In the Matter of the Complaint Against: GINSENG II and/or TAM CO., 1 Wolfs Lane at Pelham, New York 10803 P.S. Docket No. 5/76 11/24/76 Duvall, William A.; Chief Administrative Law Judge Janice B. Adams, Esq. Law Department United States Postal Service Washington, D.C., for Complainant John B. Amrod, Esq. 1055 Franklin Avenue, Garden City, New York, 1/ for Respondent Filed pleadings on behalf of Respondent, but did not appear at the hearing. Before: William A. Duvall, Chief Administrative Law Judge
This proceeding was initiated by the filing on September 13, 1976, of a Complaint by the Consumer Protection Office, Law Department, United States Postal Service, the Complainant, in which it is charged that Ginseng II and/or TAM Company at Pelham, New York, are 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 of Title 39, United States Code. The overall charge in this case is that the Respondent is engaged in selling a product on the basis of false representations that it will restore youthfulness to the user or increased vitality, increased strength, powers of concentration, and the like.
The specific charges that are set forth in the Complaint are attached to this decision as Appendix A. The advertisement on which the charges are based is attached to this decision as Appendix B.
The Respondent's answer was filed on October 5, 1976, and the answer was, in effect, a general denial of all the charges in the Complaint. It was further stated that the Respondent would appear by counsel at this hearing. However, the hearing has proceeded as scheduled and no appearance was entered on behalf of Respondent. Section 952.11(b) of the Rules of Practice provides:
"If the respondent files an answer but fails to appear at the Hearing, the presiding officer shall receive complainant's evidence and render an initial decision."
hat is the procedure that now is being followed.
The first witness who appeared on behalf of the Complainant was Inspector L. S. Crawford, Jr. The inspector testified that this matter came to his attention when he saw an advertisement in the National Tattler for January 18, 1976. That is the advertisement which is Appendix B to this decision, and it solicits orders under the name of Ginseng II at 1 Wolfs Lane, Pelham, New York.
The inspector conducted test correspondence with the Respondent, and in the course of this correspondence he remitted the required amount of money for a ten-day supply of the product, which was $5.50. In due course, the inspector received in an envelope, which was received in evidence as Complainant's Exhibit 5-A, the product which was received in evidence as Complainant's Exhibit 5-B. Exhibit 5-A bears the return address of TAM Company, 1 Wolfs Lane, Pelham, New York. Exhibit 5-B is a plastic container in which there are approximately ten brown capsules, and the label on the container indicates that each capsule contains the following ingredients:
"Natural Ginzeng.....................75 mg.
Pure powdered Ginzeng Root
Royal Jelly..........................25 mg.
The exclusive food of the Queen Bee
Vitamin E ...........................50 I.U."
"Recommended dosage: 2-3 capsules per day, each taken during
or after meals."
his product is called "Ginroy." Another part of the label indicates that it is "Natural Tamara, a Special Blend."
The other witness appearing on behalf of the Complainant was Dr. Vincent F. Cordaro, a medical doctor, who is employed at the Food and Drug Administration as the Medical Liaison Officer with the Postal Service to give expert medical opinions with respect to the efficacy of various products. Dr. Cordaro is well-qualified by virtue of his education, training, and experience to testify with respect to the product which is involved in this proceeding.
Dr. Cordaro testified that he is thoroughly familiar with the ingredients which are contained in this product. Ginzeng, he said, is a common herb found in all temperate climates. The root of this item is, roughly, in the shape of a man, and for this reason it has for many, many years been supposed to have almost miraculous powers to restore health and vitality to mankind. These suppositions have for a long time been known to be baseless.
Royal Jelly is the substance fed to the Queen Bee by the drones, but the fact is that Royal Jelly has the same basic ingredients as honey, but in a more concentrated form. Royal Jelly, like Ginzeng, has had its time of popularity because of the belief that the ingestion of Royal Jelly would restore youth, vitality, and fertility to persons who ingested it. But also like Ginzeng, Royal Jelly has been found to be worthless for these purposes.
Vitamin E is an oil soluble vitamin which is found everywhere in plant life. It is actually one of the most common vitamins in green and yellow plants and in fats. It is so common in the ordinary diet that no known cases of deficiency have been found except in the case of certain diseases, which are (1) anemia in the newborn child and (2) steatorrhea, which the doctor defined as the inability of the bowel to absorb fats from the diet. In these cases, the administration by injection of moderate amounts of Vitamin E are adequate to overcome the problem. There may be need for repetition of the injections, but there is certainly no need to take 50 international units per day of Vitamin E over an extended period of time if a person has one of these conditions. These conditions are rare.
Turning now to the charges in the Complaint, it is seen that in large measure they are comprised of language that is taken verbatim from the advertisement used by the Respondent in the conduct of this business. This fact leads inevitably to the conclusion that the Respondent does make the representations which are set forth in the Complaint.
Dr. Cordaro was asked for his expert medical opinion with respect to whether the ingestion of this product sold by this Respondent, in the quantity and in the dosage directed on the label, would accomplish the results which the Respondent represents will follow if one takes the product. Dr. Cordaro stated that there is absolutely nothing in the product that would help to increase one's powers of concentration.
With respect to the matter of relieving and preventing tiredness and increasing strength, Dr. Cordaro stated that fatigue or tiredness results either from excessive exercise or from disease or from malnutrition. The treatments for these conditions are, respectively: rest and sleep for tiredness resulting from excessive exercise; the prescribed treatment for the particular disease that produces fatigue and tiredness; or the ingestion of the proper kind and amount of food for the treatment of fatigue and tiredness that results from malnutrition. Again, there is nothing in the capsules sold by the Respondent which will have the effect of relieving and preventing tiredness or increasing the strength of the user.
The answers of Dr. Cordaro relating to these first two charges are typical of the answers given with respect to the remainder of the charges in the Complaint. In substance, Dr. Cordaro said that the product being sold by this Respondent, if taken as directed, is useless and would have no effect toward producing the results promised by the Respondent in its advertising literature. It is elementary that since the realization of these results will not follow the taking of the product as directed, the promised results will not occur within one week.
Reviewing the evidence in this entire record, the following facts are found:
1. The Respondent, under the names Ginseng II and/or TAM Company, at Pelham, New York, is engaged in the sale of Ginseng II or Ginroy through the mails;
2. In connection with the operation of this business the Respondent does advertise in publications of wide distribution, and does seek remittances of money through the mails;
3. The Respondent does make the representations which are set forth in Appendix A to this decision;
4. The medical testimony in this record is to the effect that the product being advertised and sold through the mails by this Respondent is worthless insofar as its ability to produce the results which the Respondent promises in its advertising material;
5. From this testimony it follows that these representations made by this Respondent are medically false as a matter of fact.
Based upon the foregoing findings of fact, it is concluded as a matter of law that the Respondent is, as charged, 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 of Title 39, United States Code.
An order of the type provided for in 39 U.S. Code 3005 should be issued against this Respondent.
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1/ Filed pleadings on behalf of Respondent, but did not appear at the hearing.