In the Matter of the Complaint Against

 ALAN DISTRIBUTING COMPANY
 10917 Winner Road at
 Independence, Missouri 64052

 P.S. Docket No. 1/56; 
 
 APPEARANCES:
 
 Thomas A. Ziebarth, Esq.;
 Law Department,
 United States Postal Service, 
 Washington, D.C. 20260 for Complainant
 
 Barry Alan Julian, Owner,
 Alan Distributing Company, Pro se

The complaint in this proceeding filed on February 14, 1972, under 39 U.S.C. 3005 and the regulations issued thereunder charged Respondent with making eight false representations in its advertising for mail order sales of its product "d-alpha tocopheryl acetate". Following a hearing on March 15, 1972, the Chief Hearing Examiner issued an oral decision finding that the Respondent had made the representations charged and that those representations are materially false.

Respondent has now taken an appeal by the filing of timely exceptions to the Hearing Examiner's Initial Decision. Since the rendering of an oral Initial Decision precluded briefing prior to the issuance of the Initial Decision and the exceptions filed here on appeal are supported only by the cryptic comment, the issues for my consideration have not been sharpened as much as would be desirable.

A review of the record, however, reveals that the primary charges in the complaint are those set out in paragraphs 3(e) and 3(h). The other charges are considered as supplementary to (3) and (h). This Postal Service Decision, therefore, will consider only charges (e) and (h).

Charge 3(e) is as follows:

"'D-alpha tocopheryl acetate' will effectively improve sexual capabilities in the average user".

The exception taken is:

"(e) Note limitations in letter how much more clear can ALAN get."

Respondent's exception, therefore, does not dispute the finding that the product will not effectively improve sexual capabilities in the average use. It does dispute the finding that Respondent represents that it will do so. However, the only limitation or disclaimer is the following:

"There is no intention in this letter to claim that d-alpha tocopheryl is an aphrodisiac."

But as an adjective "aphrodisiac" means arousing or increasing sexual desire, and as a noun means an aphrodisiac drug, food or other agent. ¹/ The representation charged is that the product will improve sexual capability. The disclaimer, therefore, does not negate the representation charged.

Moreover, the Initial Decision found the advertising taken as a whole constitutes a representation to the average reader that the product will increase his sexual desire or sexual prowess. While it may be argued that the representations do not promise increase desire, as such, the advertising read as a whole clearly constitutes a representation to the average reader that the product will increase the sexual prowess or capability of the human male. The record also establishes that this representation is false.

Charge 3(h) is as follows:

"'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."

The exception is: "9H0 Vit. E and d alpha tocopheryl are interchangeable terms. Note websters and Funk and Wag."

The Respondent agrees that d-alpha tocopheryl is Vitamin E. The problem here, as the Examiner found, is that Respondent used a technical term, that would be unfamiliar to an average reader, five times in the primary advertisement (Exh. 2) without in any instance indicating its equivalence to the commonly known "Vitamin E". The Hearing Examiner found in these circumstances that the representation charged in (h) was made and that it was false. I agree.

The Respondent is as the Chief Hearing Examiner found engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations.

A remedial order pursuant to 39 U.S.C. 3005 will issue forthwith.

05/04/72

Wenchel, Adam G.

____________________

1/ Webster's New World Dictionary of the American Language (1962)