In the Matter of the Complaint Against NATURAL IMPORTS, P. O. Box 1900, General Post Office at Newark, NJ 07101 P. O. Box 183 at Rye, NH 03870 Box 21, Essex Station at Boston, MA 02112 P. O. Box 1023 at Peabody, MA 01960 and 266 Middle Street at Portsmouth, NH 02801 P.S. Docket No. 1/116January 3, 1973
H. Richard Hefner, Esq. , Law Department, U.S. Postal Service, for Complainant. Jerold W. Dorfman, Esq. , Friend & Dorfman , New York, New York, for Respondent. Before: John Lewis, Administrative Law Judge.
This proceeding was initiated by the filing of a complaint by the General Counsel of the United States Postal Service on June 16, 1972, charging the Respondent herein 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 are designated in its advertisement as "MARULA" and, specifically, concerning the ability of said products to favorably affect an individual's sexual desire and his or her capacity for sexual activity. Respondent appeared by counsel in this proceeding and filed an answer, in which it denied that the representations alleged in the complaint were materially false, as a matter of fact, but neither admitted nor denied the use of the advertisement attached to the complaint or the making of the representations alleged therein.
Pursuant to notice duly given, and following a number of adjournments granted by the undersigned, mainly for the convenience of Respondent, a hearing for the reception of evidence was convened on November 21, 1972, in Washington, D. C. Both parties appeared by counsel and were afforded a full opportunity to be heard and to examine and cross-examine witnesses. 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 mails by means of statements made in advertising and (2) a physician, through whom he sought to establish the falsity of the representations allegedly made in Respondent's advertising matter. Counsel for Respondent elected not to offer any testimony or other evidence, but relied on the cross-examination of Complainant's medical witness as establishing the failure of Complainant's counsel to make out a prima facie case, and also upon the failure of the advertising matter to contain the representations alleged in the complaint.
Prior to the commencement of the hearing, counsel for the Complainant moved for oral decision, pursuant to 952.24 of the Rules of Practice. Ruling on such motion was reserved by the undersigned until the close of the reception of evidence, at which time he concluded that it would be appropriate to grant such motion. Counsel for the parties were afforded an opportunity to make oral argument and submit oral proposed findings.
After having carefully considered the evidence in this proceeding and, based upon the entire record, including the complaint and answer, the exhibits, and the testimony of the witnesses, 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 is designated as "MARULA". Said product is sold in the form of a "Marula Pip", a "Marula Tea", and a "Marula Concentrate" or "Essence". Public attention is directed to such product or products by direct mail advertising sent to potential customers. As part of said direct mail advertising, Respondent includes an order form for use in ordering its products.
2. The order form supplied by Respondent requires that customers ordering any of the products, individually or in combination, must enclose cash, check or a money order. The record establishes that Respondent does, in fact, obtain money through the mail from customers who complete and mail the order form, together with payment for one or more of Respondent's products.
B. The Alleged Representations .
3. The offer to sell Respondent's products is made in a leaflet or brochure, copies of which have been received in evidence in this proceeding as Complainant's Exhibit 1-B, Complainant's Exhibit 2 and Complainant's Exhibit 3, and a copy of which is attached hereto as Appendix A. The leaflet contains a number of statements regarding the ability of Respondent's product to affect the sexual desire, power, and activity of the user of the product, and contains so-called testimonials of individuals who have used the products and have allegedly had their sexual interest, activity and performance significantly and markedly improved and restored.
4. The complaint alleges that through the use of the advertising matter sent to potential customers, Respondent has made various representations concerning the ability of the products sold under the label, "MARULA", to improve, increase or restore sexual interest and activity, and concerning the nature of its products as affecting sexual interest and activity. From a review of the advertising matter which is in evidence, I find that the ordinary individual receiving this literature in the mail would interpret it as making the representations, substantially, as set forth in the complaint, which representations are incorporated herein by reference as though fully set forth. In substance, the representa- tions which are made through the advertising matter are that "Marula Pips", "Marula Pip Tea Bags" and "Marula Concentrate" are (a) an effective aphrodisiac or sexual stimulant for both men and women; (b) will increase the capacity of both men and women to perform and enjoy sexual intercourse; (c) are an effective remedy for male sexual impotence and female frigidity.
