In the Matter of the Complaint Against WILMONT PRODUCTS, 8831 Sunset Bl., Suite 300 at Los Angeles, CA 90069 P.S. Docket No. 6/46 October 16, 1978 William A. Duvall Chief Administrative Law Judge APPEARANCES: Daniel S. Greenberg, Esq. Law Department U. S. Postal Service Washington, D.C. 20260 for Complainant Stanley Fleishman, Esq. 433 North Camden Drive, Suite 900 Beverly Hills, CA 90210 for Respondent
On November 11, 1977, the Consumer Protection Office, Law Department, United States Postal Service (Complainant) filed a Complaint in which it charged that Wilmont Products, Los Angeles, California, 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 3005.
The Complaint contained the following, among other averments:
I.
"Public attention is attracted to said scheme by means of advertisements distributed to the public and which are calculated and intended to induce readers thereof to remit sums of money through the mails to Respondent.
* * * *
III.
"By means of the aforementioned advertisements, Respondent expressly or impliedly represents to the public in substance and effect:
(a) STUD, or Wilmont Herbal Blend is an effective male aphrodisiac or sexual stimulant.
(b) STUD or Wilmont Herbal Blend will enable a male to achieve and maintain a larger, harder and prolonged erection.
(c) STUD or Wilmont Herbal Blend will heighten and increase the capacity of the male to perform and enjoy sexual intercourse.
IV.
"The aforesaid representations are materially false as a matter of fact."
Respondent filed a timely Answer which, in pertinent part, reads as follows:
"1. Respondent is now and has been at all times herein mentioned, engaged in conducting a mail order business which has offered for sale to the public, Wilmont Herbal Blend for the Man.
"2. Respondent no longer uses and for some period of time, has not employed the trade name 'STUD' on any of their products or in any of their advertisements.
"3. Respondent admits that its advertisements are intended to induce readers thereof to remit sums of money through the mails to Respondent, however, Respondent denies that said inducement is by means of false representations in violation of 39 U.S.C. 3005, or in violation of any other law.
"4. Respondent admits to distributing Exhibits 'A' and 'B' to the public, but denies that said Exhibits make false representations.
"5. Respondent admits to making representations as set forth in paragraph III (a), (b) and (c) of the Complaint. 1/
"6. Respondent denies paragraph IV of the Complaint."
The matter was first set for hearing for March 3, 1978. Because of the illness of the owner at that time, the hearing was indefinitely continued. The hearing subsequently was scheduled for, and went forward on, June 28 and 29, 1978, in Los Angeles, California. Post-hearing briefs have been filed by Counsel for both parties and the matter is ready for decision.
Attached hereto as Appendices A and B are advertisements received in evidence at the hearing as Complainant's Exhibits 1 and 3. There was also received in evidence, as Complainant's Exhibit 5, a plastic container in which there are numerous capsules and on which there is a label with language reading as follows:
"WILMONT PRODUCTS
8831 Sunset Bl., Suite 300, L.A. CA. 90069
S T U D
QUALITY HERBS FOR THE MALE
60-8 Gr. Capsules
DIRECTIONS
One capsule 3 times
daily with water
INGREDIENTS: Damiana Leaves, Kola Nut Powder, Sarsaparilla
Root Powder & Excipients"
A fair reading of Respondent's advertising matter (Appendices A and B hereto), and consideration of the language of the advertisements in the light of guidelines for interpreting such advertisements established in Donaldson v. Read Magazine , 333 U.S. 178, 188-189 (1948) and Federal Trade Commission v. Standard Education Society , 302 U.S. 112, 116, to cite but a few such authorities, reveals that the representations set forth in paragraph III of the Complaint do express the impressions that would be made upon the mind of a person of ordinary prudence and comprehension.
For example, the charge that Respondent represents that its product is an effective male aphrodisiac or sexual stimulant is easily derived from the caption to Appendix B which reads "SEX DRIVE DRAMATICALLY INCREASED." Also in this category is the language "Sarsaparilla is only one of the reasons Wilmont Herbal Blend makes a man into a stud."
The language in the charge in paragraph III (b) is lifted almost verbatim from the penultimate sentence of the paragraph in Appendix B which follows the question "Why should I take Wilmont Herbal Blend?" No exercise in interpretation is needed to find that Respondent makes this representation.
The representation stated in paragraph III (c) is a naturally logical statement of the understanding one would form from the reading of the following language appearing in Appendix B under the headings "ancient secrets discovered" and "What is Wilmont Herbal Blend":
"Sarsaparilla is one of the few natural sources of testosterone, the male hormone. A high testosterone level in the body promotes sexual potency.*** It's 100% pure herb power] A stimulating mix of powdered damiana leaves, sarsaparilla root and kola nut."
Other equally, and perhaps more, appealing language may be found in Respondent's advertisements. The foregoing quotations, and other language not quoted, reveal that Respondent does make the representations alleged in the Complaint.
The representations found to have been made by Respondent are material representations. They involve a facet of human existence which is of great importance, and the representations are admittedly made to, and do, cause people to rely upon them to such an extent that they will purchase the product being offered for sale.
The next issue to be resolved is whether the representations found to have been made by Respondent are true.
