In the Matter of the Complaint Against

 GOOD DRUGS
 P. O. Box 549 at
 Oak Park, Illinois 60303

 and

 GOOD PHARMACEUTICAL COMPANY,
 Merchandise Mart Building,
 P. O. Box 3042 at
 Chicago, Illinois 60654

 P.S. Docket No. 1/93

 February 22, 1974

 Rudolf Sobernheim Administrative Law Judge

 APPEARANCES:
 Thomas A. Ziebarth, Esq.
 H. Richard Hefner, Esq. 
 Law Department U.S. Postal Service
 Washington, D.C. 20260 for Complainant

 Bruce L. Randall, Esq.
 30555 Southfield Road, Suite 300
 Southfield, Michigan 48076 for Respondent  

This is a proceeding by Complainant against Respondent under 39 U.S.C. 3005 which authorizes action against Respondent upon evidence satisfactory to the Postal Service that Respondent "is engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations."

Complainant alleges that Respondent is engaged in such a scheme in the sale of pills, called Pep-Good and Stay-Good respectively, by the use of advertising material by which Respondent, directly or indirectly, in substance and effect represents:

" a . 'Pep-Good' is an effective aphrodisiac or sexual stimulant. (e.g., 'SCORE AS NEVER BEFORE]' etc.) b . 'Pep-Good' is what is generally known and referred to as a pep pill. (e.g. 'EVERYBODY NEEDS PEP AND SPEED,' 'EVERYBODY NEEDS PEP]', '...made for fast energy and alertness.' etc.) c . 'Pep-Good' contains illicit drugs or substances. (e.g. 'Not Sold to Minors -- Shipped in Plain Wrapper.' etc.) d . 'Stay-Good' is an effective aphrodisiac or sexual stimulant. (e.g., 'Have Stay-Power' 'New super potent formula tablets for men only. Renews your vigor and drive. Be like the man you really are.' etc.) e . The physical effect of the ingredients contained in 'Stay-Good' would be significantly different when employed by men rather than women. (e.g., '...for men only.' 'Be like the man you really are.' etc.)"

Copies of the advertisements alleged to have been used by Respondent in its sales effort were attached to the complaint as Exhibits A, B, and C.

Respondent in its answer admitted the use of the advertisements copies of which were attached to the complaint as Exhibits A and C, but denied the use as an advertisement of Exhibit B and denied that its advertisements contained false representations.

A hearing for the presentation of evidence was held on 30 June 1972. At the hearing relevant facts were stipulated by the parties. Only one witness, however, was called, a physician, employed by the Food and Drug Administration and assigned to work with the Postal Service, who testified as a medical expert on behalf of Complainant. He was cross-examined by Respondent's counsel but the import of his direct testimony after cross-examination remained intact. Subsequent to the hearing the administrative law judge who had presided thereat retired without rendering an initial decision. The matter was re-assigned to the undersigned whose decision is rendered herewith. In reaching this decision the undersigned found that his decision does not rest on determining the credibility of the witnesses presented by the parties. Hence, the question of reopening the hearing does not arise. See Gamble-Skogmo, Inc. v. F.T.C. , 211 F.2d 106 (8th Cir., 1954); Brooklyn Eastern District Terminal v. U.S. , 302 F. Supp. 1095 (E.D.N.Y., 1968); cf . Utica Mutual Insurance Co. v. Vincent , 375 F.2d 129 (2d Cir., 1967) as to constitutional implications.

1. Respondent advertises Pep-Good under slogan "Everybody Needs Pep" as a "New Super Formula" made for "fast Energy and Alertness" which it will ship in a plain wrapper. The Oak Park, Illinois, post office box is shown as the address to which orders are to be sent (Ex. A to Compl.).

2. Until its use was discontinued at an unstated time prior to the filing of the complaint on 12 May 1972 (T 13-14; Post-hear. Aff. Simon) purchasers of Respondent's Pep-Good received with their purchase a flyer, labelled "ADVERTISEMENT" (Ex. B to Compl.), which added to the language of the advertisement (Ex. A to Compl.) the phrase:

"SCORE AS NEVER BEFORE]" and a statement that Pep-Good was not sold to minors. The quoted phrase in common speech often conveys the idea of male success in sex relations or sexually-tinged relationships with women.

