In the Matter of the Complaint Against BETTER HEALTH PRODUCTS, 218 Cortelyou Road, Brooklyn, New York 11218 and at 1430 Ocean Avenue, Suite A1, Brooklyn, New York 11230 P.S. Docket No. 1/201 January 2, 1973 James J. Robertson, Esq., Law Department, U.S. Postal Service, for Complainant. Sidney Schreiberg, Esq., 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 November 2, 1972, charging the Respondent herein, Better Health Products, 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 ability of its product, which is described in its advertisements as "END-SMOKE" TABLETS, to break or curb the smoking habit of users thereof. Respondent appeared by counsel in this proceeding, and filed an answer denying the various allegations of the complaint.
Pursuant to notice duly given, a hearing for the reception of evidence was convened on December 4, 1972, in Washington, D. C., before the undersigned Administrative Law Judge. 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 close of the reception of evidence offered by counsel for the Complainant, I determine that the nature of the case and the public interest warranted the rendering of an oral decision. Prior thereto, on motion of counsel for Complainant, the caption of the proceeding was amended to reflect an additional address at which Respondent did business, as indicated in an exhibit consisting of advertising matter used by the Respondent which was offered in evidence by counsel for Complainant.
Since Respondent has failed to appear or offer any testimony or other evidence to controvert the testimony of Complainant's witnesses and the testimony of such witnesses is uncontradicted, reasonable and plausible, it is accepted as credible evidence upon which to base the findings hereinafter made. 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 certain tablets or pills which it designates in its advertising matter as "END-SMOKE" TABLETS. Public attention is directed to such product by advertisements inserted in publications of general circulation. As part of the said advertisements, Respondent invites readers to order said product by sending cash, check or money order in the amount of $3.98, through the mail.
2. The record establishes that Respondent does, in fact, obtain money through the mail from customers who, pursuant to Respondent's invitation in its advertisements, order said product through the mail. Respondent does, in fact, ship such products 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 product is made in various advertisements, copies of which have been received in evidence as Complainant's Exhibits 1 and 2, and a copy of one of which is attached hereto as Appendix A. The advertisements contain a number of statements concerning the ability of Respondent's product to enable users thereof to break or control the smoking habit.
4. The complaint alleges that through the use of advertisements in which Respondent seeks remittances of money through the mail, it makes various representations to potential customers concerning the ability of its product to break or curtail the smoking habit. From a review of the advertising matter which is in evidence, I find that the ordinary individual reading such advertisements would interpret them as making the representations, substantially, as set forth in the complaint, which representations are incorporated herein by reference as if they were fully set forth. In substance, the representations which are made through the advertising matter are that Respondent's product will (1) enable the user to completely break the tobacco habit without the necessity of exercising will- power or self-control, (2) enable the user to permanently break the smoking habit after just four days of use, (3) will free the user from the urge to use tobacco forever, (4) will curb the desire for food while the user is breaking the tobacco habit, (5) is effective because it "fools your system to provide satisfaction for tobacco and nicotine craving", and (6) will have a tranquilizing effect on its users.
C. The Alleged Falsity of the Representations .
5. It is my finding that the uncontroverted and credible testimony of Dr. Vincent F. Cordaro establishes that the representa- tions made by Respondent, as above found, are materially false for the following reasons:
a. The principal ingredient in Respondent's product, as reflected on the label, is lobeline sulphate, two milligrams. Such product has been thought to have the same effect on the human being as nicotine. However, it is only 20 to 30 percent as strong as nicotine. The theory upon which the use of said product is predicated is that by offering the user a nicotine substitute for tobacco, the desire for tobacco will be lessened or eliminated.
b. The credible evidence establishes that lobeline sulphate, in the quantities indicated on the label of the product in evidence, will not have the effect of lessening the craving for tobacco or cigarettes. In the quantities indicated on the label, it is only one-third, or less, as strong as nicotine, and will not be effective in lessening the desire for tobacco or cigarettes. In larger quantities, it will have a toxic effect and produce nausea and vomiting, but will not eliminate the desire for smoking or tobacco.
c. There is no drug or chemical recognized by the medical profession, or in use at the present time, which can stop the smoking habit. An individual can stop smoking only by the exercise of will-power. Physicians treating patients for this purpose use psycho-therapy and hypnotism but do not prescribe drugs or chemicals.
d. The credible evidence establishes that if taken in the doses indicated, Respondent's product will not break the tobacco habit without the exercise of will-power or self-control, and will not enable the user to achieve the other results which Respondent has represented in its advertising matter, as previously found.
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 in 39 U.S. Code, 3005 should be issued.
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