In the Matter of the Complaint Against LION PRODUCTS, 13510 Ventura Boulevard at Sherman Oaks, California 91403 P.S. Docket No. 5/152 07/20/77 Duvall, William A. Chief Administrative Law Judge Daniel S. Greenberg, Esq. Law Department United States Postal Service Washington, D. C., for Complainant Harold Rosenberg, Esq. 14401 Sylvan Street, Van Nuys, California, for Respondent Before: William A. Duvall, Chief Administrative Law Judge
This proceeding was initiated on April 13, 1977, when the Consumer Protection Office of the Law Department of the United States Postal Service, the Complainant, filed a Complaint in which it is alleged that Lion Products at Sherman Oaks, California, 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, Title 39, United States Code.
On this point, I should point out that Public Law 90-590 approved October 17, 1968, amended former 39 U. S. Code 4005 to obviate the need to prove the element of intent in postal proceedings brought under that statute, which later became 39 U. S. Code 3005. The only thing that it is necessary to prove to have a Complaint sustained is that a materially false statement was made. There does not have to be established the intent to deceive that was required under the previous statute.
A timely answer was filed by the Respondent and it consisted of a general denial of all of the allegations of the Complaint.
The charge as set forth in the Complaint is that by means of its advertising material, the Respondent represents directly or indirectly by means of affirmative statement, implication or omission, in substance and effect, that its product, Spanish Fly Spice, will promptly instill in the female an insistent and compelling need for sexual satisfaction.
The advertising material employed by the Respondent is attached to this decision as Appendix A. Pertinent language from that advertisement is as follows:
"SPANISH FLY
spice
THE NEW TURN ON]
Everybody's talking about the turn-them-on pills]] Provides extra exciting results fast. Drive her wild. Completely safe. Lasts for hours. Adults only."
It seems to me, and I find, that the purport and the import and the impact of this advertisement is clear, that the Respondent is offering a product which the Respondent represents as being capable of increasing and enhancing the sexual drive of the female, any female, who takes it. How is that interpretation reached? It is reached by the application of the criteria established in the case of Donaldson v. Read Magazine, 333 U.S. 178, at pages 188 and 189 where the Court said:
"Advertisements as a whole may be completely misleading although every sentence separately considered is literally true. This may be because things are omitted that should be said, or because advertisements are composed or purposefully printed in such way as to mislead. * * * That exceptionally acute and sophisticated readers might have been able by penetrating analysis to have deciphered the true nature (of the product that was being sold in that case) is not sufficient to bar findings of fraud (under the prior statute) by a fact-finding tribunal. Questions of fraud may be determined in the light of the effect advertisements would most probably produce on ordinary minds. People have a right to assume that fraudulent advertising traps will not be laid to ensnare them. 'Laws are made to protect the trusting as well as the suspicious.'" (Citations omitted)
The purpose of the Postal statute, as the Courts have stated many times, is not to provide punishment for a seller of merchandise, but it is to provide protection for the purchasers.
This product was purchased by a procedure known as a test purchase. This is a procedure which has been followed in the Postal Service for many years and it has been approved by the Courts as a legitimate means of conducting an investigation.
The evidence consisting of the advertising material, the correspondence leading up to the purchase, and the product which was obtained in exchange for the required remittance were received in evidence as Complainant's Exhibits 1 through 7. The product itself is in a sealed plastic envelope and it contains a number of red capsules. These capsules have not been opened or removed from the envelope, and the envelope itself has not been opened. Nor has any test been conducted with respect to the effect of the ingestion of this product. The label inside the plastic box in which the plastic envelope is contained indicates that among the ingredients of the product is the substance Rufous Capsicum Annuum, net weight one ounce, in 24 capsules.
Testifying as a witness for the Complainant was Dr. Ernst J. Drenick, who is a doctor of medicine, who is Board certified as an internist since 1951, and who has a special interest in the fields of metabolism and nutrition. He is at the present time the Chief of the Section of General Medicine at the Veterans Administration Hospital located in the Westwood area of Los Angeles, and he is a Professor of Medicine at the Medical School of the University of California at Los Angeles.
