In the Matter of the Complaint Against HEALTH PURIFIERS, INC., 380 Madison Avenue at New York, NY 10017 and HEALTH PURIFIERS, 200 Madison Avenue, at New York, NY 10016 and INSTANT LEARNING, 200 Madison Avenue, at New York, NY 10016 and HEALTH PURIFIERS FULFILLMENT CENTER, 120 Smith Street, at Farmingdale, NY 11735 and P. H. SALES, 27 Milburn Street at Bronxville, NY 10708 and P. H. SALES, 361 Saw Mill River Road at Yonkers, NY 10701 P.S. Docket No. 6/78 June 20, 1978 William A. Duvall Chief Administrative Law Judge Daniel S. Greenberg, Esq., Law Department United States Postal Service Washington, D. C. 20260 Gary M. Katz, Esq., Katz & Katz, 141 Central Park Avenue South, Hartsdale, New York 10530 Before: William A. Duvall, Chief Administrative Law Judge
On March 16, 1978, the Consumer Protection Office, Law Department, United States Postal Service, the Complainant, filed a complaint against the Respondent in which it is charged that the Respondent, in conducting a scheme or device through the mails for obtaining money or property, makes certain representations which Complainant alleges are materially false as a matter of fact.
The complaint, as originally filed, named Health Purifiers, Inc., at 380 Madison Avenue, New York, New York 10017, as the Respondent, and later, by stipulation, the complaint was amended to include as Respondents the following names: Health Purifiers, 200 Madison Avenue, New York, New York; Instant Learning, 200 Madison Avenue, New York, New York; Health Purifiers Fulfillment Center, 120 Smith Street, Farmingdale, New York; P. H. Sales, 27 Milburn, Bronxville, New York, and P. H. Sales, 361 Saw Mill River Road, Yonkers, New York. The Respondents hereafter will be referred to collectively as Respondent.
Respondent advertises and sells, through the mails, a publication entitled "Confidential Report, Natural Aids for the Prostate Gland" by Marsh Morrison, D.C., Ph.C., F.I.C.C. The publication was received in evidence as Complainant's Exhibit No. 2, and a copy of Respondent's advertisement, upon which the complaint was based, is attached hereto as Appendix A.
The Respondent's answer consisted primarily of a general denial of the charges in the complaint, and the answer continued that Respondent does not sell a product or device but only the report; that the author of the report is noted in one of the recognized health fields. Respondent alleges that the publication it sells comes within the protection of the free speech provision of the First Amendment to the Constitution of the United States and that Complainant is without authority to bring this action, which Respondent prays be dismissed. A Motion to Dismiss the complaint was denied both before nd at the hearing. Prior to the hearing a Motion for Reconsideration was granted, and on reconsideration, the denial of the Motion to Dismiss was affirmed.
In the complaint it is charged that by means of its advertisement, which is Appendix A hereto, and in similar matter, Respondent represents, directly or indirectly, by means of affirmative statement, implication or omission, in substance and effect:
(1) That the information contained in Respondent's report, "Natural Aids for the Prostate Gland" (hereinafter referred to as the "report"), will enable the reader to eliminate or substantially reduce:
(a) burning and painful urination;
(b) incontinence;
(c) frequent voiding of the bladder;
(2) That the information contained in the report will enable the reader to cure all prostate problems on his own;
(3) That the results enumerated in subparagraphs (1) and (2), supra , can reasonably be expected within one month to six weeks for most men.
That said representations are materially false as a matter of fact.
Looking at the Respondent's advertising material, upon which the complaint was based, and giving it a fair reading, and interpreting that advertisement in the light of the effect it most probably would produce on the mind of the reader, I find that representation number (2), as set forth in the complaint, is over-broad. I think, considering this advertisement as a whole, the reader would certainly be expected to read as far down as the first two or three paragraphs in the lefthand column of the advertisement, where it is stated:
"Never Was There A Case Under The Natural Aids That Are Herein Explained That Failed To Improve] Yes, If Not Completely Cured, AT LEAST Improved"]
It seems to me therefore, and I so find, that that is a sufficient disclaimer with respect to a cure of all conditions of the prostate as to warrant the finding that this charge in the complaint is an overstatement of the claims made by the seller. On the other hand, applying the same method of analysis, I find that the advertising literature of the Respondent does make the representations set forth in charges (1) and (3) of the complaint, except insofar as charge (3) incorporates charge (2).
