In the Matter of the Complaint Against: J.S. COLLECTORS, P.O. Box 2411 at Van Nuys, California 91401 P.S. Docket No. 4/145 07/20/76 Duvall, William A., Chief Administrative Law Judge Daniel S. Greenberg, Esq. Law Department United States Postal Service Washington, D.C., for Complainant Burton C. Jacobson, Esq. 424 South Beverly Drive, Beverly Hills, California, for Respondent Before: William A. Duvall, Chief Administrative Law Judge
This proceeding was initiated by the filing of a Complaint by the Consumer Protection Office, Law Department United States Postal Service, the Complainant, in which it is alleged that J.S. Collectors at Van Nuys, California, 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 Section 3005 of Title 39, United States Code.
The particular item which the Respondent is selling, insofar as this proceeding is concerned, is called "Spanish Fly Spice", and the precise language of the charge is:
"That, by means of said advertisement, and in similar matter, Respondent represents, directly or indirectly, by means of affirmative statement, implication, or omission, in substance and effect; that 'Spanish Fly Spice' will rapidly instill an insistent and compelling need for sexual satisfaction in the female."
The advertisement which is attached to the Complaint in this case as Exhibit A will be attached to this decision as Appendix A, and it was received in evidence as Complainant's Exhibit 1.
It has been recognized for many years that the present Postal statute which is found at 39 U.S. Code 3005 and its predecessor which was 39 U.S. Code 4005 have, and had, as their purpose not the punishment of the persons who operate in a manner proscribed by that statute, but the purpose is to protect the buying public. It has been pointed out many times that there is a segment of the buying public which is not sophisticated, which is not learned, which is gullible, trusting, and it has been held that that segment of the public is entitled to protection, too. Gottlieb v. Schaffer, 141 F. Supp. 7, 15-16.
There was presented as a witness for the Respondent in this case, the young lady who handles the complaints for the Respondent. It was the testimony of this witness that there have been instances, few in number, in which persons have complained because of the fact that they anticipated, when they made the purchase, that the ingestion of these capsules would produce a certain effect upon the individual and that, upon the taking of the capsules, the anticipated effect did not result.
There is no way, of course, of telling how many purchasers of this product bought the product with the same anticipation and suffered the same disappointment, but did not go so far as to ask for a refund or to file a complaint, but reason tells us that there probably or possibly are some, but whether there are or not is not too important.
The fact remains that there is deception in this advertisement, and, as the Court stated in Donaldson v. Read Magazine, 333 U.S. 178 at pages 188-89:
"People have a right to assume that fraudulent advertising traps will not be laid to ensnare them. 'Laws are made to protect the trusting as well as the suspicious.' Federal Trade Commission v. Standard Education Society, 302 U.S. 112, 116."
It is pointed out that the stipulations entered into at the outset of the hearing establish that the Respondent is engaged in business; that it does advertise its product; and that it solicits remittances of money through the mails. It is found on the sole charge which is presented in this hearing that the charge as expressed in the Complaint does state the impression that will be created in the mind of some readers of this advertisement. It is further found, that Respondent's product, taken as directed, will not create in the female an insistent and compelling need for sexual satisfaction. Thus, the 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 Section 3005 of Title 39, United States Code.
From all of the foregoing considerations, it follows that an order of the type provided in 39 U.S. Code 3005 should be issued against this Respondent.
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