In the Matter of the Complaint Against: PROGRESSIVE SALES, PROGRESSIVE SALES GROUP, and P.S.G. & CO., Box 310 at New Rochelle, New York 10804 P.S. Docket No. 5/23 08/25/76 Duvall, William A.; Chief Administrative Law Judge H. Richard Hefner, Esq. Law Department United States Postal Service Washington, D. C., for Complainant John B. Amrod, Esq. 1055 Franklin Avenue, Garden City, New York, for Respondent Before: William A. Duvall, Chief Administrative Law Judge
This proceeding was initiated on June 22, 1976, when the General Counsel for the Postal Service, Complainant, filed a Complaint in which it was alleged that Progressive Sales, Progressive Sales Group and P.S.G. Company, at New Rochelle, New York, are engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations in violation of Section 3005 of Title 39, United States Code.
The Respondent filed an answer to the Complaint in which all of the allegations of the Complaint were denied except that it was not denied and may, therefore, be taken as admitted that in the conduct of its business the Respondent does use the advertisement which was attached to the Complaint as Exhibit A thereto.
The Complaint charges the Respondent with engaging in the sale through the mails of a product which is said to be an aphrodisiac. The specific charges of the Complaint are attached to this decision as Appendix A hereto and the advertisement which was received in evidence as Complainant's Exhibit C-A is attached to this decision as Appendix B.
Complainant presented no evidence relating to "P.S.G. & Co." Accordingly, the Complainant has not sustained its burden of proof and the Complaint is dismissed as to this Respondent.
The first witness called by the Complainant was Inspector L. S. Crawford who testified that the matter came to his attention when he noticed in a publication known as the National Informer for the date February 29, 1976, an advertisement of the Respondent's product, which advertisement carried with it an order blank for use by purchasers. Varying amounts of the product could be purchased: first, 5 portion size for $4.95; next, the 12 portion size for $7.95; and, finally, the 24 portion size for only $11.95.
Inspector Crawford testified that he responded to this advertisement under the name of Thomas Gue at Pequannock, New Jersey, and he ordered the product through the process which is known and recognized as test correspondence. In due course, he did receive the product through the mails. He ordered the five portion size which turned out to be, when delivered, five capsules of reddish-brown color in a small plastic bag. Inside the plastic bag is a label in which the contents of the product are shown to be ginseng, capsicum frutescens, and albus simila.
That the Respondent does advertise its product is established by the aforesaid evidence in addition to the fact that the Respondent has admitted (1) that it advertises its product by means of the advertisement attached to this decision as Appendix B, and (2) that the Respondent does solicit remittances of money through the mails for the product and that the product is sent to remitters.
In view of the fact that both the representations and the Respondent's advertisement are attached to this decision, it is not necessary to dwell at length on the question of whether the Respondent makes the representations which are set forth in the Complaint. Examination of both of the appendices, and comparison of one with the other, make it clear that the advertisement does create in the mind of the average reader the impressions which are expressed in the terms of the charges of the Complaint. The test for making that determination is set forth in the case of Donaldson v. Read Magazine, 333 U.S. 178, at pages 188 and 189.
With respect to the efficacy of the product to produce the results which are promised in the advertising material, only one expert medical witness was presented at the hearing. That witness was Dr. Vincent F. Cordaro, who by virtue of his training, experience and present occupation and interests is well qualified to give testimony with respect to the matters under consideration in this hearing. Dr. Cordaro testified that the medical and the lay definition of "aphrodisiac" is the same; that the term means a substance which, if taken, will create or increase the sexual desire and capability of the user.
Dr. Cordaro testified that in his present position as liaison officer between the Postal Service and the Food and Drug Administration, and as a Medical Officer of the Food and Drug Administration, he has had occasion on numbers of times to look into the capabilities of the items which are the ingredients of the present product. He has conducted this investigation by means of research in the medical literature and by conferring with his peers in the profession. It was the testimony of the medical expert that it is the view of the medical profession that there is nothing about these ingredients, taken either singly or in the combination in which they are here presented, or in any other combination so far as that is concerned, that will produce an aphrodisiac effect upon the user. The medical testimony went beyond that point and indicated that not only will this product not produce that result, but there is no other product presently known to medical science which will produce the results which are promised in the advertising material in use by this Respondent.
Based upon the foregoing considerations, it is found as a fact: one, that the Respondent does use the mails in the conduct of its business; two, the Respondent does seek remittances of money through the mails; three, the Respondent does make the representations which are set forth in the Complaint; and, four, the representations which have been found to be made by the Respondent are materially false as a matter of fact.
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, Title 39, United States Code. Applicable to the situation presented here is the decision in U. S. Health Club v. Major, 292 F.2d 665 (1961) wherein 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."
Proposed findings of fact and conclusions of law submitted by the parties have been considered and they are adopted to the extent heretofore indicated. Otherwise, such proposed findings of fact and conclusions of law are rejected because they are contrary to or unsupported by the evidence or because of their immateriality.
An order of the type provided for in 39 U.S. Code 3005 should be issued against the Respondents Progressive Sales and Progressive Sales Group.
________________