In the Matter of the Complaint Against:

 LEASURE TIME PRODUCTS;
 P.O. Box 2206 at
 Columbus, OH 43216

 P.S. Docket No. 5/177
 
 07/28/77
 
 Sobernheim, Rudolf; Administrative Law Judge

 APPEARANCES: 
 H. Richard Hefner, Esq.
 Consumer Protection Office;
 Law Department; U.S. Postal Service;
 Washington, D.C. 20260 for Complainant 

 Howard A. Spies, Esq.
 40 West Gay Street;
 Columbus, Ohio 43215 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 VACUUM ENLARGER. Specifically complainant in paragraphs II and III of the complaint alleges that respondent through the use of advertisements (Compl. Ex. A and B) makes representations, directly or indirectly, in substance and effect, whether by affirmative statements, omission or implication, as follows:

"(a) The VACUUM ENLARGER is an effective means for a male to increase the dimensions of his penis.

(b) Use of the VACUUM ENLARGER will assure a male of achieving an immediate erection.

(c) Use of the VACUUM ENLARGER will '...cause the penis to be more sensitive to touch, and increase your staying power and desire.'"

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

Respondent in its answer admits the use of the advertisements (Compl. Ex. A and B) in order to induce readers thereof to remit money through the mails to respondent but denies the falsity of any representation made by it or the illegality of any of its actions. It admits that it makes the representation set forth in paragraph III(a) of the complaint but denies making the representations set forth in paragraph III(b) and (c) of the complaint.

A hearing was held on 20 June 1977 at which respondent presented testimony regarding a test purchase of respondent's product made by a postal inspector and expert medical testimony regarding the claimed falsity of respondent's representations. Respondent called no witnesses of its own but its counsel cross-examined complainant's witnesses. Both parties submitted proposed findings of fact and conclusions of law after the hearing.

1. Respondent is engaged in the sale of a penis VACUUM ENLARGER through the mails, attracting purchasers by means of the advertisements, copies of which are attached to the complaint as exhibits A and B, and receiving money from purchasers through the mails (Answer, pars. I, II; T 5 etseq.).

2. Respondent has admitted in its answer that it represents that its product is an effective means to increase the dimensions of the penis and its advertisements bear out the propriety of the admission.

3. a. The two representations as to obtaining an immediate erection and increased sensitivity to touch and staying power (Complaint, par. III(b) and (c)) are not found in the December 1976 advertisement of respondent (Compl. Ex. A).

b. The second advertisement in the Hustler of June 1977 (Compl. Ex. B) states that the Vacuum Enlarger will "help" the user "obtain an immediate erection, cause the penis to be more sensitive to touch, and increase his staying power and desire." The representations alleged by complainant in paragraph III(b) and (c) of the complaint to have been made by respondent are closely patterned after the text of the June 1977 advertisement.

c. The advertisement, read literally, states that respondent's product will "help" the user attain the quoted results rather than, as complainant alleges, "cause" or "assure" them. But to the mind of ordinary readers, seeking the end results of which the advertisement (Compl. Ex. B) speaks, the advertisement and its illustration, read as a whole, hold out the plain expectation that the desired results will follow from acquisition and be caused or assured by the use of respondent's product.

d. Although the second advertisement (Compl. Ex. B) appeared in the June issue of the Hustler that issue must have been received early enough by Complainant's Special Investigations Division (see T 4, 24) so that complainant could attach a copy thereof to its complaint, filed with the Docket Clerk of the Office of the Administrative Law Judges of the U. S. Postal Service on 12 May 1977.

e. I find that complainant's exhibit B is properly to be considered in this proceeding (see T 72-73) and that respondent makes therein the representations which are set forth in paragraph III(b) and (c) of the complaint.

4. In response to the test purchase of respondent's product the postal inspector received a package (T 16-17) the contents of which were listed on the enclosed package slip (Compl. Ex. D-3) as one "penis enlarger transvers vac."

a. The penis enlarger consists of a plastic-covered (T 21) circular rubber or plastic object with a hole in the middle (T 21) and a pump (T 22).

b. A white label was affixed to the pump which bore the following text (T 36):

"(Arrow pointing to vent hole along side of pump) To operate plunger, hold finger over hole for pump to suck. To stop suction, remove finger from hole. Warning]]]this pump is sold as a novelty only and is not intended for use. It has not been clinically tested nor is it approved."

c. The package included an instruction sheet (Compl. Ex. D-7) for use of the penis enlarger (T 22).

5. In brief, the "Directions for use of vacuum/penis pumps" instruct the user to attach the "doughnut" (i.e., the above-mentioned rubber or plastic object), lubricated with a greaseless cream, to the base of the pump and to insert the penis into the pump through the hole in the "doughnut", preferably, though not necessarily, when the penis is erect. Then the user must cover the vacuum-release port which is a hole in the pump wall and begin pumping to evacuate air from the pump until the desired level of vacuum is reached. The user is warned, however, that too high a level of vacuum may cause a rupture of veins within the penis or otherwise damage it (Compl. Ex. D-7).

