In the Matter of the Complaint Against:

 E-Pill, 2001 N.W. 7th St.,
 Miami, FL 33125 and at
 Box 6712, Miami, FL 33154

 and

 Coupon Special-E and E-Pill,
 1190 N.E. 125th St., Suite 30,
 Miami, FL 33161

 and

 Super E-Pill,
 1613 Alton Rd.,
 Miami, FL 33139

 P.S. Docket No. 5/56
 
 11/11/76
 
 Sobernheim, Rudolf; Administrative Law Judge

 APPEARANCES: 
 H. Richard Hefner, Esq.
 Consumer Protection Office,
 Law Department, U.S. Postal Service
 Washington, D.C.  20260 for Complainant 

 Ms. Sharon Fernandez;
 9465 Collins Avenue,
 Surfside, Florida 33154 for Respondents

This is a proceeding by complainant against respondents under 39 U.S. Code 3005 which authorizes action against respondents on evidence satisfactory to the Postal Service that respondents are "engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations."

Complainant alleges that respondents are engaged in such a scheme in the sale of E-Pills. Specifically complainant alleges that by the use of advertisements (Compl. Ex. A, B) respondents represent in substance and effect, expressly or impliedly, that:

"(a) E-Pill is an effective aphrodisiac or sexual stimulant. (e.g., 'The new high potency E-Pill not only seems to increase sexual ability of both sexes but also "actually perks up sexual interest and stimulates a persons desires," ...' etc.).

(b) E-Pill will overcome sexual impotence. (e.g., 'SEXUAL POTENCY QUICKLY IMPROVES WITH New "E-Pill"' etc.).

(c) The chemical formulation of E-Pill is significantly different from all other products intended to increase human sexual performance, capacity and enjoyment. (e.g., '...amazing new "supercharged" vitamin E-Pill has recently been developed that reportedly "quickly increases and rejuvenates sexual drives and potency for both men and women of all ages." "This new, easy-to-take E-Pill contains newly formulated, highly concentrated vitamin E."' etc.).

(d) E-Pill was previously available only by prescription of a physician. (e.g., 'It is now available to the American public.' '...now available without prescription from the manufacturer by mail order only.' etc.)." and that such representations are materially false.

All of the respondents in their answer, signed on their behalf by Ms. Fernandez, admitted advertising E-Pills to the public by means of the advertisement introduced into the record as Complainant's Exhibit "A", a copy of which had been attached as an exhibit to the complaint, and further alleged that they had discontinued advertising E-Pills since 12 July 1976. Respondents further denied that they had represented that E-Pills formerly had required a physician's prescription and asserted that they had merely advertised that such prescription was not needed. They alleged that they intended to prove the truth of their representation at the hearing to be held herein.

Finally, respondents entered in effect a general denial of all allegations not admitted.

A hearing, once postponed at respondents' request, was held on 22 October 1976 but respondents did not appear. In accordance with the applicable rules (39 CFR 952.11) complainant proceeded at the hearing to present its proof, including proof of a test purchase of respondents' product and payment therefor, through the mails, made by a Postal Inspector.

1. Sharon Fernandez is engaged in the business of selling E-Pills and obtaining money through the mails under the names of E-Pill, Coupon Special-E and E-Pill, and Super E-Pill.

2. Purchasers responding to respondents' advertisements receive a bottle of pills, labelled in front "High Potency Vitamin E Tablets, 500 IU, 15 count" and showing the price of $9.95. The label further states that each tablet contains:

500 IU Vitamin E (alpha tocopheryl),

12.5 mg Niacin,

50 mg Kola nut powder,

25 mg Ginseng (T 8)

The back of the label reads:

"Directions. As a dietary supplement take one tablet a day one half hour before any chosen meal." (ibid.)

3. According to the label the pill is distributed by E-Pill Company, Box 6712, Surfside, Florida 33154 (T 8).

4. a. An inspection of the advertisement (Compl. Ex. A) shows that it contains language signifying that the E-Pill increases and rejuvenates sexual potency for men and women of all ages and stimulates sexual desire. Hence the advertisement, as alleged in paragraph III(a) of the complaint, represents that E-Pill is an effective aphrodisiac or sexual stimulant.

b. The advertisement (Compl. Ex. A) represents that E-Pill tends to build up natural physiological processes of the body that are believed to be basically responsible for its potency and that 80% of the pill's users achieve this result. Ordinary readers will reasonably understand that taking the pill will overcome their sexual impotence, as alleged in paragraph III(b) of the complaint.

c. The advertisement (Compl. Ex. A) repeatedly refers to the pill as "new" and thus by plain implication represents that E-Pill differs significantly from other products intended to stimulate or increase human sexual potency, as alleged in paragraph III(c) of the complaint.

d. The advertisement (Compl. Ex. A) represents that E-Pills are "now available without prescription". Respondents deny, traversing the allegations of paragraph III(d) of the complaint, that they represent that E-Pills were formerly available only on a physician's prescription and allege that they are merely stating its current availability without prescription. Their argument would have greater merit if the word "now" had not been inserted in the quoted phrase taken from respondents' advertisement. Its use plainly informs the reader that there was a change in the situation and that formerly a physician's prescription was needed. Hence, respondents are found to have made the representation alleged in paragraph III(d) of the complaint.

5. Accordingly, the only remaining question is whether respondents' representations are materially false.

6. On this point respondent adduced the testimony of an experienced physician, working for the U.S. Food and Drug Administration and whose special function it is to advise complainant about representations made in respect of medical products which are the subject of false representation proceedings.

7. The testimony of this physician establishes that none of the ingredients of the E-Pill affect sexual potency or overcome sexual impotence. Of the ingredients of the pill the two vitamin products (vitamin E and Niacin (vitamin B)) have no known medical function in regard to the improvement of sexual potency in either men or women and ginseng is not recognized as a medically effective ingredient (T 15-16). Only Kola nut powder is a stimulant, the same product used to give cola drinks their stimulating effect. Its presence does not, however, make the E-Pill an effective aphrodisiac or distinguish it from other alleged aphrodisiac products so as to justify calling the E-Pill a "new" or "amazing new" product differing materially from others on the market.

8. The physician also testified that his views, summarized above, represented common medical opinion (T 17) and that none of the E-Pill ingredients had over the past thirty-five of the witness' medical career required a physician's prescription as a condition of sale to the public (T 16-17).

9. On the basis of the detailed findings, made above, and the record as a whole I find that the representations made by respondents are false and materially so since the promise of greater sexual potency from a new, hitherto not freely available product is the inducement to potential purchasers of respondent's product to buy the same.

1. Respondents are engaged in a scheme or device for obtaining money or property through the mails by means of false representations.

2. The advertisements of Respondents will be understood by the ordinary reader to make the representations set forth in paragraph III of the complaint. See Donaldson v. Read Magazine, 333 U.S. 178, 189 (1948).

3. Accordingly, an order in the form attached, as provided under 39 U.S. Code 3005, should be issued.