The first witness called to testify concerning this issue was Jack Segal, M.D., currently Assistant Professor of Medicine in Residence at the University of California, Los Angeles; Section Chief of Clinical Pharmacology at UCLA-Harbor General Hospital; and Acting Chief of Medicine at Long Beach General Hospital, Long Beach, California. Dr. Segal has been affiliated with the Los Angeles County - University of Southern California Medical Center and he was at one time a full-time member of the faculty at the University of Southern California School of Medicine. He was awarded Board Certification in Internal Medicine in 1973, and he has had, in addition to the training in pharmacology one receives in medical school, two additional years of training in clinical pharmacology, which he defined as the study of medications and drugs in living organisms, particularly human beings. In addition to all of the foregoing training and experience, Dr. Segal engaged for a number of years in the private practice of medicine.
Dr. Segal related the physiologic, neurologic and psychologic events and factors that occur when the penis proceeds from the flaccid to the erect state and then returns to flaccidity. It is not necessary for present purposes to repeat this testimony in detail. (Tr. 17-23)
If a person has difficulty, or impossibility, in attaining or maintaining an erection, he should consult with a qualified physician. The prudent medical doctor proceeds by first taking a complete medical history of the patient and then performing a physical examination, including such laboratory or diagnostic tests as are needed. Based upon the evidence so gathered, the physician forms a judgment and a diagnosis as to whether the problem arises from organic or psychogenic causes, which factors, respectively, account for approximately 5 percent and 95 percent of the cases of deficiency or inability to achieve and maintain an erection. If the problem is of organic origin, the physical cause is treated by adopting the appropriate therapeutic measures. If the problem is of psychogenic origin, a consultation should be obtained with a competent and ethical psychologist or psychiatrist who would work in conjunction with the attending physician toward the alleviation of the psychogenic problem. The treatment, in either type of case, must be individualized to meet the special needs of the particular patient. If an individual's ability to attain and maintain an erection is normal, there is no medical way to increase this ability. (Tr. 24-28, 64)
The product in this case, as has been shown, is a capsule containing equal parts of powdered damiana leaves, kola nut powder, and sarsaparilla root powder presented in an inert vehicle. (Tr. 30) Dr. Segal is acquainted with the ingredients of the product based upon his study of both technical, scientific literature on the one hand and lay books and articles on the other. Among the former works are those by Tyler and Brady, 7th Ed., 1976, the National Formulary, and the United States Pharmacopoeia. The lay works include "Chinese Herbal Medicine" by Li, published by the Department of Health, Education and Welfare, "A Modern Herbal" by Grieve, and "Green Medicine" by Krieger.
Damiana is not recognized as having any medicinal use and it has not been listed in official compendia since 1965. This de-listing indicates that the vast majority of the medical profession is of the view that this substance has no therapeutic benefit or efficacy. (Tr. 40-43, 55) Damiana is not listed in any currently available standard reference text on therapeutics as a therapeutic agent. (Tr. 51)
Kola nut or the extract thereof may show such pharmacologic effects as are found with the ingestion of any caffeine-like material, namely: hyperexcitability or hyperagitation. If a sufficient amount of kola nut powder is ingested, it could produce a mild emphoria which might contribute to one's sexual enjoyment. This result would stem primarily from the placebo effect. (Tr. 100) Kola nut powder would not, however, produce any stimulation in the sense of sexual excitement or sexual ability. (Tr. 39)
Sarsaparilla is not recognized, according to Dr. Segal, as having any measurable pharmacologic, physiologic or psychologic effect. It is used to impart flavor to root beer. (Tr. 38) Sarsaparilla contains certain precursors which, when ingested, may or may not go through certain metabolic pathways and eventually evolve into testosterone. Such a result would be a matter of chance since the precursors may develop into molecular arrangements other than that of testosterone. The general diet also contains such precursors, with the result that the male is not dependent upon sarsaparilla as the source of testosterone. Added testosterone will not increase the sexual ability of one who has no testosterone deficiency. (Tr. 234-237)
It was the testimony of the medical expert that Respondent's product will not accomplish any of the results promised in the representations found to have been made by Respondent, and that there is no therapeutic efficacy to be derived from such agents. The views expressed by Dr. Segal are consistent with the consensus of medical opinion upon the subjects concerning which he testified. Dr. Segal knows of one physician who feels very strongly that there may be benefits derived from the use of herbs as therapeutic agents. That physician is a minority voice in the medical profession; most medical doctors, generally, and Dr. Segal, as well, disagree with that physician. (Tr. 57-60, 44) Respondent has never claimed that the treatment of sexual problems by the administration of herbal products is medically sound. (Tr. 121)
The placebo effect was thoroughly explored during the course of the hearing. Dr. Segal defined a placebo to be an "inert substance in some formulation, and there may be some particular import to the formulation or the color thereof, which is given to a patient in place of medication, which may be unnecessary, with the hopes that the individual may derive some benefit from the ingestion of this substance and not suffer any of the risk or consequences of the side effects which might come from the unnecessary administration of active ingredients." The use of the placebo is part of the "art" of medicine, and the greater the psychogenic component of a condition, the greater the chance for a positive placebo effect. It may be effective up to 30 per cent, or it may not be effective at all. (Tr. 216-217) If there is a disease condition and there is a therapy for it, one would not use a placebo, alone, and exclude the use of the therapy. (Tr. 242)
From the label on Respondent's product, one cannot tell what proportion or amount of the total content of the capsule is made up of any of the stated ingredients. The question as to the proportion or amount of each of the ingredients per capsule is academic, however, since any relief derived by a person who ingested the product would be due to the placebo effect. (Tr. 248-249; 251-253)
