In the Matter of the Complaint Against BETTA HEALTH PRODUCTS, 4459 N. W. 37th Avenue at Miami, Florida 33142 P.S. Docket No. 1/72June 9, 1972
William A. Duvall Chief Hearing Examiner
APPEARANCES: Daniel S. Greenberg, Esq. Consumer Protection Division Law Department United States Postal Service Washington, D.C. 20260 for Complainant Paul F. Gerson, Esq. One Lincoln Road Building Miami Beach, Florida 33139 for Respondent
1/ This proceeding was initiated by the filing on March 20, 1972, of a complaint by the General Counsel of the United States Postal
Service charging the Respondent, Betta Health Products of Miami, Florida, with conducting a scheme or device for obtaining money or property through the mails by means of false representations in violation of 39 U. S. Code, Section 3005. And, in substance, the complaint charges the Respondent with having made false representa- tions concerning the nature of its product, which it describes in its advertisement as SX-71, specifically concerning the ability of that product to favorably affect a man's sexual desire and his capability for sexual activity.
Respondent appeared by counsel and filed an answer in which it denied the charges of the complaint. However, no witness appeared at the hearing to give testimony on behalf of the Respondent.
The Complainant, in support of the complaint, presented two witnesses.
The substance of the testimony of the first witness was stipulated in evidence, and that evidence consists of an envelope which was addressed to the test name used by the Inspector under a test name at Hollywood, Florida. That was Complainant's Exhibit No.
1. Exhibit 2 as an advertising circular used by the Respondent in the sale of its product. Exhibit No. 3 consisted of the instructions to the Postmaster in Hollywood, Florida, to make a purchase of the product from the Respondent, and it carried with it a money order stub showing that a remittance had been made to the Respondent. Exhibit 4 was the mailing carton bearing the return address of the Respondent, addressed to R. Anderson in Hollywood, Florida. That was forwarded to the Inspector, and Exhibit 5 is the container of the product known as SC-71.
FINDINGS OF FACT
A. THE USE OF THE MAILS
1. The Respondent is engaged in the business of selling certain tablets which it designates in advertising material as SX-71. Public attention is directed to such tablets by direct mail advertising sent to potential customers. As part of the said direct mail advertising, Respondent includes an order form for use in ordering the said product. The order form supplied by the Respondent requires that customers ordering the tablets must enclose the payment of various amounts for various quantities of the product. The record does establish that the Respondent does, in fact, obtain money through the mail from customers who complete and mail the form, together with payment of the stipulated price.
B. THE ALLEGED REPRESENTATIONS
1. The offer to sell the product is made in a leaflet or circular which has been received in evidence in this particular proceeding as Complainant's Exhibit 2. The Complainant alleges that through the use of this advertising circular Respondent represents that SX-71 will, regardless of the mail user's present state of sexual interest or ability, restore lost, and increase present, interest in sexual matters, sexual intercourse in particular; the ability to obtain or retain an erection; the ability to attain or prolong orgasm. It is also charged that Respondent represents that SX-71 will effect the aforementioned results regardless of the cause of the user's present state of sexual interest or ability. And it also is charged that Respondent represents that SC-71 contains a newly discovered combination of ingredients which differs materially from products presently available to the potential users today.
2. Considering this advertising material used by the Respondent as a whole and in the light of the impact it would be most likely to produce on the average reader, I conclude that the representations set forth in the complaint are made by the Respondent in regard to the renewal of interest and ability to attain or retain an erection, an ability to attain or prolong orgasm. The advertising literature purports to tell the story of a man who found that his sexual relations with his wife were boring, and that on taking the pill his interest as well as his ability to perform this function were restored.
3. Now, in regard to the generality of the public that will be benefited by taking this product, one illustration that bears out the fact that this representation is made is found in the statement "This formula is SO POTENT and at the same time SO SAFE, it can be TAKEN BY ANY ADULT." And, then, it says: "HERE IS WHAT HAPPENED," and it relates all of the alleged benefits that followed the taking of this product.
4. In regard to the representation that SX-71 is a newly discovered combination of ingredients, there are several places in the advertising literature from which this impression would be gained by the average reader. One place is where the product is referred to, at the lower part of the left-hand column on the page headed "SEXUAL RESPONSE IN MALES UP TO AGE 89," as "WONDERFUL SCIENTIFIC DISCOVERY." So that, again, it is clear from viewing this advertising material in its totality, when it is fairly construed, it does make the representations which are set forth in the complaint.
C. THE TRUTH OR FALSITY OF THE REPRESENTATIONS
1. On this issue there was only one witness who testified. That witness was Dr. Vincent F. Cordaro, a medical doctor who, by training and experience, is qualified to testify in regard to matters in the area involved in this proceeding. Admittedly, Dr. Cordaro is not a specialist in gynecology, urology or diseases of that kind, but he is a qualified physician, and he has performed research in the field and has studied the literature, and he has conferred with his colleagues in this matter. He is fully qualified to give expert opinion testimony in this matter.
2. This formula, SX-71, is essentially a multi-vitamin capsule which will have no direct beneficial effect on sexual capability or ability, vitality, desire, interest, fertility, or the ability to attain or retain an erection or prolong orgasm. In those instances in which a person is suffering from a multi-vitamin deficiency, and not to the extent that this deficiency has affected his sexual activities or desires, the product could conceivably have some beneficial effect. However, it is the doctor's testimony that the proper method of treatment of persons suffering any of these conditions is to have that person visit a physician who will take his medical history and arrive at an evaluation of his condition as an individual. And when the cause of his debility is discovered, then that cause is to be treated on an individualized basis. The testimony of the doctor establishes that the principal cause of impotence in persons of younger ages, and I assume that to be 45 years or younger, is psychogenic in nature. The doctor testified that with such persons it is conceivable that there could be a beneficial effect achieved but that those persons who would achieve such a beneficial effect would be "very few in number." As opposed to this statement, there is no limit that has been brought out in this proceeding in regard to the numbers and types of deficiencies that Respondent claims would be aided by the ingestion of this product.
3. The Respondent has insisted that the product is sold only as a "mental adjunct" to aid those persons who do suffer sexual debili- ties for psychogenic causes and also that it is beneficial for those persons whose sexual debilities arise from vitamin deficiencies. In regard to the persons whose debilities arise from psychogenic causes, again, only a "very few" of those would be benefited. There are not many people who suffer vitamin deficiencies, there are few whose vitamin deficiencies are so extreme that they are incapable of performing the sex act.
4. Dr. Cordaro testified that the statements that he had made in his testimony represent the consensus of informed medical opinion on the subject.
It is pointed out again that no evidence was offered on behalf of the Respondent, and the president of the Respondent company was present in the hearing room, but he chose not to take the stand.
CONCLUSION OF LAW
1. In light of all of the facts and circumstances surrounding this matter, including the exhibits, the complaint, the answer and the arguments of counsel, I conclude that as a matter of law the Respondent is engaged in 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 3005.
Accordingly, a remedial order pursuant to the last mentioned section of the United States Code should be issued against this Respondent.
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