6. There is no direct evidence that the vacuum enlarger furnished by respondent to the postal inspector as part of the test purchase made by the latter in response to the advertisement of December 1976 (Compl. Ex. A) is exactly the same item as that which respondent would have furnished in response to a purchase pursuant to the advertisement of June 1977 (Compl. Ex. B). The instructions furnished by respondent to the postal inspector (Compl. Ex. D-7) state, however:

"Regardless of the manufacturer, all vacuum pumps designed to be used with the penis (for whatever purpose) share several features. All have a vacuum pump, designed to evacuate the air from the main tube. These pumps vary greatly in efficiency...

"Every vacuum pump has a release port...

"Use of Vacuum Pump

Regardless of the particular model of vacuum pump utilized the principle is the same...."

7. On the basis of the foregoing statements of respondent I find that the identity of the vacuum pump which respondent would have furnished to a purchaser pursuant to the June 1977 advertisement is immaterial since all penis vacuum pump enlargers work according to the same principles and to the same effect.

8. I further find that the medical expert witness who testified for complainant predicated his testimony not on the quality of a particular vacuum enlarger but on the ineffectiveness of the principle of operation to obtain the advertised result.

9. Hence, charges based on the June 1977 advertisement (Compl. Ex. B) are properly part of this proceeding.

10. Complainant called as its expert medical witness a well qualified physician employed as a medical officer by the federal Food and Drug Administration and assigned since 1971 as liaison officer with the Postal Service (T 27-34).

11. The witness gave a description of respondent's product and of its mode of operation (T 35-37) which is in general accord with the operating instructions (Compl. Ex. D-7), summarized in Finding of Fact No. 5.

12. Complainant's medical expert testified that penis size is generally determined by a man's genes and may also be influenced by his hormonal make-up (T 38-39).

13. When the penis is inserted into the vacuum pump and the pump is operated, blood flows into the penis which thereupon becomes engorged (T 40-41). But such engorgement is not a normal erection (T 42, 50).

14. A normal erection is caused by neural pressure at the base of the penis which tightens the muscles at the base of the penis and slows the return of blood from the penis through the venal system (T 41).

15. The vacuum pump is not effective as a method of "enlarging" the penis either in preparation for sexual intercourse quickly to follow its use or over a longer term. For the engorgement of the penis with an inflow of blood dissolves when the pump is removed and the effect does not last long enough to perform any sexual act (T 43-44). Even though engorged, however, the penis may remain flabby and not become erect (T 53).

16. On the other hand, if the pump is used when an erection has already been attained (see Compl. Ex. D-7, par. 3) then there is no engorgement or further increase in the size of the penis (T 44).

17. Use of the pump creates no physiological basis for greater staying power (T 46, 60) nor does it make the penis more sensitive to touch unless the penis has been injured and becomes sore (T 45).

18. Whether the use of the pump produces greater sexual desires depends on the sexual fantasies and psychology of the user (T 46, 61).

19. Respondent's medical expert witness testified that his views represented the consensus of medical opinion and nothing in the record leads me to doubt his statement.

20. Based on the foregoing detailed findings of fact and on the record as a whole I find:

a. The representation charged to respondent in paragraph III(a) of the complaint and admittedly made by it is false. For the evidence establishes that such enlargement of the penis as the use of the vacuum tube produces is too fleeting to produce any practical effect for purposes of sexual intercourse. That it will do so, however, is the impression which respondent creates in its advertisements both directly and by implication and that is precisely the result which is not attained.

b. The correctness of this finding is confirmed by the fact that the pump is labelled as a novelty item not intended for use. The concealment of this fact in respondent's advertisements demonstrates their falsity in claiming practical usability or effectiveness for the pump as a "penis enlarger."

c. The representation charged to respondent in paragraph III(b) of the complaint and made by it in the June 1977 advertisement (Compl. Ex. B) is false, for the use of the pump does not produce an erection.

d. (1) The representation charged to respondent in paragraph III(c) of the complaint and made by it in the June 1977 advertisement (Compl. Ex. B) is false since use of the pump produces neither increased sensitivity of the penis to touch unless the penis is sore or injured nor staying power.

(2) Whether use of the pump produces greater sexual desire depends on the psychic make-up of the user and not on the mechanical action of the pump. To attribute to its use automatically an increase in sexual desire is a false representation.

e. Respondent's representations are not only false but also materially so. For they misrepresent the effectiveness of the product which potential purchasers are asked to buy.

1. Respondent's representations as a matter of law carry the meaning for the ordinary reader which I have found. Donaldson v. Read Magazine, 333 U.S. 178 (1948).

2. For representations in the advertisements of a respondent to be found false and for the application of 39 USC 3005 it is not necessary that a test purchase be made by a postal inspector in response to the particular advertisement.

3. Respondent is engaged in a scheme or device for obtaining money through the mails by means of false representations.

4. An order as provided for in 39 USC 3005 and in the form annexed should be issued.