In the Matter of the Complaints Against: SELECT ITEMS, 1236 S. La Cienega Blvd. at Los Angeles, CA 90035 and WORLD WIDE, 1236 S. La Cienega Blvd. at Los Angeles, CA 90035 P.S. Docket Nos. 5/65 and 5/75 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 the proceedings in P.S. Docket No. 5/65 and P.S. Docket No. 5/75 by filing complaints therein on August 18, 1976 and September 10, 1976 respectively said complaints alleging that respondents are 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.
The specific allegations of misrepresentation in each proceeding are attached hereto as Exhibits A (P.S. Docket No. 5/65) and B (P.S. Docket No. 5/75).
The complaints allege that respondents attract attention to said schemes by means of advertising, typical copies of which are attached hereto as Exhibits C in P.S. Docket No. 5/65 and D in P.S. Docket No. 5/75.
Finally, the complaints allege that the misrepresentations alleged are materially false in fact.
The Respondent in each proceeding filed an answer denying all allegations of the complaint, 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. These matters were scheduled to be heard on October 22, but at the request of complainant's counsel, according to him made known to and not objected to by respondent's counsel, were rescheduled for October 21 at 1:00 P.M. at which time they were heard.
Respondent did not appear at the hearing in person or by counsel. Complainant's counsel stated to the presiding Administrative Law Judge that respondent's counsel had advised him that he was engaged in other court appearances and would not appear at this hearing.
According to complainant's counsel, respondent's counsel further stated that he had no objection to the consolidation of these matters for hearing.
In accordance with section 952.11 of the Rules, complainant's evidence was received.
1. Based on respondent's advertisements, Exhibits C and D attached hereto, together with the evidence concerning test purchases of the two products made by Postal Inspector C. O. Havens, I find that respondents are engaged in conducting 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. The product involved in P.S. Docket No. 5/65 is called the "Linga Pendulum." It is a device consisting of a plastic hour glass, a metal clamp to permit fitting the hour glass precisely to the size of the penis of the user, and two small interlocking weights or pendulum attached to the underside of the hour glass.
4. The products involved in P.S. Docket No. 5/75, called "Pulsators" and "Penis Enlargers," consist essentially of clear plastic cylinders open at one end for the insertion of the penis through a rubber gasket designed to provide air tightness with the penis inserted, and closed at the other end. Pumping devices designed to vary the air pressure within the cylinder are connected to the cylinder in each product.
5. Dr. Shlomo Raz, a qualified medical doctor, specializing in the field of urology, testified for complainant in the consolidated proceedings.
According to Dr. Raz, the size of the penis is genetically predetermined and cannot usually be changed. In some few cases a degree of enlargement can be obtained through hormonal therapy. Dr. Raz testified that erection of the penis is produced by psychological and vascular changes. Causes of difficulty in attaining and maintaining an erection are neurological and vascular disorders and certain diseases such as diabetes. He testified that there is no known medical treatment for organic inability to achieve or maintain an erection, the key to maintaining an erection being the maintenance of arterial inflow to the penis.
Dr. Raz testified that ejaculation is a reflex and involuntary function which exercise will not affect so as to increase strength of ejaculation.
6. With respect to the product involved in P.S. Docket No. 5/65, the Linga Pendulum, Dr. Raz pointed out that the instructions for the use thereof emphasize exercise of the penis to achieve the results represented. He testified that there are no muscles in the penis, important in erection, which can be exercised. Similarly, there are no muscles involved in strength of ejaculation which can be exercised.
In the opinion of Dr. Raz, use of the Linga Pendulum, as directed, cannot permanently enlarge the penis in its flaccid state unless the tissue is stretched so far as to destroy its elastic properties with permanent damage.
Further in his opinion, the use of the Linga Pendulum cannot increase the user's ability to attain or maintain an erection or increase the strength of ejaculation.
7. With respect to the vacuum pump devices involved in P.S. Docket No. 5/75, Dr. Raz was of the opinion that use thereof cannot increase the ability of a user to achieve an erection, and that its use could even be dangerous because a sufficiently high vacuum might destroy penile tissue and rupture blood vessels.
In his opinion the devices, working on the vacuum principle, will not result in a permanent increase of the size of the penis in its flaccid state, will not improve the user's ability to maintain an erection, will not increase the firmness of erection because they produce no increase in the arterial flow of blood into the penis, and cannot increase the strength of ejaculation.
8. In the opinion of Dr. Raz the use of respondent's products will not achieve the results represented by the representations as alleged in the complaints.
According to Dr. Raz his opinions are in conformity with the consensus of informed medical opinion.
9. Based on the testimony of Dr. Raz I find that the representations made by respondent, as alleged in the complaints, are materially false in fact.
1. Respondents are 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. Respondents' 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 respondents 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. Orders pursuant to 39 U.S.C. 3005 should issue against respondent in each proceeding.
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