In the Matter of the Complaint Against:

 RANCHO DISTRIBUTORS,
 1242 So. La Cienega Blvd.

 and

 EROTIC BOOK CLUB, E.B.C. COMPANY and E.B.C.,
 P.O. Box 35301 at
 Los Angeles, California 90035
 
 P.S. Docket Nos. 4/173 and 4/188
 
 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 

 Joseph Taback, Esq.
 8500 Wilshire Boulevard,
 Beverly Hills, California, for Respondent 

 Before: William A. Duvall, Chief Administrative Law Judge

Transcribed from oral decision as rendered at close of hearing held June 14, 1976. Minor language changes have been made, but the substance of the decision is unchanged.

This hearing involves proceedings brought by the Postal Service, acting through the Consumer Protection Office of the Law Department, the Complainant, in which there are charges that Rancho Distributors, Erotic Book Club, E.B.C. Company and E.B.C., all of Los Angeles, California, are 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 Respondents in these proceedings, which are respectively, P.S. Docket No. 4/173 with respect to Rancho Distributors and P.S. Docket No. 4/188 with respect to the remaining Respondents, are engaged in the sale of a device which is represented as being capable, when used as directed, of increasing the size of the male genital organ, the penis.

The charges in both docket numbers are identical or substantially identical, and the charges that appear in P.S. Docket No. 4/173 will be attached to this decision as Appendix A.

With respect to the advertising material in use by the various Respondents, there has been pointed out one difference, but that difference is so inconsequential that it need not be considered. Therefore, the advertising material which is attached to the complaint in P.S. Docket No. 4/173 will be attached to this decision as Appendix B.

At the outset of the proceeding, counsel for the parties entered into a stipulation under which the advertising material for both cases and test purchases in both cases were admitted into evidence. The product that is being sold by all Respondents is the same, so only one example of that was admitted into evidence.

In this proceeding, there are certain issues which have been joined as follows:

Does the Respondent advertise its products?

Does it seek remittances of money through the mails?

Does it make the representations which are set forth in the complaint?

Are the representations made true or false?

The Respondents will be referred to either as the "Respondent", collectively, or "it", collectively.

By virtue of the stipulations, some of these issues have been disposed of. For example, the fact has been established that the Respondent does advertise its product; that it does seek remittances of money through the mails; and that it does make certain representations. A comparison of the charges set forth in Appendix A to this decision with the advertising material which is Appendix B to this decision makes it clear beyond cavil that the Respondent does make the representations which are set forth in the Complaint.

At this point, it is appropriate to refer to an old case which has been followed for a number of years, but it is particularly appropriate, I believe, in this case, and that is the case of Donaldson v. Read Magazine, 333 U.S. 178 at pages 188, 189, where the Court said:

"Advertisements as a whole may be completely misleading although every sentence separately considered is literally true. This may be because things are omitted that should be said, or because advertisements are composed or purposefully printed in such way as to mislead. Wiser v. Lawler, 189 U.S. 260, 264; Farley v. Simmons, 99 F.2d 343, 346; see also cases collected in 6 Eng. Rul. Cas. 129-131. That exceptionally acute and sophisticated readers might have been able by penetrating analysis to have deciphered the true nature of the contest's terms" -- and that was the type of scheme that was under scrutiny in that case -- "is not sufficient to bar findings of fraud by a fact-finding tribunal. Questions of fraud may be determined in the light of the effect advertisements would most probably produce on ordinary minds. Durland v. U.S., 161 U.S. 306-313, 314; Wiser v. Lawler, supra at 264; Oesting v. U.S., 234 F. 304, 307. 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."

That quotation is appropriate in this case because there are some statements that are in this advertising material which probably are true, but they, while being literally true, create in the mind of the reader the impression that they are presently valid, and that is a false impression.

The particular statement to which I refer is the following: "Reports of such techniques", and that refers to the techniques comparable to those that are advocated in this advertising literature, "go back over 2,000 years to ancient Indians." That statement may or may not be true, but let it be assumed that it is true that those practices go back for a period of 2,000 years. All that means, on the basis of the medical testimony in this record, discussed later herein, is that for 2,000 years the ancient Indians were wrong. But the statement suggests that the ancient Indians for over 2,000 years successfully employed the techniques to accomplish the desired results.

The question to be disposed of next is whether these representations that have been found to have been made are true or false. Testifying as an expert medical witness in this matter was Dr. Jack L. Segal, a doctor of medicine who is an Assistant Clinical Professor of Medicine at the University of California at Los Angeles. Dr. Segal is well qualified to testify with respect to the area of medicine that is involved in this proceeding.

With respect to the charge which is set forth as charge (c) in the Complaint which is Appendix A hereto, examination of the literature discloses that there is no representation with respect to the effect of the use of this device on the size, which is to say the amount, of the ejaculation of the individual. Complainant insists that the use of the word "strength" somehow connotes amount, but in the present context "strength" does not carry with it the connotation of "size" or "volume".

Dr. Segal, whose testimony is particularly enlightening and frank, testified that in his professional opinion the use of this device would not contribute to an increase in the strength, that is to say, the propulsive force of the ejaculation. But, out of a sense of reasonableness and fairness to the Respondent, the witness said that it is possible that some increase in the strength of the ejaculation might occur.

