In the Matter of the Complaint Against MIDWEST HEALTH RESEARCH MIDWEST HEALTH RESEARCH CLINIC AND LABORATORY 3827 Main Street, Suite 206 Post Office Box 27086 at Kansas City, Missouri 64110 P.S. Docket No. 6/80; 11/21/78 Cohen, James A. APPEARANCE FOR COMPLAINANT: Thomas A.Ziebarth, Esq. Consumer Protection Office U.S. Postal Service Washington, D. C. 20260 APPEARANCE FOR RESPONDENT: Dr. Shane G. Brannson, III President of Respondent 3906 Baltimore Street, Apt.106 Kansas city, Missouri 64111
Respondent has appealed from the Initial Decision of Administrative Law Judge Quentin E. Grant holding that 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. § 3005. In the Initial Decision Judge Grant concluded that Respondent's advertisements made the representations alleged in the complaint and that these representations are materially false. He therefore recommended the issuance of a mail stop order.
Respondent distributes advertising brochures with newspapers of general circulation which seek remittances of money through the mails for a "Health Bible Handbook" entitled "MODERN SOLUTION TO AGE OLD PHYSICAL PROBLEMS." Persons receiving this booklet are urged to send further remittances through the mail for a colonic treatment kit. The complaint alleges that by means of such advertising materials or others similar thereto, Respondent falsely represents that its booklet contains valid medically-accepted methods for the prevention, alleviation and cure of 40 diseases and illnesses, including such conditions as malnutrition, arteriosclerosis, gallstones, diabetes, asthma, arthritis and appendicitis, and that the colonic treatment kit described in that booklet is effective in preventing the 40 diseases and illnesses.
In its appeal Respondent takes exception to the conclusion reached in the Initial Decision that the allegations of the complaint are supported by the evidence presented. To substantiate its position Respondent has attached to its appeal several testimonials relating to the use of its product. Respondent seeks to have these testimonials considered in connection with the issuance of the Postal Service Decision. Complainant has objected to the consideration of these documents.
The proper time to seek to introduce evidence into the record is during the hearing conducted in accordance with the provisions of 39 C.F.R. Part 952. Evidence offered during the course of an appeal proceeding, if objected to by the opposing party, will not ordinarily be considered in determining the merits of an appeal. There has been no showing in this proceeding which would justify consideration of the testimonials attached to Respondent's appeal. Moreover even if some showing of cause had been made the testimonials would not be admissible under 39 C.F.R. §§ 18(e) and (f). Accordingly Respondent's request to have the documents attached to the appeal considered in this appeal proceeding is denied.
Subsequent to the filing of its appeal Respondent submitted a sample of the kit which is advertised in the handbook. Complainant has not objected to the admission of the kit into evidence. Accordingly the kit is admitted into evidence.
Respondent's disagreement with the conclusions of the Initial Decision may be categorized generally as: (1) Complainant's expert is not qualified to testify regarding the colonic treatment kit or diseases of the colon; (2) the evidence establishes a difference of opinion amongst persons or professions, not a material misrepresentation; (3) Respondent's advertisements only suggest or recommend preventions, not cures; and (4) Respondent's advertisements contain effective disclaimers of any representations which are found to be materially false in fact.
Complainant's expert is a medical doctor certified by the American Board of Internal Medicine with a subspecialty in gastroneterology. He is a Professor of Medicine and since 1947 has been Chief of Gastroenterology at the Georgetown University School of Medicine (Tr. 10, 11). Gastroenterology is the medical subspecialty pertaining to the anatomy and pathology of the stomach and intestine. The colon is a part of the large intestine (Webster's New International Dictionary (2nd ed. 1939)). Thus Complainant's witness is well qualified to testify on the causes and effects of diseases which are alleged to be related to the colon. In addition the witness exhibited an understanding of the use of Respondent's product, even though he had not seen or used the product. He was, therefore, qualified to testify regarding the use and effects of the product. (See United States v. One Device, Intended for Use as a Colonic Irrigator, 160 F.2d 194 (10th Cir. 1947).)
Complainant's expert was the only witness to testify at the hearing. His testimony is credible and reflects the consensus of informed medical opinion. Accordingly the Administrative Law Judge properly accepted the witness' testimony to establish that the representations of Respondent's advertising brochure and its publication "MODERN SOLUTION TO AGE OLD PHYSICAL PROBLEMS" are materially false in fact.
Respondent's contention that the evidence only establishes a difference of opinion between chiropractors and medical doctors, and not the existence of materially false representations, is not persuasive that the result reached in the Initial Decision is erroneous. The evidence does establish that some chriopractors view the efficacy of the colonic irrigation treatment differently than medical doctors. However no testimony was presented to support the position that the colonic irrigation treatment will achieve the results represented. The documents introduced into evidence by Respondent at the hearing are insufficient for this purpose, and a preponderance of the credible evidence establishes that the use of the colonic treatment kit will not achieve the results represented.
Respondent's claim that its advertisements make suggestions and recommendations for preventions, not cures, is also lacking in merit. the clear thrust and tenor of the advertising materials and the handbook, particularly by their use of the terms "solutions and preventions," creates the impression that the colonic irrigation treatment will both prevent and cure the listed diseases. See Donaldson v. Read Magazine, Inc., 333 U.S. 178 (1948); Borg-Johnson Electronics, Inc. v. Christenberry, 169 F. Supp. 746 (S.D.N.Y. 1959); Vibra Brush Corp. v. Schaffer, 152 F.Supp. 461 (S.D.N.Y. 1957). Furthermore whether the advertising brochure and handbook suggest preventions or cures is of no consequence since the evidence establishes that Respondent's product will do neither. Finally neither the use of the word "recommended," nor the disclaimers referred to by Respondent, is effective to overcome the impression created by Respondent's advertisements that its handbook and product will prevent and cure the enumerated diseases.
Accordingly after a review of the record and the arguments presented on appeal, the appeal is denied. The Initial Decision is affirmed and a remedial order under the provisions of 39 U.S.C. § 3005 is being issued contemporaneously with this decision.