3. The Pep-Good advertisements (Ex. A to Compl.) appeared in the National Informer, published in Chicago, Illinois, in May 1972 (Ex. CX-1). The National Informer is a weekly newspaper for adults only under the motto "Truthful News of all Facts of Life" but those reported or discussed involve exclusively sexual activities (ex. CX-4). Notwithstanding its label as an advertisement the flyer (Ex. B to Compl.) was not used as a newspaper advertisement to attract customers (T 13-14).

4. Pep-Good is a pill containing as its principal ingredient 100 milligrams of caffeine, equivalent to the content of a cup of coffee (T 26) and vitamins B-12 and B-1 (Ex. CX-5, label). Vitamin B-1 is thiamine, used only for treatment of vitamin deficiency (T 26).

5. The quantity of caffeine used in Pep-Good at most creates a mild degree of alertness in persons not accustomed to drinking coffee but neither it nor the vitamins create either "pep", as this term is commonly understood, or energy in the user nor is Pep-Good an aphrodisiac (T 27, 28, 30). It is food not vitamin intake which provides energy (T 28).

6. Respondent advertises Stay-Good under the slogan "Have Stay- Power with Stay-Good" as [n]ew super potent formula tablets for men only." The advertisement claims that Stay-Good "[r]enews" the user's "vigor and drive" and lets him be "like the man" he "really is." The Chicago, Illinois, post office box is shown as part of the address to which orders are to be sent (Ex. C to Compl.).

7. The Stay-Good advertisement (Ex. C to Compl.) also appeared in the National Informer (Ex. CX-4) in May 1972 (Ex. CX-3). As to the National Informer see Finding 3, supra .

8. Stay-Good is a multi-vitamin and mineral preparation (Ex. CX-6) the ingestion of which does not affect men and women differently. It can be used as a dietary supplement for persons suffering from vitamin deficiencies (T 31) although it does not provide enough vitamins to be really helpful (T 38). Taking vitamin pills such as Stay-Good has no direct physical effect on the user (T 39) and does not improve or restore his virility or potency (T 32).

9. By means of the advertisements (Ex. A and C to Compl.) Respondent concededly has obtained money sent to it through the mails (T 22).

10. By virtue of its selection of the National Informer (Ex. CX-4) as an advertising medium Respondent conveyed to the readers and prospective purchasers and users of its products that the energy, vigor and drive which they promised to increase or restore were specifically sexual and did not refer to the user's health in general. In the case of Pep-Good this connotation is reinforced by the flyer (Ex. B to Compl.) formerly sent to purchasers with the pills.

11. On the basis of the foregoing findings and the record as a whole I find:

a. The advertisement used by Respondent in the mail order sale of Pep-Good, in the context of the advertising medium used therefor and the flyer formerly enclosed with the product sent to purchasers, falsely represents that Pep-Good is an effective aphrodisiac or sexual stimulant, when it is none such at all (see Compl., par. 3 a ).

b. The advertisement used by Respondent in the mail order sale of Stay-Good, in its own language (being "for men only", "super potent" and making the user be "like the man" he "really" is) and in the context of the advertising medium used therefor, falsely represents that it is an effective aphrodisiac or sexual stimulant, when it is none such at all (see Compl., par. 3 d ).

c. The Stay-Good advertisement falsely represents that its product is for men only, implying plainly that it has a different effect on men and women, when it has no such effect whatever (see Compl., par. 3 e ).

12. Complainant's claims (Compl., par. 3 b and c ) that Pep-Good is falsely represented as what is colloquially called a "pep" pill ( i . e . one containing amphetamines) or as containing illicit drugs or substances (to wit: amphetamines) is not supported by the record. No such representations are made by Respondent.

1. Respondent is engaged in a scheme or device for obtaining money or property through the mails by means of false representa- tions within the meaning of 39 U.S.C. 3005.

2. The representations made by Respondent as alleged in paragraph 3 a , d and e of the complaint are false.

3. In ascertaining the meaning of the advertisements used by Respondent it is proper to consider the character of the advertising media in which they appear. Farley v. Simmons , 99 F.2d 343 (D.C. Cir., 1938), reversing Simmons v. Farley , 18 F. Supp. 758 (U.S.D.C. D.C., 1937), cert . den . 305 U.S. 651 (1938), reh . den . 305 U.S. 676 (1939).

4. The representations, alleged in paragraph 3 b and c of the complaint to have been made by Respondent, are not shown to have been made by it and to that extent the complaint cannot be upheld.

5. Accordingly, it is recommended that an order in the form attached as provided in 39 U.S.C. 3005 be issued.