Respondent's first witness was Terrill Williams, one of the founders of the company. He grew up in Utah, where herbs were much used and believed in. (Tr. 161) In 1972, at the age of 32 he developed a problem in attaining or maintaining an erection. (Tr. 108) On two separate occasions, he consulted with medical doctors concerning his problem. Both doctors stated, essentially, that there was nothing they could do to help him and that he should seek psychological help. (Tr. 109-110) As a result of his sexual problem, the witness became suicidal and was admitted to the UCLA Neuropsychiatric Institute for 30 days. Because he was without funds to pay a psychiatrist, he was referred to a social worker, Harry Pannor. (Tr. 111)
At about the time he started to see Pannor, the witness first read in the lay literature statements about the use of herbs and sexual performance. (Tr. 112) Since he believed in the efficacy of herbs, he thought he had found an answer for himself when he read about the herbal substances having the ability to give assistance in a sexual problem. (Tr. 123-129, 140, 157, 161) The Government stipulated to the Respondent's good faith belief that the herbal blend works as advertised. (Tr. 117, 137, 183) Believing that he had achieved personal success with the herbal blend, he went into the business of distributing the blend by mail. (Tr. 134)
Mr. Williams now concedes that the successful results he obtained could have been produced by the placebo effect. (Tr. 162) On this point Dr. Segal testified that because Mr. Williams, after a period of financial doldrums, was highly optimistic over the prospect of financial success in the business of selling the herb product, this fact could have produced such a change in outlook that the new attitude could have resulted in the return of sexual ability to Mr. Williams. Mr. Williams was taking the herb combination at this time and he might have, without justification, attributed his recovery to the herbs. (Tr. 238-241)
Respondent next called Merrill Miller, who prepared the advertisement believing in its accuracy. (Tr. 166) In addition to reading books on herbs, he himself took the mixture and he stated that he found it helpful in terms of sexual energy. (Tr. 168-169)
He is familiar with the type of advertisements in magazines of general circulation dealing with products similar to the one at bar, and if allowed to testify, would testify that the advertisements are within customary limits of candor in the nation as a whole and within the local community standards. He is familiar with the standards and would testify that the advertisements do not go beyond the customary limits of candor in advertising for this type of product. The witness would state that, on the contrary, the advertisements are well within the community standards. (Tr. 169-171)
Respondent next called April Mohne, who is familiar with the records of the company and its mail. She testified that over a seventeen-month period 45% of the orders received by Wilmont constituted re-orders. An offer of proof was made that she would testify that Wilmont has received testimonials from satisfied customers, stating that they had had success with the herbal blend and, in fact, it had increased the size of their penises and made their erections better, both in terms of maintaining and attaining erection, thereby benefitting their marriages and their lives. (Tr. 180, 184)
Respondent's last witness was James Mounts, who started the business with the witness Terrill Williams. Prior to starting the business, he took the mixture and found it useful as a sexual stimulant. He read literature on herbal blends and believed that the particular mixture would have a sexually beneficial effect for men. He still takes the capsule nightly and finds it useful with regard to sexual potency. Based upon correspondence with satisfied customers, his own experience, and his readings, he believes that the herbal blend helps men attain and maintain erections. (Tr. 189-190)
Exhibit R-1 was rejected as an exhibit, but official notice was taken of the fact that there are large numbers of health food stores in which herbal books and herbal blends are openly advertised, displayed and sold. (Tr. 202)
Respondent does not claim that the use of its product as directed is medically sound. Respondent asserts that there are healing arts that medical doctors do not accept, and that these arts are entitled to consideration. (Tr. 121) No medical or scientific expert witness was called to testify by Respondent and the educational background of the witness with the greatest amount of college education did not exceed "about two and a half years." (Tr. 172, 188, 192)
Respondent's primary attack in this proceeding is its assertion that its advertisements are protected by the First Amendment to the United States Constitution and that the issuance of a mail-stop order would impermissibly interfere with the right of privacy of its customers. Respondent's arguments will be considered in the order in which they are presented in Respondent's Brief.
"ARGUMENT
I
"RESPONDENT'S ADVERTISEMENTS ARE PROTECTED BY THE FIRST AMENDMENT TO THE UNITED STATES CONSTITUTION. THE ISSUANCE OF A STOP ORDER WOULD IMPERMISSIBLY INTERFERE WITH THE RIGHT OF PRIVACY OF RESPONDENT'S CUSTOMERS.
A/ Commercial speech is now protected by the First Amendment"
Respondent appears to take the position that the Supreme Court of the United States formerly held in Valentine v. Chrestensen, 316 U.S. 52 that there were no restraints on governmental regulation of commercial advertising. From that holding, Respondent appears to say, the Court has done a 180o change of course in which it now holds that the Government may not regulate any commercial speech except that which is fraudulent. Respondent cites in support of this interpretation of the Court's turnabout the cases of Bigelow v. Virginia , 421 U.S. 809; Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976); and Bates v. State Bar of Arizona , 433 U.S. 350.
It is not certain that the Court in Valentine v. Chrestensen condoned Government regulation of commercial speech to the extent Respondent suggests. What is clear is that the Court did not in Bigelow and Virginia State Board of Pharmacy proscribe Government regulation of commercial speech to the extent Respondent now asserts.
In Bigelow , advertisements appearing in a Virginia newspaper advising of the availability of legal abortions in New York were held to be entitled to First Amendment protections. The Court said, however, that no claim was made, or could have been supported on the basis of the record made, that the advertisement was "deceptive or fraudulent." (Bigelow, supra at 828) This statement indicates that the Court intended a distinction to be made between deception and fraud, and that neither is entitled to First Amendment immunity.
