In the Matter of the Complaint Against: OMEGA 6355 Topanga Blvd. at Woodland Hills, CA 91364 and 7106 Alabama Ave. and 7251 1/2 Owensmouth at Canoga Park, CA 91303 and 1242 So. La Cienega Blvd. at Los Angeles, CA 90035 P.S. Docket No. 5/13 08/19/76 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, Suite 614, Beverly Hills, California 90211, for Respondent Before: William A. Duvall, Chief Administrative Law Judge
This case was initiated on May 26, 1976, by the filing of a Complaint by the General Counsel for the United States Postal Service, the Complainant, in which it is alleged that Omega, the Respondent, located at Woodland Hills, Canoga Park, and Los Angeles, California, is engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations contrary to the provisions of Section 3005 of Title 39, United States Code.
Involved in this proceeding are two products; one is a method alleged to be efficacious in increasing the size of the male genital organ; the other is a capsule the contents of which are said to be capable of increasing sexual desire and capabilities.
The charges which are set forth in the Complaint will be attached to this decision as Appendix A; the advertisement for the method of enlarging the male genital organ will be attached to this decision as Appendix B; and the advertisement for the product sold as being capable of increasing sexual desire is attached hereto as Appendix C.
Respondent filed answer to the Complaint but has not appeared at this hearing. Accordingly we now will proceed in accordance with Section 952.11 of the Rules of Practice, in which it is provided that if the Respondent files an answer but fails to appear at the hearing, the presiding officer shall receive Complainant's evidence and render an initial decision.
This matter has been subject to negotiation between the parties for some period of approximately two months, and it was believed that the matter would be resolved by some sort of compromise at this time. However, despite the fact that two continuances have been allowed for the completion of those negotiations, the matter still has not been settled.
In this case, as in the usual case brought under Section 3005 of Title 39, United States Code, there are several basic issues as follows:
1. Is the Respondent engaged in conducting a scheme or device for obtaining money or property through the mails;
2. Does the Respondent make the representations which it is charged with making; and
3. Are those representations materially false as a matter of fact.
Appendices B and C to this proceeding establish that the Respondent does seek remittances of money through the mails in connection with the business in which it is engaged.
The Postal Inspector who investigated this matter did so by means of a procedure which is called test correspondence. In this procedure the investigating inspector using an assumed name and an address at a post office located at some distant place, ordered the products from the Respondent and remitted the required amount of money.
The Respondent supplied both of the products which are under consideration in this proceeding in response to the order submitted by the postal inspector. This test correspondence, including the products received from the Respondent, are in evidence, and it clearly establishes that the Respondent in the conduct of its business, does use the United States mails.
It is neither necessary nor desirable to dwell at length on the question of whether the Respondent makes the representations which are set forth in this Complaint. A cursory comparison of the language in Appendix A to this decision with the language in Appendices B and C to this decision is all that is necessary clearly to establish the fact that the Respondent does make the representations which are set forth in the Complaint.
There remains, therefore, the question as to whether the representations found to have been made by the Respondent are true or false.
Appearing as an expert medical witness in this proceeding was Dr. Vincent F. Cordaro, a doctor of medicine, who by virtue of his education, experience and present occupation is fully qualified to testify with respect to the matter which is the subject of this proceeding.
Dr. Cordaro testified that the controlling factor determining the size of the male genital organ is heredity, and that there is nothing known to medical science which may be taken internally, applied externally, or used in any other manner which will increase the size of the male genital organ in its flaccid or erect state.
The fact of the matter is that the Respondent, in the booklet which it supplies in response to an order, indicates at various places throughout the booklet, that the only enlargement that can be created in the male genital organ is that which takes place between the size of that organ when it is flaccid and when it is in its erect state.
With respect to the product which is sold, upon the representation that it will increase sexual desire, Dr. Cordaro testified that there is nothing in this product which will have that effect. It has been testified in many, many cases of which judicial notice can be taken, that there is no product known to medical science which when taken internally will have the effect of increasing the sexual desire or capability of the person who uses such product.
This is the view of the medical profession in general, and the view is so general that it represents a consensus of reputable informed medical science.
In view of the exhibits which have been received in evidence, and of the testimony of the medical expert with respect to the products sold by the Respondent, it is concluded as a matter of law 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.
Lest there be any question with respect to whether the Postal Service, in proceeding against this Respondent in connection with the pamphlet with respect to the enlargement of the male genital organ, is inhibiting Respondent's right of freedom of speech, it is obvious upon reading the advertisement of the Respondent and from reading the booklet which the Respondent sends through the mails, that the Respondent is really not engaged in the sale of printed matter of written matter. What the Respondent is actually engaged in is the sale of a method which is claimed, and falsely claimed, will produce certain physical results.
In view of all of the foregoing considerations, and subject to Respondent's right to appeal, an order of the type prescribed in Section 3005 of Title 39, United States Code will be issued against this Respondent. 2/
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