In the Matter of the Complaint Against:

 ORIGINAL COSMETIC PRODUCTS, INC.,
 P.O. Box 480 and LOVE SONG COSMETIC CORP.,
 P.O. Box F at
 New York, New York 10011;

 and

 LOVE SONG COSMETICS,
 P.O. Box 498 Cooper Station at
 New York, New York 10003  

 P.S. Docket No. 4/120

 05/28/76
 
 Grant, Quentin E., Administrative Law Judge

 H. Richard Hefner, Esq.
 Law Department
 United States Postal Service
 Washington, D.C., for Complainant 

 Herbert Monte Levy, Esq.
 New York, New York, for Respondents 

 Before: Quentin E. Grant, Administrative Law Judge 

Complainant alleges that respondents are engaged in conducting a scheme or device for obtaining money or property through the mails by false representations in violation of 39 U.S.C. § 3005. The proceeding involves nine products described hereinafter in detail.

The complaint alleges that respondents are engaged in conducting a scheme or device for obtaining money or property through the mails by false representations in violation of 39 U.S.C. § 3005. The proceeding involves nine products described hereinafter in detail.

The complaint alleges that respondents attract attention to these products by means of advertising matter containing false representations calculated and intended to induce readers thereof to remit to respondents money or property for the product through the mails.

The complaint further alleges that by means of such advertising matter, respondents expressly and impliedly represent to the public in substance and effect:

"(a) SONG OF PASSION TABLETS are an effective aphrodisiac or sexual stimulant. (e.g., 'Song of Passion is a unique blend of aphrodisiacs . . . .,' 'It is one of the best so-called aphrodisiacs for a satisfying marital relation that can be found anywhere.' etc.)

"(b) SUPER GINSENG TABLETS are an effective means of increasing and prolonging sexual virility and potency. (e.g., 'It has been used by the Orientals for over 5,000 years to increase sexual virility and prolong life and potency. Indeed, if one is to believe all the legendary writing on this exotic herb, it then can indeed be called "The Root of Virility".' etc.)

"(c) SPANISH FLY IMITATION is an effective aphrodisiac or sexual stimulant for men and women. (e.g., 'Our Spanish Fly Imitation is a special blend of exotic oriental spices designed to create a mild irritation of the urinary tract. Upon passage thru the body tiny particles of this genuine imported spice effectively and safely stimulate the sexual organs in both the male and female and has the potential to produce real excitement.' etc.)

"(d) GINSENG AND IMITATION SPANISH FLY is an effective means of heightening and prolonging sexual performance, capacity and enjoyment. (e.g., 'The Chinese have used [ginseng] as an aphrodisiac for over 5,000 years.' 'Legendary writings say Ginseng is highly effective in awakening and producing sexual desires in men and women alike. We have added our imitation Spanish Fly to the Ginseng to make it work faster and longer.' 'Ginseng is sometimes called "The Turn-on Root". To quote S. Steingold ". . . if you think you have been turned on before you ain't seen nothing yet". Try our Ginseng with Spanish Fly Capsules and find out what he means.' etc.)

"(e) JUNGLE PASSION CAPS are an effective aphrodisiac or sexual stimulant. (e.g., '. . . designed to bring out the "Beast in You". Students of aphrodisiacs could write volumes about this product. Try it and write your own testimonial.' etc.)

"(f) ALL AMERICAN BOOSTER TABS WITH VITAMIN E are an effective means of increasing sexual virility and performance. (e.g., 'NOW]] EXCITING NEW ITEMS FOR A MORE ABLE AND DESIRABLE YOU,' '. . . it will work even better than our old formula to do the job you want it to.' '. . . or are [you] just feeling tired and sluggish when you should be roaring like a lion - this product may be just for you.' etc.). (As amended pursuant to stipulation (Tr. 131).)