Virginia State Board of Pharmacy involved a Virginia statute declaring it to be unprofessional conduct for a licenses pharmacist to advertise the price of prescription drugs. The Supreme Court upheld the decision of a three-judge District Court declaring the statute void. In so doing, the Supreme Court said, inter alia :
"In concluding that commercial speech, like other varieties, is protected, we of course do not hold that it can never be regulated in any way.***
Nor is there any claim that prescription drug price advertisements are forbidden because they are false or misleading in any way. Untruthful speech, commercial or otherwise, has never been protected for its own sake. (Citing cases) Obviously, much commercial speech is not provably false, or even wholly false, but only deceptive or misleading. *** The First Amendment, as we construe it today, does not prohibit the state from insuring that the stream of commercial information flow cleanly as well as freely. ***" ( Virginia Board of pharmacy, supra , at 770, 771, 772.)
The foregoing statements need no comment to relate them to the instant case.
In Bates v. State Bar of Arizona , 433 U.S. 350 (1977) the Court stated that "The heart of the dispute before us today is whether lawyers also may constitutionally advertise the prices at which certain routine services may be performed." ( id ., 367-368)
The Supreme Court of the State of Arizona imposed a disciplinary rule restricting advertising by attorneys. One of the arguments by those supporting the conviction of appellants was that "advertising of legal services inevitably will be misleading (a) because such services are so individualized with regard to content and quality as to prevent informed comparison on the basis of an advertisement, (b) because the consumer of legal services is unable to determine in advance just what services he needs, and (c) because advertising by attorneys will highlight irrelevant factors and fail to show the relevant factor of skill." ( id ., 372) The Court rejected (a) and (b), above, because of their lack of force. The reason stated in (c) above was recognized as having some merit, but the Court held that it seemed "peculiar to deny the consumer, on the ground that the information is incomplete, at least some of the relevant information needed to reach an informed decision." ( id ., 374) The Court continued that "the bar retains the power to correct omissions that have the effect of presenting an inaccurate picture." ( id ., 375) The Supreme Court of the United States truck down the rule of the Arizona Supreme Court, but the former Court did not even approach giving its approval to false advertising. To the contrary, it said specifically "Advertising that is false, deceptive, or misleading of course is subject to restraint." ( id ., 350)
B. "The right of privacy of Respondent's customers."
Respondent avers that the record reveals that virtually half of Respondent's customers over the last seventeen-month period have been repeat customers, men who have taken the herbal blend and have found it beneficial. It is true that over this period, about 45 per cent of the orders have been re-orders, but it is not known whether the re-orders were placed (1) because the man found the product beneficial or (2) because they had received no benefits and they were re-ordering because they had been told in the advertisement that extended ingestion of the product would be necessary to realize any benefit or (3) whether, if they improved while taking Respondent's herbs, the improvement resulted from the placebo effect of taking Respondent's herbs or if the improvement resulted from external or unrelated circumstances.
The right of privacy urged by Respondent is the "right of an adult to take responsibility for his own body and to do what he thinks is good for him, orthodox or unorthodox, approved or unapproved by the state" (Resp. Br., pp. 12-13). The cases cited by Respondent in support of this proposition will be analyzed.
In Roe v. Wade , 410 U.S. 113, (1973) an attack was made on a Texas statute which made it a crime to procure an abortion, or to attempt one, except one procured or attempted for the purpose of saving the life of the mother. One facet of the case related to a single woman who was pregnant. She wanted to terminate her pregnancy by an abortion performed by a competent physician in a safe, clinical setting. She could not get the abortion in Texas because pregnancy and childbirth did not appear to threaten her life, and she could not afford to go to another jurisdiction to get a legal abortion under safe conditions. In bringing the action Roe alleged that the Texas statutes were unconstitutionally vague and that they abridged her right of personal privacy ... her right to choose to terminate her pregnancy.
In the course of its decision the Court stated at 410 U.S. 154:
"We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation."
After much discussion and close scrutiny, the Court stated its conclusions as to the parameters of proper state regulation in the area of abortion as follows (410 U.S. 164-5):
"To summarize and to repeat:
1. A state criminal abortion statute of the current Texas type, that excepts from criminality only a life-saving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment.
(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician.
(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.
(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.
2. The State may define the term 'physician,' as it has been employed in the preceding paragraphs of this Part XI of this opinion, to mean only a physician currently licensed by the State, and may proscribe any abortion by a person who is not a physician as so defined."
From a reading of Roe v. Wade , it is seen that the Supreme Court does not recognize what Respondent claims is the unbridled "right of an adult to take responsibility for his own body and to do what he thinks is good for him, orthodox or unorthodox, approved or unapproved by the state." The "right" to which Respondent lays claim is limited in its exercise to those matters which do not encroach upon the protected rights of others or which do not run counter to the legitimate, reasonable, and compelling interests of the state.
The opinion in Doe v. Bolton , 410 U.S. 179 was written, as was the opinion in Roe v. Wade , supra , by Justice Blackman, and both decisions are to the same effect insofar as the instant proceeding is concerned.
Respondent relies heavily on the statement in the dissenting opinion of Justice Brandeis in Olmstead v. United States , 277 U.S. 438, at 478 that "***They (the writers of the Constitution) conferred, as against the Government, the right to be let alone - the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.***"
In Olmstead , a conviction of violating the national prohibition statute was obtained by the use of information obtained in large measure by tapping, in the basement of a large building, telephone wires leading to offices in upper floors of the building. The Supreme Court, in an Opinion by Chief Justice Taft, sustained the conviction. Justice Brandeis, dissenting, was of the view that the use of evidence so obtained was unacceptable because if the "Court should permit the Government, by means of its officers' crimes, to effect its purpose of punishing the defendants, there would seem to be present all the elements of a ratification" and "the Government itself would become a lawbreaker."
