In the Matter of the Complaint Against WAYNE RESEARCH LABORATORY, BOX 5753 at Detroit, Michigan 48239 P.S. Docket No. 3/7 April 19, 1974 Rudolf Sobernheim Administrative Law Judge APPEARANCES: H. Richard Hefner, Esq. Law Department U.S. Postal Service Washington, D.C. 20260 for Complainant Henry Cairns, pro se Wayne Research Laboratory Box 5753 Detroit, Michigan 48239 for Respondent
This is a proceeding against Respondent under 39 U.S. Code 3005 in which Complainant alleges 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 a special diet and herbs to cure psoriasis. Specifically, Complainant alleges that by the use of advertising material, exemplified by Exhibits 1 and 2 to the complaint, Respondent represents, directly or indirectly, in substance and effect:
"A. That Respondent's 'treatment' will eliminate Psoriasis; e.g., 'We will eliminate your Psoriasis]' (Exhibit 1), '...a copyrighted treatment that is GUARANTEED to eliminate PSORIASIS ...' (Exhibit 2, p. 1) etc.;
B. That there are no ointments in Respondent's 'treatment'; e.g., 'There are no drugs or ointments.' (Exhibit 2, p. 1); and,
C. That the 'treatment' will be a permanent cure for Psoriasis; e.g., '[the treatment is] a one time thing...' (testimonial of Mrs. D. Pond, Exhibit 2, p. 4)."
Respondent in its answer admitted that it uses the foregoing advertising material to solicit orders for its remedy but denies any scheme of obtaining money or property by means of false representa- tions and alleged that its representations are true. Respondent did not appear at the hearing. Complainant moved for oral decision and in the light of the record made herein (see 39 C.F.R. 952.11(b)) its motion was granted.
1. The remedy which the Respondent sells for the price of $15 each is essentially a diet together with four packets of herbs (American saffron, slippery elm bark, mullein leaves and hungarian chamomile flowers) which are to be used to make teas to be drunk at frequent intervals in lieu of ordinary water. Respondent's diet is described in considerable detail in Complainant's Exhibit 4 and need not be set out in detail in this initial decision. Essentially, it bars the use of fried foods, sugar, beef or veal, and alcoholic beverages, and proposes fish, lamb and poultry, vegetables and fruits as the main foods to be consumed.
2. Medical testimony on behalf of Complainant was received from a physician employed by the U.S. Food and Drug Administration and assigned to assist the Postal Service. He testified that psoriasis is a genetically determined skin disease, the causes of which are unknown and for which there exists no permanent cure contrary to what Respondent advertises.
3. Such remedy as exists to relieve the itching caused by this ailment is the external topical application of various ointments, such as olive oil or cod tar products, and in very severe cases the use of methotrexate, a highly toxic substance which would be applied only in extreme situations.
4. According to the testimony of this physician, diets of any kind and the drinking of herb teas have absolutely no effect on the disease.
5. The witness testified that his statements represented generally accepted medical practice; that he consulted with other physicians involved in dermatological research at the Food and Drug Administration; and that they confirmed his own judgment.
6. There is no reason not to accept the uncontested testimony of this physician who was well qualified to give it.
7. Accordingly, based on the foregoing findings of fact and the record as a whole I find that Respondent, in offering a diet and herbs for the treatment of psoriasis, falsely represents that:
a. Respondent's diet and herbs constitute a treatment which is guaranteed to eliminate psoriasis, when in fact psoriasis cannot be treated or eliminated by following a diet or using herbs as directed by Respondent (Compl., Par. III A).
b. That Respondent's diet will cure psoriasis, when in fact there exists no known cure for it (Compl., Par. III C).
8. Complainant has failed to prove that Respondent falsely represents that no ointments are used in the treatment of psoriasis which it sells (Compl., Par. III B).
1. Respondent is engaged in a scheme or device for obtaining money or property through the mails by means of false representations within the meaning of 39 U.S.C. 3005, as alleged in the complaint.
2. An order should, therefore, be issued in the usual form, as provided in 39 U.S.C. 3005, a copy of which will be attached to this initial decision.
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