In the Matter of the Complaint Against RAND YUNG DISTRIBUTORS, P. O. Box RY-7 at Reseda, California 91335 P.S. Docket No. 6/55 April 24, 1978 Quentin E. Grant Administrative Law Judge APPEARANCE FOR COMPLAINANT: Daniel S. Greenberg, Esq. Law Department U. S. Postal Service Washington, D.C. 20260 APPEARANCE FOR RESPONDENT: Joseph Taback, Esq. 10880 Wilshire Boulevard Suite 1806 Los Angeles, CA 90024
On January 12, 1978, respondent filed an answer denying each allegation of the complaint, and, as an affirmative defense, alleged that 39 U.S.C., Section 3005 on its face and in its application to respondent violates and is in derogation of the rights guaranteed to respondent under the First and Fifth Amendments to the Constitution of the United States. On respondent's motion I granted a change of location of the hearing from Washington to Los Angeles for convenience of its witnesses and continued the hearing to this date (March 2, 1978).
Respondent appeared at the hearing by its attorney. Complainant's evidence was received. Appellant offered no evidence but did cross-examine complainant's expert witness at length.
1. Based on respondent's advertisement which is attached to the complaint as Exhibit A, 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 (Exhibit B attached to this decision) discloses that it makes representations substantially as alleged and characterized in the complaint.
3. There are three products involved in this proceeding. They are (a) "HARD-ON CAPSULES"; (b) SUPERCHARGE ENERGIZERS, also in capsule form; and, (c) STUD PENIS POWER, another capsule product.
4. Complainant produced as an expert witness Dr. Don H. Catlin, a well-qualified medical doctor specializing in the field of internal medicine with a subspecialty in clinical pharmacology.
According to Dr. Catlin, male erection is caused by engorgement of the erectile tissue with blood with an accompanying constriction on the venous side of circulation. Problems in achieving and maintaining erection are caused by structural or organic conditions in approximately 10 to 20 percent of all cases of such problems, and by psychological causes in the other 80 to 90 percent. The organic problems are treated by appropriate drug or surgical therapy and the psychological causes are treated with psychological therapy.
According to Dr. Catlin, there are no known drugs that will significantly directly contribute to the male's ability to attain and maintain an erection. Dr. Catlin testified that there is no drug which will help cases of impotence caused by psychological factors. He did indicate that in the rare cases of testosterone deficiency in males the male hormone may be used in treating impotence due to that cause.
5. Dr. Catlin testified that in the normal female there is some engorgement of the clitoris during sexual experience and that causes of failure of females to experience such engorgement are basically the same as the causes of male inability to achieve or maintain erection. The treatment of female problems in this area is fundamentally the same as the treatment of male problems.
6. Dr. Catlin testified that orgasms and ejaculations are complex events related to erection in the male, involving reflexes, emotional states and other psychological factors. Eighty to ninety percent of problems involving inability to achieve orgasm and ejaculation are ascribed to psychological factors and the balance to organic factors. He testified that premature ejaculation is caused essentially by psychological factors, principally the excitement component. The treatment of this problem may involve discussion with a physician and the limitation of excitement of the male in performing sexual intercourse. Dr. Catlin is aware of no drug treatment for premature ejaculation. Neither is he aware of any drug used in cases of inability to achieve orgasms and ejaculations except in the rare case of the male deficiency in testosterone in which case the male hormone may be used in treatment.
7. Although Dr. Catlin did not know the exact components of the products involved in this proceeding, he made the reasonable assumption that they contained no prescription materials or components. According to Dr. Catlin, there is no known nonprescription material that could be presented in the product "HARD-ON CAPSULES" which will increase the male's ability to attain and retain erection; there is no known nonprescription material which could be present in the product "SUPERCHARGE ENERGIZERS" which will increase the ability of both male and female to achieve erection and orgasm; there is no known nonprescription material that could be present in the product "STUD PENIS POWER" which will enable the male to stop premature ejaculation, maintain an erection for a longer time than previously, or achieve a firmer erection.
8. Dr. Catlin's opinions are in accordance with the consensus of medical opinion.
9. Based on the testimony of Dr. Catlin I find that use of the products involved in this proceeding will not enable users to achieve the results represented in respondent's advertising as alleged in the complaint and consequently that such representations 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. 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. versus Klassen , 508 F.2d 1276 (1974).
4. The complaint of respondent's counsel as to unfairness of proceedings of this nature with respect to the short time allowed respondent to prepare a defense thereto and of failure of the Postal Service in proceedings of this kind to take into account calendar conflicts of respondent's counsel, were not supported by specific factual assertions or evidence in this case.
5. 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
"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:
(a) That use of "HARD-ON CAPSULES" will increase the male's ability to attain and maintain an erection;
(b) That use of "SUPERCHARGE ENERGIZERS" will increase the ability of both male and female to achieve erection and orgasm;
(c) That use of "STUD PENIS POWER" will enable the male to:
(i) stop premature ejaculation;
(ii) maintain an erection for a longer time than previously;
(iii) achieve a firmer erection;
III
"That said representations are materially false as a matter of fact;"
____________________