In the Matter of the Complaint Against

 SUPER DAMIANA III and SUPER D - III
 Box 67405 at
 Los Angeles, California 90067

 P.S. Docket No. 6/56; 
 
 APPEARANCES:
 
 Bennett Kerns, Esq.
 100 Wilshire Boulevard, Suite 400
 Santa Monica, California 90401
 for the Respondent
 
 Daniel S. Greenberg, Esq.
 Law Department
 U.S. Postal Service
 Washington, D.C. 20260
 for the Complainant

This matter is on appeal by Respondent from the Initial Decision of Administrative Law Judge Quentin E. Grant. In his Initial Decision Judge Grant held that Respondent was engaged in conducting a scheme or device for obtaining money or property through the mails by means of representations materially false in fact within the meaning of 39 U.S.C. § 3005.

The product involved in this proceeding is a capsule which the complaint charges is advertised to "increase the male's ability to attain and maintain an erection." The product is made up in equal quantities of the three herbs damiana, sarsaparilla and kola nut. The testimony of an expert witness was presented to support the allegations of the complaint. The witness testified that the three herbs making up Respondent's product would not "increase the male's ability to attain and maintain an erection."

Respondent's exceptions to the findings and conclusions of the Initial Decision attack the qualifications of Complainant's expert witness and the foundation which was laid for the expert's testimony. Respondent also challenges the propriety of the finding that the allegations of the complaint are supported by the evidence presented. Respondent contends that the testimony of Complainant's expert witness was second-hand opinion and that the witness was not qualified to testify regarding herbs. The witness is a medical doctor with a specialty in internal medicine and a special interest in clinical pharmacology and therapeutics. He is a Diplomate of Internal Medicine and a Fellow in the American College of Clinical Pharmacology. Currently the witness is employed as an Assistant Clinical Professor of Medicine at the University of California at Los Angeles. The witness has not personally performed controlled studies of herbs. He is familiar with the composition and uses of the herbs found in Respondent's product. The witness has knowledge of the physiology of an erection and the causes and treatment of the inability ot attain and maintain an erectile state. He has been consulted on numerous occasions by patients complaining of an inability to attain an erection and has prescribed treatment for these patients.

The testimony of Complainant's expert witness was in large part based on knowledge obtained from current texts, journals and discussions with colleagues. The witness' testimony was also based on his treatment of patients suffering from an inability to attain and maintain an erectile state. In addition the witness' testimony reflected the consensus of informed medical opinion. The texts, journals and discussions relied on by the witness, together with his treatment of patients, are facts and data which are of a type reasonably relied upon by experts in the medical field. They therefore form a proper basis on which the expert could base his opinion testimony. See Federal Rules of Evidence § 703; Redden, Saltzburg, Federal Rules of Evidence Manual § 703(1975); 3 Weinstein's Evidence, § 703(1975); Rheingold, The Basis of Medical Testimony, 15 Vand. L.Rev. 473(1962).

Accordingly Complainant's expert witness was qualified to testify about the effect of Respondent's product on the ability of the male to attain and maintain an erection and his testimony is supported by a proper foundation. The questions raised by Respondent's exceptions are properly for consideration in connection with the weight given to the testimony of the witness. Absent any contrary evidence, the testimony of Complainant's witness is persuasive. See Charles of the Ritz Distributors Corp. v. F.T.C., 143 F.2d 676 (2d Cir 1944).

Respondent's exception alleging that the evidence does not support the allegations of the complaint is also without merit. Respondent quotes portions of the testimony which it maintains support the conclusion that the product increases the male's ability to attain and maintain an erection. Although the portions of the testimony quoted by Respondent can be found in the transcript, when read in context with the remainder of the witness' testimony, they do not support the conclusion that Respondent's product does increase the ability of the male to attain and maintain an erection. The testimony of the witness, read as a whole, supports the finding of the Initial Decision that there is nothing in the product which alone or in combination will increase the male's ability to attain and maintain an erection.

Accordingly, the findings and conclusions of the Initial Decision are correct. Respondent's exceptions to the Initial Decision are disallowed for the reasons stated herein and that decision is hereby affirmed. A mail stop order is being issued contemporaneously with this decision under 39 U.S.C. § 3005.

06/28/78

Cohen, James A.