In the Matter of the Complaint Against: ROYAL, Box 1548 at Pompano Beach, Florida 33061 P.S. Docket No. 4/9412/19/75
Duvall, William A., Chief Administrative Law Judge Daniel S. Greenberg, Esq., Law Department, United States Postal Service, Washington, D.C., for Complainant No appearance on behalf of Respondent Before: William A. Duvall, Chief Administrative Law Judge
This proceeding was initiated on October 6, 1975, when the Assistant General Counsel in charge of the Consumer Protection Office, Office of the General Counsel of the United States Postal Service, the Complainant, filed a Complaint in which it was charged that Royal at Box 1548, Pompano Beach, Florida, the Respondent, was engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations in violation of Section 3005, Title 39, United States Code.
On October 24, 1975, there was received from a man named Samuel N. Kram a letter, dated October 18, 1975, in which it is stated that the writer of the letter does not believe that the statute invoked had been offended but that he was willing to discontinue making the representations set forth in the Complaint. It was stated by Complainant's Counsel that upon the receipt of a copy of Mr. Kram's letter, Counsel contacted the Respondent and offered the Respondent a settlement agreement which Respondent declined to execute.
This matter came on for hearing and at the hearing no appearance was entered on behalf of the Respondent. Accordingly, in conformity with § 952.11(b) of the Rules of Practice, the evidence offered by Complainant has been received and the matter is to be decided on the basis of that evidence.
The representations which Respondent is charged with making in various advertising materials are as follows:
"(a) That, irrespective of the male user's present state of sexual ability, 'INSTANT ERECTO (or ERECTION) CREAM' will restore lost, and increase present ability to attain and retain an erection;
"(b) That 'INSTANT ERECTO (or ERECTION) CREAM' will have the effect described in subparagraph (a), supra, irrespective of the cause of the user's present state of sexual ability;
"(c) That 'INSTANT ERECTO (or ERECTION) CREAM' will effect the results described in subparagraphs (a) and (b), supra, in 90% of the males who use same;
"(d) That 'INSTANT ERECTO (or ERECTION) CREAM' will not cause discomfort to the genital area."
There are three issues in proceedings of this type which, broadly stated, are as follows:
1. Does the Respondent make the representations which are set forth in the Complaint?
2. Are those representations true or false as material matters of fact?
3. In the conduct of its business, does Respondent use the mails?
We will take up first the last one of the issues mentioned. Testifying as the first witness for the Complainant in this proceeding was Inspector Gene F. McHale, who has been a Postal Inspector for a number of years. Inspector McHale testified that he is presently assigned to the Special Investigations Division. It was within the functions of this office that the investigation of this case was conducted. The case was investigated by Inspector J. W. Currie, who is no longer with the Postal Service. Prior to the termination of the services of Inspector Currie, the case was reassigned to Inspector McHale, who became thoroughly familiar with all the aspects of the investigation.
The matter came to the attention of the Inspection Service when there was received, addressed to a test name, an envelope from the Respondent enclosing one of the advertising circulars used by the Respondent. The advertising circular, which was received in evidence as Complainant's Exhibit 2, is identical with the circular which is attached to the Complaint as Exhibit A. The difference is that Complainant's Exhibit 2 is marked to indicate that a 15-day supply of Instant Erecto Cream is desired and the name of the customer is shown as Gordon T. Selby, Post Office Box 835, Lake Jackson, Texas 77566.
A postal money order was prepared in which the payee is shown as Royal and the purchaser is shown as Selby. This money order was sent to the Postmaster in Lake Jackson, Texas, with the request that a money order be reissued and sent to the Respondent, Royal, from Lake Jackson, Texas. The money order and the order for the product were sent to Respondent in what appears to be a business reply envelope bearing the address of the Respondent and bearing the return address of Selby.
In due course, there was received an envelope addressed to Selby. On the mailing sticker there is the return address of the Respondent. Enclosed in this envelope, which was received in evidence as Complainant's Exhibit 6, was a jar of cream, which was received in evidence as Complainant's Exhibit 7.
On the label of the jar, the content of the jar is identified as "INSTANT ERECTION CREAM." It is also indicated that the jar holds 1/2 ounce. The label also indicates that "INSTANT ERECTION CREAM is a specially formulated true fruit pineapple flavored cream containing methyl salicylate." There are also instructions as to the method of application of the cream.