In the instant case no Government Officer has broken any law. The Postal Inspector purchased a product that was openly offered for sale; he paid the full price for it; and, because he had doubts as to its efficacy, he had the product examined by a medical officer of the Government. These precautions resulted in the initiation of this proceeding. Adoption of Respondent's position in a situation like the present one, in which the Government, through the Postal Service, transports from a seller to an unwary buyer a product which the Government correctly believes to be misrepresented, would make the Government a lawbreaker and a co-conspirator in the commission of a fraud upon its citizens precisely in the manner decried by Justice Brandeis.
Griswold v. Connecticut , 381 U.S. 479 (1965), also cited by Respondent to support the "right of privacy of Respondent's customers", was the vehicle by which the Court struck down a state statute declaring it to be a crime to aid or abet persons, in this case married persons, in the use of contraceptives. The Court held that the statute was unconstitutional because it concerned, in this instance, "a relationship lying within the zone of privacy created by several fundamental constitutional guarantees." A companion statute, also declared unconstitutional made it an offense for anyone to use any contraceptive substance or device.
Under the present postal statute, a person may use any herb or herbal combination he chooses. Furthermore, a person may sell any herb or herbal combination he chooses. The only requirement is that the seller must accurately describe its products and the results, if any, to be anticipated from their use as directed. No zone of privacy of this Respondent's customers is in any way restricted by 39 U. S. Code 3005, because the consumer is not the individual at whom the statute is directed. Respondent insisted, and it was officially noted, that products similar, if not identical, to Respondent's are being widely sold without prescription at health food stores throughout the country.
In Whalen v. Roe , 429 U.S. 589 (1977):
"The constitutional question presented is whether the State of New York may record, in a centralized computer file, the names and addresses of all persons who have obtained, pursuant to a doctor's prescription, certain drugs for which there is both a lawful and an unlawful market.
"The District Court enjoined enforcement of the portions of the New York State Controlled Substances Act of 1972 which require such recording on the ground that they violate appellees' constitutionally protected rights of privacy.***"
The Court, per Justice Stevens, held in a unanimous decision that:
"***neither the immediate nor the threatened impact of the patient-identification requirements in the New York State Controlled Substances Act of 1972 on either the reputation or the independence of patients for whom Schedule II drugs are medically indicated is sufficient to constitute an invasion of any right or liberty protected by the Fourteenth Amendment."
In reaching the foregoing conclusion sustaining the validity of the statute the Court made the following, among other, statements which are highly significant here because of their applicability to Respondent's argument in this proceeding:
"Clearly, *** the statute did not deprive the public of access to the drugs.
"Nor can it be said that any individual has been deprived of the right to decide independently, with the advice of his physician, to acquire and to use needed medication.***" ( id ., 603)
In the instant proceeding, no attempt is being made to deny anyone the right to take Respondent's herbs, or any other substance. The sole thrust of the Complaint herein, and the only purpose that will be served by the issuance of the requested mail-stop order, is the proscription of the sale of Respondent's product on the basis of false representations. It was suggested at the hearing (Tr. 186-188) that Respondent sells products other than the one under consideration in this proceeding. The right to sell those other products will continue even though a mail-stop order in respect to STUD and Wilmont Herbal Blend does issue at the conclusion of this proceeding.
In support of the argument concerning the "right to take responsibility for one's own body," Respondent cites many cases. Some of those cases have little, if any, bearing on the instant proceeding except to identify certain matters which the individual may decide for himself. Illustrative of the foregoing statement are the following:
1. West Virginia State Board of Education v. Barnette , 319 U.S. 624 (1943) in which the Court declared invalid the State Board of Education's action requiring the recitation of the pledge of allegiance in all schools in West Virginia.
2. In re Lifschutz , 85 Cal. Rptr. 829 (1970) in which a psychiatric patient's right of privacy was held not to be violated when a court ordered a psychiatrist to answer questions concerning the treatment of an individual when that individual had mentioned in a deposition in another case that some 10 years previous to the time of the deposition he had received psychiatric treatment from the psychiatrist.
3. In Schloendorff v. Society of New York Hospital , 105 N.E. 92, a woman brought suit charging that as a patient in a charity hospital and while she was anesthetized her surgeon removed a tumor without her consent. There were serious post-operative developments. The court held that a charity hospital is not liable to patients for malpractice of physicians. The court did say, among other things, that a surgeon who performs an operation without his patient's consent commits an assault for which he is liable in damages.
4. Application of President and Directors of Georgetown College , 331 F.2d 1010 was a proceeding involving the question of whether a doctor of a hospital could, after obtaining a judge's approval, but over the protest of the patient, administer blood transfusions to a woman whose life depended upon such transfusions but whose religious beliefs proscribed such therapy. The principle of the individual's right to determine whether she would consent to certain measures was involved, but religious freedom is not remotely involved in the instant proceeding.
5. Loving v. Virginia , 388 U.S. 1 (1967) related to Virginia's miscegenation statutes which were held to be unconstitutional.
6. In Skinner v. Oklahoma , 316 U.S. 535 (1942) a state statute authorizing sterilization for persons convicted 2 or more times for crimes amounting to felonies was held to be unconstitutional as failing to meet the equal protection requirements of the Fourteenth Amendment.
