In the Matter of the Complaint Against ALL PRODUCTS UNLIMITED, INC., Post Office Box 162 and Post Office Box 370-162, Buena Vista Station at Miami, FL 33137 P.S. Docket No. 6/43 February 21, 1978 Quentin E. Grant Administrative Law Judge APPEARANCE FOR COMPLAINANT: H. Richard Hefner, Esq. Law Department United States Postal Service Washington, DC 20260 APPEARANCE FOR RESPONDENT: Donohue, Kaufman, Shaw, Kligman & Shapiro By Theodore Kligman, Esq. Washington, DC 20001
On October 26, 1977 complainant filed a complaint initiating this proceeding. The complaint alleged that respondent is engaged in conducting a scheme or device for obtaining money through the mails by means of false representations in violation of 39 U.S.C. 3005.
Specifically, the complaint alleges that by means of advertising matter distributed to the public calculated and intended to induce readers thereof to remit money or property through the mails respondent expressly or impliedly represents in substance and effect that wearing a product called the "TIGER MAGNETIC BRACELET" is an effective means for the treatment, alleviation and/or cure of arthritis, bursitis, and other rheumatic ills. The complaint further alleges that such representations are materially false as a matter of fact.
Respondent denies all allegations of the complaint.
A hearing in the matter was held at Ft. Lauderdale, Florida on December 15, 1977. Both parties presented evidence and thereafter filed proposed findings of fact and conclusions of law.
1. Respondent is engaged in conducting a scheme or device for obtaining money or property through the mails (CX-1 through CX-6; Tr. 3-21).
2. Attention is attracted to such scheme or device by means of advertising calculated to induce readers thereof to remit money or property through the mails (CX-1). A copy of such advertising is attached hereto as Exhibit A.
3. A fair reading of respondent's advertising discloses that it makes the representations alleged in the complaint. Respondent's advertisement is carefully worded so as not to make an explicit promise of the effectiveness of the product. In fact it contains an inconspicuous attempt at disclaimer of such a promise. However, I find that the advertisement in its totality -- particularly in the wording "ARTHRITIS SUFFERS (sic) and those with bursitis and other rheumatic ills -- YOUR COPPER BRACELETS ARE OBSOLETE - NOW] HELP YOURSELF ... NOW] - AMAZING - OVER 5 MILLION SOLD WORLD WIDE" -- would most probably create in the ordinary mind the impression that the product is an effective means for the treatment, alleviation and/or cure of arthritis, bursitis, and other rheumatic ills.
4. The appearance of the product is as depicted in respondent's advertising. I accept as factual the statements in such advertising that the bracelet contains magnets.
5. Complainant's expert witnesses were well qualified to express medical opinions with reference to the principal issue in this matter, i.e., the efficacy of magnets and magnetism in the treatment, alleviation and/or cure of arthritis, bursitis, and other rheumatic ills (Tr. 22-25; CX-7; Tr. 85-87).
6. Arthritis is the inflammation of a joint induced by disease or injury. Rheumatism is any of numerous conditions characterized by inflammation or pain in muscles, joints, or fibrous tissues. Bursitis is an inflammation of the bursa, a lubricated sac found between two surfaces such as bone and tissue. There are over sixty different forms of arthritis and rheumatic diseases (Tr. 24, 88, 93, 96).
7. Scientific training is required to diagnose and treat bursitis, arthritis, and other rheumatic diseases. There is no one medical treatment covering all types of these diseases. The specific treatment depends on the type and severity of the condition (Tr. 25-27, 86-89). For instance, gouty arthritis is commonly treated by reduction of uric acid formation. Bursitis is often treated with injections of a cortisone steroid zylocane preparation. Arthritis associated with tuberculosis or certain venereal diseases is treated by treatment of the underlying disease. Other types of arthritis require treatment directed at pain relief and reduction of inflammation. Such treatment may consist of drugs such as aspirin or naprosyn and/or physical therapy modalities such as heat, massage and whirlpool baths (Tr. 26-27, 89).
8. For certain types of arthritis, such as the rheumatoid type, the typical prognosis is for short term remissions, either spontaneous or medically induced, but no complete cure (Tr. 27-28).
9. A good doctor-patient relationship is important in the treatment of the condition involved in this matter (Tr. 28, 87).
10. Magnetism is not used in the practice of medicine except in the form of electromagnetic currents in shortwave diathermy (Tr. 90) or in removing foreign metallic objects from the eye (Tr. 31). It is not used by medical doctors in the treatment of rheumatic diseases (Tr. 89, 90).
11. According to the expert medical testimony in this case, the Tiger Magnetic Bracelet is not an effective means of the treatment, alleviation and/or cure of arthritis, bursitis or other rheumatic ills. The medical opinion to this effect in this record is in conformity with the consensus of informed medical and scientific opinion (Tr. 90-94).
12. Respondent produced several lay witnesses who testified that when wearing the Tiger Health Bracelet they experienced relief from pains and constricted limb movements associated with bursitis and arthritis. Accepting their testimony as true, such relief, according to complainant's medical testimony, is consistent with such psychological phenomena as hypnotic effect, autosuggestion, or placebo effect, or remission due to causes other than magnetism (Tr. 104, 106, 111). A placebo effect or other psychological effect, does not affect the anatomical or pathological aspects of arthritic conditions (Tr. 41, 106). On the basis of the record before me I cannot find that the relief experienced by such witnesses was due to any magnetic effect of the Tiger Health Bracelet.
1. Respondent is engaged in a scheme or device for obtaining money or property through the mails by means of representations substantially as characterized in the complaint.
2. The meaning to be ascribed to an advertisement is to be based upon a consideration of its totality in the effect it would most probably create in the ordinary mind. Donaldson v. Read Magazine, Inc. , 333 U.S. 178 (1948); Vibra-Brush Corp. v. Schaffer , 152 F.Supp. 461 (S.D.N.Y. 1957). In judging the meaning of an advertisement that which is implied must be considered as well as that which is expressly stated. Aronberg v. F.T.C. , 132 F.2d 165 (7th Cir. 1943); Cates v. Haderlein , 189 F.2d 369 (7th Cir. 1951).
3. If not directly, certainly by implication, respondent's advertisement makes the representations alleged in the complaint.
4. Based on the foregoing findings of fact, I find that such representations are materially false in fact.
5. A money-back guarantee does not serve to wipe out the illegal taint of such false representation. G. J. Howard v. Cassidy , 162 F. Supp. 568.
6. An order pursuant to 39 U.S.C. 3005 in the form attached should be issued.