"(g) AUTHENTIC TURNERA APHRODISIACA CAPS are an effective aphrodisiac or sexual stimulant. (e.g., '. . . designed to react upon the body in approximately 1 hour. The name Turnera Aphrodisiaca stands on its own.' 'MORE LEGENDARY APHRODISIACS WITH THE PLACEBO QUALITIES DOCTORS HAVE USED FOR YEARS]]' etc.)

"(h) DRIVE HER WILD will heighten sexual enjoyment and cause women to engage in sexual intercourse who were previously too frigid to do so. (e.g., 'This new and amazing product is for women who are having sexual relations and not getting the utmost enjoyment that sex can give you.' 'It will also help those who are contemplating sexual relations but are too frigid to try.' '. . . when applied to the nipples or clitoris will stimulate and sensitize them arousing your sexual desires and helping you get the utmost enjoyment from sex.' etc.)

"(i) INSTANT ERECTION OIL will instantly and for a prolonged period of time enable a man who cannot otherwise do so to achieve an erection. (e.g., 'scientifically formulated to help you get an instant erection when rubbed on the head of the penis.' '. . . it causes a flow of blood to rush into the penis, giving you an instant erection.' '. . . it should cause the penis to get harder and larger for a prolonged period of time.' '. . . this new and amazing product is for men who have tried everything else and have had no luck. No longer need you let the best of joys that life has to offer pass you by. With this fantastic product you too can now stand up and be counted.' etc.)

Finally, the complaint alleges that the representations alleged are materially false as a matter of fact.

The answer filed by respondents denies the allegations of the complaint except for an admission as to the dissemination of the advertisements annexed to the complaint.

A hearing was held in New York City and Washington, D.C., at which the parties introduced evidence and thereafter submitted proposed findings of fact and conclusions of law.

1. Respondent uses the mail to disseminate the advertising matter involved in this proceeding. Such advertising matter is calculated and intended to induce readers thereof to remit money or property through the mails for the products as advertised. (Tr. 3; Resp. Proposed finding no. 1.)

2. I find that the products involved in this proceeding contain the quantities of active ingredients listed below (Stip. Joint Ex. 1):

a. Love Song Song of Passion Tablets:

a) 26 mgs Passiflora (a/k/a Passion Flower) b) 1% Rufous Capsicum Annum (a/k/a Red Pepper)

b. Love Song Super Ginseng:

Powdered extract of ginseng 3:1 - 10 mgs

c. Love Song Imitation Spanish Fly:

1% Rufous Capsicum Annum (a/k/a Red Pepper)

d. Oriental Love Imitation Spanish Fly w/ Ginseng:

a) 26 mgs Ginseng per 4 tablets b) 1% Rufous Capsicum Annum (a/k/a Red Pepper)

e. Oriental Love Jungle Passion:

a) 1% Rufous Capsicum Annum (a/k/a Red Pepper) b) 1% Damiana (a/k/a Turnera Aphrodisiaca) c) 1% Serenoa Serrulata (a/k/a Saw Palmetto Berries)

f. Oriental Love Turnera Aphrodisiaca:

a) 1% Turnera Aphrodisiaca (a/k/a Damiana) b) 1% Rufous Capsicum Annum (a/k/a Red Pepper)

g. Drive Her Wild Oil:

.75% Methyl Salycilate (a/k/a Artificial Oil of Wintergreen)

h. Instant Erection Oil:

1% Methyl Salycilate (a/k/a Artificial Oil of Wintergreen)

i. All American Booster Caps:

a) Vitamin A acetate 1,000 I.U. b) Ascorbic Acid 50 mg. c) Vitamin E 25 I.U. d) Caffeine 25 mg.

3. I find with respect to the products of respondent Love Song Cosmetic Corp. (hereinafter "Love Song") involved in this proceeding (SONG OF PASSION TABLETS, SUPER GINSENG TABLETS, SPANISH FLY IMITATION, GINSENG AND IMITATION SPANISH FLY) that the advertisement in which they are described (Ex. C-1(c)) has a predominately sexual orientation which, taken in its totality, makes the representation that such products are effective aphrodisiacs or sexual stimulants. The various portions of the advertisement which support this general finding are as follows:

"Love Song Products - an exciting, supercharged sex life requires a full power body. For your sexual pleasure here's a fabulous new line of pleasure packed marital aids, aphrodisiacs and stimulants to turn you on and on and on]]]"

"Love Song products will intensity your love life or your money back."

