In the Matter of the Complaint Against: HOLLYWOOD MEDICAL LABS, P.O. Box 4261 at North Hollywood, California 91607 P.S. Docket No. 5/113 02/15/77 Duvall, William A.; Chief Administrative Law Judge Roger Jon Diamond, Esq. Hecht, Diamond & Greenfield 15415 Sunset Boulevard, Pacific Palisades, 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 case was instituted on December 20, 1976, when the United States Postal Service filed a Complaint in which it was charged that Hollywood Medical Labs at North Hollywood, 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 charged with engaging in the business of selling through the mails a product allegedly claimed to be for the relief and alleviation or cure of sexual impotence. The specific charge in the Complaint is that the Respondent in its advertising material represents that Kyoto, Bujumbura, Liestal and Pravia will restore lost, and increase the present, ability of the male to attain and retain an erection.
The Respondent admits in its Answer that it uses the advertisement which is attached to the Complaint as Exhibit A thereto, and the Respondent denies the charge set forth in the Complaint, except insofar as a customer believes that the articles are effective. To that extent, the Respondent says the articles are effective.
Respondent denies that the representation is materially false as a matter of fact, and Respondent admits that it does seek to induce readers to remit money or property through the mails in ordering its products.
Paragraph II of the Complaint, which contains the charge paraphrased above, will be attached to this decision as Appendix A hereto, and the advertisement used by the Respondent will be attached to this decision as Appendix B.
The products which are being sold by the Respondent were received in evidence as Complainant's Exhibit CX-9. The ingredients of the products were stated and the characteristics of many of the products were discussed by the expert medical witness called to testify by the Complainant.
There were received in evidence, as Complainant's Exhibits 1 through 9, exhibits which establish the nature of the advertising used by the Respondent. They establish the fact that the Respondent uses the mails in the conduct of the business; that the Respondent does solicit and obtain remittances of money through the mails; and that in response to the orders received, the Respondent does send out the products as advertised.
The expert medical witness referred to above is Dr. Ernst J. Drenick, a medical doctor, presently chief of the Section of Internal Medicine at the Veterans Administration Hospital in Los Angeles, California, and he is also a professor of medicine on the faculty of the medical school of the University of California at Los Angeles. Dr. Drenick is a board-certified internist and he is well qualified by virtue of his training and experience to testify with respect to the area of medicine which is involved in this proceeding.
Dr. Drenick had examined the various products sold by this Respondent and he had researched the ingredients. Based on his own experience and upon his investigation, it was the conclusion of Dr. Drenick that these products would be of beneficial effect in only a very limited number of instances of males with sexual impotence.
Generally speaking, impotence occurs and arises from two sources: they are organic conditions and psychogenic factors. The psychic factors give rise to impotence more frequently in persons under 50 years of age. The organic factors which produce impotence occur more frequently in the male population that is over 50 years of age. Organic factors given as examples of causes of sexual impotence are vascular changes which affect the blood supply, hormonal disorders, nutritional disorders, certain drugs, and neurological disorders. The impotence which arises from psychogenic factors is generally deep-seated and requires extensive treatment, in most instances, by psychologists or psychiatrists.
The treatment in instances in which organic factors are responsible for impotence is to treat the underlying disease condition. When the underlying condition is corrected or eradicated, the impotence automatically will be relieved.
It is the testimony of the medical expert that there is not known to the medical profession at this time any substance which, in and of itself, is a true aphrodisiac. There are medications which may be given to cure underlying physical abnormalities which, when cured, will result in the restoration of potency to the individual patient.
There are some individuals whose impotence arises from psychogenic factors who may be aided by the administration of a placebo. The number of these individuals constitutes a distinct minority of persons whose impotence results from psychogenic factors and who would be susceptible of being aided by a placebo. The reason for this fact is that sexual impotence resulting from psychogenic factors is a very deep-seated condition in which the administration of a placebo would not produce beneficial results.
The Respondent takes the position that it represents only that the products which it sells are placebos, and it bases this position primarily upon the fact that the word "placebo" appears under statements relating to the individual products.
The word "placebo" is not a word that is in common use in the English language among the laity. It is commonly and frequently used in the medical profession. Therefore, in looking at the Respondent's advertisement as required, which is to say that an effort must be made to determine the effect of the advertisements by determining how the person or ordinary mind would be impressed by the reading of the advertisements, those words placed under these products would not overcome such statements as "Four superstrength formulas - you can be a sexual superman," which is placed in the upper half of the Respondent's advertisement in rather large type. The reader of the advertisement is further told, "We have searched the four corners of the world and unlocked the secrets of supersexual powers."
Those statements, alone, and they are only typical of other statements that appear in the advertisement, are sufficient to overcome whatever ameliorating effect the placement, in small type and in four places, of the word "placebo" would have in Respondent's advertisement.
Thus, in the small percentage of persons who are sufficiently susceptible to suggestion to be affected by a placebo, this product has been said to be possibly of some effect; but there is no qualification of that sort in Respondent's advertisement. It is represented as being universally effective for persons who are impotent, regardless of the cause. There is no distinction made between physical and psychological disturbances for causes of impotence.
It is clear in applying the rule of interpretation paraphrased above from Donaldson v. Read Magazine, 333 U.S. 178, the reader of this advertisement would be led to believe that the Respondent is offering for sale a product which would cure him of his impotence. In short, he would believe that the ingestion, as directed, of the Respondent's product will restore his lost, or increase the present, ability of that individual to attain and maintain an erection. This is, of course, contrary to the testimony of the qualified, credible, expert medical witness, and must be rejected.
Thus, it has been found that the Respondent is engaged in the business of selling a product through the mails; that the Respondent does make the representation which is set forth in the Complaint; and that the representation being made by the Respondent is false, and materially false as a matter of fact.
Respondent has objected to the testimony of the medical expert in this proceeding, aside from the fact that it has already been found and is now reaffirmed that the doctor who testified is well qualified to testify in this proceeding. It has long been held that medical doctors, by virtue of the fact that they do possess M.D. degrees from accredited institutions, are competent to testify in matters such as this. In addition, in the case of U.S. Health Club, Incorporated v. Major, 292 F.2d 665, (1961) the United States Court of Appeals for the Third Circuit held that the uncontradicted testimony of one qualified medical expert established a universality of medical opinion on the crucial issues.
The Respondent did not produce any medical testimony in this proceeding, and the record certainly supports the finding and conclusion that the Respondent is engaged, as charged, in conducting a scheme or device for obtaining money or property through the mails within the meaning of Section 3005 of Title 39, United States Code.
It follows from all of the foregoing considerations that an order of the type provided by 39 United States Code 3005, should be issued against this Respondent.
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