Dr. Drenick is qualified to testify with respect to the matter under investigation in this proceeding by virtue of his training, his education, his experience and his familiarity with the pertinent medical literature.
Dr. Drenick testified that a lack of sexual desire may result from a number of factors, some of which are now stated.
1. Of course, if a woman is in advanced years, then there is no treatment that is available that will increase the sexual desire of such a person.
2. If a person has a serious medical condition, which results in a decreased sexual desire, the treatment in that situation is to treat the medical condition and when that condition is cured or alleviated, then it will be accompanied by an increased sexual desire and capability.
3. The same is true with respect to a sexual malfunction caused by a nutritional deficiency.
4. The same is true with respect to sexual deficiency caused by a chronic illness.
5. If there is a hormonal malfunction such as an abnormal hormonal secretion, which produces sexual malfunction or dysfunction, the treatment is to take the proper steps to limit the abnormal hormonal secretion. If, for example, there is a lack of normal secretion, the treatment is to do whatever is necessary to increase the hormonal secretion.
6. Sexual deficiency results from psychological disturbances and in these cases the treatment generally is deep-seated and requires more extensive treatment. Frequently the individual must be referred to a psychologist or to a psychiatrist for appropriate treatment in the particular instance.
With respect to the product which is listed on the label as being the active ingredient in the Spanish Fly Spice, Dr. Drenick stated that it is a type of pepper, usually cayenne pepper, and that the ingestion of this product as directed would not have the effect of increasing sexual desire in the normal female.
Dr. Drenick did state that if there is an individual who is highly suggestible and who orders this product having the belief that it will produce beneficial results in terms of increasing sexual desire, this substance might have that effect, but it was his testimony that the instances in which that result would occur would be very, very few.
Of course, the advertisement employed by the Respondent in this case does not limit the members of the public to which it is directed. It is advertised to be sold to the general public, for the vast majority of whom it would have absolutely no effect according to the expert medical testimony received at the hearing.
In the case of Borg-Johnson Electronics v. Christenberry, a case decided by the United States District Court for the Southern District of New York in 1959, and reported at 169 F. Supp. 746, the Court said, at page 751:
"When it appears that an advertiser deliberately induces its patrons to purchase its product in the belief that its value far exceeds its true worth it is sufficient to support a finding that a fraudulent scheme was being conducted."
If that kind of advertising is sufficient to support a finding that a fraud scheme is being conducted, it clearly is sufficient to support a finding that a misrepresentation is being made. That is the situation that exists in this case. The product that is being sold is being represented as capable of producing the result which is stated in the charge in the Complaint. The expert medical testimony in this case is to the effect that the product will not produce that result.
It is pointed out also that no medical testimony was offered by the Respondent and the only medical testimony that is in the record is that which was offered by the Complainant. In the case of U. S. Health Club, Incorporated v. Majors, 292 F.2d 665, 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." In addition, Dr. Drenick did state in this case that his views represent the consensus of qualified medical experts.
In oral argument Respondent's Counsel attacked 39 U. S. Code 3005 as being unconstitutional as depriving his client of the right of freedom of speech. This question was disposed of most recently in the case of Lynch v. Blount, when the Court said:
"But it is also clear that the First Amendment right to freedom of speech does not go so far as to grant a person a privilege to mislead the public by means of false commercial advertising * * *". 330 F. Supp. 689, 694 (1971); aff'd. 404 U.S. 1007 (1972)
On the basis of all of the foregoing considerations, it is found that the Respondent is engaged in the business of selling a product through the mails. In connection with this business, it uses the advertisement which is attached hereto as Appendix A. In that advertisement, the Respondent makes the representation which is set forth in the Complaint, and the evidence of record in this proceeding is that that representation is materially false as a matter 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 authorized by 39 U. S. Code 3005, should be issued against this Respondent.
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