In the Matter of the Complaint Against MID-WEST NOVELTIES, 6921 S. Vernon Avenue at Chicago, Illinois 60637 P.S. Docket No. 1/46March 2, 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.1/ 6306 South Cottage Grove Avenue Chicago, Illinois 60637 for Respondent
This proceeding was initiated by the filing of the complaint on January 17, 1972, alleging that Mid-West Novelties, 6921 S. Vernon Avenue, Chicago, Illinois, is engaged in conducting a scheme or device for obtaining or attempting to obtain money or property through the mails by means of false representations contrary to the provisions of Section 3005, Title 39, United States Code.
This complaint was filed by the Assistant General Counsel's office of the Consumer Protection Division of the Office of the Assistant Postmaster General for the United States Postal Service. Specifically, the complaint charged the Respondent with making the following false representations through the mails in connection with the sale of a product called "Frenchie's Spanish Fly Chewing Gum":
1. "Frenchie"s Spanish Fly Chewing Gum" contains the substance commonly known as spanish fly.
2. "Frenchie's Spanish Fly Chewing Gum" is an effective aphrodisiac or sexual stimulant.
Attached to the complaint is a copy of an advertisement used by the Respondent in the conduct of the enterprise. This advertisement is short and reads as follows:
FRENCHIE'S
Spanish Fly
Chewing Gum
ADULTS PARTY GAG
Innocent looking stick of gum especially
designed. Takes just a few seconds to produce
results. 5 sticks $1.00.
MID-WEST NOVELTIES
6921 S. VERNON AVE.
CHICAGO, ILL. 60637
(Sold by Mail Only)
The two basic issues of this proceeding are (1) does the Respondent make the representations which the Complainant charges, and (2) are those representations, if made by the Respondent, false?
The first witness who testified on behalf of the Complainant was O. A. Peffer, a Postal Inspector, who gave testimony in regard to an advertisement that appeared in the publication known as National Informer, on the basis of which an order for the product was placed with the Respondent. The order was accompanied by the required remittance and a written request for that order. The product was received from the Respondent in a mailing envelope bearing the Respondent's return address. Therefore, the use of the mail by the Respondent in the conduct of this business is clearly established by Complainant's Exhibits 1 through 11.
A fair reading of that advertisement by the Respondent in promoting the sale of this product leads inevitably to the conclusion that the Respondent does make the representations which the Complainant has alleged in the complaint. Specifically, by plain language the Complainant does represent that the product does contain a substance known as Spanish Fly and that such substance is an effective aphrodisiac or sexual stimulant.
We come now to the question of the truth or the falsity of these representations found to have been made by the Respondent.
In connection with this issue, there was presented as a witness on behalf of the Complainant, Dr. Vincent F. Cordaro, a medical doctor, who by training and experience is thoroughly qualified to testify in regard to the area of medicine which is involved in this proceeding. Dr. Cordaro stated that the technical term for Spanish Fly is cantharides, and that over the years it has acquired the false reputation of being capable of increasing sexual desire or potency. Primary emphasis has been on the alleged capability of this product to increase sexual desire.
The effect of the product, if ingested in sufficient quantities, is that it produces an irritation or a burning sensation in the bladder and in the urethra of the individual who is taking it. Dr. Cordaro sampled this product by taking a half stick of the product and chewing it, and he experienced none of the sensations that the product could normally be expected to provide...that is, the burning sensation in the throat or in the stomach, and none of the other inflammations or symptoms which this product could cause. In addition, no cantharides is listed as an ingredient on the label.
There is nothing about this product which would give it an actual capability of increasing either sexual desire or potency.
In connection with his duties as a consultant to the Postal Service as a representative of the Food and Drug Administration, Dr. Cordaro keeps abreast of the literature in the field which is involved in this proceeding. And he also has occasion from time to time to discuss these matters with his colleagues at various meetings, consultations, seminars, and the like.
The opinion of the doctor in regard to the product sold by this Respondent represents the consensus of well-informed medical opinion on this subject.
In view of the proceedings had, the Hearing Examiner will make the following findings of fact and conclusion of law.
The findings of fact:
1. The Respondent, Mid-West Novelties, at 6921 S. Vernon Avenue, Chicago, Illinois, is engaged in the sale and production of a product known as Spanish Fly Chewing Gum.
2. The business of the Respondent consists of the sale of this product through the United States mail.
3. In connection with the sale of its product, the Respondent causes to be inserted advertisements in publications having wide circulation throughout the United States.
4. The advertisements used as described by the Respondent contain the following representations: (a) Frenchie's Spanish Fly, and (b) Frenchie's Spanish Fly Chewing Gum is an effective aphrodisiac or sexual stimulant.
5. The Respondent's representations in regard to its product are materially false.
The conclusion of law:
The Respondent is engaged in conducting a scheme or device for obtaining, or attempting to obtain, money or property through the mails by means of false representations contrary to the provisions of Section 3005, Title 39, United States Code.
A remedial order should be issued against this Respondent as provided in the governing statute.
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