In the Matter of the Complaint Against DR's FORMULA, 829 Catamaran #4 at Foster City, California 94404 P.S. Docket No. 5/158 07/21/77 Duvall, William A. Chief Administrative Law Judge Janice B. Adams, Esq., Law Department United States Postal Service Washington, D. C., for Complainant William R. Krapf, D.C., 1020 Foster City Boulevard, Suite 270, Foster City, California, for Respondent Before: William A. Duvall, Chief Administrative Law Judge
This proceeding was initiated on April 27, 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 DR's Formula, at Foster City, California, the Respondent, is engaged in conducting a scheme or device for obtaining money or property through the mail by means of false representations in violation of Title 39, United States Code, Section 3005.
The Respondent in this proceeding is selling a product which is known as Kyolic and which has as its ingredients, according to a box or a carton submitted by the Respondent, the following substances: garlic fluid extract, water and thiamine hydrochloride.
The instructions for taking this product are: take one gelatin capsule which is furnished with the product and fill it with this Kyolic substance.
The Respondent filed an answer to the complaint, and in order that the full position of the Respondent may be made clear, the pertinent portions of the Respondent's answer are quoted, as follows:
"(1) Our advertisement does not say the formula will cure anything let alone high blood pressure, it stated simply that we are achieving results in our office on people suffering from high blood pressure.
"(2) It does not say it will eliminate fatigue anywhere in the advertisement, it simply states our patients have experienced results from using this product.
"(3) Item C is redundant - re: cure; refer to our item (1).
"(4) Since when if you refer to a doctor it means M.D. There are many types of doctors in the healing profession, hence this Item (D) is not relevant and shows the absurdity of the complaint.
"(5) This product does represent a method of treatment which is generally recognized by many of my colleagues as well as M.D.s, nutritionists and other knowledgeable people here on the West Coast. Dr. Alan Nittler, M.D. of Santa Cruz is probably the most recognized authority and in his book, The New Breed of Metabolic Nutrition, he advocates using this product in almost every type of disorder and disease.
"So we believe the representations are materially true as a matter of fact."
At the hearing, the Complainant called as its first witness a Postal Inspector who investigated this case. He testified that he noticed an advertisement for this product in the February 14, 1977, issue of the publication known as "Moneysworth" and he took that advertisement from the publication and decided to order the product. This he did by use of a test name, specifically, George Marston at Post Office Box 93, Scottsdale, Arizona.
Through postal procedures the product was ordered and a remittance of $9.95, as required, was sent to the Respondent. In return for this order the Postal Inspector, in due course, received an envelope which was received in evidence as Complainant's Exhibit 5-A which bears the return card of Dr. William Krapf, 829 Catamaran, #4, Foster City, California 94404. The envelope is addressed to the Inspector's test name and it contains a plastic container which, in turn, contains gelatin capsules. It is on the label of the container of the gelatin capsules that one finds the directions to fill a capsule with the accompanying product, Kyolic, and then take that capsule.
Although there are no instructions on the bottle of the product as to the dosage, there is an accompanying letter in which Dr. Krapf states: "We find that two capsules after each meal for the first week then one after each meal for a week followed by one in the morning and one in the evening thereafter (seem to achieve the best results)."
Also appearing as a witness for the Complainant in this proceeding was Dr. Vincent F. Cordaro, a medical doctor who by virtue of his education, training, experience and his present functions at the Food and Drug Administration is well qualified to testify with respect to the product involved in this proceeding.
It is Dr. Cordaro's testimony that in the past, perhaps as recently as 50 years ago, garlic or garlic juice or the extract of garlic was used in some home remedies, and perhaps even by less well-informed physicians, in the treatment of persons who had high blood pressure or to treat persons who had stomach distress, and it would provide some ease for those persons at times. It was used also in some cases as a poultice to treat wounds, scratches or injuries of that sort. The use of garlic as a medicinal product has fallen into disrepute and it has not been so used according to the best information of Dr. Cordaro for probably as much as 50 years.
Vitamin B1, which is the other ingredient incorporated in this product, is useful in the event the individual has a deficiency of Vitamin B1. Such a deficiency would be referred to the nervous system of an individual and the cardiac system, but the fact of the matter is that in the normal balanced diet of persons in this country there is sufficient Vitamin B1 incorporated in that diet to make it unnecessary to take vitamin supplements.
We turn now to the consideration of the charges and the Respondent's answer with respect to each charge. The first charge is that the Respondent's product, Doctor's Natural Formula, would cure high blood pressure and prevent its recurrence.
The question that presents itself first is whether the Respondent makes this representation. The advertisement which will be attached to this proceeding as Appendix A indicates that Doctor's Natural Formula is achieving fantastic results on patients suffering from high blood pressure, fatigue, stomach, intestinal and other related problems.
The advertisement continues -- "You can benefit by eliminating harmful drugs and medications." Then the reader is urged to buy direct from doctor.
My feeling with respect to charge A in the complaint is that the Complainant became almost as enthusiastic in drafting its charge as the Doctor was in drafting his advertisement. It seems to me that to say that one is achieving fantastic results with high blood pressure does not necessarily carry with it the meaning that that condition will be cured. High blood pressure is a condition that frequently is a concomitant of increasing years and it is very difficult for me to believe that a person would infer from reading this ad that high blood pressure would be cured.
