In the Matter of the Complaint Against: MALE PERSONAL PRODUCTS, P.O. Box 285 at Hollywood, California 90028 P.S. Docket No. 3/190 04/06/76 Grant, Quentin E., Administrative Law Judge Daniel S. Greenberg, Esq. Law Department United States Postal Service Washington, D.C. for Complainant Fleishman, McDaniel, Brown & Weston by Barry A. Fisher, Esq. Los Angeles, California for Respondent Before: Quentin E. Grant, Administrative Law Judge
On April 9, 1975, complainant initiated this proceeding by filing a complaint which alleged that respondent is engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations in violation of 39 U.S.C. § 3005. The complaint alleges that by means of an advertisement respondent, directly or indirectly, by means of affirmative statement, implication or omission, in substance and effect, falsely represents that its product called "VIM" will do the following:
"(a) That 'VIM' will enlarge the user's penis;
(b) That, irrespective of the male user's present state of sexual desire or ability, 'VIM' will restore lost, and increase present:
1. desire;
2. ability to attain and retain an erection;
3. ability to attain and prolong orgasm;
(c) That 'VIM' increases energy and muscle tone;
(d) That the physiological action of 'VIM' will help to overcome the effects of nervous depression;
(e) That 'VIM' improves general health, appearance and youthful vigor;
(f) That 'VIM' will have the effects enumerated in subparagraphs (a) through (e), supra, irrespective of the cause of the user's present condition."
A hearing was held in Los Angeles, California, at which both parties introduced evidence. Both parties have submitted written argument, proposed findings of fact and conclusions of law.
1. Respondent uses the mails in advertising "VIM", and in mail order sales thereof, including receipt of remittances for the product (Exhs. C-1, C-2; Tr. 4, 5).
2. "VIM" is sold by respondent in the form of capsules contained in a bottle bearing a label which states that "[e]ach capsule contains 8 Grs. especially prepared SMILAX OFFICIANALIS" (hereinafter referred to as "smilax"). Based on the representation contained on the label I find that the product "VIM" is essentially a form of smilax.
3. Smilax is a plant (Tr. 245) an extract of which is often used as a flavoring agent in root beer (Tr. 19).
4. Based on respondent's advertisement (Ex. C-1, attached hereto as Appendix A), I find that respondent represents that, regardless of the user's present condition, ingestion of VIM will enlarge the user's penis; will increase the user's ability to retain an erection; will restore or increase the older user's sexual desire and ability to attain an erection; will increase creative energy and improve muscle tone; will help resist nervous depression; and will improve the user's general health, appearance, and youthful vigor; all as essentially alleged in paragraph 2 of the complaint herein. I do not find that respondent represents that ingestion of "VIM" will restore lost, and increase present, ability to attain and prolong orgasm as alleged in subparagraph (b) 3 of paragraph 2 of the complaint.
5. Complainant's medical evidence concerning respondent's representations as to "VIM" was supplied in the form of testimony by Jack L. Segal, a doctor of medicine, an assistant professor of medicine at the University of California at Los Angeles, board certified in internal medicine, and specializing in the field of clinical pharmacology (Tr. 6, Ex. C-3). I find that Dr. Segal was well qualified to give evidence on the issue of the falsity of respondent's representations concerning "VIM".
6. Dr. Segal had made no chemical analysis of "VIM" and had not conducted any tests using the product. His testimony was based on the assumption that smilax is the only active ingredient in "VIM" as indicated on the label (Tr. 23, 25, 26).
7. Dr. Segal testified that the size of the penis is genetically predetermined but that disease and trauma may have an effect thereon; that prior to puberty the size of the penis may be influenced by hormonal therapy but that enlargement of the penis beyond the size genetically predetermined cannot be achieved either medically or surgically (Tr. 8, 9). In Dr. Segal's opinion "VIM" contains no ingredient which can have the effect of enlarging the penis.
8. Dr. Segal testified that the principal factors influencing the male desire for sex, the ability to attain and retain erection of the penis, and the ability to achieve orgasm are the psychological state of the individual and his general physical health. He further testified that in some rare instances hormonal deficiencies would also be a factor. In his opinion there is no ingredient in "VIM" which will cause in the human male an increase in sexual desire, in the ability to attain and retain an erection, or the ability to attain or prolong orgasm.
9. Dr. Segal testified that a person's energy and muscle tone are determined primarily by his psychological state, general health and age and that some problems in these areas may be treated with medicine or by a psychiatrist or psychologist. In his opinion there is no ingredient in "VIM" which will increase the user's energy or muscle tone (Tr. 12, 13).
10. Dr. Segal testified that there are presently no absolute answers as to the causes of nervous depression but that environmental stresses and physical illness are certainly contributing factors. He stated that treatment for nervous depression is properly in the hands of psychiatrists, psychologists and, if an organic problem is a contributing factor, an internist. In his opinion no ingredient in "VIM" will help he user overcome the effects of nervous depression (Tr. 13, 14).
11. In Dr. Segal's opinion there is no ingredient in "VIM" which will contribute to the improvement of the general health, appearance and youthful vigor of the user (Tr. 14-16).
12. I find that the testimony, including the opinions, of Dr. Segal with regard to the lack of efficacy of "VIM" to produce the results represented by respondents are in conformity with the consensus of medical opinion.
13. Respondent's medical expert testified that his lack of time to research pharmacologic data on smilax rendered him incapable of expressing any certain opinion with respect to the possible hormonal effect on the male user of ingestion of smilax (Tr. 246, 247).
14. Based on the foregoing findings of fact and the record as a whole, I find that the representations made by respondent as set forth in Finding No. 4, above, are materially false in fact.
1. Respondent is engaged in conducting 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.
2. Respondent's advertisements make the materially false representations found above and will be so understood by the average reader. See Donaldson v. Read Magazine, 333 U.S. 178, 179 (1948).
3. Respondent's argument that complainant was required to make a chemical analysis and test of the product involved on which to base its medical evidence is not well taken. See Skinny Suit, P.S. Docket No. 3/44, Postal Service Decision, February 19, 1976. Complainant was at liberty to assume that the contents of the capsules were as stated on the label which respondent affixed to the container. It did so and its medical testimony, as found above, was based on that assumption. If the product contained something other than stated on the label, respondent had the opportunity to show that. Respondent did not do so.
4. The United States Circuit Court of Appeals for the 9th Circuit has recently upheld the constitutionality of 39 U.S.C. § 3005 under attack apparently identical with that set forth in respondent's answer and brief herein. Hollywood House International, Inc. v. Klassen, 508 F.2d 1276 (1974). See also Lynch v. Blount, 330 F. Supp. 689 (U.S.D.C., S.D.N.Y., 1971) aff'd 404 U.S. 1007 (1972).
5. Accordingly, an order pursuant to 39 U.S.C. § 3005 in the form attached should be issued against respondent.