In the Matter of the Complaint Against BOWMAN-EGGERS COMPANY and B-E CO., Rt. 1 Box 86 at Brookings, Oregon 97415 P.S. Docket No. 2/18 March 30, 1973 H. Richard Hefner, Esq., Law Department, U.S. Postal Service, for Complainant. Edward Bowman, owner of Respondent, pro se . 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 January 11, 1973, charging the Respondent, Bowman-Eggers Company and B-E Company, Route 1, Box 86, Brookings, Oregon, 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, Section 3005. The complaint charges Respondent with having made false representations concerning its product, which it designates as "The Developer," and specifically concerning the ability of said device to increase the size and diameter of the male penis, and otherwise favorably affect maladies of the urinary tract, and the male libido.
Respondent appeared without counsel, and submitted a letter addressing itself to the various allegations of the complaint, which letter has been treated as an answer denying the falsity of the representations alleged in the complaint. Because of the reference in Respondent's official's answer to the fact that sickness would prevent his coming to Washington, he was advised by me by letter dated February 5, 1973, that under the Rules of Practice, a copy of which were served upon him with the complaint herein, he could request a change in the place of hearing to a more convenient location on the West Coast. Respondent was also advised that the initial date of the hearing would be postponed from February 12 to February 27, 1973, in order to enable it to reach a decision as to whether to request a change in the place of hearing. An order postponing the hearing to February 27 was issued by me and served upon Respondent.
Additional correspondence was received from Respondent's official Edward Bowman on February 26, 1973, consisting of a letter dated February 19, 1973, and a letter dated February 13, 1973, and an attachment thereto. For the most part, such correspondence consists of statements concerning the efficacy of Respondent's device, and the lack of danger from using it. However, in the letter of February 13, 1973, Respondent's official indicates that he does not intend to ask for a change in place of hearing. He also requests that the letters submitted by him be considered Respondent's response to the complaint.
Pursuant to my order of February 6, 1973, a hearing for the reception of evidence was convened on February 27, 1973, in Washington, D. C., before me. Although duly notified of said hearing, Respondent failed to appear at the time and place scheduled therefore, 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 Complainant, I determined that the nature of the case and the public interest warranted a rendering of an oral decision, in accordance with section 952.24(c) of the Rules of Practice applicable in proceedings relative to false representations.
Since Respondent has failed to appear or offer any testimony, or other competent evidence to controvert the testimony of Complainant's witnesses, and since the testimony of such witnesses is uncontradicted, reasonable and plausible, it is accepted as credible evidence upon which to base the findings hereinafter made. Statements made by Respondent in the various correspondence which it has submitted have no evidentiary value in this administrative proceeding, in which only testimony by witnesses given under oath or documentary evidence offered through such witnesses may be considered. As Respondent was advised in my letter of February, 1973, testimonial letters from users of its device and photographs obtained in connection therewith are not admissible as evidence, except insofar as they are introduced through witnesses who will be subject to cross-examination.
After having carefully considered the evidence in this proceeding, and based upon the entire record, including the complaint and answer, the exhibits and testimony of the witnesses, I make the following:
FINDINGS OF FACT
A. The Alleged Solicitation of Money Through the Mail
1. Respondent is engaged in the business of selling a certain device, which it designates in its advertising matter as "The Developer." Public attention is directed to such product by direct mail advertising which is sent to potential customers. In said direct mail advertising, Respondent invites potential customers to send to it various amounts in payment of the Developer, such amounts varying from $30 to $35.
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 product 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 leaflets which have been received in evidence as Complainant's Exhibits 2, 3 and 5, copies of certain of which are attached hereto as Appendices A through D. The leaflets contain a number of statements concerning the ability of Respondent's device to improve the size of the penis, and to prevent or alleviate various maladies incident thereto.
4. The complaint alleges that through the use of the advertise- ments in which Respondent seeks remittances of money through the mail, it makes various representations to potential customers concerning its product, the Developer. In the letter submitted by it which has been filed as its answer herein, Respondent has admitted, in substance, that it makes the various representations alleged in the complaint, but alleges that said representations are true.
5. 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, the Developer, will (a) increase the length and diameter of the penis to any desired size, and specifically, will effect an increase of two inches within three month's time, (b) prevent or alleviate enlargement of the prostate gland, and other maladies of the genitourinary tract, and (c) rejuvenate and revitalize decreased male libido incident to the process of aging.
C. The Alleged Falsity of the Representations
6. It is my finding that the uncontradicted and credible testimony of Dr. Vincent F. Cordaro, a qualified medical doctor, establishes that the representations made by Respondent, as above found, are materially false for the following reasons:
a. Respondent's device, "The Developer," is a tubular plastic ring which the user is instructed to insert over the penis, and which purports to increase the length and diameter of the penis by the pressure which it applies to the inserted penis. However, the use of such device will not enable the user to increase the length and diameter of the penis to any size beyond that which is normally achieved through an erection. The size and growth of the penis are controlled genetically, and there is no known device which can affect its size and growth. When the device is applied sufficiently tight, it can cause an engorgement f the penis, similar to that in an ordinary erection, but this will not result in a permanent increase in its size or diameter.
b. The Developer will not prevent or alleviate enlargement of the prostate gland, or other maladies of the genitourinary tract. It will have no beneficial effect on the prostate gland, or other maladies of the genitourinary tract. On the contrary, if the device is applied sufficiently tight over an extended period of time it can result in a bruised and numbed condition of the penis, which can produce an edema and possibly result in a gangrenuous condition, unless the device is removed. The instructions for use which have been received in evidence, CX-5, advise the user not to worry if the penis gets numb or blue. However, according to Dr. Cordaro's testimony, a numb or bruised condition may result in phimosis, or paraphimosis, of the penis, which condition if continued long enough can result in scarring or produce gangrene. The use of the device may also result in a backing up of the urine in the urinary tract and thus adversely effect the prostate gland, or other organs of the genitourinary tract.
c. The use of the Developer will not rejuvenate and revitalize decreased male libido which is incident to the process of aging. Such decrease in libido is a natural incident to the aging process, and it cannot be reversed by the use of such a device. On the contrary, the use of the device during sexual activity may actually discourage such activity by causing it to be painful, and thereby lessen engagement in sexual activity.
d. The credible evidence establishes that the use of Respondent's device will not (1) increase the length and diameter of the penis to any size desired, and will not effect an increase of two inches within three month's time, (2) prevent or alleviate enlargement of the prostate gland and other maladies of the genitourinary tract, or (3) rejuvenate and revitalize decreased male libido incident to the process of aging.
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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