and will gain weight. That is NOT so
when you use SMOKE-STOP TABLETS. The unique ingredients help relax
your nerve system, help ease the urge for sweets, starches, candies,
cakes, pies, puddings. SMOKE-STOP TABLETS HELP YOU STAY SLIM BY
WIPING AWAY YOUR TOBACCO APPETITE WITHOUT INCREASING YOUR NORMAL FOOD
APPETITE. You will NOT develop abnormal eating compulsions."
The fifth charge in the complaint alleges that the Respondent
represents that its product will instantly fool the user's cerebro-
nervous system into believing that the user is inhaling tobacco and
nicotine. That language appears on the reverse side of the circular
under the caption: "THIS IS WHY SMOKE-STOP TABLETS WORK WHERE OTHER
PRODUCTS MAY FAIL."
The last charge in the complaint is that the Respondent
represents that its product will have a tranquilizing effect on its
users. On the reverse side of Respondent's circular under the
caption "SPECIAL BENEFIT," the Respondent has some language referring
to the satisfying power of its product and continues with this
language: "That is why only 3 tablets a day will suffice to ease the
urge for up to 3 packages a day] SMOKE-STOP TABLETS will bathe your
body and taste glands with the same 'satisfying response' and
'tension-relaxation relief' given by tobacco."
In view of the language contained in the advertising circular
used by Respondent, the evidence is compelling that the Respondent
does, in fact, make the representations which the Complainant has
charged in the complaint in this proceeding. There remains now the
question of whether these representations found to have been made by
the Respondent are false.
The next witness to testify on behalf of the Complainant was Dr.
Paul Gregg Rhodes, a medical doctor, who is Board-Certified in the
fields of internal medicine and pulmonary diseases, and who is in all
respects eminently qualified to testify in regard to the area of
medicine involved in this proceeding.
Dr. Rhodes' testimony is that he treats many cases with lung
cancer or with emphysema, or he encounters many patients with those
diseases, and he makes daily recommendations to his patients that
they stop smoking. He tries to help them stop smoking, and his
method of treatment for these persons, or for any people who smoke
but want to quit, encompasses several facets. First, he acquaints
them with the dangers of smoking and even proceeds to scare them in
some instances when that is deemed to be necessary. He conducts
smoking withdrawal clinics at times. He also refers some patients,
when necessary, for consultation with psychiatrists, and in
appropriate circumstances, he employs tranquilizers. Dr. Rhodes
testified, and I think it is almost a matter of common knowledge of
which official notice may be taken, that for persons who have
acquired the habit of smoking and have smoked for a significant
period of time, it is a very difficult thing to bring that habit to
an end. The testimony of the medical expert was that regardless of
the method of treatment used in attempting to assist persons to stop
smoking, such a person must in every case exercise self-control and
willpower. Dr. Rhodes stated flatly that four days was an entirely
inadequate period of time to expect any product or any treatment to
enable the smoker to break the smoking habit.
There was testimony in the record about some tests that were
conducted by other physicians. While these tests indicated that the
persons treated did manage to stop smoking at the end of a period of
ten days in some instances, most of them resumed the habit of smoking
after the passage of varying periods of time. One of the reasons why
it is so difficult to stop smoking is because the smoker or the
former smoker continues to feel the urge and the need to smoke.
Whether this is a psychological need or a physical need is immaterial
insofar as this matter is concerned. The need is there and the
desire to resume smoking is there and it is there in high degree.
Since Dr. Rhodes is Board-Certified in the field of internal
medicine, he is fully conversant with the methods used to attempt to
suppress the appetite of people who wish to lose weight. He said
that some of the methods used include the ingestion of amphetamines
and, in some cases, the ingestion of methylcellulose. Dr. Rhodes did
not indicate the degree of success that is achieved in these efforts
to suppress the appetite but he did state that based on his
knowledge, there is nothing in lobeline sulphate, which is the
ingredient stated on the label of Respondent's product, which acts as
an appetite suppressant. Therefore, there is nothing in the product
itself, aside from its placebo effect, which would tend to curb the
appetite of the user. The placebo effect, Dr. Rhodes indicated, is
not universally applicable. There are some people who are not
sufficiently suggestible to be affected by the ingestion of a product
if there is nothing about the product itself which would serve to
accomplish the desired results; in this case, depress the appetite or
stop smoking.
Similarly, Dr. Rhodes testified that there is nothing in this
product which would have a tranquilizing effect on the user.
There is a school of medical opinion which is to the effect that
lobeline sulphate is an effective treatment for persons who ought to
stop smoking. Therefore, in connection with the charge which is set
forth in subparagraph 5 of paragraph 5, of the complaint, namely,
that Respondent's tablets instantly fool the user's cerebro-nervous
system into believing that the user is inhaling tobacco and nicotine,
I find that there is not sufficient information in this record to
make a finding in regard to the truth or falsity of that charge. I
make this finding only in this limited sense: That the product
itself, lobeline sulphate, may or may not be effective in
helping people to stop smoking. I think that is open to question on
the basis of the evidence that was in this record this morning. I
think it is clear from the evidence that we received this morning
that a four-day use of this product, or any other product, is
insufficient effectively to enable a man to stop smoking.
In regard to the other charges, that is, charges 1, 2, 3, 4 and
6, of paragraph 5 of the complaint, the evidence of record in this
proceeding is overwhelmingly to the effect that those representa-
tions made by the Respondent are false. It should be pointed out for
the record that there was one medical expert who testified in this
proceeding and this expert testimony was given in support of the
complaint. That testimony is ample to support the findings and
conclusions made in this decision. United States Health Club v. Major, 292 F.2d 665.
Summing up, therefore, it is found that the Respondent does make
the representations set forth in the complaint. It is found that
those representations with the exception of charge No. 5 in paragraph
5 of the complaint are false.
I conclude, therefore, that as a matter of law, the Respondent is
engaged in conducting a scheme for obtaining money or property
through the mails by means of false representations, contrary to the
provisions of Section 3005 of Title 39, U. S. Code.
In view of the foregoing findings of fact and conclusion of law,
a remedial order as provided in the governing statute should be
issued against the Respondent in this proceeding.
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