7. Meyer v. Nebraska , 262 U.S. 390 (1923) held unconstitutional a Nebraska statute forbidding the teaching of a foreign language to children before such children had passed the 8th grade.
8. In Pierce v. Society of Sisters , 268 U.S. 510 (1925) it was held that the State may not unreasonably interfere with the liberty of parents or guardians to direct the upbringing and education of children under their control.
9. Prince v. Massachusetts , 321 U.S. 158 (1944) was a case involving questions of matters of conscience and religious convictions.
10. The situation involved in Eisenstadt v. Baird , 405 U.S. 438, was that a lecturer displayed a contraceptive during his lecture and, at the close of the lecture, he gave a foam contraceptive to a young, single woman. The conviction for showing the contraceptive was set aside by the Massachusetts Supreme Court as being in violation of the First Amendment, but his conviction for giving the contraceptive to the woman was sustained. It was held that a contraceptive could be given by a physician or by a druggist at the prescription of a physician. The United States Supreme Court held that the statute in question, viewed as a prohibition on contraception per se , violated the rights of single citizens under the Equal Protection Clause of the 14th Amendment. In his concurring opinion, Justice Douglas said: "Our system of government requires that we have faith in the ability of the individual to decide wisely, if only he is fully apprised of the merits of the controversy."
11. Carey v. Population Services International , 431 U.S. 678 (1977) was a case involving a New York statute making it a crime: (1) to sell contraceptives to any minor under 16 years of age; (2) for anyone other than a registered pharmacist to distribute contraceptives to persons over 16; and (3) for anyone to advertise or display contraceptives. The Third Judicial District Court declared the statute unconstitutional under the First and Fourteenth Amendments, and the United States Supreme Court affirmed.
The remaining four cases cited by Respondent on the subject of one's responsibility for one's body do relate to varying kinds of medical treatment and the right of the individual to accept or refuse such treatment.
1. Erickson v. Dilgard , 252 NYS2d 705 arose out of a situation in which a physician recommended to a patient an operation with transfusions. The physician said that without the transfusions the patient's life would be in grave danger. The patient was fully competent, and fully advised as to the consequences of his choice, but he and his son, also competent, refused to give permission for the transfusions. The hospital applied for a court order authorizing the administering of transfusions. The application was denied, the Court holding that the decision was to be made by the competent, informed patient.
2. In Cobbs v. Grant , 104 Cal. Rptr. 505, 513, it is true, as Respondent states, (App. Br., 18) that the Court in determining the duty of the physician to obtain the informed consent of the patient to treatment, said:
"Preliminarily we employ several postulates. The first is that patients are generally persons unlearned in the medical sciences and therefore, except in rare cases, courts may safely assume the knowledge of patient and physician are not in parity. The second is that a person of adult years and in sound mind has the right, in the exercise of control over his own body, to determine whether or not to submit to lawful medical treatment."
Significantly, however, there are two other postulates which the court added and, in the present context, these two are very important:
"The third is that the patient's consent to treatment, to be effective, must be an informed consent. And the fourth is that the patient, being unlearned in medical sciences, has an abject dependence upon and trust in his physician for the information upon which he relies during the decisional process, thus raising an obligation in the physician that transcends arms-length transactions."
3. Aden v. Younger , 129 Cal. Rptr. 535 (1976) was a case in which portions of an amendment of a State statute concerning the conduct of psychosurgery and electroconvulsive therapy were declared unconstitutional for a number of reasons. Those provisions required substantive review by a medical committee of the consent by a voluntary, competent patient to electroshock treatment. Among other things, the court said:
"However, once the competency of a voluntary patient has been confirmed, and the truly voluntary nature of his consent is determined, the state has little excuse to invoke the substitute decision-making process. *** Where informed consent is adequately insured, there is no justification for infringing upon the patient's rights to privacy in selecting and consenting to the treatment. The state has varied interests which are served by the regulation of ECT, but these interests are not served where the patient and his physician are the best judges of the patient's health, safety and welfare."
4. In the Matter of Quinlan , 355 A.2d 647, the father of the 21 year old girl sought, and was granted, the right to authorize the discontinuance of the use of certain extraordinary equipment and procedures which sustained certain vital signs. The daughter was in a "persistent vegetative state" and the prognosis was that this condition would remain unchanged for the rest of her existence, the duration of which might be as much as a year. The court granted the requested authority to the father in his combined capacity as father/guardian. The decision makes it clear that the father had availed himself of the best medical advice obtainable, as well as the advice of lawyers and clergymen, and that the "Ethics Committee" of the hospital was to be available to render advice.
Running through all of the pertinent cases relied upon by Respondent is the thought that while the individual is free to decide the medical course he is to pursue, that decision must be based upon the fullest medical data and advice. The objective, of course, is to enable the individual to reach a decision based upon a full and frank exposition of the facts and circumstances of his situation, together with the possible and probable results of various decisional alternatives. How different is all this from the instant situation in which Respondent not only fails to reveal the truth about the product he is selling, but, also, makes positively false and misleading statements concerning its curative powers.
C. "The Complainant has failed to prove by clear and convincing evidence that the representations made by Respondent are materially false as a matter of fact."
