In the Matter of the Complaint Against YEVETTE, 152 W. 42nd Street, Suite 536, Dept. J at New York, New York 10036 P.S. Docket No. 1/70April 28, 1972
H. Richard Hefner, Esq., Law Department, U. S. Postal Service, for Complainant. Delars J. Bracy, Esq., Chicago, Illinois, for Respondent. Before: John Lewis , Hearing Examiner.
STATEMENT OF PROCEEDINGS
This proceeding was initiated by the filing of a complaint by the General Counsel of the United States Postal Service, through the Assistant General Counsel in charge of the Consumer Protection Office, on March 10, 1972, charging the Respondent, Yevette, with conducting a scheme or device for obtaining money or property through the mail by means of false representations, in violation of 39 U. S. Code 3005. In substance, the complaint charges Respondent with having made false representations concerning the nature of its products, which it describes variously as "SEX PILLS," "BEER or COLA PILLS" and "KNOCK-OUT DROPS," and specifically concerning the ability of said products to act as an aphrodisiac and to favorably affect sexual desire and performance.
Respondent appeared by counsel in this proceeding and filed an answer purporting to deny the various allegations of the complaint. Thereafter, Complainant moved to strike said answer on the ground that it failed to state whether Respondent would appear at the hearing, as required by 952.10(e) of the Rule of Practice. By order issued April 4, 1972, this Hearing Examiner conditionally granted such motion to strike unless a proper answer was filed on or before April 12, 1972. An amended answer was thereafter filed by Respondent on April 11, 1972, in which, after repeating the various allegations contained in its earlier answer, Respondent stated that it did not intend to appear at the hearing in person or by counsel, and requested that the matter be submitted for determination pursuant to subparagraph (b) of 952.11 of the Rules.
Pursuant to notice duly given, a hearing for the reception of evidence was convened on April 14, 1972, in Washington, D. C. before this Hearing Examiner. Although duly notified of said hearing, Respondent failed to appear at said hearing, either personally or by counsel. Counsel for Complainant called two witnesses, (1) a postal inspector through whom he sought to establish that Respondent's method of operation involved the obtaining of money through the mail by means of statements made in advertising matter, and (2) a physician through whom he sought to establish the falsity of the representations allegedly made in Respondent's advertising matter.
At the conclusion of the hearing, counsel for Complainant renewed the motion earlier made by him for an oral decision, which motion had been granted conditionally by the Examiner's order filed April 4, 1972, the condition being that the Examiner would render an oral decision at the conclusion of the hearing if he considered it appropriate to do so. The Examiner determined at the conclusion of the hearing that it was appropriate to render an oral decision and this decision is accordingly being made on the record.
Respondent, having failed to appear at the hearing or to offer any evidence in its behalf, and the testimony and other evidence offered on behalf of Complainant being plausible and credible and being uncontradicted, it is accepted by the Hearing Examiner as the basis for the findings hereinafter made. After having carefully considered the evidence in this proceeding, and based upon the entire record, including the complaint and the amended answer, the testimony of the witnesses and the exhibits offered through them, I make the following decision:
FINDINGS OF FACT
A. The Alleged Solicitation of Money Through the Mail .
1. Respondent is engaged in the business of selling a product which it designates in its advertising matter as "SEX PILLS," "BEER or COLA PILLS" and "KNOCK-OUT DROPS". Public attention is called to said products by advertisements which it places in various publica- tions, including the publication known as "National Informer". In such advertisements, it requests the customer to send $3.00 in pay- ment for 30 pills.
2. The record establishes that Respondent does, in fact, obtain money through the mail from customers who, pursuant to the invitation contained in Respondent's advertisements, order said product through the mail. Respondent does, in fact, ship such product through the mail in response to orders received from customers who respond to its advertisements.
B. The Alleged Representations .
3. The offer to sell Respondent's products is made in various advertisements such as that which has been received in evidence as Complainant's Exhibit 1, which describes the product as follows:
"SEX PILLS
BEER or COLAR PILLS
(for fun parties)
The 'short-cut' of both time and effort
for the weak and homely man to attain
his end. Dissolve instantly, 12 Beer or
Cola Pills $2.00
KNOCK-OUT DROPS, Drive a woman to such
peaks in sexual pleasures that she her-
self will hardly believe it is true. No
harmful effects. 30 for $3.00"
4. The complaint alleges that through the foregoing statements in its advertisements, Respondent has represented to the public, in substance and effect, that (a) the "Beer or Cola Pills" are an effective aphrodisiac or sexual stimulant, (b) the use of such pills will enable a male to achieve sexual conquest, and (c) "Knock-Out Drops" are an effective aphrodisiac or sexual stimulant. The Respondent has denied having made the foregoing representations. However, from an examination of the advertisements and from the context of the publications in which such advertisements appear, it is clear, and the Examiner so finds, that Respondent has through such advertisements made the representations alleged in the complaint.
C. The Alleged Falsity of the Representations .
5. It is my finding that the uncontradicted and credible medical testimony of the medical expert, Dr. Vincent F. Cordaro, establishes that the representations made by the Respondent, as previously found, are materially false for the following reasons:
a. Although the advertisement refers to "Sex Pills," "Beer or Cola Pills" and "Knock-Out Drops" no such product is enclosed in the envelope sent to customers in response to their orders. Instead the customer receives two small white envelopes containing what appears to be some type of powder. One of the products is described as "Frenchie's Spanish Fly Love Potion (GAG sugar)," and the other is described as "Frenchie's Spanish Fly Knockout Drops (Funny Pills)." None of the ingredients listed on either of such envelopes has any value or effect as an aphrodisiac or sexual stimulant. The product designated as "Spanish Fly Love Potion" purports to contain White Pepper, Sodium Bicarbonate, Tartaric Acid, Sugar, Dextrine and Food Coloring. The product designated as "Spanish Fly Knockout Drops" purports to contain Sugar, Glucose, Maize, Spanish Pepper, Vegetable Oils, Artificial Flavors and U. S. Color. None of such ingredients, either separately or in combination, is an effective aphrodisiac or sexual stimulant or will enable a male to achieve sexual conquest.
b. Both of the envelopes sent to customers in response to an order for Respondent's advertised products refer to the product which is enclosed as "Spanish Fly." The term "Spanish Fly" is associated with a product known as cantharidin, which is derived from the crushing of a certain type of beetle. In popular mythology, Spanish Fly or cantharidin is associated with sexual stimulation and purportedly has aphrodisiac qualities. However, the medical and scientific community does not accept such product as having any positive value as an aphrodisiac or sexual stimulant. The consumption of Spanish Fly or cantharidin has been reputed, or is supposed, to act as an aphrodisiac through an irritation to the genital-urinary tract. However, according to accepted medical and scientific opinion, such irritation is not effective as an aphrodisiac or sexual stimulant. In any event, Respondent's product does not contain any Spanish Fly or cantharidin among its ingredients and cannot conceivably have any positive value as an aphrodisiac or sexual stimulant.
The Respondent has engaged in conducting a scheme or device for obtaining money or property through the mail by means of false representations, in violation of 39 U. S. Code 3005. It is accordingly recommended that an order in the usual form, as provided in 39 U. S. Code 3005, should be issued.
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