In the advertising material related to the Respondent's product, the language on which charge "A" in the Complaint is based appears at the top of the advertising circular in the first eight lines. In these lines various conditions are described and questions are asked with respect to these conditions. The last two lines of this portion of the circular read as follows:
"If you answer 'NO' to any of these questions, INSTANT ERECTO CREAM may be the answer to your problems."
The language on which charge "B" is based is found in the paragraph which bears the caption "INSTANT ERECTO CREAM IS FULLY GUARANTEED." The language to which reference has just been made is "We guarantee it will work for YOU, or we will refund your money in full ... with no questions asked. Our guarantee is unconditional] That's how certain we are you will be satisfied."
The representation set forth in charge "C" of the Complaint also is found in the paragraph which contains the above cited basis for charge "B".
The language upon which charge "D" of the Complaint may be based is found in the paragraph which bears the caption "INSTANT ERECTO CREAM WAS SCIENTIFICALLY DEVELOPED." In this paragraph it is represented that the product will be "gentle to the sensitive tissues of the genital area."
The fact that specific portions of the Respondent's advertising material have been referred to is not to be construed to indicate that they are the only parts of the advertising literature which could be used as the predicate for the various charges of the Complaint.
The next witness called to testify for the Complainant was Dr. Vincent F. Cordaro, a medical doctor, who by virtue of his education, experience, and training is well qualified to testify with respect to the area of medicine which is involved in this proceeding. Dr. Cordaro testified that the causes of inability to attain and maintain an erection are primarily psychological, but that this condition is also a concomitant of advancing years. In the latter case, the basic underlying cause is the decreased hormone production in the male. Also, the inability to attain and maintain an erection may be caused by any debilitating disease. The treatments for such conditions are related, naturally, to the causes. In psychological inability to maintain or attain erection, that is treated either by one's medical doctor or by a psychologist or a psychiatrist. With respect to impotence resulting from debilitating disease, the method of treatment is to treat the underlying disease. When one has reached an advanced stage of life in which the hormone deficiency is the cause of his inability to perform sexually, if that results from some underlying disease, then that disease is treated; but in advanced years, there is no known treatment at this time to cause the body to produce more hormones.
With respect to the product that is involved in this case, Dr. Cordaro referred to the means of use of this product which is spelled out on the label, namely, to put a small amount of the product in the palm of the hand and apply vigorously to the whole length of the penis, approximately 25 strokes. Dr. Cordaro indicated that the methyl salicylate in this product is a counter irritant which is frequently used when one has a muscle ache, or some other condition such as in arthritis. In the particular area in which this product is to be used, the result of its use would be a mild to intense irritation which probably would impair or destroy one's desire for sexual intercourse. There is nothing in the methyl salicylate which itself would have any bearing or any effect in regard to the ability to attain or retain an erection. Probably, if applied in the manner recommended in the directions, the result would be that the individual would ejaculate. In the event that there might be an individual who for psychological reasons was unable to attain or maintain an erection, but who, because of its placebo effect, did attain an erection by the use of this cream, the female partner would suffer very great discomfort. The likelihood is that the female would reject any effort of the male to continue with the intercourse. On the other hand, the medical witness testified that it is likely that the irritant quality of the cream would overcome the placebo effect that it might otherwise have. In sum, the doctor testified that there is nothing about this product, either in its content or in its method of application, which would have any permanent, beneficial effect upon a person who wished to improve his ability to attain or maintain an erection.
The testimony in this proceeding leads inevitably to the following findings of fact:
The Respondent in this proceeding does, in the conduct of its business, employ the United States mails.
In the conduct of its business, the Respondent does make the representations which are set forth in the Complaint.
The representations found to have been made by the Respondent in its advertising material are material representations and they are false as matters of fact.
It is concluded as a matter of law that the Respondent, Royal, at Pompano Beach, Florida, is engaged in conducting a scheme or device to obtain money or property through the mail by means of false representations within the meaning of Section 3005 of Title 39, United States Code.
It follows that an order of the type provided for in 39 United States Code 3005 should be issued against this Respondent.
____________________