In the Matter of the Complaint Against MR. BALLMOR, P. O. Box 42097 at San Francisco, CA 94142 P.S. Docket No. 6/123 August 31, 1978 William A. Duvall Chief Administrative Law Judge Sandra C. McFeeley, Esq., Law Department United States Postal Service Washington, D.C., for Complainant Dale W. McKenzie, Esq., Stokes, Clayton and McKenzie, 333 Franklin Street, Suite 202, San Francisco, CA, for Respondent Before: William A. Duvall, Chief Administrative Law Judge
1/This proceeding was initiated on July 27, 1978, when the Consumer Protection Office of the Law Department of the United States Postal Service, the Complainant, filed a complaint against Mr. Ballmor of San Francisco, California, the Respondent.
In the complaint it is charged that the Respondent is engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations in violation of 39 U. S. Code, Section 3005.
Specifically it is charged that attention is directed to the scheme allegedly being conducted by the Respondent by advertisements appearing in publications of general circulation and that in those advertisements the Respondent represents that the device which it is selling, called the "therapeutic genital device":
(a) will enlarge the male penis, and
(b) will be effective to maintain a firm penile erection even after climax.
In the complaint it is charged that the aforesaid representations are materially false as a matter of fact.
The Respondent filed an answer in due course. In the answer it is denied that the Respondent is engaged in conducting a scheme or device for obtaining money or property through the mails by means of any false representations whatsoever, and Respondent denies each and every allegation of paragraph (1) of the complaint.
The Respondent denies that the advertisement which was Exhibit 1 to the complaint is a recent advertisement used by the Respondent. The Respondent also denies the allegations of paragraph (3) of the complaint, but admits that the advertisement states that the therapeutic genital device: (1) enlarges penis, and (2) maintains firm erection even after climax. The Respondent denies that the representations made by it in its advertisement are false as a matter of fact.
The Respondent by way of affirmative defense alleges that the device it sells was patented with the United States Patent Office under U.S. Patent 3,799,157 on March 26, 1974. A copy of the patent is attached to the answer as Exhibit A.
The Respondent also alleges as a separate and affirmative defense that there are hundreds of very satisfied users of said therapeutic genital device which has assisted the users in the performance of their natural function in sexual intercourse.
As a third and last affirmative defense, the Respondent alleges that the Food and Drug Administration, after investigation of the manufacture and sale of said therapeutic genital device, on or about September 29, 1977, notified the Respondent of no objection nor complaint whatsoever. A copy of the notice of inspection was attached to the answer as Exhibit B, thereto.
Referring first to the affirmative defenses in the answer of the Respondent, the fact that a patent has been issued for a device does not mean that claims made in sales literature with respect to that device are true. It does not necessarily mean even that the claims that are made in the application for the patent are factually accurate. It means that they are claims which the inventor asserts to warrant the issuance of a patent.
The statement in a pleading such as is found in paragraph (6) of the answer that there are hundreds of satisfied users of the device being sold by the Respondent is not entitled to any weight in a proceeding of this kind. It is simply a self-serving averment for which there is absolutely no evidentiary support in the record, and it is not entitled to, and is not accorded, any weight.
With respect to the alleged transaction involving the Food and Drug Administration, the exhibit attached to the answer of the Respondent does not bear out the statement made in paragraph (7) of the answer. There is a notice of inspection, but upon careful reading of this, Exhibit B to the answer, there is nothing in it to indicate that the Food and Drug Administration stated that it had no objection or complaint whatsoever with respect to this particular device. It is only that which it indicates itself to be. It is a notice of inspection. It in no sense carries with it a connotation, or statement, or suggestion of approval. In point of fact, Inspector Desrosiers testified that as a part of his investigation he contacted representatives of the Food and Drug Administration in San Francisco, and they indicated to him that they were going to make a seizure with respect to the product being sold by the Respondent involved in this case.