This point will not be further labored at length here. It is enough to say that Complainant's witness was a well qualified medical doctor with a special interest in pharmacology. He testified that he is familiar with the ingredients of Respondent's product and that they have no acceptance in the medical profession for use in treatment of the conditions for which they are being sold. If a person experiences any benefit after taking Respondent's product, that benefit is due to the "placebo" effect which may occur in up to 30 per cent of the users. The product is not, as it is represented to be, effective for all who suffer the conditions for which the product is offered as a treatment. Dr. Segal's testimony represents, and is in accord with, the consensus of informed, scientific, medical opinion in this country in respect to the subjects about which he testified.
Opposed to Dr. Segal's testimony were some anecdotal statements by lay persons, none of whom made the slightest claim to medical or pharmacologic education or expertise. And it is conceded by Respondent that the claims made for Respondent's product are not medically sound.
Complainant has proved by substantial, competent and credible, expert, medical evidence that Respondent makes the representations set forth in the Complaint, and that the representations are materially false as to matters of fact.
II
"TITLE 39 U.S.C. 3005, AS CONSTRUED AND APPLIED HEREIN TO ELIMINATE SCIENTER, IS UNCONSTITUTIONAL, VIOLATING THE FREE SPEECH AND PRESS PROVISIONS OF THE FIRST AMENDMENT."
"Administrative agencies do not have authority to determine whether a statute is constitutional, but they do have authority to decide whether the statute's application to a particular set of facts is constitutional." McGrath v. Weinberger , 541 F.2d 249 (C.A. 10)
Under this point, Respondent cites or quotes from decisions in cases that were decided before the amendment, in 1968, of the statute which was the predecessor of the present of laws codified at 39 U. S. Code 3005. These cases are Reilly v. Pinkus , 338 U.S. 269 (1949); Seven Cases v. United States , 239 U.S. 510 (1916); American School of Magnetic Healing v. McAnnulty , 187 U.S. 94 (1902); and Manual Enterprises, Inc. v. Day , 370 U.S. 478 (1962). The last-mentioned case related to obscenity and is inapropos here.
In Lynch v. Blount , 330 F. Supp. 689 (1971), affd. 404 U.S. 1007 (1972), 39 U. S. Code 3005, which permits issuance of a mail-stop order without proof of scienter and intent to defraud, was held to have been constitutionally applied in the manner in which its application here is sought. In this case it was stated:
"But it is also clear that the First Amendment right to freedom of speech does not go so far as to grant a person a privilege to mislead the public by means of false commercial advertising."
III
"TITLE 39 U.S.C. 3005, AS APPLIED TO AN ADVERTISEMENT FOR A PRODUCT, IS UNCONSTITUTIONAL FOR SUBSTANTIALLY THE SAME REASONS THAT TITLE 39 U.S.C. 3006 WAS FOUND UNCONSTITUTIONAL BY THE UNITED STATES SUPREME COURT IN BLOUNT v. RIZZI , 400 U.S. 410 (1971)."
As the court, per Judge Medina, said in Lynch v. Blount , supra :
"We think the safeguards defined in Blount v. Rizzi , 400 U.S. 410 *** (1971) for obscenity cases are wholly inappropriate, unnecessary and inapplicable to the field of commercial fraud."
In United States v. Outpost Development Corp. , 369 F. Supp. 399, 401 (D.C., C.D. Cal., 1973), affd. 414 U.S. 1105, a case in which the defendant was charged, in a proceeding like the instant one, with falsely representing a weight-loss method, the court held:
"Defendant's contention that Section 3005 violates the First Amendment in that it does not provide for a prior judicial adjudication and does not require the United States to take the initiative promptly in such a proceeding in which the Government has the burden of proof is also without merit. Lynch v. Blount , supra ."
These statements by the lower courts, affirmed by the Supreme Court of the United States, are dispositive of this third point in Respondent's Brief insofar as the application of 39 U. S. Code 3005 to Respondent's activities is concerned.
IV
"THE PROVISIONS OF TITLE 39 U.S.C. 3005, ON THEIR FACE AND AS CONSTRUED AND APPLIED, ARE VAGUE, AMBIGUOUS, UNCERTAIN AND OVERBROAD, IN VIOLATION OF THE FREE SPEECH AND PRESS, DUE PROCESS AND EQUAL PROTECTION PROVISIONS OF THE FIRST AND FIFTH AMENDMENTS TO THE UNITED STATES CONSTITUTION."
The constitutionality of the construction and application of 39 U.S.C. 3005 and its predecessor statutes have been subjected to attack on numerous occasions, but the statute has been held to be valid and its application proper. Public Clearing House v. Coyne , 194 U.S. 497 (1904); Donaldson v. Read Magazine , 333 U.S. 178 (1948); Plapao Laboratories v. Farley , 92 F.2d 228 (1937), cert. den. 302 U.S. 732; Hollywood House Intern. v. Klassen , 508 F.2d 1276 (1974); U.S. v. Outpost Development Corp. , 369 F. Supp. 399 (1973), affd. 414 U.S. 1105; Lynch v. Blount , supra .
Respondent seeks to support its position on this point by referring to cases which have held to be overbroad and vague such expressions as "a false and malicious publication which tends to degrade or injure," Ashton v. Kentucky , 384 U.S. 195 (1966); any parade which the City Commission deemed contrary to "public welfare, peace, safety, health, decency, good order, morals or convenience," Shuttleworth v. Birmingham , 394 U.S. 147 (1969); "prowling," "loitering," "vagabond" and "common thief," Papachristou v. Jacksonville , 405 U.S. 156 (1972); fire department employees "prominently identifying" themselves in a political race with or against any candidate for office; and other expressions of equal generality which have resulted in decision that the statutes containing such generalities were vague and overbroad. Hobbs v. Thompson , 448 F.2d 456 (5 Cir., 1951); Long Island Vietnam Moratorium Committee v. Cahn , 437 F.2d 344 (2 Cir., 1970); Ricks v. District of Columbia , 414 F.2d 1097 (D.C. Cir. 1968); Goguen v. Smith , 343 F.2d 161 (D.C. Mass. 1972); and Mitchell Family Planning, Inc. v. City of Royal Oak , 335 F. Supp. 738 (D.C. Mich. 1972).
