In the Matter of the Complaint Against OTTA 'VEE HERBS, Post Office Box 335 at Sparks, Nevada 89431 P.S. Docket No. 2/136December 10, 1973
William A. Duvall Chief Administrative Law Judge
Thomas A. Ziebarth, Esq., Law Department, United States Postal Service, Washington, D. C., for Complainant No appearance for Respondent Before: William A. Duvall, Chief Administrative Law Judge
1/ This proceeding was initiated on September 26, 1973, when the Consumer Protection Office of the General Counsel's Department of the Postal Service, the Complainant, filed a complaint in which it is alleged that Otta'Vee Herbs, Post Office Box 335, at Sparks, Nevada, the Respondent, is engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations in violation of Title 39, United States Code, Section 3005.
The Respondent filed answer to the complaint. The answer constitutes primarily a general denial of charges set forth in the complaint together with reference to certain books which are stated to set forth claims that ginseng is a gonadotrophic agent which favorably affects the functions of the gonads and sex glands.
Respondent also stated in the answer that she has withdrawn from the publication of the advertisement complained of, but that the advertisements are printed a month in advance and other advertise- ments may appear before the withdrawal can be made.
Respondent concluded the answer by stating that no appearance would be made by or on behalf of the Respondent at the hearing. The request was made that the presiding officer issue a decision at the conclusion of the taking of the testimony as provided in Section 952.11(b) of the Rules of Practice which are published in Section 952.11(b) of Title 39, Code of Federal Regulations.
In the complaint, the Respondent is charged with making the following representations which are alleged to be false:
(a) That the "Ancient Imported Herbs" incorporated into the product being sold by the Respondent "are an effective sexual stimulant or aphrodisiac which will ' awaken enthusiasms and virile powers for living, youthful desires."
(b) The ingestion of this product "will take away aging lines."
(c) This product constitutes "an effective treatment or cure for male impotency."
(d) This product when taken as directed "will accomplish the advertised results after 5 days of use."
In these types of proceedings, there are two basic issues. The first would be: Does the Respondent make representations which the Complainant in the complaint attributes to the Respondent? In determining this question, there is for consideration the decision of the Supreme Court of the United States in Donaldson versus Read Magazine 333 U.S. 178, wherein the court said, in substance, that advertising material used by any person or concern is to be judged by the effect that it probably would produce on persons of ordinary minds.
In this particular case, the representations with which the Respondent is charged with making, appear clearly in the advertising material used by the Respondent so that it is not necessary to call into play the power of interpretation which otherwise might be needed in regard to some more subtle advertising material.
For example, at the bottom of the advertisement which was introduced in evidence as Complainant's Exhibit No. 1, there is the following language, "Take away aging lines, awaken Enthusiasm and Virile Powers for living, youthful Desires. If taken, it works] Ancient imported Herb."
The earlier part of the advertisement purports to be a narrative by some individual writing in to the Respondent company relating his lack of success in obtaining treatment for his inability to obtain and retain an erection for purposes of sexual intercourse when he sought treatment by "the finest neurologists, psychologists, and pharmacologists." The narrator continues that when he tried the Respondent's product, again quoting, "after only 5 days use, your Herbs have restored the complete erectile strength of youth."
It's obvious therefore, that the Respondent does make the representations which are set forth in the complaint. The other exhibits which have been received in evidence indicate that the product was ordered from the Respondent by the inspector who investigated the case and that the Respondent did send through the mails the product which is under consideration in this case. Those exhibits are numbered 1 through 4C. Thus, it has been established that the Respondent makes the representations and that the business is operated through the mails.
The final matter to be determined is whether the representations made by Respondent in regard to its product are true or false.
On this point, there was testimony by Vincent F. Cordaro, a medical doctor who is qualified to give testimony in regard to the subject matter of this proceeding. It was the doctor's testimony that the product would not accomplish any of the results which the Respondent has been found to promise.
Specifically, the product is not a sexual stimulant nor an aphrodisiac. The product will not take away aging lines.
The product has not been found to affect the gonads or sex glands. In fact, it was stated that the product would have no effect whatsoever.
It is clear, therefore, on the basis of the testimony of an expert medical witness that has been received into evidence in this proceeding, that the representations made by the Respondent in regard to its product are false as a matter of fact, and they are materially false. In view of the findings heretofore made, it is concluded 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 Section 3005 of Title 39, United States Code. Having so found and concluded, it follows that an order as provided by the governing statute should be issued against this Respondent.
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