In the Matter of the Complaint Against: MANUEL GARCIA IMPORTS, Box 1426 at Studio City, CA 91604 P.S. Docket No. 5/127 04/06/77 Grant, Quentin E.; Administrative Law Judge Thomas A. Ziebarth, Esq. Law Department United States Postal Service Washington, D.C., for Complainant Roger Jon Diamond, Esq., Hecht, Diamond and Greenfield, Pacific Palisades, California, for Respondent Before: Quentin E. Grant, Administrative Law Judge
The complainant initiated this proceeding on January 21, 1977, by filing a complaint alleging that the respondent is engaged in conducting a scheme or device 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 misrepresentations are attached hereto as Exhibit A. The complaint alleges that public attention is attracted to the scheme by means of advertisements distributed to the public which are calculated and intended to induce readers thereof to remit money or property to the respondent through the mails, and finally, the complaint alleges that the representations alleged are materially false in fact.
On February 23, 1977, respondent filed an answer admitting the publication of the advertisement attached to the complaint and denying all remaining allegations of the complaint.
On respondent's motion, I granted a change of location of the hearing from Washington, D.C. to Los Angeles, California.
1. Based on Respondent's advertisement, (CX-1) together with evidence concerning the test purchase of respondent's products (CX-2a through 2f), I find that respondent is engaged in conducting a scheme or device for obtaining money or property through the mail.
2. A reading of respondent's advertisement discloses that it makes the representations alleged in the complaint.
3. The products involved are called Mexican Spanish Fly (CX-2b) and Imported Type Spanish Fly (CX-2c).
4. According to Dr. Jack L. Segal, a qualified medical doctor specializing in the field of clinical pharmacology who testified for complainant, genuine Spanish Fly, as he understands it, is a ground or powdered form of a fly of the family Cantharides, which in sufficient quantities may be an irritant to mucous membranes, but which is currently not considered to have medicinal value, and will not cause an increase in libido, or sexual desire.
5. According to the label on the product called Mexican Spanish Fly, its ingredients are curcuma longa, 50 percent, zingiber officinale, 10 percent, albus similae, 25 percent, and puris saccharum, 15 percent. There is no indication on the label that the product contains genuine Spanish Fly, as described by Dr. Segal.
Dr. Segal testified that curcuma longa is turmeric, a flavoring agent, with no medicinal or pharmacological properties; that the zingiber officinale is ginger, another flavoring agent; and puris saccharum is a form of sugar, neither of these ingredients having any medicinal value.
Dr. Segal was unable to state the nature of albus similae, but since he was unable to find reference to it in the National Formulary, or textbooks on pharmacognosy or herbals which he consulted, he concluded that it, likewise, is a substance having no medicinal value.
Based on the opinion of Dr. Segal, I find that none of the ingredients of Mexican Spanish Fly ingested individually or in combination has any capacity as an aphrodisiac, or any capacity to stimulate a female sexually.
6. According to the label on the product, Imported Type Spanish Fly, its only ingredient is ginseng, extracted from ginseng root. There is no indication on the label that it contains genuine Spanish Fly as described by Dr. Segal.
Dr. Segal testified that although some ancient Chinese literature attributes aphrodisiac qualities to ginseng, and other literature indicates that it may be an adaptogen, there is no reason to suspect at the present time that it has aphrodisiac or sexually stimulating properties.
Based on the opinion of Dr. Segal, I find that Imported Type Spanish Fly has no capacity as an aphrodisiac, or to increase libido, or to stimulate a female sexually.
7. On cross-examination, Dr. Segal acknowledged the existence of a placebo effect observable in some percentage of persons ingesting a placebo with a predisposition to believe that the ingested substance, the placebo, will produce the desired result. But because in this particular case, there is no indication that the average purchaser of the product in question will experience any placebo effect, and especially because males are encouraged to purchase the products for ingestion by females, there is no room to give any consideration to the possibility of the product producing a placebo effect on the female who will ingest it.
8. I find no validity in respondent's argument that the representations alleged in the complaint are not made in its advertisement because of the fact that it contains the words "guaranteed no aphrodisiac." These words are found in such location and in such small type in the advertisement as not to detract from the force of the representations alleged as hereinbefore found.
Neither do I find that the word "spurious" appearing on the labels of the products has any bearing on the issues here. A purchaser does not encounter the word "spurious" until he has paid for and received the product.
9. Based on the testimony of Dr. Segal, I find that the ingestion of the products in question will not achieve the results represented by respondent's advertisement, as alleged in the complaint.
10. Dr. Segal's opinions are in conformity with the consensus of informed medical opinion.
1. Respondent is engaged in the conduct of a scheme or device 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 advertisement makes the representations substantially as characterized in the complaint. The average person reading such advertisement would so interpret it.
3. Such representations are materially false in fact.
4. An order pursuant to 39 U.S.C. 3005 should issue against respondent.
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