In the Matter of the Complaints Against: OMEGA, P.O. Box 199 at Woodland Hills, CA 91364 and OMEGA, P.O. Box 199 at Woodland Hills, CA 91364 P.S. Docket Nos. 5/61 and 5/62 11/17/76 Grant, Quentin E.; Administrative Law Judge Daniel S. Greenberg, Esq. Law Department United States Postal Service Washington, D.C., for Complainant Joseph Taback, Esq. Beverly Hills, California, for Respondents Before: Quentin E. Grant, Administrative Law Judge
Complainant initiated these proceedings on August 18, 1976 by filing complaints alleging that respondent, employing the captioned name and address, is engaged in conducting schemes or devices for obtaining money or property through the mails by means of false representations, in violation of 39 U.S.C. 3005.
Amendment of the complaint in P.S. Docket No. 5/61 was granted to correct an obvious error in the naming of the product. The amendment substituted the name "Erecto" in subparagraph II(a) and (b) of the complaint for the words "Stay Hard."
The complaints allege that respondent attracts attention to said schemes or devices by means of advertising, a typical copy of which is attached hereto as Exhibit A; that by means of the advertising reflected in Exhibit A or similar matter, respondent represents directly or indirectly by means of affirmative statement, implication or omission, in substance and effect, that the product called "Erecto" will enable the male user to attain and maintain an erection, and that the product will prevent premature ejaculation; that by means of the advertising reflected in Exhibit A or similar matter, respondent represents directly or indirectly by means of affirmative statement, implication or omission, in substance and effect, that the product called "Passion Plus" will instill in both the male and female a compelling need for sexual satisfaction, and that said need will persist for hours.
Finally, the complaints allege that the representations alleged are materially false in fact.
Respondent filed answers denying all the allegations of the complaints, and asserting as an affirmative defense that 39 U.S.C. 3005 is unconstitutional on its face, and in its application to respondent, violates and is in derogation of respondent's rights under the First and Fifth Amendments to the Constitution of the United States.
A consolidated hearing in these matters was held in Los Angeles, California on October 21, 1976. Respondent did not appear thereat, either in person or by counsel.
The presiding Administrative Law Judge was informed by counsel for complainant that he had been advised by Respondent's attorney that he was busy with matters in other courts and would not appear at this hearing.
According to counsel for complainant, respondent's attorney further stated that he had no objection to these matters being consolidated for hearing.
1. Based on respondent's advertisements (Exhibit A attached hereto), together with the evidence concerning test purchases of the two products made by Postal Inspector C. O. Havens, I find that respondent is engaged in schemes or devices for obtaining money or property through the mails.
2. A pedestrian reading of respondent's advertisements discloses that they make the representations alleged in the complaints.
3. According to the label on the product called "Passion Plus" (CX-7), its ingredients are Albus Simila, Panax Ginseng and Laminariaceae.
The label on the product, "Erecto" (CX-8), states that its ingredient is a rare combination of imported herbs and spices, not specifically identified.
4. Dr. Jack L. Segal, a qualified medical doctor, specializing in internal medicine with a subspecialty in clinical pharmacology, testified for complainant.
According to Dr. Segal, about 95 percent of problems involving lost or diminished sexual desire, or lack of sexual ability, are of psychological origin. The usual treatments for such problems are the various modalities available in the fields of psychiatry or psychology. The other five percent of such problems are of organic nature and are treated by recognized medical and surgical methods.
With reference to the product "Erecto," according to Dr. Segal, the cause of premature ejaculation is principally psychogenic and is treated by available modalities in the fields of psychiatry and psychology. In his opinion, there is no combination of herbs or spices which will enhance the ability of the average normal male to attain or retain erection or prevent premature ejaculation.
In Dr. Segal's opinion the ingredients in "Passion Plus," either individually or in combination, will not improve lost or diminished sexual desire or ability, and will not enhance such desire or ability in the normal person.
5. In Dr. Segal's opinion the use of respondent's products will not achieve the results represented as alleged in the complaints.
According to Dr. Segal, his opinions are in conformity with the consensus of informed medical opinion.
6. Based on the testimony of Dr. Segal I find that the representations made by respondent, as alleged in the complaints, are materially false in fact.
1. Respondent is engaged in conducting schemes or devices 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 complaints; the average person reading such advertising would so interpret them.
3. Such representations are materially false in fact.
4. Constitutional defenses such as those asserted by respondent have recently been rejected by the United States Court of Appeals for the 9th Circuit; accordingly, they are rejected here. See Hollywood House International, Inc. v. Klassen, 508 F.2d 1276 (1974).
5. An order pursuant to 39 U.S.C. 3005 should issue against respondent in both of these proceedings.
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