Therefore, with respect to charge (c), the first part of the charge, that is that portion which relates to the size or amount of ejaculation, is not made by the Respondent; and the Complainant has not borne its burden of proof with respect to that portion of the charge which relates to the strength of the ejaculation.

Dr. Segal testified that the size of the penis depends upon two factors, the first and most important of which is heredity, and the other and less important factor consists of organic conditions, which, if corrected, might restore to the penis its normal size, shape and function. It was the testimony of this expert that the use of this device as directed would have no beneficial effect on the size of the penis.

There was expert medical testimony that the use of this device as directed would produce sensory stimuli to the user. However, these stimuli would be of an unpleasant nature or character and the ultimate effect of these unpleasant sensory stimuli would be to decrease the tendency to have any erection, much less a stronger or stiffer erection.

There is nothing which would result from the use as directed of this device which would enhance one's ability to continue the sex act. Therefore, there is nothing that would result from the use of this device which would increase sexual strength or vigor.

There is some muscle tissue at the base of the penis, but this muscle tissue is not related to the function of erection, and, in any event, this muscle tissue would not be affected by the use as directed of this device. There is a certain minimal amount of muscle tissue in the internal area of the penis and it is this muscle tissue which, if strengthened, possibly could increase the strength of the ejaculation. But there is no muscle tissue in or out of the penis which contributes to the attaining or maintaining of an erection.

In light of this expert medical testimony which makes up the record in this proceeding, it follows that the representations found to have been made by the Respondent, except as indicated above, are materially false as matters of fact.

In the case of U.S. Health Club, Inc. v. Major, 182 F. Supp. 759, rev'd. on other grounds 292 F.2d 665 (1961); cert den. 386 U.S. 896, the United States Court of Appeals for the Third Circuit held that the "uncontradicted testimony (of one qualified medical expert) established a universality of medical opinion on the crucial issues." That is a precise description of the situation that is presented in this case, since no medical, or other, witness was presented by Respondent.

The Respondent has raised questions about some of the legal aspects of this proceeding which require some comment. Respondent suggests that it was improper or illegal to require that the Respondent name its prospective witnesses in order to have the hearing transferred to Los Angeles County, California. The rule of practice which is involved in this situation appears at 39 C.F.R. 952.15 in which it is provided that not later than the date fixed for the filing of the answer a party may file a request that a hearing be held to receive evidence in his behalf at a place other than that designated for hearing in the notice. There is, next, set forth certain information which must be included in the request.

This rule is not a one-way street. It is applicable to either party to a proceeding, and it has happened that, for various reasons, the Complainant has wanted to have the proceeding conducted in some place other than Washington, D.C. In such instances the Complainant has been required to meet the same requirements that the Respondent in this proceeding had to meet. There is no discrimination with respect to parties in connection with this rule.

Respondent also attacks this proceeding as being unconstitutional as in violation of the rights guaranteed citizens under the First and the Fifth Amendments to the Constitution. This question has been raised many times, and it has been disposed of always in favor of the constitutionality of the Act under which these proceedings are brought and many times, though not always, as to the application of the statute in particular cases.

One such case is that of Lynch v. Blount which was tried in the United States District Court for the Southern District of New York and is reported at 330 F. Supp. 689. In holding that the proceedings under examination in that case were proper and that the statute is constitutional, the Court commented as follows on page 694:

"Plaintiff seems to assume that what he calls 'First Amendment safeguards' are always the same, whether the area involved is politics, religion, obscenity, commercial fraud or what not else. We think the safeguards defined in Blount v. Rizzi, 400 U.S. 410, 91 S. Ct. 423, 27 L.Ed. 2d 498 (1971), for obscenity cases are wholly inappropriate, unnecessary and inapplicable to the field of commercial fraud". (The Lynch v. Blount decision was affirmed by the Supreme Court of the United States at 404 U.S. 1007 (1972).)

As recently as May 24, 1976, the Supreme Court of the United States has expressed itself on the viability of those statutes which require that sellers of merchandise represent their products fairly and accurately. That case is Virginia State Board of Pharmacy, et al., Appellants v. Virginia Citizens Consumer Council, Inc., et al., case number 74-895, 44 Law Week 4686, May 25, 1976. Speaking for the majority in that case, Mr. Justice Blackmun said: "Untruthful speech, commercial or otherwise, has never been protected for its own sake. Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 (1974); Konigsberg v. State Bar, 366 U.S. 36, 49 and n. 10 (1961). Obviously, much commercial speech is not provably false, or even wholly false, but only deceptive or misleading. We foresee no obstacle to a State's dealing effectively with this problem." In a footnote, Mr. Justice Blackmun cites, among others, the case of United States v. 95 Barrels of Vinegar, 265 U.S. 438 at page 443 (1924), where it is said: "It is not difficult to choose statements, designs and devices which will not deceive."

This proceeding is a proper area of activity of the Postal Service in carrying out its function under 39 U.S. Code 3005 which, as heretofore pointed out, was enacted for the protection of the public.

Having found that the Respondent in the conduct of its business does advertise its product; does solicit remittances of money through the mails; does make the representations which are set forth in the Complaint, except as heretofore noted; and it having been found that these representations are, as previously indicated, materially false as to matters of fact, it follows that 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.

In view of the foregoing considerations, an order of the type provided in that Section of the Code should be issued against these Respondents.