In the Matter of the Complaint Against

 SUPER-E,
 711 E. Walnut St. at
 Pasadena, CA 91101 and

 SUPER-E,
 5000 Lankershim Blvd. at
 North Hollywood, CA 91601

 P.S. Docket No. 6/161
 
 November 27, 1978 
 
 Quentin E. Grant Administrative Law Judge
 
 Appearance for Complainant:
 H. Richard Hefner, Esq.
 U. S. Postal Service Law Department
 Consumer Protection Service
 Washington, D.C. 20260

 Appearance for Respondent:
 A. Schiff Sole Proprietor

By means of the advertising matter referred to above, Respondent expressly or impliedly represents to the public in substance and effect, that: (a) E-PILL is an effective aphrodisiac or sexual stimulant. (e.g., "The new high potency E-Pill not only seems to increase sexual ability of both sexes but also 'actually perks up sexual interest and stimulates a persons [sic] desires,' ..." etc.) (b) E-PILL will overcome sexual impotence. (e.g., "Sexual Potency Quickly Improves With New 'E-Pill'" etc.) (c) The chemical formulation of E-Pill is significantly different from all other products intended to increase human sexual performance, capacity and enjoyment. (e.g., "...amazing new 'super-charged' vitamin E-Pill has recently been developed that reportedly 'quickly' increases and rejuvenates sexual drives and potency for both men and women of all ages." "This new, easy-to-take E-Pill contains newly formulated, highly concentrated vitamin E." etc.) (d) E-PILL was previously available only by prescription of a physician. (e.g., "It is now available to the American public." "...now available without prescription from the manufacturer by mail order only." etc.) (e) E-PILL will cause men and women to "feel healthier and more youthful." (f) E-PILL "also improves general health." The aforesaid representations are materially false as a matter of fact. On September 15, 1978, complainant filed a complaint alleging that 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.C. 3005. The specific allegations of misrepresentation are attached hereto as Exhibit A.

Respondent, by A. Schiff, designated as sole proprietor, filed an answer to the complaint on October 16, 1978. The answer in effect admitted that respondent, in advertising calculated to induce readers thereof to remit money or property through the mails, makes the representations alleged in the complaint. However, the answer denies that such representations are false.

At respondent's request the hearing in the matter originally scheduled for October 18, 1978, was continued to November 6 to enable respondent to secure an attorney in the Washington area to represent respondent at the hearing.

Respondent did not appear at the hearing in person or by counsel. Thereupon, in accordance with 952.11 of the Rules of Practice, complainant's evidence was received and this initial decision is issued.

At the outset of the hearing the undersigned granted complainant's motion for amendment of the caption of the complaint to include the following address:

SUPER-E

5000 Lankershim Blvd.

at

North Hollywood, CA 91601

1. Based on respondent's advertising (CX-A), together with the testimony of Postal Inspector Andre J. Desrosiers (Tr. 4-9) and other evidence showing a test purchase of respondent's product through the mails (CX-B through CX-E), I find that respondent is engaged in conducting a scheme or device for obtaining money or property through the mails.

2. A fair reading of respondent's advertising discloses that it makes the representations alleged in the complaint.

3. The product involved is called the "E-Pill." It consists of tablets supplied in a container bearing a label which names the contents as "High Potency Vitamin E Tablets" and describes the contents of each tablet as follows:

               Vitamin E         500 IU 
                (D-L Alpha Tocopheryl) 

               Niacin            12.5 MG 
               Kola Nut Powder   50   MG 

4. According to the testimony of Vincent F. Cordaro, a qualified doctor of medicine who testified for complainant, medical science does not recognize any drug or substance as an aphrodisiac (a drug or food that arouses sexual desire). He concluded, therefore, that the "E-Pill" is not an effective aphrodisiac or sexual stimulant. He further expressed the opinions that the product will not overcome sexual impotence; that there is nothing new in the formulation of the product; that there is nothing in the product which would have previously caused it to be available only on prescription; that the product will not cause men or women to feel healthier and more youthful; and that there is nothing in the product which will improve the general health of the person.

5. Dr. Cordaro's opinions concerning the product are in conformity with the consensus of informed medical opinion.

1. Respondent is engaged in the conduct of a scheme for obtaining money or property through the mails by means of representations substantially as characterized in the complaint.

2. Such representations are materially false in fact.

3. Accordingly, orders in the form attached should be issued against respondent.