In the Matter of the Complaint Against BRANIK PRODUCTS CORP., 3401 N. W. 36th Street at Miami, Florida 33142 P.S. Docket No. 1/87June 21, 1972
William A. Duvall Chief Hearing Examiner
APPEARANCES: Daniel S. Greenberg, Esq. Consumer Protection Division United States Postal Service Washington, D.C. 20260 for Complainant Joseph S. Paglino, Esq. 1270 N.E. 162nd Street North Miami Beach, Florida 33162 for Respondent
This proceeding was initiated by the filing on April 28, 1972, of a complaint by the General Counsel of the United States Postal Service, charging the Respondent, Branik Products Corp. 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. In substance, the complaint charges the Respondent with having made false representa- tions concerning the efficacy of its product, which it calls SUPER-TABS, specifically concerning the ability of that product to favorably affect a man's sexual desire and his capability for sexual activity.
On behalf of the Respondent an answer was filed in which the Respondent admits making use of the advertising material attached to the complaint, but in which the remainder of the allegations of the complaint are denied. No appearance was entered at the hearing on behalf of the Respondent; however, immediately prior to the opening of the hearing there was received a copy of a letter dated June 5, 1972, from Respondent's counsel in which reference is made to certain settlement negotiations which had been carried on but which ended unsuccessfully and the letter concludes with this paragraph:
"Please inform the examiner that my client agrees to his making findings without argument and, this being agreeable to my client, I will not be present at the hearing and he can proceed at his own convenience."
In instances in which an answer is filed on behalf of a Respondent but no appearance is made at the hearing, the Rules of Practice provide that the Presiding Officer will receive the Complainant's evidence and proceed to issue a decision.
The Complainant presented two witnesses in support of the complaint. The first witness was the Postal Inspector who investigated the case. The Inspector testified that he received unsolicited circular matter from the Respondent. This circular matter was addressed to the Inspector under the name Marlon Kidd, Box 72, Bronson, Michigan, which is a test name and address used by the Inspector in the performance of his official duties. In this unsolicited mail, the Inspector received what was introduced as Complainant's Exhibit 2, which is a piece of circular matter on the front side (identified as Ex. 2-A) of which is a photograph of a woman sitting in bed with her chin in her hand and her husband, presumably, to her left, asleep. The reverse side of that circular is Complainant's Exhibit 2-B.
In response to the receipt of this circular matter, the Inspector ordered from the Respondent the product which the Respondent was advertising, namely, SUPER-TABS. The order was sent under the name Archie Porter, Box 646, Kimball, Nebraska. Exhibit 4 is a mailing carton which bears the return card of the Respondent and it is addressed to the test name of Archie Porter, which was used by the Inspector in making the test purchase. Enclosed in Exhibit 4 was Exhibit 5, which is a container of tablets, the label of which indicates that the contents are known as SUPER-TABS.
FINDINGS OF FACT
A. The Use Of the Mails
1. The Respondent is engaged in the business of selling certain tablets which in its advertising material it calls SUPER-TABS. Public attention is directed to such tablets by direct mail advertising, which is sent, unsolicited, to potential customers. As part of the said direct mail advertising the Respondent includes an order form for use in ordering the product. The order form supplied by the Respondent requires customers to enclose case, check or money orders in various amounts for various quantities of the product. Thus the record clearly establishes that the Respondent does, in fact, obtain and attempt to obtain money through the mails from persons who complete and mail in the order blank, together with the remittance of the required amount of money.
B. The Alleged Representations
1. The offer to sell the product is made in a circular which was received in evidence as Complainant's Exhibits 2-A and 2-B. The Complainant alleges that through the use of this advertising circular, Respondent represents that SUPER-TABS, regardless of the male user's present state of sexual interest or ability, restores lost, and increases present, interest in sexual matters and sexual intercourse, in particular. Complainant also charges the Respondent with making the representation that this product will increase the user's ability to obtain or retain an erection and that it will increase the user's ability to obtain or prolong orgasm.
Complainant charges the Respondent with representing its product as being capable of eliminating or improving poor appetite, reduced energy, unhappiness and "blue moods," and irritability and tension. It charges that Respondent represents that SUPER-TABS will effect the aforementioned results regardless of the cause of the user's condition. Complainant charges Respondent with representing that SUPER-TABS will rebuild internal organs necessary for youthful attitudes and actions. Finally, it is charged that Respondent represents that SUPER-TABS contain a newly discovered combination of ingredients which differ materially from products presently available to the potential users today.
