In the Matter of the Complaint Against JOHN GALT COMPANY, 3010 Santa Monica Blvd., Suite 110 and P. O. Box 5157 at Santa Monica, CA 90405 P.S. Docket No. 6/75 July 17, 1978 William A. Duvall Chief Administrative Law Judge Daniel S. Greenberg, Esq., Law Department United States Postal Service Washington, D. C., for Complainant Joseph Taback, Esq., 10880 Wilshire Boulevard, Suite 1806, Los Angeles, California, for Respondent Before: William A. Duvall, Chief Administrative Law Judge
This proceeding was initiated on March 2, 1978, when the Consumer Protection Office of the Law Department United States Postal Service, the Complainant, filed a Complaint in which it is alleged that the John Galt Company of Santa Monica, California, hereinafter referred to as the Respondent, was engaged in conducting a scheme or device for obtaining money or property through the mail by means of false representation within the meaning of Section 3005 of Title 39, United States Code.
Advertising materials used by this Respondent are attached hereto as Appendices A, B, and C to this decision. 2/
The product being advertised by the Respondent is called "Total Man Vitamins for Men." On the label of the product there is a list of the ingredients, which include various vitamins and mineral products. On the label it is stated in a general way that the product is a multiple vitamin and mineral supplement with Vitamin E, presented in 30 tablets.
Specifically, the Respondent is charged with making in its advertising matter, either expressly or impliedly, in substance and effect, the following representations:
"(a) TOTAL MAN is an effective male aphrodisiac or sexual stimulant.
"(b) TOTAL MAN is an effective remedy for male sexual impotence.
"(c) TOTAL MAN is an effective means of heightening and increasing sexual performance, capacity and enjoyment for the male.
"(d) TOTAL MAN will assure the fulfillment of a sexual relationship which is mutually satisfactory to both partners.
"(e) TOTAL MAN will revive and rejuvenate diminished or lost libido."
It is also charged that these representations are materially false as a matter of fact.
Counsel for the Respondent was unable to be present at the hearing. But he previously had consented and stipulated that this proceeding, the hearing, might go forward, even though he was prevented by other commitments from being present during this hearing.
Appearing as an expert medical witness on behalf of the Complainant was Jack L. Segal, M.D. From the statement of his impressive qualifications appearing in the record, it is obvious that Dr. Segal is well qualified to testify with respect to the area of medicine that is involved in this proceeding.
Dr. Segal elaborated on the physiology of the phenomenon of erection of the male genital organ. He stated that it is the result of psychogenic and neurogenic components as well as physiological and biochemical components, and the interactions of all of the above. The erection is the result of reaction to psychogenic stimulus. Physiologically the penis becomes engorged with blood and remains so until after climax, when the blood leaves the penis.
There are certain kinds of factors that militate against the achievement and sustaining of an erection. First, there are psychological causes, the treatment of which involves the taking of the history, and doing a physical examination, of the individual to rule out the presence of organic causes. If it is determined that the cause of the inability to attain and sustain an erection is psychological, then the patient is referred either to a psychologist or to a psychiatrist for appropriate treatment.
In the event the difficulty of attaining and sustaining an erection is physiological, it could be the result of certain metabolic disorders, diabetes, endocrine disorders, trauma, debilitating diseases, or circulatory problems. Here, again, the patient's history is taken and he is physically examined. And each type of problem is eliminated until the actual cause is discovered and attacked. The treatment that is appropriate to the particular physical condition is employed, with the idea in mind of achieving the optimum degree of success with the treatment.
In a person with normal ability to attain and sustain an erection there is no means by which this process may be improved.
Based upon his background in internal medicine as well as his extensive background in pharmacology, Dr. Segal testified that it is his expert, professional opinion that the product sold by this Respondent and known as Total Man will not be an effective male aphrodisiac or sexual stimulant. It is not an effective remedy for male sexual impotence. It is not an effective means of heightening and increasing sexual performance, capacity, and enjoyment for the male. It will not assure the fulfillment of a sexual relationship which is mutually satisfactory to both partners, and it will not revive or rejuvenate diminished or lost libido.
It was the doctor's testimony that the views expressed by him at the hearing are in complete accord and consistency with the consensus of informed medical opinion upon the subject about which he testified. There is no countervailing testimony.
The testimony which has been received in this record leads to the following findings of fact:
1. The Respondent is engaged in conducting a scheme or device through the mails for obtaining remittances of money.
2. In the conduct of the scheme the Respondent uses the advertisements which are appended hereto as Appendices A through C.
3. By means of these pieces of advertising material the Respondent makes the representations which have been set forth above as having been set forth in the complaint. Donaldson v. Read Magazine , 333 U.S. 178 (1948).
4. Based upon the testimony of the medical expert, it is found that the representations heretofore found to have been made by the Respondent are false as a matter of fact.
5. Those representations are also material representations because they are of the nature on which prospective purchasers would rely and be persuaded to buy the product.
Based upon the foregoing findings of fact, it is concluded as a matter of law that the 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 Section 3005 of Title 39, United States Code.
Accordingly, an order in the form attached as provided for in Section 3005 of Title 39, United States Code, should be issued against this Respondent.