In the Matter of the Complaint Against THOMAS LABORATORIES, INC. P. O. Box 24460 at New Orleans, Louisiana 70124 P.S. Docket No. 2/9; APPEARANCES: James J. Robertson, Esq. Law Department U.S. Postal Service Washington, D.C. 20260 for Complainant Leroy J. Falgout, Esq. 2201 30th Street Kenner, Louisiana 70062 for Respondent
This proceeding, brought under 39 U.S.C. 3005 relates to the advertising representations made by Respondent in marketing its product "Legend Lengthener." The representations charged in the complaint to be false are:
"(1) That the use of Respondent's product will increase genital size;
"(2) That use of Respondent's product will lengthen the male's sexual organ."
In addition, the Chief Administrative Law Judge allowed Complainant's motion made near the conclusion of the hearing to amend the complaint to include as representations of Respondent charged to be false:
"first, that the use of the Respondent's product will produce the desired results over a relatively short period of time; and
"second, that the user of Respondent's product, will experience an elongation of his genital organ by a matter of inches."
Respondent's answer admitted making the representations initially charged in the complaint but of course alleged the representations to be true. He also objects to the amendment that added more charges of false representations.
The Chief Administrative Law Judge found all four of the representations to have been made, found them to be false and recommended the issuance of a remedial order under 39 U.S.C. 3005.
The "Legent Lengthener" is a product sold for the purpose of producing an increase in the size of an adult human penis by means of prolonged tension. The advertisement purports to restrict sales to those 21 years of age or older.
The Chief Administrative Law Judge found in the Initial Decision that--
"But the reader of this advertisement is going to be some individual who, with or without justification, feels that he has somehow been cheated by nature, and that the size of his genital organ is insufficient, and he wants to lengthen or increase the size of that organ.
"He sees this advertisement, which has in large headlines type, a banner, the words, 'NEW]] INCREASE GENITAL SIZE.'
"Let it be presumed that the reader does read the remainder of the advertisement.
"The inference that is in this advertisement, and, clearly, the implication that the reader wants to get from reading the advertisement, and the result that he wants to get from the purchase of the product, is within a reasonable period of time to achieve an appreciable or discernable growth or increase in size of his genital organ." (Initial Decision, pp. 4 & 5).
Respondent attacks these findings as to the meaning conveyed as being speculation or mere conjecture. It should be noted that the Initial Decision expressly foregoes finding that the meaning of the advertisement here should be determined only by the headline. It assumes to the benefit of Respondent that the reader will read the whole advertisement.
The Initial Decision applies correctly the thesis that because the purpose of 39 U.S.C. 3005 is to protect consumers from parting with their money on the basis of false representations rather than to punish perpetration of fraud, the test is the meaning conveyed by the advertisement to those to whom it is directed. 1/ Obviously, the advertisement is directed to those to whom a larger genital organ is a desideratum. to such a person the representations charged in the complaint obviously would mean a "worthwhile" increase in size or length, i.e., one that he would readily recognize. It is in this light that the representations charged in the complaint should be read.
The testimony of Complainant's expert medical witness and Respondent's expert witness are at variance only in insubstantial detail. The one testified that the size of an adult's penis could not be increased by keeping it under tension, but implied that it might be possible in the case of a child. The other testified that it might be possible to produce a significant increase in a child or young adolescent by that means, and in many cases, or in some cases, it might be possible to produce over a period of time an increase of several millimeters in adults. 2/
"Would that work for everyone?
"A. Everyone is a very big word, and the variability of human species is so great, I would be very cautious about everyone.
"That is a universal term. I wouldn't use terms like all.
"I would say, many, some. Yes, it might.
"Q. It might.
"A. Yes.
"Q. You are not certain that it would.
"A. I am certainly not certain. For a scientist, certainty is merely the measurable or highest degree of verifiable probability that attaches to a particular judgment. I know of no experiments that are being done in this area which have a bearing on the elongation of the penis by artificial means." (Tr., p. 46, 11. 8-23. Underscoring supplied).
Taking the view of the evidence most favorable to Respondent, use of Legend Lengthener could not effect an increase of more than several millimeters in an adult, an increase that would not be readily noticed and which a person not trained to do so could not easily measure. Thus, a purchaser who achieved only such minimal results would be justified in concluding that he had not achieved the increase in the length of his genital organ Respondent had represented would be achieved. Moreover, the Administrative Law Judge in weighing the evidence concluded, as he was entitled to do, that no even minimal results would be obtained. It is clear, therefore, that the representations originally charged in the complaint are false.
Respondent excepts to the consideration of the charges added by the amendment. For the reasons given above, the recommendation in the Initial Decision can be sustained even if the additional charges were dismissed. For this reason and because the first added charge may be unduly vague, the exception to that charge is sustained. On the other hand the second added charge relates both to specific language of the advertisement and to a specified quantum. The charge does not introduce a new subject but rather states a more extreme variant of the representation originally charge as false. It is clear that the advertisement contains this representation and both parties elicited testimony on the amount of elongation. As pointed out in the Initial Decision, both parties pursued the facts relevant to that charge fully during the taking of the testimony. Accordingly, the amendment was properly allowed and, as shown above, the evidence clearly establishes the falsity of the second representation in the added charges.
The Initial Decision is sustained, except with respect to the first added charge. I find that Respondent is engaged in a scheme for obtaining money through the mail by means of false representations in that it falsely represents that the use of its Legend Lengthener will increase genital size and will lengthen the male sexual organ and the user will experience an elongation of his genital organ by a matter of inches. A remedial order under 39 U.S.C. 3005 is being issued forthwith.
08/07/73
Wenchel, Adam G.
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