2. The advertising literature used by the Respondent consists in large measure of a dramatized story about a wife who worried about her husband's lost interest in her and the suggestion is rather broadly made that the husband's sexual powers had become severely impaired. The story continues that one day the couple saw SUPER-TABS advertised in a magazine and they ordered the tablets; the husband took them and in a short time he became "like a young bridegroom all over again." It is stated that the husband "looks and feels strong. He has energy. He glows with vitality and pep. He feels young all over]"
3. The basis for the allegation that the Respondent makes the representation that the use of SUPER-TABS will eliminate poor appetite, reduced energy and the like, is found at the top of Exhibit 2-B, where these conditions are listed and the suggestion is made that SUPER-TABS may erase these symptoms. It is stated that the "laboratory-balanced" formula will work to "adjust-correct the deficiencies and help put your body's processes on a healthful schedule *** to promote the LOOK AND FEEL OF YOUTH."
4. Nowhere in Respondent's advertising literature is there any indication that SUPER-TABS will not work, or that they will not produce marvelous results for any person. To the contrary, there appears on Exhibit 2-A a statement to the effect that the Respondent is "so confident in the pep-energy boosting values of SUPER-TABS" that it offers proof positive in the form of a money-back guarantee if the user is disappointed after a period of ten days.
5. On exhibit 2-B, there is a caption: "A PARTIAL LISTING OF SOME OF THE BENEFITS OF SUPER-TABS" under which the following statement appears: "This substance is known as cellular food and helps end the tired feeling by rebuilding and remaking those internal organs that determine 'young again' attitudes and actions."
6. The Respondent, on Exhibit 2-A, makes the following statement: "Laboratory researchers have combined a set of over a dozen all-natural ingredients and substances that work in physiological harmony. *** The unique combination of SUPER-TABS makes it a preparation that is highly desirable by the body's physiological processes."
7. Considering Respondent's advertising material as a whole and in the light of the impact it would be most likely to produce on the average reader, one is impelled to find that the Respondent does make the representations which are set forth in the charges of 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 the area of medicine involved in this proceeding.
2. Dr. Cordaro testified that when a person suffers any of the conditions described in this proceeding, the proper treatment of such an individual begins with a visit to his physician. The doctor takes a medical history of the individual and, on the basis of this history, the doctor makes a diagnosis of the condition and its cause. When the cause is known, then the proper treatment is prescribed so best to aid the individual patient. Dr. Cordaro testified that there is no one general treatment which may successfully be prescribed for the entire population of males who suffer with real or imagine sexual debility or loss or desire or interest.
3. Dr. Cordaro said that 95 percent of the cases of loss of sexual interest, desire and capability arise from psychogenic causes. The use of this product, as directed, would have no beneficial effect on that 95 percent of the entire group, except in the very few instances of persons who might be aided by the placebo effect of taking the Respondent's tablets. Dr. Cordaro also testified that in a very few instances persons with anemia might be aided by the ingestion of these tablets because of the iron content thereof, but he said that these would also be extremely rare.
4. Dr. Cordaro examined the label on the container of SUPER-TABS and stated that they are a multi-vitamin and mineral formulation similar to many which are generally available without prescription at the corner drugstore. He said that there is nothing in these tablets which is capable of eliminating or alleviating the conditions of poor appetite, reduced energy, unhappiness, irritability and tension. He also said in response to a question from Complainant's Counsel, that there is nothing in these tablets, except in the rare instances alluded to above which would have any beneficial effect on sexual capability, vitality, desire, interest, or fertility.
5. Dr. Cordaro testified that the statements that he made in his testimony represent the consensus of informed medical opinion on the subject.
6. No evidence was offered on behalf of the Respondent.
7. The Respondent does, in fact, make the representations set forth in the complaint and those representations are materially false.
CONCLUSIONS OF LAW
1. Advertisements are to be considered in the light of the effect that such advertisements would probably produce on ordinary minds (Donaldson v. Read Magazine, 333 U. S. 178) and the effect of false representations persists even though there is a promise to refund the purchase price should the article sold prove to be unsatisfactory (Borg-Johnson Electronics, Inc. v. Christenberry, 169 Fed. Supp. 746 at 751).
2. Upon consideration of the record in this case, and all of the facts and circumstances surrounding this matter, it is concluded as a matter of law, that 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 39 U. S. Code, Section 3005.
Accordingly, a remedial order as provided in 39 U. S. Code 3005 should be issued against this Respondent.
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