The target at which 39 U. S. Code 3005 is aimed, insofar as this proceeding is concerned, is the conduct of any "scheme or device for obtaining money or property through the mail by means of false representations." There is no vagueness, obscurity, ambiguousness or overbroadness in the language just quoted or in the manner of the application of the language in this proceeding. On this point, the Court in Lynch v. Blount , supra , said, inter alia :
"***It may not be easy to resolve factual issues in an occasional complicated case involving conflicting testimony, but the ultimate finding of true or false is arrived at by the use of the plain and simple tools affecting credibility and the weighing of the proofs that have been traditionally used since a time to which the memory of man runneth not to the contrary.
* * *
"A scheme to defraud by false representations can be objectively proved by evidence in an administrative hearing without going through the delay of a trial before a judge. Good oldfashioned schemes to defraud by the use of false representations are as old as the hills, and as easily recognized once the issues of credibility have been resolved.
* * *
"With respect to plaintiff's argument on overbreadth and chilling we think it is a sufficient answer to say that the Postmaster General has never sought a stop order in any case where a politician was seeking campaign contributions, or a Church or religious body has issued appeals for charity. We doubt that any politician, religious group or legitimate businessman has or will feel threatened by the authority granted to the Postmaster General by the provisions of Section 3005.
"We hold the claim of unconstitutionality must be rejected in toto .***"
The statute as applied in this proceeding is in all respects in conformity with constitutional requirements.
V
"THE PROVISIONS OF TITLE 39 U.S.C. 3005, ON THEIR FACE AND AS CONSTRUED AND APPLIED, VIOLATE THE FIRST AMENDMENT TO THE UNITED STATES CONSTITUTION AND THE DUE PROCESS PROVISIONS OF THE FIFTH AMENDMENT, BECAUSE THEY PROVIDE FOR SANCTIONS WHICH GO FURTHER THAN NECESSARY."
Respondent is in error when it states (App. Br., p. 42):
"Complainant seeks an order closing the use of the mails, in toto, to Respondent."
It previously has been pointed out that the issuance of an order as a result of this proceeding will not revoke Respondent's right to pursue its sale of other products through the mail. The Complaint herein is a sharply drawn and precisely aimed weapon directed solely at the sale of Stud or Wilmont Herbal Blend through the mail on the basis of misrepresentation. In addition, there is a provision in the Rules of Practice (39 C.F.R. 952.3) which contemplates informal dispositions of these kinds of proceeding. This provision reads as follows:
"These rules do not preclude the disposition of any matter by agreement between the parties either before or after the filing of a complaint when time, the nature of the proceeding, and the public interest permit."
Under this Rule consent agreements containing a wide variety of settlement provisions have been entered into between the Postal Service and numerous Respondents. The purpose of the statute is not to punish the mailer, but it is to protect the consumer. Donaldson v. Read Magazine , supra ; Farley v. Heininger , 105 F.2d 79 (D.C. Cir. 1939), cert. den. 308 U.S. 587; Greene v. Kern , 174 F. Supp. 480 (D.C.N.J. 1959), affd. 269 F.2d 344.
Respondent's statement that an order issued as a result of this proceeding will deprive Respondent altogether of the use of the mails is erroneous and it is without merit.
1. Respondent is engaged in the conduct of a scheme for obtaining money through the mail.
2. In the conduct of the scheme Respondent causes advertisements to be inserted in publications of wide distribution, which advertisements are intended to, and do, induce readers thereof to remit sums of money through the mail to the Respondent.
3. When viewed in the light of the impression that the statements in the advertisements would make upon persons of ordinary minds, Respondent does make the representations set forth in paragraph III of the Complaint herein.
4. The representations found to have been made by Respondent are shown by competent, credible, expert, medical testimony to be false as to matters of material fact.
5. There is no competent, credible evidence in the record, and none was offered, which is in opposition to such evidence adduced by Complainant. (see U.S. Health Club v. Major , 292 F.2d 665 (C.A. 3, 1961))
6. The error of Respondent's belief in the efficacy of the product for the purposes for which it is sold is made clear and plain by the record of this proceeding.
1. Assuming Respondent's good faith belief that the product here under consideration is efficacious as treatment for the conditions for which it is being sold, that belief is no barrier to the issuance of an order under 39 U.S. Code 3005.
2. "Customary limits of candor in the nation as a whole and within the local community standards" relied upon by Respondent, if they have any bearing whatsoever upon this proceeding, never have, and do not now countenance the use of false and misleading advertising.
3. Respondent is 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.
4. Respondent's Motion to Dismiss this proceeding is denied.
Proposed findings of fact and conclusions of law submitted by the parties are adopted to the extent herein indicated. Otherwise such proposed findings of fact and conclusions of law are rejected for the reasons stated or because they are unsupported by, or contrary to, the evidence in this proceeding or because they are irrelevant or immaterial.
An order of the type provided for in 39 U.S. Code 3005, in substantially the form attached, should be issued against this Respondent.