Called as a witness on behalf of the Complainant was Postal Inspector Andre J. Desrosiers, who is assigned to the Special Investigations Division of the Postal Inspection Service. Inspector Desrosiers testified that he noted an advertisement by the Respondent in a publication known as the "Advocate," and that publication was dated November 30, 1977. Following the usual procedures employed in the Inspection Service, Inspector Desrosiers made a test purchase by the use of a test name and obtained one of the items being sold by this respondent, and the product and its container and holder were received in evidence as Complainant's Exhibits 8, 9 and 10. Also received in evidence as part of the Inspector's testimony, were Complainant's Exhibits 13 and 14, which are advertisements substantially identical to the advertisement attached to the complaint, but appearing much more currently. Exhibit 13, for example, is a copy of the advertisement which was taken from the September 1978 issue of "Eros." Exhibit 14 appears in Volume 2, No. 20 of the publication known as "Playguy." Both of these publications are of wide distribution and circulation within the United States.
Based upon the testimony of Inspector Desrosiers it is found as a fact that the Respondent is engaged in conducting a scheme through the mails. It is found also based upon the Inspector's testimony that the Respondent does advertise in publications of wide circulation. It is found further that the Respondent does make the representations which are set forth in the complaint, and that finding is based also upon the statements made by the Respondent in paragraph (3) of its answer.
The other witness called to testify by the Complainant was Dr. Vincent F. Cordaro, a medical doctor who by virtue of his education, training, experience, and his present professional assignment is well qualified to give testimony in the area of medicine which is involved in this proceeding.
Dr. Cordaro indicated that urology is the study of the genito-urinary tract, its anatomy, its physiology, and its diseases, beginning with the blood vessels of the kidney and proceeding to the external opening of the urethra. In connection with Dr. Cordaro's practice and experience, he has had cases of patients who had difficulty in the genito-urinary tract, and that was part of his practice both as a private physician and as a military physician.
Dr. Cordaro described the phenomenon of the erection and he indicated that the penis is composed in large part of sponge-like tissue, which upon the receipt of the appropriate physical or mental stimulus becomes engorged with blood, and the result of this action is the erection. After climax, the blood with which the penis has been engorged leaves the penis by the circulatory system and re-enters the body. The erection subsides and the penis resumes its normal flaccid condition.
Engorgement may be accomplished by constriction of the base of the shaft of the penis. If the constriction and engorgement are followed by sexual intercourse, the applied constriction such as the leather strap in the Respondent's product might prevent some outflow from the dorsal vein of the penis and create engorgement. Following ejaculation some engorgement may well remain if the constrictive strap is not removed and if it is tight enough.
A true erection, however, is an action of the nervous system and the bulbocavernosus muscle to decrease the output of the veins from the penis. There is no such thing as a device which will maintain an erection. After ejaculation, any true erection will be lost. There may be some simple engorgement remaining if a device such as the Respondent's product is applied firmly enough, but this cannot be considered an erection; nor will single or repeated use of a constrictive device such as the product that is the subject of this proceeding be effective to increase permanently the length or girth of the penis.
Dr. Cordaro testified also that the size of the male sexual organ is determined by hereditary factors, and that there are no chemicals, vitamins, or other substances by means of which the normal individual may increase the size of the penis. In short, it was the opinion and the statement of the expert medical witness that it would be impossible for the device being sold by the Respondent to accomplish the results being promised by the Respondent in the advertisements for the device.
It follows, therefore, that the representations found to have been, and admitted to have been, made by the Respondent are false. They are materially false because they are statements related to an area of human existence which assumes great importance in the minds of many people, and the representations are materially false, also, because they are statements of the type upon which persons would rely in ordering the device from the Respondent.
Based upon all the foregoing considerations, it is found as a fact and 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 mail by means of false representations within the meaning of Section 3005 of Title 39, United States Code.
An order in the form attached as provided by 39 U. S. Code Section 3005 should be issued against this Respondent.