In the Matter of the Complaint Against ALAN DISTRIBUTING COMPANY, 10917 Winner Road at Independence, Missouri 64052 P.S. Docket No. 1/56March 31, 1972
William A. Duvall Chief Hearing Examiner
APPEARANCES: Thomas A. Ziebarth, Esq. Law Department United States Postal Service Washington, D.C. 20260 for Complainant Barry Alan Julian, Pro se
This case was initiated on February 14, 1972, by the filing of a complaint by the Assistant General Counsel, Consumer Protection Office, Law Department of the United States Postal Service.
In the complaint the Respondent was charged with engaging in conducting a scheme or device for obtaining money or property through the mails by means of false representations in violation of Title 39, United States Code, Section 3005.
Specifically, the Respondent was charged with making the following representations through the mails by means of his advertising material:
(a) "D-Alpha Tocopheryl Acetate" is routinely used by breeders of horses, cattle, foxes and mink to "tone up their livestock before they breed them";
(b) "D-Alpha Tocopheryl Acetate" is routinely used by breeders of horses, cattle, foxes and mink to "tone up their livestock before they breed them";
(c) A study published in the December 9, 1965, issue of the New England Journal of Medicine "represents a major change in medical thinking concerning the NEED in Men for d-alpha tocopheryl";
(d) A company recently stopped from making unsubstantiated claims for "d-alpha tocopheryl acetate" had no connection with the Alan Distributing Company;
(e) "D-Alpha tocopheryl acetate" will effectively improve sexual capabilities in the average user;
(f) "D-Alpha tocopheryl acetate" is a scarce and expensive substance;
(g) Prior to 1959 the Food and Drug
Administration disapproved the dispensing of "d-alpha tocopheryl acetate" and such material was subject to being seized, confiscated and destroyed by F.D.A. agents;
(h) "D-Alpha tocopheryl acetate" is something other than or different from a common form of Vitamin E which is universally available to the public without a prescription.
Attached to this decision as Exhibits A and B, are advertising circulars used by Respondent, which circulars are introduced in evidence respectively as Complainant's Exhibits 2 and 3.
In the complaint, the Complainant charged that the representa- tions made by the Respondent, as set out earlier in this decision, are materially false as a matter of fact.
There are basically two issues in proceedings of this kind, which may be stated as follows:
(1) Does the Respondent make the representations which the Complainant attributes to the Respondent in the complaint?
(2) Are the representations found actually to have been made by the Respondent, true or false?
In disposing of these issues, those representations which are set forth in paragraph 3 of the complaint under subheadings (a), (f) and (h) will be treated together, because they are addressed to the idea that the product which the Respondent is selling is something unusual or scarce and expensive or it is something other than or different from Vitamin E, which is universally obtainable by the public without a prescription.
The three expert witnesses who testified on behalf of Complainant in this proceeding testified that there is nothing unusual about Vitamin E, that it occurs in natural form in food-stuffs eaten by both men and animals, particularly ruminants; that in addition to its occurrence in such foods as are consumed by animals, it is in leafy vegetables consumed by mankind; and that generally speaking, a sufficient quantity is ingested by human beings in the average daily diet to prevent a deficiency of this vitamin in human nutrition.
It was also the testimony of the experts, about whom more will be said later, that it has been established that there is a need for Vitamin E in human nutrition, but that there has not been established any minimum daily requirement of this substance.
The first expert witness who testified on behalf of the Complainant was Dr. Norris Eugene Alderson, a ruminant nutritionist who is presently employed by the Department of Agriculture.
Dr. Alderson replied, in response to a question based on paragraph 3(b) of the complaint, that Vitamin E is normally needed to be added as a supplement to the diet only in younger cattle and sheep. In some instances, the substance is used as an additive in feed lot diets, and there are some articles that have suggested that dairy cattle be given certain amounts of Vitamin E to prevent the occurrence of an oxidized flavor in the milk.
There is no scientific evidence, however, that Vitamin E is useful to increase the fertility or the sexual activity of horses or cattle or foxes or mink.
In regard to paragraph 3(c) of the complaint, it is true that there is an article published in the December 9, 1965, issue of the New England Journal of Medicine that relates to the subject of d-alpha tocopheryl in human diet. The testimony given by Vincent F. Cordaro, M.D., is to the effect that this article does not represent a major change in medical thinking on this subject; but that as a matter of fact, the article serves to buttress and add additional support to theories that have been advanced earlier.
In regard to the paragraph designated as 3(g) of the complaint, Dr. Cordaro testified that so far as he was aware, it had not been the practice of the Food and Drug Administration prior to 1959 to disapprove the dispensing of d-alpha tocopheryl acetate and to seize it, confiscate it, and destroy it, so long as that product was accurately represented in the advertising material related to it and its labeling.
Insofar as charge 3(d) in the complaint is concerned, Mr. Barry Alan Julian, who is the owner of the Respondent company, testified that he bought a company which recently had been stopped from offering this same material and making unsubstantiated claims in relation to it.
The last charge to be dealt with is the one which appears as paragraph 3(e) of the complaint, to the effect that d-alpha tocopheryl acetate will effectively improve sexual capabilities in the average users.
Mr. Julian indicated that it was his intention in marketing this product by means of his literature, which is under consideration in this case, to suggest that this product would increase the fertility of the male. And he did, in fact, have a sentence in the advertising literature which reads, "There is no intention in this letter to claim that d-alpha tocopheryl is an aphrodisiac." Despite this disclaimer, I find that there is other language in this circular which was introduced as Complainant's Exhibit 3, which outweighs in the mind of the average reader the effect of this disclaimer. For example, this circular begins by describing d-alpha tocopheryl acetate as a remarkably unusual product, and it states that the benefits of this substance for man are just now being fully realized for what they are. Then, there's reference to use of this product by cattle breeders to tone up their livestock before they breed them. Farther along in the circular, there is reference to testimony by a urologist and his statement that the substance is useful for cellular maturation of the germ cell in cases of absolute deficiency. All of these references taken together can only be calculated to build up in the mind of the average reader the idea and the hope that there is something in this unusual, rare product which will increase his sexual desire or his sexual prowess as well as his fertility.
Based on a review of the charges set forth in the complaint and the comparison of those charges with the advertising literature used by the Respondent, together with the testimony of the expert witnesses who appeared in this proceeding, the Hearing Examiner makes the following findings of fact and conclusions of law.
The findings of fact:
1. The Respondent is obtaining and attempting to obtain remittances of money through the mail.
2. The Respondent makes the representations set forth in the complaint.
3. The representations found to have been made by this Respondent are materially false and misleading.
Conclusions of law:
1. Advertisements are to be considered in the light of the effect that such advertisements would most probably produce on ordinary minds ( Donaldson v. Read Magazine , 333 U.S. 178).
2. The Complainant has the burden of establishing by persuasive evidence that the representations made by Respondent are false.
3. The Complainant has sustained the required burden of proof.
4. The Respondent is engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations, contrary to the provisions of Section 3005 of Title 39, United States Code.
Upon the basis of all foregoing considerations, a remedial order, as provided in Section 3005 of Title 39, United States Code, should be issued against this Respondent.
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