5. Respondent has argued before me that the advertising does not make the representations in question, apparently because it does not use some of the specific terminology alleged in the complaint. In my opinion, the complaint, if anything, understates the representations made in the advertisements concerning the nature and effectiveness of Respondent's products as a sexual stimulant. There is no doubt that it specifically describes the products as an aphrodisiac. Members of the general public, to the extent that they are familiar with this term, would interpret it as being a product which is effective as a sexual stimulant. The term "aphrodisiac" is repeated several times in the advertisement. With respect to the allegation that this product will increase the capacity to perform and enjoy sexual activity, that is the whole tenor of the advertise- ment. It speaks in terms of even aging people being able to enjoy "a sexually potent life." It is further referred to as a "specific remedy for inflaming sexual desires." Counsel for Complainant has referred to other portions of the advertisement. It would not be fruitful to repeat the other references since the advertisement will be attached as an addendum to the decision. There is also the representation that this product is an effective remedy for impotence or frigidity. There, again, it is not only implied in what is said with respect to the ability of this product to affect sexual interest and activity, but the testimonials are explicit representations of what can be done to remove male sexual impotence and female frigidity. The issue before me is not whether the testimonials are true or false, since they have no evidentiary value, absent the people who gave them, but rather how the general public would interpret such testimonials as a representation by Respondent. There is no question but that the man in the street would understand the testimonials as meaning that the product in question is represented by Respondent as accomplishing the results set forth in the testimonials. Accordingly, I find there is no merit to Respondent's position that the advertisement does not make the representations set forth in the complaint.
C. The Alleged Falsity of the Representations .
6. It is my finding that the uncontradicted and credible testimony of Dr. Vincent F. Cordaro establishes that the representations made by the Respondent, as I have found above, are materially false. While it may be as counsel for Respondent suggests, that Dr. Cordaro is not the foremost expert in the field of sex diseases or matters pertaining to sex, he is a qualified physician and is sufficiently knowledgeable in the field about which he testified to justify the crediting of his testimony in the absence of countervailing medical expert testimony or other probative testimony of such a persuasive nature as to justify disregarding Dr. Cordaro's testimony. In the absence of such countervailing evidence and based on the credible testimony of Dr. Cordaro, I find that the representations made by Respondent are materially false for the following reasons:
a. In 95 percent of the cases of sexual impotence or difficulty, the cause is psychological or psychogenic. In five percent of the cases, such sexual difficulties are due to physical causes such as diseases of the reproductive organs, diseases of the nervous system, including the spinal cord, anemia, and other debilitating bodily diseases which decrease or lessen sexual activity or interest.
b. There are no known drugs, chemicals or other products which will restore or improve sexual difficulties which are due to physical causes. Where sexual problems are due to psychological causes, the indicated course of treatment is through psychotherapy rather than through the use of drugs or chemicals.
c. Respondent's product "MARULA" is obtained from the mulberry bush or tree which is grown in Africa. It contains the same constituents as nuts and the same food elements as nuts, including fats, proteins, carbohydrates, minerals and some vitamins. Such ingredients are found in a normal diet of most human beings. They contain no ingredients which are effective as an aphrodisiac or which will in any way improve or increase sexual activity or interest.
d. Counsel for Respondent has suggested through the interrogation on cross-examination of Dr. Cordaro that the product may have some value as a sexual stimulant by virtue of its psychological impact in arousing or increasing sexual desire. He has further suggested that the doctor's definition of an aphrodisiac is unduly narrow, in that it excludes from the scientific definition the psychological factors which may increase or encourage sexual activity. The short answer to this contention is that this product is not sold as a psychological or psychogenic aid for individuals requiring assistance in the performance of their sexual activities. It is sold as a specific remedy for the improvement of sexual activity. This precise terminology is used in the advertisement itself which refers to Marula as "Nature's specific remedy against the sexual weakening of age, time or place." Any beneficial effect that Marula would be apt to have on any particular individual who would imagine that he is being assisted by Marula would be atypical, and would not be due to any inherent or specific qualities in the product but would lie in the imagination of the particular individual who might be favorably affected. However, such result would not be typical of the generality of users of these products. The product is not sold as a placebo or as affording some psychological stimulation, but as a product containing specific ingredients which are designed and calculated, as the advertise- ment says, "to release natural desires." This, according to the uncontradicted and credible testimony of the doctor, Marula will not do.
CONCLUSION OF LAW
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 form provided for in that section should be issued.
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