"All Love Song products are unconditionally guaranteed."

4. With respect to SONG OF PASSION TABLETS I find that respondent Love Song makes the representations alleged in the complaint, based on Finding of Fact No. 3, supra, and on the following additional wording found in the portion of the advertisement relating specifically to that product:

"Guaranteed to make her hot"

"Activate, stimulate and glamorize your sex life"

"Song of Passion is a unique blend of aphrodisiacs and irritants * * *"

5. With respect to SUPER GINSENG TABLETS I find that respondent Love Song makes the representations alleged in the complaint based on Finding of Fact No. 3, supra, and on the following additional wording found in the portion of the advertisement relating specifically to that product:

"Release inhibitions - increase desire"

"The legendary root of virility"

"It has been used by the Orientals for over 5000 years to increase sexual virility and prolong life and potency."

6. With respect to SPANISH FLY IMITATION I find that respondent Love Song makes the representations alleged in the complaint based on Finding of Fact No. 3, supra, and on the following additional wording found in the portion of the advertisement relating specifically to that product:

"Put her in the Mood"

"The Aphrodisiac Qualities of Spanish Fly Are Legendary"

"Upon passage thru the body tiny particles of this genuine imported spice effectively and safely stimulate the sexual organs in both the male and female and has the potential to produce real excitement. Folklore has it that Don Juan has used the ingredients in these capsules to help him gain his legendary reputation as a super stud."

7. With respect to GINSENG AND IMITATION SPANISH FLY I find that respondent Love Song makes the representations alleged in the complaint based on Finding of Fact No. 3, supra, and the following additional wording found in the portion of the advertisement relating specifically to that product:

"Guaranteed to make her hot"

"Do you measure up? You can. Unbelievable in their effect"

"The Chinese have used it as an aphrodisiac for over 5000 years."

"Ginseng is sometimes call 'The Turn-on Root'"

"To quote S. Steingold '* * * if you think you have been turned on before you ain't seen nothing yet.' Try our Ginseng with Spanish Fly Capsules and find out what he means"

8. I find with respect to the products of respondent, Original Cosmetics Products, Inc., (hereinafter "Original Cosmetics") involved in this proceeding (JUNGLE PASSION CAPS, ALL AMERICAN BOOSTER CAPS WITH VITAMIN E, AUTHENTIC TURNERA APHRODISIACA CAPS, DRIVE HER WILD OIL or CREAM, and INSTANT ERECTION OIL) that the advertisement in which they are described (Ex. C-1(b), R-1) has a predominantly sexual orientation which, taken in its totality, makes the representation that such products are effective aphrodisiacs or sexual stimulants. The various portions of the advertisement which support this general finding are as follows:

"Exciting New Items for a More Able and Desirable You"

"More Legendary Aphrodisiacs With the Placebo Qualities Doctors Have Used for Years"

9. With respect to JUNGLE PASSION CAPS, I find that respondent Original Cosmetics makes the representations alleged in the complaint based on Finding of Fact No. 8, supra, and the following additional wording found in the portion of the advertisement relating to that product:

"* * * designed to bring out the 'Beast in You.' Students of aphrodisiacs could write volumes about this product. Try it and write your own testimonial."

10. With respect to ALL AMERICAN BOOSTER TABS WITH VITAMIN E, I find that respondent Original Cosmetics makes the representations alleged in the complaint based on Finding of Fact No. 8, supra, and the following additional wording found in the portion of the advertisement relating to that product:

"It is combined with a general cerebral and body stimulant so that it will work even better than our old formula to do the job you want it to. If you are suffering from a lack of any of the above vitamins or are just feeling tired and sluggish when you should be roaring like a lion - this product may be just for you."

