In the Matter of the Complaint Against: ACTION PRODUCTS, P.O. Box 231 at Santa Monica, California 90406 P.S. Docket No. 5/104 02/15/77 Duvall, William A.; Chief Administrative Law Judge Barry A. Fisher, Esq. Fleishman, Brown, Weston & Rohde, 433 North Camden Drive, Suite 990, Beverly Hills, California, for Respondent Daniel S. Greenberg, Esq. Law Department United States Postal Service Washington, D.C., for Complainant Before: William A. Duvall, Chief Administrative Law Judge
This proceeding was initiated on November 30, 1976, when the Consumer Protection Office of the Law Department of the United States Postal Service filed a Complaint in which it is charged that Action Products at Santa Monica, California, 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 Section 3005 of Title 39, United States Code.
The Respondent is engaged in the sale of a product which is allegedly claimed to be efficacious in assisting males to attain and retain an erection.
Respondent filed an Answer which is in substance a general denial of the allegations set forth in the Complaint. In addition, Respondent asserts that the advertisement used by Respondent is presumptively protected by the First Amendment, and that even if it is false, there can be no suppression where there is no allegation, let alone proof, of scienter.
In disposing of the question with respect to scienter, Public Law 90-5900, approved October 17, 1968, amended 39 U.S. Code 4005 to obviate the need to prove the element of intent in postal proceedings brought under that statute. Later, Section 4005 was incorporated as Section 3005 of the Postal Reorganization Act which was enacted as Public Law 91-375, approved August 12, 1970.
With respect to the constitutionality of Section 3005 of Title 39, the courts have repeatedly held that this statute is not unconstitutional. Among the more recent cases are United States Postal Service v. Beamish, reported at 466 F.2d 804, and Lynch v. Blount, 330 F.2d 689.
Counsel stipulated the admission into the record of Complainant's Exhibits 1 through 12, and included among these exhibits were Exhibits 2 and 3, copies of which are attached to this decision as Appendices B and C, respectively. These and the remainder of the exhibits between 1 and 12 establish conclusively that the Respondent does advertise its products by use of the United States mails and does seek to obtain remittances for its products.
A copy of the charges in the Complaint is attached to this decision as Appendix A.
On the question of whether the Respondent makes the representations which are set forth in the Complaint, reference will be made at this time to various portions of Appendices B and C.
With respect to Paragraph II A(1) of Appendix A, the making of that representation is established by language found on page 3 of Appendix C under the caption "PROBLEM AREA #1".
The charge in Paragraph II A(2) of Appendix A is made by the language appearing under the caption "PROBLEM AREA #3," on page 5 of Appendix C.
The charge that is stated in Paragraph II A(3) in Appendix A is based upon language appearing under the caption "PROBLEM AREA #2" occurring on page 4 of Appendix C.
The charge that is set forth in Paragraph II A(4) of Appendix A is based upon the language appearing in the first four paragraphs of Appendix B.
The charge that is stated in Paragraph II A(5) of Appendix A is inferred from the nature and character of the Respondent's advertisement considered as a whole because there is no limitation as to the effectiveness represented with respect to the product being sold by the Respondent.
The charge that is incorporated in Paragraph II A(6) of Appendix A is based on language that appears on page 2 of Appendix C in the second complete paragraph on that page.
The charge that is stated as Paragraph II B of Appendix A is one that is reasonably inferred from the Respondent's advertising material considered as a whole, because nowhere is there any suggestion that the use of the Respondent's product may be unsafe for any person regardless of his physical condition or other factors.
The Complainant called, as an expert medical witness in this proceeding, Dr. Ernst J. Drenick, a medical doctor, who is the section chief of the Section of Internal Medicine at the Veterans Hospital in Los Angeles, California, and who is also a professor of medicine in the medical college at the University of California at Los Angeles. Dr. Drenick is a board-certified internist and by virtue of his training and experience, which he outlined in his testimony, he is well qualified to testify with respect to the area of medicine that is involved in this proceeding.
Dr. Drenick gave a learned and detailed discussion of the physiology of the male sexual organ, and also of the process leading to the change in the male sexual organ as it proceeds from its flaccid state to erection and returns to its flaccid state. Basically, a flaccid penis becomes erect when the portion of the penis known as the corpus cavernosum becomes engorged with blood. This phenomenon takes place during sexual excitement and it proceeds up until the climax of sexual intercourse. After ejaculation, the blood theretofore in the corpus cavernosum recedes into the body and the corpus cavernosum resumes its original size and configuration and the penis reverts to its flaccid state.
Dr. Drenick testified that the use of the Respondent's product as directed will not result in the retention of blood in the corpus cavernosum. He added that it is a good thing that the use of this device will not produce that result because, if it did, the individual using the device would probably have a thrombosis which could cause a great deal of trouble and be dangerous. The device which the Respondent is selling is a ring constructed of either rubber or plastic which the user is supposed to place around the proximal end of his penis and keep it there for the desired period of time.
Dr. Drenick stated that, in view of the fact that none of the benefits claimed by the Respondent will be produced by the use of Respondent's device, it is false to state, or to imply, that the device is safe for any person who might use it and that it has been accepted by the medical profession in the United States.
In short, the competent, credible, expert medical opinion and testimony in this record is to the effect that each and every claim found to have been made by the Respondent in this proceeding is materially false as a matter of fact.
It is concluded as a matter of law that the 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 Section 3005 of Title 39, United States Code.
Accordingly, an order of the type provided by that section of the code should be issued against the Respondent in this proceeding.
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