In the Matter of the Complaint Against M-M ENTERPRISES and M and M, P. O. Box 4146 at Roanoke, Virginia 24015 P.S. Docket No. 3/10 April 18, 1974 H. Richard Hefner, Esq., Law Department, United States Postal Service, Washington, D. C., for Complainant No appearance for Respondent Before: William A. Duvall , Chief Administrative Law Judge
The General Counsel for the United States Postal Service, issued a complaint on February 22, 1974, in which it is alleged that M-M Enterprises and M and M of Roanoke, Virginia, are engaged in conducting a scheme for obtaining money or property through the mail by means of false representations, contrary to the provisions of Section 3005, Title 39, United States Code.
The complaint, notice of hearing and a copy of the Rules of Practice were duly served upon the Respondent, and a timely answer to the complaint was filed by Respondent.
The Respondent in the answer indicated that he would advise the Court seven days prior to the hearing whether Respondent would appear in person or by counsel at the hearing. No such notice has been received. In fact, no communication has been received from the Respondent since the filing of the answer.
In the complaint, the Respondent is charged with making the following representation which is alleged to be false:
"SPANISH FLY LOVE POTION is an effective aphrodisiac or sexual stimulant. (e.g., 'SPANISH FLY LOVE POTION' 'Don't let the other guy have all the fun.' 'It's possible you may have them looking you up for more.' etc.)."
The complaint also charges that this representation is used by the Respondent as a means or a device by which the Respondent attempts to obtain remittances through the mail.
Testifying as Complainant's first witness, Inspector Robert C. Williams, Jr., identified an advertisement which appeared in the February 3, 1974 issue of the National Informer. That advertisement will be copied, and a copy will be made an attachment to this decision. Upon seeing this advertisement, the Inspector prepared a test letter and had it mailed to the Respondent from the Postmaster at Broad Brook, Connecticut. The test letter contained a money order, and it asked that the product called Spanish Fly Love Potion be sent to the name of Kevin Brady, P. O. Box 9, Broad Brook, Connecticut. In due time, the Inspector did receive the product from the Respondent in a mailing wrapper which bore the return card of M and M at Roanoke, Virginia.
The Inspector delivered the product so received to Mr. Robert J. Hall, chemist with the Food and Drug Administration, who works in cooperation with the United States Postal Service in matters of the kind presently under consideration. Upon chemical examination, it was found that the product contained by volume approximately 2.2 percent of caffeine which would produce approximately 113 milligrams per teaspoon, and the product also contained, by volume, approximately 1.9 percent of alcohol. The remainder of the product consists largely of a fruit juice, such as apple cide, and the chemist reached this conclusion on the basis of the odor and the color and the small amount of alcohol and yeast found in the product. The caffeine content was added to the fruit juice vehicle which was being used.
In the course or preparing the chemical analysis, a sedimentation test was used, and the sediment which was produced was microscopically analyzed. An analysis revealed certain starches, yeast tissues, and some plant tissues. There was no evidence of the presence of a product known as cantharidin or cantharides. This is a substance which is an extract from a blister fly, and if it is present at all in the product being sold by the Respondent, it is present to the extent of a very small fraction of 1 percent.
Complainant next presented as an expert medical witness Dr. Vincent F. Cordaro, who is well qualified by virtue of his training and experience to testify in the area of medicine which is involved in this proceeding.
The essence of Dr. Cordaro's testimony is that caffeine is not an aphrodisiac, alcohol is not an aphrodisiac, and they certainly do not produce an aphrodisiac effect in the quantities in which they are present in this product. The witness further testified that cantharidin, while it was formerly reputed to be a aphrodisiac, is no longer regarded as such. An aphrodisiac is that which formerly was reputed or purported to have the effect of intensifying sexual desire and sexual prowess. There is now no product which is recognized by the medical profession as having this capability, so, therefore, we are now brought to a consideration of the issues in this proceeding.
The test correspondence was generated by the advertisement. The advertisement clearly makes the representation which is set forth in paragraph 3 of the complaint.
The use of the mails by the Respondent is established by the advertisement used in the conduct of the business, and it is further established by the test correspondence conducted in this case as a result of which the Respondent received the remittance sent in under the test name, and mailed to the test name, the product being offered for sale through the mails.
The medical testimony in this proceeding is that if there were such a thing as an aphrodisiac known as Cantharidin, there is none of that substance in the product being sold by the Respondent. Spanish Fly is the popular or common name for the substance known as Cantharidin, so that the use of that term in the advertisement is in and of itself a misrepresentation, since there is none of that substance in the product. Even if there were cantharidin or Spanish Fly in the product being sold by the Respondent, that substance does not have the effect of intensifying sexual desire or prowess.
There is nothing else, not only in the product, but also known to the medical profession which does have the effect of intensifying sexual desire and prowess. Therefore, for all of the foregoing reasons, the representation which was found to have been made by the Respondent is false, and it is materially false as a matter of fact.
Accordingly, an order provided in Section 3005 of Title 39, United States Code, should be issued against this Respondent.
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