11. With respect to AUTHENTIC TURNERA APHRODISIACA CAPS, I find that respondent Original Cosmetics makes the representations alleged in the complaint based on Finding of Fact No. 8, supra, and the following additional wording found in the portion of the advertisement relating to that product:

"* * * designed to react upon the body in approximately 1 hour. The name Turnera Aphrodisiaca stands on its own."

12. With respect to DRIVE HER WILD oil or cream, I find that respondent Original Cosmetics makes the representations alleged in the complaint based on Finding of Fact No. 8, supra, and the following additional wording found in the portion of the advertisement relating to that product:

"An amazing environmental sensitizer * * *"

"This new and amazing product is for women who are having sexual relations and not getting the utmost enjoyment that sex can give you. It will also help those who are contemplating sexual relations but are too frigid to try."

13. With respect to INSTANT ERECTION OIL, I find that respondent Original Cosmetics makes the representations alleged in the complaint based on Finding of Fact No. 8, supra, and the following additional wording found in the portion of the advertisement relating to that product:

"Instant Erection Oil is scientifically formulated to help you get an instant erection when rubbed on the head of the penis * * *. Not only should it give an instant erection, it should cause the penis to get harder and larger for a prolonged period of time * * * this new and amazing product is for men who have tried everything else and have had no luck. No longer need you let the best of joys that life has to offer pass you by. With this fantastic product you too can now stand up and be counted."

14. Complainant relied on the testimony of Robert S. Hotchkiss, M.D., to support its allegations of misrepresentations. Dr. Hotchkiss possessed outstanding qualifications to testify in this proceeding (Ex. C-6, Curriculum vitae) being a specialist in urology and since 1949, Professor and Chairman, Department of Urology, New York University School of Medicine and Postgraduate Medical School. Urology is that branch of surgery and medicine dealing with conditions of the genitourinary tract.

Dr. Hotchkiss has discussed matters relating to sexuality with other urologists, instructs first and second year medical students on sexual relations in terms of sexual adjustment and correction of difficulties such as impotence and frigidity, and keeps abreast of current literature and developments in the fields of sex and sexuality (Tr. 51).

According to Dr. Hotchkiss, the great majority of sexual complaints and problems are psychogenic, rather than organic, in origin (Tr. 21, 22, 23). The only substances considered by Dr. Hotchkiss to constitute effective aphrodisiacs, or sexual stimulants, are testosterone, for males suffering from an insufficiency of male hormones, and drugs used for the treatment of thyroid conditions which may inhibit sexual performance and capacity (Tr. 24). Dr. Hotchkiss, with all his experience in the field of sexual problems, knew of no aphrodisiac for persons whose impotence or other sexual problems, are not organically caused (Tr. 25).

15. It was Dr. Hotchkiss' opinion that the products involved in this proceeding do not have the efficacies represented in the advertisements as alleged in the complaint. According to Dr. Hotchkiss, the only ingredients contained in any of the products which have a generally recognized medical or therapeutic value are the methyl salicylate (oil of wintergreen) found in DRIVE HER WILD CREAM and INSTANT ERECTION OIL, and vitamins A and C and caffeine, present in ALL AMERICAN BOOSTER TABS. Ingestion of the vitamins could have a stimulating effect on the sexual virility and performance of a person with a clinically demonstrable deficiency of such vitamins. In the absence of such a deficiency they would have no such effect (Tr. 45). In the opinion of Dr. Hotchkiss, the vitamins will not have an aphrodisiac effect (Tr. 76). Methyl salicylate is used in medical practice in the treatment of sore joints or muscles. None of the products, in his opinion, constitute effective aphrodisiacs, sexual stimulants, or valid products to increase sexual performance, capacity, or enjoyment. With respect to DRIVE HER WILD oil and INSTANT ERECTION CREAM, Dr. Hotchkiss was of the opinion that the recommended method of application, but not the ingredients themselves, might produce sexual stimulation (Tr. 80, 81, 84, 86, 87).