It is a misrepresentation even if the ad is construed, as I think it can and should be, to indicate that the use of this product as directed would be beneficial for persons who have high blood pressure. I think that would be a misrepresentation. But the fact of the matter is that the charge is that it will cure high blood pressure. I just do not think that that conclusion follows from the reading of this advertisement, and I clearly do not believe that a person who reads this ad would infer that by taking this product the recurrence of high blood pressure would be prevented. And so, therefore, I find that the Respondent does not make the representation which is set forth in Paragraph 3-A of the complaint. I believe that the charge as stated is overbroad.
I reach the same conclusion with respect to the charge that Respondent's product is capable of eliminating fatigue. How I wish that were true, but I can not believe that the person reading this would infer that upon the taking of this product his fatigue would be overcome, eliminated. I find that the representation in Paragraph 3-B of the complaint is not made.
Similarly, I believe that too broad a brush has been used in connection with Paragraph 3-C of the complaint in which it is charged that the Respondent represents that Respondent's product will cure all types of gastrointestinal disorders and diseases. It is true that it will not cure those conditions, but I do not believe that the advertisement of the Respondent makes this broad, sweeping claim that is set forth in Paragraph 3-C of the complaint. A finer hand and a more precise statement would be appropriate in this case. I think there are serious misrepresentations present in this advertisement, but I think that these three charges are overstated. In order to prevail, the Complainant must prove the charges it has drafted.
With respect to the charge that is in Paragraph 3-D of the complaint, it is natural for most people to believe that when a doctor has prepared a medication for use in the treatment of such matters as high blood pressure, stomach, intestinal and other related problems, that those medications are prepared for or by persons holding an M.D. degree.
It is true that there are doctors who are not medical doctors. There are doctors of philosophy and doctors of chiropractic and doctors of arts and doctors of letters, but those sorts of doctors are not generally thought of in the context in which this advertisement appears. I find, therefore, that Respondent does make the representation set forth in Paragraph 3-D of the complaint and that it is false in that Dr. Krapf is identified on his letterhead and in his letter which was attached to Complainant's Exhibit 5-B as a doctor of chiropractic.
The fact that Dr. Krapf, in the name of this Respondent, is offering this product for sale to the general public does in itself constitute a representation that Respondent's product represents a method of treatment which is generally recognized and approved by the consensus of informed medical opinion. The testimony of the expert medical witness in this hearing is to the effect that this representation is false, and it is so found.
Throughout the course of the correspondence from Dr. Krapf he has continually complained of the fact that he has sought, but has been denied, a statement of guidelines so that he may continue to engage in the sale of his product. Counsel for the Complainant properly and understandably has told Dr. Krapf that she is not in the business of preparing advertising copy for Respondents who appear before the Postal Service.
But to give Dr. Krapf an idea of what is regarded as a reasonable set of rules for him to follow, it is believed that some decisions, or some excerpts from some decisions, may be beneficial. Of course, the leading case on the subject of interpreting advertisements insofar as the Postal Service is concerned is the case of Donaldson v. Read Magazine, 333 U.S. 178, in which the Court said that advertisements are to be interpreted in the light of the effect they most probably will produce on ordinary minds.
In Gottlieb v. Schaffer, 141 F. Supp. 7, at page 16, the District Court for the Southern District of New York held in its 1956 decision:
"The purpose of the statute is to protect the unwary and unsuspecting as well as the knowledgeable and worldly-wise -- those who are 'trusting as well as the suspicious'. The public includes 'that vast multitude * * * the ignorant, the unthinking and the credulous'. The fact that informed and sophisticated persons would readily recognize, laugh off, or even be amused by, obviously false and absurd statements in an advertisement does not detract from their power to deceive the ignorant, gullible and less experienced." (Citations omitted)
In a recent case decided by the Supreme Court of the United States, namely, Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Incorporated, 425 U.S. 748, decided in 1976, in Mr. Justice Blackman's opinion, which was the opinion of the Court, in footnote 24, appearing at pages 771 and 772, he cited and quoted approvingly the following excerpt from the case of United States v. 95 Barrels of Vinegar, 265 U.S. 438, at page 443, a 1924 case in which the Court said: "It is not difficult to choose statements, designs and devices which will not deceive." The importance of this quotation is further indicated by the fact that in his concurring opinion Mr. Justice Stewart in this same case quoted the same excerpt from United States v. 95 Barrels of Vinegar. The best guideline or rule that can be given to anyone who wants to engage in the sale of a product through the mail by publicly advertising it is that he can say whatever he likes so long as he does not overstate the value that a person would derive from the purchase or use or taking of that product, and that point was made perfectly clear in the case of Borg-Johnson Electronics v. Christenberry, 169 F. Supp. 746, at page 751, where the Court said:
"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. This is so, even where there is a promise to refund the purchase price should the article sold prove unsatisfactory." (Citations omitted)
With these statements by the various Courts it is believed that a person who wants to go into the mail order business can prepare advertising material about his product which, if it is sufficiently appealing, will enable the product to be accurately represented and legitimately sold.
In view of the record in this case it is concluded 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.
It follows that an order of the type provided for in that section should be issued against this Respondent.
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