In the Matter of the Complaint Against: P & D DISTRIBUTORS, P.O. Box 35930 at Los Angeles, CA 90035 P.S. Docket No. 5/176 10/12/77 Sobernheim, Rudolf; Administrative Law Judge APPEARANCES: Daniel S. Greenberg, Esq. Consumer Protection Office; Law Department; U. S. Postal Service; Washington, D.C. 20260; for Complainant Joseph Taback, Esq. 10880 Wilshire Boulevard; Los Angeles, CA 90024; 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 "Penis-Stretch".
Specifically complainant in paragraphs I and II of the complaint alleges that respondent through the use of advertisements (Compl. Ex. A) makes representations, directly or indirectly, in substance and effect, whether by affirmative statements, omission or implication, as follows:
"(a) That, by means of said advertisement, and in similar matter, Respondent represents, directly or indirectly by means of affirmative statement, implication, or omission, in substance and effect, that 'Penis-Stretch' will measurably increase the size of the penis;
(b) That, by its failure to disclose possible discomfort and danger due to use of 'Penis-Stretch' as directed, Respondent represents that the device:
(1) is safe for all who would reasonably be expected to use same;
(2) will produce no discomfort for anyone who would reasonably be expected to use same."
Complainant further alleges in paragraph III of the complaint that these representations are false and materially so.
Respondent's answer denied the making of the representations charged in the complaint as well as their falsity and materiality.
1. Postal Inspector C. O. Havens was the first witness for the Complainant. He testified that he received unsolicited a piece of advertising material addressed to a test name used by him in the performance of his functions as a Postal Inspector assigned to investigate medical fraud matters.
2. This advertisement is postmarked Los Angeles, California, February 22, 1977 and contains a circular printed on both sides advertising a number of items, among which is the item under consideration here. This circular advertises an item called the "Penis Stretch". Inspector Havens testified that he responded to this advertisement and ordered the product and in due time it was received.
3. Complainant charges that Respondent represents that this device will measurably increase the size of the penis. Complainant further charges that by its failure to disclose possible discomfort and danger due to the use of this device as directed, Respondent represents that the device is safe and produces no discomfort for anyone who would reasonably be expected to use it.
4. The product consists of an elastic band from which is appended another piece of elastic which terminates in an elastic loop. The long elastic band is intended to be placed around the left thigh and the smaller elastic band is to be placed somewhere along the shaft of the penis but closer to the body of the wearer than the head of the penis. After both loops have been applied as directed, then the loop which is around the left leg is pulled toward the foot and the effect of this is to stretch and elongate the penis.
5. Testifying as a witness for the Complainant was Dr. Ernst J. Drenick, a physician who is the Section Chief of the General Medicine Section at the Veterans Hospital in Los Angeles and also a professor of medicine at the University of California at Los Angeles. Dr. Drenick is well qualified to testify with regard to the product that is the subject of this proceeding.
6. Dr. Drenick testified that the size of the male sex organ is determined by a genetic factor, a genetic code and that it is an inherited feature of the male anatomy. Its size cannot be altered by medical science and this statement is true with respect to the penis in its flaccid state and in its erect state.
7. Dr. Drenick testified further that this device which is being sold by Respondent will have the effect of stretching the flaccid penis, while the device is worn. However, when the device is removed, the penis will resume its normal size, nor will the device have any effect on the length of the penis when the penis is in an erect state. Of course, the flaccid penis will not be permanently elongated by wearing the device.
8. In addition, Dr. Drenick testified that the wearing of this device could produce discomfort and some danger to the wearer. If the adjustable ring is too tight, the circulation to the distal end of the penis will be impeded and the end of the penis away from the body would, without the wearer's knowing it, become numb. If the circulation were thus impeded for a sufficient length of time without the wearer being conscious of that fact tissue damage could result.
9. Based upon the testimony in this case, it is clear that the use of this device as directed will not have any lasting effect in elongating the penis and that the wearing of the device as directed could produce discomfort and danger to the wearer.
10. Respondent does make the representations which are set forth in the complaint. Respondent is engaged in business through the mails. It does seek remittances of money through the mails, selling a device which will not produce the results which Respondent promises.
1. 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.
2. An order of the type provided for in that section of the Code should be issued against this Respondent.
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