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 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: Bennett Kerns, Esq. 100 Wilshire Boulevard Suite 400 Santa Monica, CA 90401
On December 21, 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 representation in violation of 39 U.S.C., Section 3005. The specific allegations of misrepresentation are attached hereto as Exhibit A.
On January 9, 1978, respondent filed an answer denying all allegations of the complaint except for an admission that it employs the captioned names and addresses. On respondent's motion I granted a change of location of the hearing from Washington to Los Angeles and a continuance of the hearing to this date (March 1, 1978).
1. Based on respondent's advertisements (CX-1, 2) together with evidence showing a test purchase of respondent's product through the mails (CX 3-9), I find that respondent is engaged in conducting a scheme or device for obtaining money or property through the mail.
2. A fair reading of respondent's advertisements discloses that it makes representations substantially as alleged and characterized in the complaint.
3. The product involved in this proceeding is called Super Damiana III or Super D-III. The product is in capsule form and according to respondent's evidence contains damiana, sarsaparilla, and kola nut extract in equal quantities.
4. According to the testimony of complainant's witness, Dr. Jack L. Segal, a qualified medical doctor with special interest in the field of clinical pharmacology, the male erection is caused by infusion of blood into the penis. The process of erection involves two phases: first, a cerebral or psychogenic phase and, second, a physiological or organic phase. The most common problems found in approximately 90 percent of all cases involving impotence are psychogenic in nature. Organic problems account for approximately 5 percent of all cases of impotence. The latter is commonly treated by medical doctors employing prescription drugs.
5. Dr. Segal is unaware of the use of herbs in the medical treatment of organically-caused impotence. According to Dr. Segal, damiana is an herb possessing no medical properties of which he is aware personally or from his research of pertinent scientific literature. Sarsaparilla is an herb commonly used as a flavoring agent which may contain steroid-like compounds which might resemble testosterone or which, hypothetically, might be metabolized to testosterone by the body, but he is not certain as to the presence of such materials in sarsaparilla. The kola nut contains caffeine.
6. According to Dr. Segal, there is nothing in the product involved here which alone or in combination will increase the male's ability to attain and maintain an erection. Dr. Segal testified that there is a possibility that some users of the product might experience a placebo effect resulting in an improved ability to attain and maintain erection, but he expressed great uncertainty as to that possibility.
7. Dr. Segal's opinions are in conformity with the consensus of informed medical opinion.
8. Based on the testimony of Dr. Segal, I find that the use of the product will not 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 representations materially false in fact within the meaning of 39 U.S.C., Section 3005.
2. It is no defense to a proceeding of this nature that the product involved may have a possible placebo effect on certain users. See Federal Trade Commission v. Stauffer , 343 F.2d 75, 82-83 (9 Cir. 1965); Manuel Garcia Imports , P.S. Docket No. 5/127 (Postal Service Dec. May 5, 1977).
3. 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 "advertisements," typical copies attached as Exhibits A and B) referring to the products described in paragraph II, below;
II
"That, by means of said advertisements, and in similar matter, Respondent represents, directly or indirectly, by means of affirmative statement, implication, or omission, in substance and effect that "Super Damiana III" and "Super D-III" will increase the male's ability to attain and maintain an erection;
III
"That said representation is materially false as a matter of fact;"
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Exhibit A to Complaint
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SUPER D-III, Dept. S-11
Box 67405, Los Angeles, Cal. 90067
Exhibit B to Complaint
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