In the Matter of the Complaint Against RAND YUNG DISTRIBUTORS, P. O. Box RY-7 at Reseda, California 91335 P.S. Docket No. 6/54 April 24, 1978 Quentin E. Grant Administrative Law Judge APPEARANCE FOR COMPLAINANT: Daniel S. Greenberg, Esq. Law Department United States Postal Service Washington, D.C. 20260 APPEARANCE FOR RESPONDENT: Joseph Taback, Esq. 10880 Wilshire Boulevard Suite 1806 Los Angeles, CA 90024
On December 16, 1977, 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 within the meaning of 39 U.S.C., Section 3005. The specific allegations of misrepresentation are attached hereto as Exhibit A.
On January 12, 1978, respondent filed an answer denying each and every allegation contained in the complaint and as an affirmative defense alleged that 39 U.S.C., Section 3005, is unconstitutional on its face and in its application to respondent in that it violates and is in derogation of respondent's rights guaranteed by the First and Fifth Amendments of the Constitution of the United States.
On respondent's motions I granted a change of location of the hearing from Washington to Los Angeles for convenience of its witnesses and a continuance of the hearing to this date, March 2, 1978.
The hearing was scheduled to commence at 9:30 AM on this date. According to a certified mail receipt, respondent's counsel received notice of such schedule on January 30, 1978. The undersigned and counsel for complainant were ready to proceed with the hearing at 9:30 AM. There was no appearance by or on behalf of respondent at that time. At the direction of the undersigned, counsel for complainant called Mr. Taback's office at 9:55 AM. Mr. Taback was not there according to his secretary who did not know whether he planned to be present at the hearing. Mr. Taback not having appeared by 10:00 AM, I took complainant's evidence in accordance with Section 952.11 of the rules. 2/
1. Based on respondent's advertising (CX-1, CX-3(a) and (b)), together with evidence showing a test purchase by complainant of respondent's product through the mails (CX-2, 4, 5, 6, 7 and 8), 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 advertisement discloses that it makes the representations alleged in the complaint.
3. The product involved is called "Penis-Stretch." It consists of a 5-inch length of elastic band at either end of which is attached an elastic loop, the smaller one to be placed around the penis, the larger to be fastened around the thigh in such a way as to exert tension on the penis, according to directions furnished with the product (CX-8, 9).
4. According to the testimony of Dr. Ernst J. Drenick, a qualified medical doctor called by complainant, the size of the penis is genetically predetermined. Certain diseases or trauma may diminish the size of the penis or deform it after birth. Such diseases may be treated medically and a traumatic injury may sometimes be treated surgically. But the enlargement of the penis beyond the size genetically predetermined cannot be achieved either medically or surgically.
5. According to Dr. Drenick, the use of the product involved here in accordance with the instructions provided by respondent might result in stretching the penis a maximum of two to three inches but upon removal of the device the penis will return to its original length. Also according to Dr. Drenick there is a possibility of use of the product in such a way as to injure the penis and for many users the device could cause discomfort.
6. In Dr. Drenick's opinion the use of respondent's product as directed will not increase the size of the penis beyond the size genetically predetermined. Dr. Drenick's opinions with respect to the product are in accordance with the consensus of informed medical opinion.
7. Based on the testimony of Dr. Drenick, I find that the use of the product will not achieve the results represented in respondent's advertising as alleged in the complaint, and I further find that the device may not be safe and may produce discomfort for individuals who would reasonably be expected to use it. The representations alleged are materially false in fact.
1. Respondent is engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations within the meaning of 39 U.S.C., Section 3005.
2. Such representations are materially false in fact.
3. The federal courts have upheld the constitutionality of 39 U.S.C., Section 3005, under attacks substantially similar to those set forth in the answer. See Hollywood House International, Inc. vs. Klassen , 508 F.2d 1276 (1974).
4. An order pursuant to 39 U.S.C., Section 3005, in the form attached should be issued against respondent.
I
"That Respondent attracts attention to said scheme by means of matter (hereinafter referred to as the "advertisement," typical copy attached as Exhibit A) referring to the product/service described in paragraph II, below;
II
"(a) That, by means of said advertisement, and in similar matter, Respondent represents, directly or indirectly, by means of affirmative statement, implication, or omission, in substance and effect, that "Penis-Stretch" will measurably increase the size of the penis;
"(b) That, by its failure to disclose possible discomfort and danger due to the use of "Penis-Stretch" as directed, Respondent implicitly represents that the device:
(1) is safe for all who would reasonably be expected to use same;
(2) will produce no discomfort for anyone who would reasonably be expected to use same;
III
"That said representations are materially false as a matter of fact;
IV
"That by means of requests contained in, or accompanying the advertisement, Respondent seeks to induce readers thereof to remit money or property through the mails to the captioned name and address for said product/service."