In the Matter of the Complaint Against PARTY SUPPLY, INC., PARTY AIDS and FORMULAS P. O. Box 239 at Gary, Indiana 46401 J & B SALES P. O. Box 239 at Gary, Indiana 46401 and 6915 South Vernon Chicago, Illinois 60637 BANNED 265 South Robertson Street at Beverly Hills, California 90211 NINA 324 South First Street at Alhambra, California 91802 P.S. Docket No. 2/21; P.S. Docket No. 2/23; P.S. Docket No. 2/29; P.S. Docket No. 2/30; APPEARANCES: H. Richard Hefner, Esq. Law Department U. S. Postal Service Washington, D.C. 20260 for Complainant Delars J. Bracy, Esq. 6306 South Cottage Grove Avenue Chicago, Illinois 60637 for Respondent
Each of the above-captioned proceedings charges that Respondent makes mail order sales of various products by falsely representing them to have aphrodisiac properties or the properties of sexual stimulants or of increasing sexual performance and capacity. The Chief Administrative Law Judge rendered a single decision covering the four proceedings in which he dealt with each separately. This appeal is from the Initial Decision which was adverse to Respondent in all four proceedings. Each proceeding is discussed separately below.
Respondent contends that:
"The complaint in the instant case No. 2/21 does not state facts clear, specific and sufficient enough to enable the respondents to make answer and defend. The complaint in fact, does not make but one allegation and as stated above, one cannot determine against whom said allegation is made, from the complaint. The complaint does not state a cause of action".
Despite the contention, Respondent did answer the complaint without objecting to its specificity or sufficiency. It is too late for Respondent to raise the contention he could not answer the complaint after he has answered it without objection to its adequacy. It is also clear that the complaint does state a cause of action.
Respondent also excepts to the Administrative Law Judge's receiving Exhibits A-2 and A-3 into evidence. Those exhibits are advertisements used by Respondent but not attached to or mentioned in the complaint. Respondent contends that Complainant should have been confined to presenting the advertisement attached to the complaint as evidence of representations made. No rule of law or procedure requires all advertising matter relied on to be attached to the complaint. Nor does the complaint state or imply that Complainant is relying solely on the advertisement attached to it. Paragraph 3 states:
"By means of the advertisement referred to above Exhibit A to the complaint , as well as similar advertising matter, Respondent * * * represents * * *". (Underscoring supplied)
Respondent was on additional notice that Complainant relied on other solicitations since Exhibit A sought orders in the name of Party Supply, Inc. only, whereas the caption showed that Complainant was charging that orders were also being sought in the names of "Party Aids" and "Formulas". Respondent should not have been surprised when Complainant moved at the hearing for introduction of advertising tying these names into the enterprise. The contested exhibits relate to the same promotion and were properly admitted and properly relied on by the Chief Administrative Law Judge.
Respondent has not excepted to the Initial Decision insofar as it relates to Docket No. 2/23. Accordingly, the Initial Decision has become final in P.S. Docket No. 2/23 as provided in section 952.24(a) of the Rules of Practice (39 C.F.R. 952.24(a)).
In P.S. Docket No. 2/29 the representation charged as having been made is that each of the articles advertised is an effective aphrodisiac or a means of increasing sexual response and performance. Respondent denies his advertising contains any such representation. The products advertised are "Imitation Spanish Fly Pills", "Imitation Spanish Fly Chewing Gum" and "Imitation Marijuana".
Respondent's advertisement contains no express statement regarding the properties or the supposed properties of those products. Complainant, however, relies on the total effect of the advertisement. The Chief Administrative Law Judge after examining the advertisement held:
"* * * Respondent's Counsel strongly urges that use of the word 'Imitation' overcomes any impression that the Respondent was offering an aphrodisiac for sale.
"If the language which has just been quoted were the only language in the advertisement, the argument of Respondent's Counsel might be quite strong. However, that argument overlooks other language in the advertisement. For example, the first words in the ad indicate that what are being offered for sale are "BANNED Adult Party Gags." When one reads further into the advertisement, he sees that what is involved is not an afternoon tea party or church social, but the type of party that is being referred to is some sort of sex party or, as I believe some of the young people currently refer to it, an orgy.
"Another consideration that enters into the mind of the prospective purchaser is the price that is demanded for the various products. In this case, the SPANISH FLY PILLS are being offered for 12 1/2 cents per pill. The price is stated at 24 for $3.00. My arithmetic works out to that price per pill. Then, with regard to the Spanish Fly Chewing Gum, you get ten sticks for $3.00. That is 30c / for a stick of chewing gum. Finally, the bag of marijuana is being sold for $3.00. It has not been shown and we can't state positively for the record what the ingredients of these various products are, but it has been admitted or stipulated that whatever they are, they are not aphrodisiacs and the entire context of this advertisement when viewed as a whole has strong overtones of sexual matters in it.
"When one considers the prices charged for these products, the normal reaction would be that no one would be so callous as to charge those prices for phoney merchandise." (Initial Decision, pp. 5 & 6).
While some doubt may exist as to what properties of marijuana the purchaser of "Imitation Marijuana" might expect to find in the product, there can be no doubt that the property of "Spanish Fly" that a purchaser would anticipate is its legendary aphrodisiac effect. Accordingly, the Administrative Law Judge's finding as to the representation with respect to the two Imitation Spanish Fly products is sustained and Respondent is found to make the false representations charged with respect to those products.
On the other hand marijuana is known as an intoxicant and only secondarily, if at all, as a sexual stimulant. Of course, intoxicants are popularly considered to cause a lessening of sexual inhibitions. On the basis of the sketchy record made in this proceeding, I find there is sufficient doubt as to what representation is made as to "Imitation Marijuana" to preclude finding Respondent has made a false representation with respect to the "Imitation Marijuana" product. Nevertheless, since the representation is made as to the other products and it is conceded that they do not have the property represented, I conclude that Respondent has made false representations as charged with respect to the Imitation Spanish Fly products.
Three products are involved in this promotion--"Pseudo Spanish Fly Chewing Gum", "Whiskey Gum" and "Instant Pussy Tickler". The record does not disclose whether the last named product is intended to be ingested or used in some other way. Accordingly, the charge of falsely representing its properties cannot be sustained. For the reasons indicated in the discussion under P.S. Docket No. 2/29 above, the charge is sustained as to the "Spanish Fly" product and not sustained as to the "Whiskey Gum".
As stated above, the Initial Decision has become final as to P.S. Docket No. 2/23. The charges in P.S. Docket Nos. 2/21, 2/29 and 2/30 are sustained to the extent indicated above and
Respondent in each is found to be engaged in conducting a scheme or device for obtaining money or property through the mail by means of false representations within the meaning of 39 U.S.C. 3005. Remedial orders are being issued in all four proceedings contemporaneously with this decision.
06/25/73
Wenchel, Adam G.