In the Matter of the Complaint Against JOHN GALT CO., Suite 110, P. O. Box 5157, 3010 Santa Monica Blvd. at Santa Monica, California 90405 P.S. Docket No. 6/57 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 22, 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 the complaint are attached hereto as Exhibit A.
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 his rights as guaranteed to the respondent under the First and Fifth Amendments to the Constitution of the United States.
On respondent's motions I granted a change of location of the hearing from Washington, D.C., to Los Angeles for the convenience of its witnesses, and a continuance of the hearing to this date (March 2, 1978). Respondent's counsel advised me yesterday here in Los Angeles that neither he nor respondent would appear at this hearing. Accordingly, complainant's evidence has been taken pursuant to Section 952.11 of the rules.
1. Based on respondent's advertisement, CX-1 and 2, together with evidence showing a test purchase of respondent's product through the mails, CX-3 through 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 advertisement discloses that it makes representations substantially as alleged and characterized in the complaint.
3. The product involved in this proceeding is called "The Youth Ring" and consists of approximately 12 inches of rubber surgical tubing with a plastic collar forming a closed ring in the tubing which may be varied in circumference. According to directions accompanying the product, the user after achieving erection places the closed ring of the tubing around the base of the penis, tightens it as much as possible without producing pain, and proceeds with intercourse.
4. According to the testimony of Dr. Jack L. Segal, a well qualified medical doctor specializing in the field of internal medicine with a subspecialty in clinical pharmacology, the male erection is caused by engorgement of the erectile tissue of the penis with blood following excitation with a large psychogenic component.
In the normal penis to maintain a normal erectile state there is an incoming of blood and outgoing of blood in dynamic equilibrium.
The causes of problems in achieving and maintaining an erection are approximately 90 percent psychogenic and 10 percent organic. Each problem must be diagnosed and treated individually.
According to Dr. Segal, the use of The Youth Ring as directed interfered with the normal physiology of erection in that it may occlude venous outflow from an erect penis and it may impede arterial inflow with both of these occurrences having possible serious detrimental physical results. Consequently, the use of the product involves serious dangers.
The use of the ring in impeding venous outflow may permit some tumescence to persist after ejaculation, but not sufficient to enable the user to maintain an erection as long as he may desire.
5. In the opinion of Dr. Segal The Youth Ring will not increase the user's ability to attain and maintain an erection. It will not cause an erection to be strong and hard, will not cause an erection to be larger than previously, and will not enable the user to maintain an erection as long as desired even after ejaculation.
6. Dr. Segal's testimony is in conformity with the consensus of medical opinion.
7. Based on the testimony of Dr. Segal, I find that The Youth Ring will not enable the user 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 properties through the mails by means of representations materially false in fact in violation of 39 U.S.C., Section 3005.
2. 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).
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(1) & (2) and B(1)-(4) referring to the product 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:
(a) That "The Youth Ring" will increase the user's ability to attain and maintain an erection;
(b) That said erection will be strong and hard;
(c) That "The Youth Ring" will cause the user's erection to be larger than previously;
(d) That the user will be able to maintain said erection as long as desired, even after ejaculation;
III
That said representations are materially false as a matter of fact;"
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