In the Matter of the Complaint Against SOUTH FLORIDA HEALTH COMPANY 4459 N. W. 37th Avenue at Miami, Florida 33142 P.S. Docket No. 1/71June 9, 1972
William A. Duvall Chief Hearing Examiner
APPEARANCES: Daniel S. Greenberg, Esq. Consumer Protection Division Law Department United States Postal Service Paul F. Gerson, Esq. Suite 210 One Lincoln Road Building Miami Beach, Florida
This proceeding was initiated by the filing on March 20, 1972, of a complaint by the General Counsel for the United States Postal Service charging that the Respondent, South Florida Health Company, was conducting a scheme or device for obtaining money or property through the mail by means of false representations contrary to the provisions of 39 U.S. Code, Section 3005.
The substance of the charges of the complaint is that the Respondent is making false representations concerning the ability of its product to affect the male's sexual desire and his capacity for sexual activities.
The product is called "The South Florida Health Company's Plan" which consists of two parts: the ingestion of one per day of a capsule which is called HEP-72, together with the performance of the application of hot and cold showers alternately to the genital area.
The hearing was originally scheduled to be in Washington on April 19, 1972. There was filed on behalf of the Respondent a request for a change of place of hearing in which the names and addresses of certain witnesses were given, it being represented that these witnesses were some of those who would appear on behalf of the Respondent. It also was stated that it would be a financial hardship and burden on the Respondent to pay for the transportation of the witnesses and the attorney and the Respondent himself from Miami to Washington, and for these reasons the hearing was continued to May 23, 1972 and conducted in Miami, Florida. The continuance was ordered not particularly at the request of the Respondent but because of the necessity to adjust certain other hearings that had been scheduled. But the transfer of the hearing was ordered specifically at the Respondent's request and for the reasons I indicated.
Both parties appeared by counsel at the hearing and were afforded full opportunity to be heard and examine and cross-examine witnesses. Counsel for the complainant called two witnesses, first the Postal Inspector who had conducted the investigation of the enterprise being conducted by the Respondent, and, second, a physician through whom testimony was sought for the purpose of establishing the efficacy or lack thereof of the Respondent's product. Counsel for the Respondent elected not to offer any evidence or testimony but relied on the cross-examination of Government witnesses to establish the failure of Complainant's counsel to establish a prima facie case and also upon the failure of the advertising matter to contain the representations set forth in the complaint.
Having considered the evidence that has been adduced in this proceeding, and based on the entire record including the complaint, the answer, the exhibits, I make the following findings of fact:
A. USE OF THE MAILS
No. 1. The Respondent is engaged in the business of selling a product composed of two parts through the mail. Public attention is directed to this business by the means of direct advertising material sent through the mail. It may be that there is other advertising material used by the Respondent but there is no such evidence in this proceeding.
No. 2. This case arose because of a receipt of a solicitation through the mails addressed to a test name used by a postal inspector. This mailing contained an advertising circular on the bottom of which is an order blank which seeks remittances by mail for the plan for stated amounts of money depending upon the quantity of capsules that are ordered. Exhibit 3 of the Complainant also demonstrated the fact that the Respondent does receive remittances of money through the mail.
B. REPRESENTATIONS
No. 1. The advertising literature sent through the mails by the Respondent, which was introduced as Complainant's Exhibit 2, has one side with a heading "Conquer Impotency." There follows a discussion then of men whom for one reason or another, are lacking in sexual vigor, and it indicates that the South Florida Health Company Plan or method is a quicker, more sure, and more efficient way of replacing weakness and impotency with sexual vigor. The promised success to the user of the Plan is represented without regard to whatever may be the cause of the condition to which it is addressed.
No. 2. On the side of the advertising circular which is headed "Conquer Impotency," there is a reference to the "specially formulated product" which is being sold by the Respondent as a part of its plan, and on the reverse side of this circular, which is in the form of a letter addressed to "Dear Friends and Customers:," Part 1 of the Plan is described as a "very specially compounded formula of which you will take one each day. This alone is worth the price you pay. It will get your body in a better and healthier condition."
No. 3. In considering the Respondent's advertising circular as a whole, which must be done as it was held by the court in Donaldson v. Read Magazine , 333 U.S. at 178, the Respondent does make, in substance, the representations which have been set forth in the complaint as follows: that the use of this product as directed by the Respondent will enable any man who has lost his sexual interest or ability to achieve a restored interest in sex, an ability to attain or retain an erection and an ability to attain and prolong orgasm. Respondent's advertising literature fairly construed does in substance represent that the results just mentioned will be achieved regardless of the cause of the loss of a user's potency or sexual interest or ability, and, furthermore, the Respondent's material clearly represents that the capsule which forms a part of the Plan is a newly discovered formulation and that it is different from anything previously available to the public.
C. TRUTH OR FALSITY OF THE REPRESENTATIONS
No. 1. On this issue, there was the testimony of Dr. Vincent F. Cordaro, a medical doctor who is qualified by training and experience to testify in regard to the area of medicine which is involved in this case. Dr. Cordaro testified that the capsules which are sold by this Respondent constitute what may properly be called a dietary supplement, which in and of itself would have no effect on the physical, the sexual competence of the male except in certain rare instances in which the incompetence of the male in sexual matters could be caused by, psychological reasons. The shower method which forms a part of the Plan of the Respondent might be effective in helping some persons achieve erection, but that, upon the application of the cold water to the affected areas, the erection would not persist. It is extremely doubtful that the erection would persist in any event after the shower operation has been completed.
No. 2. Similarly, the Doctor testified that these two parts of the program sold by the Respondent which are used together would have an effect only in very rare instances, primarily in those cases in which the individual is suffering from sexual inability due to psychological causes. But the fact of the matter is that this product, composed of two parts, is not advertised for the rare individual for whom the showers would be effective or for whom the placebo effect would be effective or for whom the placebo effect would be effective or for whom the use as directed of the combination of the parts of the program would be effective. But the program is recommended as being effective for all persons who suffer from sexual debility from whatever cause.
No. 3. The overall impact of this advertising material used by the Respondent on the reader is that this is a product which, if used as directed, will restore or increase the sexual desire or capability of the user. The testimony of record in this proceeding is to the effect that this product if used as directed will not achieve the promised results.
No. 4. It must be pointed out again that no evidence was introduced on behalf of the Respondent. The Complainant has more than made out a prima facie case. It follows, therefore, that the representations heretofore found to have been made by the Respondent are false, and they are materially false.
CONCLUSION OF LAW
No. 1. Respondent, South Florida Health Company, of Miami, Florida, is engaged in conducting a scheme for obtaining money through the mail by means of false representations contrary to the provisions of 39 U.S. Code 3005.
On the basis of the consideration of the entire record in this proceeding, a remedial order, pursuant to Section 3005 of Title 39, United States Code, should be issued against this Respondent.
____________________