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 February 28, 1973 James J. Robertson, Esq., Law Department, U.S. Postal Service, for Complainant Leroy J. Falgout, Esq., 2201 30th Street, Kenner, Louisiana, for Respondent Before: William A. Duvall, Chief Administrative Law Judge
In the complaint it was charged that Thomas Laboratories, Inc., 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 3005 of Title 39, United States Code.
Specifically, the complaint charged that the Respondent represents through the mails that a product being sold by the Respondent would have the effect of increasing the size or length of the genital organ of the male user.
The charges read as follows:
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.
On January 10, 1973, an answer was filed on behalf of the Respondent, in which it was denied that the Respondent is engaged in a scheme or device for obtaining property through the mails by means of false representations, but it was admitted that the Respondent does use the advertisements that was attached to the complaint, and which was received in evidence at this hearing as Complainant's Exhibit C-1. It was also admitted that the Respondent makes the representations which have been quoted above.
This matter came on for hearing on February 12, 1973, and at the hearing, both parties were represented by Counsel, who participated in the examination and cross-examination of witnesses, and who have made proposed findings of fact, conclusions of law, and supporting arguments.
In this type of proceeding, there are three broad issues to be tried:
1. In the conduct of the business, does the Respondent use the mails?
2. Does the Respondent make the representations which are set forth in the complaint?
3. Are those representations false or misleading?
At the close of the hearing, the Complainant's motion to amend the complaint to make the pleadings conform with the proof was granted, and the effect of the granting of this motion was to include in the complaint two additional charges, which in substance are: 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.
As has been pointed out, it has been stipulated by Respondent that the mails are used in the conduct of this business, and that the first two of the charges in the complaint do set forth representations used by the Respondent.
In examining the advertisement used by the Respondent, Complainant's Exhibit C-1, the reader of this advertisement is not going to be the type of person who is going to comb the language used in this advertisement, to explore every subtle nuance of meaning that might have been put there. 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." Now, it might be disputed whether the prospective purchaser would ever read the rest of that advertisement. He may say to himself, I have found at last what I have been looking for. That, of course, is speculation. 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 advertise- ment, 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. Therefore, it seems to me that there is no stretch of the language and no great enlargement of the complaint to include the two charges that were incorporated in the motion to amend the complaint. Clearly, there was testimony on both of the matters raised in the amendment.
I find therefore that the Respondent in his advertising material does make, or make in substance, the representations which are contained in the charges added to the complaint by amendment at the hearing today.
In making this finding I have kept in mind the admonition that advertisements ought to be considered as a whole, and in the light of the effect that they most probably would produce on readers of ordinary minds. Donaldson v. Read Magazine , 333 U.S. 178. There remains now the matter of determining the truth or the falsity of the representations which have been found to be made by the Respondent.
The Complainant produced as a witness in this proceeding, Dr. Vincent F. Cordaro, a medical doctor who is qualified by virtue of his experience and training to give testimony in a proceeding of this type. It was Dr. Cordaro's testimony that the tissue of the male genital organ is such that it is impossible to bring about a lengthening or an increase in size in that organ by the application of tension.
Dr. Cordaro testified further that if this type of tension is applied to too great an extent, it could produce an injury to the individual using the device. Subsequent testimony, however, indicated that if in the ordinary instance an injury were to result from the use of the degree of tension required, the pain suffered by the user would probably prevent his proceeding to the point of serious or permanent injury.
Testifying on behalf of the Respondent, was Dr. Ashley Montagu who has a PhD in anatomy and physical anthoropology. Dr. Montagu has a long and impressive history and experience in the fields of anatory and anthropology. Without prolonging a resume of Dr. Montagu's testimony, it is fair to say that Dr. Montagu testified that it is true that if the proper amount of tension is applied to the male genital organ for a sufficient length of time, there will be some increase in the size of that organ.
It is when we get into the definition of some of the terms that Dr. Montagu used that we begin to shed light on this proceeding. The proper degree of tension is a difficult term to define. It is a difficult concept to visualize, but clearly there must be some stretching of the organ. The amount of time is a matter which is not so difficult to visualize or define. Dr. Montagu said that to achieve appreciable results would require the application of this tension to the organ for a period of several years--that at the end of one year there might be as much as one millimeter increase in the length of the genital organ of the male. Dr. Montagu also testified that the results that could be achieved and realized from the use of Respondent's product would vary considerably with the age of the individual upon whom this device is used.
It is only fair to point out, too, that Dr. Montagu indicated that at the time of his testimony he had not seen the advertisement being used by this Respondent.
Counsel brought up in argument the question of the money back guarantee and the statement about the use of this system by certain Indian tribes. Nothing further will be said about these matters because they were not raised by the pleadings. They are not in issue.
Enough has been said to establish that the results which the use of Respondent's device will produce will fall short of the results which the average reader would expect to experience after the reading of Respondent's advertisement. This is the essence of this case, and this is the essence of that type of activity which is proscribed by Section 3005 of Title 39, United States Code.
For the reasons pointed out heretofore, I find that the Respondent is engaged in 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, and I conclude further that an order pursuant to that provision of law should be issued against this Respondent.
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