16. Dr. Hotchkiss expressed the opinion that the knowledge of a person that he is ingesting a placebo (a substance with no medicinal value) would destroy the real purpose of the placebo, which is a favorable psychological reaction to the substance (Tr. 108, 109).

17. Dr. Hotchkiss admitted a degree of bias against the drugs involved in this proceeding as worthless for the purposes represented by respondents and in being "pushed on the public who is paying for them," but attempted to balance such bias with honest answers to the questions put to him (Tr. 117, 118).

18. I find that the opinions expressed by Dr. Hotchkiss with regard to the matters at issue in this proceeding coincide with the consensus of informed medical and scientific opinion in the field of urology (Tr. 51, 52).

19. Dr. Joseph Edward Davis, a well-qualified urologist, testified for respondent. The net of Dr. Davis' testimony with respect to the various products involved was that he could not state that they were misrepresented in respondents' advertising because he lacked knowledge, based on scientific evidence, as to whether the products would produce the results represented (Tr. 41-43). Dr. Davis does not knowingly give placebos to patients in his practice (Tr. 33) and, the same as Dr. Hotchkiss, has never prescribed any of the products involved in this proceeding to increase sexuality, and does not know any doctors who use the substances involved (Tr. 40, 41, 101).

1. Respondents are 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.

2. I reach the foregoing conclusion in spite of the wording respondents employ in their advertisements, such as "legendary aphrodisiacs" and "placebo qualities", which might alert the buying public to the lack of efficacy of these products were it to study carefully and weigh each such word. But as the Court said in Cates v. Hederlein, 189 F.2d 369 at p. 373:

"The buying public does not ordinarily carefully study or weigh each word in an advertisement and the ultimate impression upon the mind of the reader arises not only from what is said but also all of that which is reasonably implied. Aronberg v. Federal Trade Commission, 7 Cir., 132 F.2d 165, 167. The important criterion is the net impression which the advertisement is likely to make upon the purchasers to whom the advertisement is directed. Charles of the Ritz Distributors Corp. v. Federal Trade Commission, 2 Cir., 143 F.2d 676, 680. It has been held that even if an advertisement is so worded as not to make an express misrepresentation, nevertheless if it is artfully designed to mislead those responding to it, the mail fraud statutes are applicable. Durland v. United States, 161 U.S. 306, 313, 16 S. Ct. 508, 40 L.Ed. 709; McCarthy v. United States, 2 Cir., 187 F. 117."

3. Respondents' 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).

4. Respondents' argument that complainant was required to prove the alleged lack of efficacy of the products involved and to support its expert medical testimony by experimentation or testing is not well taken. The general medical and pharmacological knowledge of complainant's medical witness was a sufficient basis for his expert medical opinion. Charles of the Ritz Dist. Corp. v. Federal Trade Com'n, 143 F.2d 676, 678, 679. See also Research Laboratories v. United States, 167 F.2d 410, 416, 417; Skinny Suit, P.S. Docket No. 3/44, Postal Service Decision, February 19, 1976; Rogers Laboratories, Inc., P.S. Docket No. 4/123, Postal Service Decision, April 14, 1976; Schiffahrts Laboratories, P.S. Docket No. 3/193, Initial Decision, April 26, 1976.

5. The opinions expressed by complainant's expert as to lack of efficacy of these products were not substantially controverted by those of respondent's medical expert whose testimony amounted to profession of a lack of knowledge as to what, if any, efficacy these products might have as aphrodisiacs or sexual stimulants.

6. The proposed findings of fact and conclusions of law submitted by the parties have been considered and adopted to the extent indicated. Otherwise, they are denied because they are not supported by the evidence, are contrary to the evidence, or because they are irrelevant or immaterial to the decision.

7. Accordingly, an order pursuant to 39 U.S.C. § 3005 in the form attached should be issued against respondents.