There was only one witness who testified in this proceeding, and that witness was Dr. Hrant Semerjian, an M.D. who is Board certified in urology. Dr. Semerjian has very impressive credentials which will be touched on only briefly. He is a graduate of the American University at Beirut, Lebanon, and upon the completion of his studies at that university, he came to Johns Hopkins Hospital, where he finished his residency in 1972. He then became assistant professor of urology at the George Washington University, and in 1976 he became the Chairman of the Department of Urology at that institution. As of today, he is an associate clinical professor of urology, and he has numerous hospital affiliations. It certainly is unnecessary to say, but Dr. Semerjian clearly is well-qualified to give testimony with respect to the area of medicine which is involved in this proceeding.
Urology was defined by Dr. Semerjian as the study of the causes and treatments of conditions of the genitourinary tract in both male and female. The female aspect of urology will be ignored in this proceeding since it is not pertinent.
There are numbers of causes of burning and painful urination in the male, a condition which is known as dysuria. For persons below the age of 60, the causes generally stem from infections or inflammation, and those conditions are treated by the use of antibiotics in most cases. In the male population above the ages of 60 and 70, dysuria is caused by an infection which, in turn, is caused largely by urine retention resulting from an obstruction in the urethra. This obstruction causes an incomplete urination. The urine that remains in the bladder forms a medium in which different viruses and germs proliferate, and they result in the burning sensation during urination and the pain results from that problem.
Much obstruction in the urination of the older male is due to benign hypertrophy or malignant hypertrophy. The doctor testified that responsible estimates have been made that 50 percent of the males above 50 years of age have benign growths, and that for those males above 70 years of age, 75 percent of them are estimated to have benign hypertrophy. In the 60 to 70 age group, in the Black population of this country, there are 24 in 100,000 individuals who have carcinoma of the prostate, and among males the second most common cause of death from cancer is prostatic cancer. There are 40,000 persons who die each year from this condition.
Prostatic cancer is slow to develop, and its development can cover a period of from five to ten or perhaps even more years. Thus, it is very important to diagnose and identify that condition at the earliest possible moment so that any influence which might cause males to delay seeking competent medical advice would constitute an additional and an undue risk to such individuals.
In the treatment of prostatic hypertrophy, if it is diagnosed as benign, in addition to the use of antibiotics, there is employed a procedure which is known as transurethral resection. If the hypertrophy is malignant and if it is discovered in time, then the removal of the gland, known as prostatectomy, is the method of treatment of choice.
Dr. Semerjian testified that he has read the publication that is being sold by the Respondent in this proceeding and that the statements which are contained in the Respondent's advertisement as to the results that will be produced by following the methods outlined in the booklet cannot be achieved. In other words, the following of the steps outlined in the booklet or the publication by Dr. Morrison will not result in the alleviation of burning and painful urination. They will not result in the alleviation of incontinence. They will not relieve one of the necessity of frequent voiding of the bladder. As a matter of fact, some of the procedures that are recommended in the booklet will cause even more frequent attempts to void the bladder, and that increased frequency of urination which will result from some of these procedures can reasonably be expected to produce very harmful results to an elderly individual in that it will produce a serious protein degradation.
Therefore, not only will the booklet not do those things which the advertisement indicates it will do, but the treatments recommended in the booklet will produce serious danger of physical harm to the persons who follow the recommendations.
Dr. Semerjian testified that he does consult with his colleagues, he teaches, he attends meetings in his specialty (and there was a meeting in Washington, D.C. within the past two weeks to which he referred), and he testified unhesitatingly that his testimony is in conformity with the consensus of informed medical opinion in this country.
In view of the fact that there was only one witness and that witness testified on behalf of the Complainant in this case, there is for application the holding in the case of U. S. Health Club, Inc. v. Major , 292 F.2d 665, a 1961 case, in which the United States Court of Appeals for the Third Circuit held that the uncontradicted testimony of one qualified medical expert established the universality of medical opinion on the crucial issues.
In consideration of the testimony in this record, it is concluded, and found as a fact, that the representations found to have been made by this Respondent are materially false as a matter of fact. It follows, therefore, that the Respondent is engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representation within the meaning of Section 3005 of Title 39, United States Code.
Accordingly, an order in the form attached, as authorized by 39 U. S. Code 3005, should be issued against this Respondent.