In the Matter of the Complaint Against: ADVISORS Post Office Box 773 at San Bernardino, CA 92402 P.S. Docket No. 5/32 09/23/76 Grant, Quentin E.; Administrative Law Judge Thomas A. Ziebarth, Esq. Law Department United States Postal Service Washington, D.C., for Complainant No appearance for Respondent nBefore: Quentin E. Grant, Administrative Law Judge
Complainant initiated this proceeding on July 12, 1976 by filing a complaint alleging that respondent, doing business under the name "Advisors," is engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations in violation of 39 U.S.C. 3005.
The complaint alleges that respondent attracts attention to the scheme or device by means of direct mail circulars which are calculated to induce readers thereof to remit money or property through the mails. The complaint further alleges that by means of such circulars, or material similar thereto, respondent represents, directly or indirectly, in substance and effect, whether by affirmative statements, omissions, or implication that the "pads" or "strips" featured in the advertising material are effective in the treatment, alleviation, or cure of leg cramps and arthritis. The complaint alleges that such representations are materially false as a matter of fact.
Respondent filed an answer to the complaint, signed by F. W. Milligan. Essentially the answer asserts that the product, a flexible magnetic strip or pad, will do exactly what the advertising represents. It states, however, that about May, 1976 respondent deleted from his advertising any mention of arthritis and that since June 15, 1976 no advertisements have been placed and no orders have been filled.
A hearing in the matter was held on August 17, 1976. There was no appearance by respondent or on his behalf. Complainant's evidence was received pursuant to 952.11 of the Rules of Practice. Complainant has filed proposed findings of fact and conclusions of law. Respondent was given an opportunity to file proposed findings and conclusions but has not done so.
1. Respondent's advertisement (CX-1) together with evidence concerning a test purchase made by Postal Inspector Charles O. Havens (CX-2) support a finding that respondent is engaged in a scheme or device for obtaining money or property through the mail.
2. Attention is attracted to the alleged scheme by means of direct mail circulars calculated to induce recipients thereof to remit money or property through the mail (CX-1).
3. By remitting sums ranging from $4.98 to $58.90, depending on the size ordered, purchasers receive a flexible magnetic pad, strip or bracelet.
4. Respondent's direct mail circular represents that use of the pad, strip or bracelet will give relief from, and possibly cure, leg cramps and arthritis. Paragraph 3 of the complaint contains a reasonable summary of the representations made by respondent.
5. Dr. Vincent F. Cordaro, a qualified medical doctor, testified for complainant. He testified that arthritis in its various forms is usually an inflammation of the joints of the body produced by different causes which call for different medical treatments. In his opinion the use of the flexible magnetic bracelet, as directed, in proximity to the arthritic condition would have no conceivable beneficial effect thereon (Tr. 10).
6. Dr. Cordaro testified that leg cramps are caused by various conditions such as decreased circulation, straining of muscles, injury to muscles, or arteriosclerosis in the leg muscles. In Dr. Cordaro's opinion respondent's magnetic pads could have no beneficial effect in alleviating leg cramps (Tr. 10).
7. Dr. Cordaro's opinions with respect to the efficacy of respondent's product are in conformity with the consensus of informed medical opinion (Tr. 11).
8. Based on the testimony of Dr. Cordaro, I find that the representations made by respondent as alleged in the complaint are materially false in fact.
1. 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 39 U.S.C. 3005.
2. Respondent's advertising makes representations substantially as characterized in the complaint. The average person reading such advertising would so interpret them.
3. Such representations are materially false in fact.
4. Respondent's misrepresentations are not erased by the inclusion of a moneyback guarantee in its advertisements. See G.J. Howard v. Cassidy, 162 F. Supp. 568 (USDC ED NY 1958).
5. An order pursuant to 39 U.S.C. 3005 in the form attached should issue.