In the Matter of the Complaint Against

 AMERICAN RESEARCH LABS,
 Post Office Box 369 at
 Taylor, Michigan 48180

 P.S. Docket No. 5/160
 
 07/21/77
 
 Sobernheim, Rudolf Administrative Law Judge

 APPEARANCES: Thomas A. Ziebarth, Esq.
 Consumer Protection Office
 Law Department U. S. Postal Service
 Washington, D. C.  20260 for Complainant 

 Mr. Richard Wiesend American Research Labs
 P. O. Box 369
 Taylor, Michigan 48180 for Respondent

This is a proceeding by complainant against respondent under 39 USC 3005 which authorizes action against respondent on evidence satisfactory to the Postal Service that respondent is "engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations." Complainant alleges that respondent is engaged in such a scheme in the sale of a pep pill, called "ALIVE". Specifically complainant in paragraphs (2) and (3) of the complaint alleges that respondent through the use of advertisements (Compl. Ex. 1 and 2) makes representations, directly or indirectly, in substance and effect, whether by affirmative statements, omission or implication, as follows:

"(a) The PEP PILL will increase the user's energy;

(b) The PEP PILL will improve the user's mood; and

(c) The PEP PILL is a new medicinal preparation."

Complainant further alleges in paragraph (4) of the complaint that these representations are false and materially so.

Respondent's answer in substance admits the use of the advertisements copies of which are annexed to the complaint and the making of the representations alleged in paragraph (3) of the complaint to have been made by it. It denies, however, that they are materially false. Respondent in its answer further stated that it could not attend the hearing set for 16 June 1977 and set forth in detail the reasons for its belief that the representations charged to it in its complaint were not false.

As to the representation charged to it in paragraph (3)(a) of the complaint respondent alleges that its new pep pill "Alive" contains 25 mg of caffeine, 20 mg of niacine and 15 mg of benzocaine, that caffeine is a powerful stimulant, and that the word "energy" is synonymous with "pep".

As to the representation charged to it in paragraph (3)(b) of the complaint respondent argues that, since caffeine is a psychic stimulant which overcomes fatigue the mood of the user will be in all likelihood improved, he will feel better.

As to the representation charged to it in paragraph (3)(c) of the complaint respondent asserts that its pep pill "Alive" is manufactured to its specification and cites a statement by Pharmecon, Inc., of Farmington, Mich., that it has never carried nor has knowledge of any other pep pill with the exact combination of ingredients and dosages on the market today as "Alive". Pharmecon adds that "Alive" to its knowledge is "a new unique medicinal preparation" (Pharmecon Stat. att'd to Answer). The answer does not provide any background regarding Pharmecon, Inc. and its connection with respondent. Respondent also attaches lay testimonials to its answer but under the rule laid down in 39 CFR 952.18(f) they cannot be considered as evidence of the quality or efficacy of the product sold.

Appellant defaulted at the hearing, as indicated in its answer, and under the rule set forth in 39 CFR 952.11(b) complainant proceeded to adduce proof in support of its allegations. It adduced proof of a test purchase of the product effectuated through the mails and expert medical testimony of a well-qualified physician employed as medical officer by the federal Food and Drug Administration (FDA) and assigned since 1971 as Postal Collaborative Officer.

FINDINGS OF FACT

1. Respondent (for additional detail see findings of fact in the initial decision in P.S. Docket No. 5/159) is engaged in the sale of the pep pill "Alive" through the mails and receives money from purchasers of the pill through the mails (T 2-5).

2. To attract purchasers respondent uses the advertisements copies of which are attached to the complaint (Compl. Ex. 1, 2).

3. The advertisements, varying in outward appearance, state:

"You can COME ALIVE with an effectively new ENERGY BOOSTING pep pill.

This amazing capsule will: STIMULATE and ENERGIZE you. INCREASE your ALERTNESS and AWARENESS.

Improve your MOOD. Order this exciting new pill today. . . ."

4. A comparison of the quoted text (Compl. Ex. 1, 2) and the representations, charged to respondent in paragraph (3) of the complaint, leads to the finding, hereby made, that respondent makes the representations charged in the complaint.

5. In response to his test purchase the postal inspector received a bottle with capsules (T 4-5) which bore the following label (Compl. Ex. 3):

"ALIVE

ENERGY BOOSTING FORMULA

30 Time-Released Capsules

Emil-John Research

Taylor, Michigan

Distributor"

6. The label also directed as average adult dose one capsule initially and one capsule thereafter every 5 hours but not before retiring. It further stated as to the capsules' ingredients:

"Each capsule contains approximately 200 milligrams of ampheticaein (Emil-John's brand name for caffeine) in a special timed formula base that provides for prolonged therapeutic effect. . . ."

7. The statement of Pharmecon, Inc. attached to the answer gave the ingredients of "ALIVE" as 250 mg of caffeine, 20 mg of niacine and 15 mg of benzocaine. This is contrary to the terms of the label of the product furnished to the test purchaser. Apparently Pharmecon, Inc. misstated the contents of the product sold by respondent. In any event for purposes of this proceeding I find that respondent's pep pill "ALIVE" contains 200 mg caffeine as its sole ingredient, the equivalent of 2 cups of moderately strong coffee (T 10) over a five hour period.

8. Complainant's expert medical witness testified that respondent's pep pill may have an adverse effect on those sensitive to substantial caffeine consumption and make them depressed or moody with adverse effects on sleep or pulse (T 10, 13).

9. He also testified that "pep" or "stimulus" were not the same as "energy" (T 12-13). Caffeine produces stimulus to the brain but does not provide greater physical resources to the body, i.e., energy. On this point reference is made to the detailed findings of fact made in another proceeding against the same respondent (P.S. Docket No. 5/159 (init. dec.)).

10. Caffeine is not a new drug nor is its application in pep pills novel. It has been known and available for at least half a century (T 14).

11. There are many pep pills similar to respondent's product (T 14). Even if its dosage varies slightly from similar pills this would not make respondent's product "ALIVE" a new one.

12. On the basis of the foregoing detailed findings and the record as a whole, I find accordingly:

a. The representation made by respondent, as charged in paragraph (3)(a) of the complaint, is materially false in that the pep pill "ALIVE" stimulates but does not energize. Respondent's argument that energy is synonymous with pep and hence with stimulation increasing physical performance is without merit. Respondent's advertisements distinguish between increased energy and stimulation. Moreover, stimulation of the brain, whatever its effect on physical action, does not increase the physical resources of the body as the word "ENERGIZE" conveys to the ordinary reader.

b. The representation made by respondent, as charged in paragraph (3)(c) of the complaint, is false. For caffeine as a drug, in its application as a stimulant in pep pills or in its dosage is not new and any representation to the contrary is a material falsehood since it increases the appeal of the product to potential purchasers.

c. The representation made by respondent, as charged in paragraph (3)(b) of the complaint, is not shown to be false. It is implicit in the testimony of complainant's expert medical witness regarding the depressive effect of the excessive use of caffeine that mild use of caffeine stimulating the brain may make the user feel better. Respondent does not represent that such improved mood results from any particular kind of effect of caffeine.

CONCLUSIONS OF LAW

1. Respondent is engaged in a scheme or device to obtain money through the mails by means of false representations in violation of 39 USC 3005.

2. The meaning which attaches to its representations is that created in the minds of ordinary readers (Donaldson v. Read Magazine, 333 U.S. 178 (1948)) and by that standard the representations charged in paragraph (3)(a) and (c) of the complaint have a meaning which makes them false.

3. An order, as provided for in 39 USC 3005 and in the form annexed, should be issued against respondent.