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; 

 APPEARANCES:
 For Complainant:
 H. Richard Hefner, Esq.
 Washington, D.C.

 For Respondent:
 William H. Martin, Esq.
 Roanoke, Virginia 

The complaint in the above-captioned proceeding charged that in marketing his product "Spanish Fly Love Potion" Respondent falsely represents it to be an effective aphrodisiac. Respondent through Counsel filed an answer admitting placing the advertisement but otherwise denying the allegations of the complaint. No further oral or written communication or pleading was received by the Administrative Law Judge or Docket Clerk until May 6, 1974, when a "Notice of Appeal and Motion to Enlarge Time in Which toFile Brief on Appeal" was received and docketed. In the meantime on Motion of Complainant the hearing was postponed until April 3, 1974. Since no one appeared at the hearing on behalf of Respondent, ¹/ Chief Administrative Law Judge William A. Duvall took Complainant's evidence and in accordance with Rules of Practice issued an oral decision adverse to Respondent. Subsequently, Judge Duvall reduced his decision to writing and Respondent appealed.

Respondent contends on appeal that there was no evidence that the advertising was that of Respondent. However, that matter was never in issue since Respondent's answer states "Respondent admits placing the advertisement." Respondent also contends the presiding officer erred by failure to take judicial notice "of commonly known and accepted facts of human psychology and physiology." However, he was not asked to take notice of any such "facts." There is no accepted fact that minute quantities of alcohol and caffeine have any aphrodisiac effects. Moreover, it would be a preversion oflogic to hold as Respondent urges that a placebo is an effective aphrodisiac.

The chemist who analyzed the product found no trace of cantharidin or cantharides, the substance known as Spanish Fly. The fact that he conceded that it could have been present in a small fraction of one per cent, does not suggest that it was present. There having been no countervailing evidence the Chief Administrative Law Judge was justified in concluding that it was not present. Moreover, it is obvious that the product is represented as an aphrodisiac ²/ and the evidence shows that cantharidin, in fact is not an aphrodisiac.

Respondent's exceptions have been considered and are denied. The Initial Decision is affirmed. Respondent is engaged in a scheme or device to obtain remittances of money through the mail by means of false representations. A remedial order as authorized by 39 U.S.C. 3005 is being issued contemporaneously with this decision.dicial Officer

06/28/74

Wenchel, Adam G.

_________________

1/ Respondent has inferentially raised the question of whether the hearing should not have been held outside of Washington. Section 952.15 of the Rules of Practice (39 C.F.R. 952.15) provides for change of place of hearing where appropriate. Respondent, however, did not ask for such a change.

2/ As stated in the Postal Service Decision of June 23, 1973, in Party Supply, Inc. et al., P.S. Docket No. 2/21 et al at page 9 "[T]here can be no doubt that the property of 'Spanish Fly' that a purchaser would anticipate is its legendary aphrodisiac effect". Other language in the advertisement also makes a claim of an aphrodisiac effect for the product.