In the Matter of the Complaint Against

 PROBITY SALES COMPANY
 P. O. Box 646 at
 Ogdensburg, New York 13669 and
 P. O. Box 603 at
 Brockville, Ontario, Canada K6V 5V8

 P.S. Docket No. 3/76; 

 APPEARANCES:		 		H. Richard Hefner, Esq.
			 		Consumer Protection Office
			 		Law Department
			 		United States Postal Service		
			 		Washington, D.C. 20260
			 		for Complainant
			 		
			 		No appearance for Respondent

The subject case is on appeal from an Initial Decision rendered by Administrative Law Judge Herbert L. Stewart on June 25, 1975. The appeal was docketed on July 3, 1975, and Complainant's Reply on July 18, 1975. The Initial Decision found a violation of 39 United States Code § 3005 and recommended the issuance of a remedial order under that statute.

Respondent's appeal consists of two paragraphs, the first of which reads in full:

"I wish to appeal to you not to issue the Order in the above case. I appeal to you to re-read the Respondent's Answer and the Proposed Findings before arriving at your Final Decision. I believe (sic) you will see that, although I may have been naive, I am nevertheless a reasonable and responsible person, and that my case merits something less than a strict interpretation of the law."

Respondent's answer to the Complaint and Proposed Findings of Fact basically take the position that it cannot be held responsible for the claims made by the manufacturers of the item it sells and further that the advertisements for two of the items, "Okasa Pills" and "Vice Spice", do not represent that those items are effective aphrodisiacs or sexual stimulants. The second paragraph of Respondent's appeal Respondent consists of a statement of intention not to advertise the products in question for sale in the United States.

The representations with respect to the two products in question are part of a package of advertising including Respondent's "Catalogue of Adult Products" (Exhibits G-1 - G-14) selling a vast array of sexually oriented reading material and paraphernalia. Standing alone the two advertisements in question clearly make the representations alleged. When considered in the context of the catalog and other advertising there can be not a shadow of a doubt what Respondent is selling. With respect to the remaining two products "Bladder Tonic Formula" and "Menotone" Respondent does not deny that it makes the alleged representations and this fact is equally clear from the advertisements in question.

There is substantial evidence in the record in the form of the testimony of Dr. Vincent F. Cordaro, M.D., who was called as an expert witness by Complainant, that all of the representations are substantially and materially false as a matter of fact. The statute in question has as its purpose the protection of the public. It was amended in 1968 with the express purpose of removing any requirement for a showing of personal knowledge or intent to deceive on the part of the seller. Thus, Respondent's contention that it is not responsible for the advertising claims of the manufacturers of the various products is totally without merit as a defense to this action. It is Respondent who is "obtaining money or property through the mail by means of false representations" in violation of the statute. The Respondent's claim to being "naive" is not only without the slightest shred of evidence in this record but is completely irrelevant to the question of whether the statute has been violated. Respondent's request to defer issuance of an appropriate order to enable it to come into compliance with the law is likewise without merit. This case presents a clear cut violation of statute the remedy for which has already been too long postponed by the delay in issuing the Initial Decision in this case, a factor which has permitted Respondent unlimited use of the mails in the interim and given Respondent ample opportunity to pursue settlement with Complainant.

The Initial Decision in this case properly found a violation of 39 U.S.C. § 3005 and is accordingly upheld. An appropriate order under that statute is being issued contemporaneously with this decision.

					07/30/75
					Lussier, Edward F.