In the Matter of the Complaint Against J. GORDON DISTRIBUTORS, P. O. Box 35276, at Los Angeles, California 90035 P.S. Docket No. 6/87 July 20, 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 April 1, 1978, when the Consumer Protection Office of the Law Department United States Postal Service, the complainant, filed a complaint in which it charged that J. Gordon Distributors of Los Angeles, California, the respondent, is 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.
Specifically, the complainant charged the respondent, by means of an advertisement, a copy of which was attached to the complaint, and in similar matter, with representing directly or indirectly, by means of affirmative statement, implication, or omission, in substance and effect:
(a) That the use as directed of the "Chinese Penis Exerciser and Enlarger" (hereinafter referred to either as the exerciser or the device) will increase the size of the penis in both the flaccid and erect states; and
(b) That the use as directed of the exerciser will increase the man's ability to maintain an erection.
The device being sold by the respondent is described roughly as follows: There is a blue plastic tubular device approximately three and a half to four inches in overall length, open at one end and closed at the other, and approximately one and one half inches in diameter at the open end. There is an adjustable metal clamp near the open end of the device, by means of which various degrees of tightness may be achieved on that end of the blue plastic device. There is a hook in the upper end of the blue plastic portion of the device which, in turn, is hooked to a cap screwed on to an opaque plastic bottle at the other end of the device. The capacity of the opaque plastic bottle is approximately four to six ounces.
The instructions for the use of the device (CX-9) are attached to this decision as Appendix A, hereto.
Admitted into evidence without objection were complainant's Exhibits CX-1 (A) through CX-9 which establish that the respondent is in fact engaged in the conduct of a business through the mail, and the business consists of the representation of the device in advertising material and the sale through the mail of the device for the stated purchase price of $19.95.
On Exhibit CX-8 it is stated, in pertinent part, that the device originally advertised and sold for the purposes indicated is no longer available and that a substitute device is being supplied in response to the order.
Respondent's counsel moved to dismiss the complaint on the basis that the complaint was prepared on the basis of representations made with respect to one product, but that respondent shipped and complainant received a different product.
The motion to dismiss was denied on the basis that in instances in which, as here, an advertiser offers to sell a device for a specific purpose, but the advertisement carries no reasonably accurate photographic, artistic or verbal depiction of the particular device being sold, any device bearing a reasonable relationship to the advertising representations which the seller sends to a customer responding to the advertisement is represented by the seller as being capable of accomplishing the promised result.
Called as a witness on behalf of the complainant, was Dr. Don H. Catlin, a medical doctor whose professional qualifications to testify as an expert medical witness in this proceeding were stipulated by respondent's counsel.
Dr. Catlin described the physiology of the penis and the phenomenon of erection. The penis is composed in large measure of a spongey material. There are no muscles in the penis itself, but there are muscles at the base of the penis.
The size of the penis is determined at birth by genetic factors. These factors remain present, but at or about the time of puberty certain hormonal factors have their effect and the size of the normal male genital organ is determined by a combination of the genetic and hormonal factors. There are some other minor factors which Dr. Catlin indicated are so insignificant in number as not being worthy of mention.
There is no method known to medical science by means of which the size of the penis in either its flaccid or its erect state may be increased. Some diseases or abnormalities may result in enlargement of the organ, but these are undesirable and effort is made to correct these conditions.
Erection occurs when the spongey tissue is filled with blood that enters the penis through the arterial system. At the time of climax neurological events take place which permit this spongey tissue to be emptied of blood through the venous system, returning into the circulatory system, and thus the penis returns to its flaccid state.
There are instances in which ejaculation occurs before a full erection is achieved. This is caused by psychological factors, primarily, but there are some physiological factors which enter into the overall picture. An example of such a physiological condition would be one due to any disease that influences the flow of blood to the penis, such as the hardening of the arteries of that area.
There are also some neurological conditions which affect the situation, but these occur very rarely. Neurological diseases are progressive in nature and are not amenable to curative treatment. Some of the vascular disease cases can be helped by drug therapy and some by surgery. But, the psychogenic problems are to be treated psychologically or through psychiatry.
When asked whether a person's ability to sustain an erection can be increased the medical expert said that there are some unusual and potent drugs which can achieve this result, but these drugs are used by experimentalists, not by physicians, and the drugs should not be used by the lay individual.
The use, as directed, of the device being sold by respondent, according to Dr. Catlin, would not increase the length of the penis in the flaccid state, except for the time during which the device is worn, nor would it increase the length of that organ in the erect state. When the device is removed, if no damage results from the use thereof, the penis will return to its normal and previous size.
It was the opinion of the expert that the use of the device will not cause the user to experience an erection, and it would not cause the user to experience increased ability to sustain an erection.
I find that the testimony of the medical expert is consistent, and in accord, with the consensus of informed medical opinion in respect to the matters concerning which he testified.
On cross examination Dr. Catlin indicated that he did not perform any tests of the device itself except the minor matter of going through the process of loosening and tightening the screw to see whether it functioned.
It has been held many times that doctors may give their opinion with respect to certain matters upon the basis of their general medical knowledge and experience, and that it is not necessary in every instance to conduct tests of a substance or a device in order to be able to testify competently with respect to the likelihood of the success of the product to achieve its promised results. ( Charles of the Ritz v. F.T.C. , 143 F.2d 676 (2 Cir., 1944); Cable v. Walker , 152 F.2d 23 (D.C. Cir., 1945); Koch v. F.T.C. , 206 F.2d 311 (6 Cir., 1953); Sitta v. American Steel Wire Division of United States Steel , 254 F.2d 12 (6 Cir., 1958.))
On cross examination it was brought out, also, that in certain instances in which the blood supply is impeded a collateral blood supply can be created. A classic example of this procedure is known popularly as the cardiac bypass operation. Doctor Catlin stated that exercise will increase the flow of blood throughout the body, and that this would be particularly true in exercising the large muscle systems. The exercise that would be the result of following the instructions for this device, however, would not be of the type that would serve to increase the blood flow to the penis to any appreciable degree.
The use of the device probably would stimulate a properly motivated person to experience an erection if the device is used as directed. It is more likely that the application of the device to an erect penis would cause it to become flaccid.
On the basis of the evidence of record, it is found as fact as follows:
1. The respondent does engage in business through the mails in the sale of the Chinese Penis Exerciser and Enlarger.
2. In connection with the enterprise described above, the respondent does advertise by means of circular matter of which complainant's Exhibit CX-1 (A) is an example.
3. Considering Exhibit CX-1 (A) as a whole and regarding it in the light of the effect that it most probably would product upon the mind of the average reader, the respondent makes the representations which are set forth in the complaint.
4. The representations set forth in the complaint are material representations in that they are of the type upon which prospective purchasers of the device would rely in ordering the product from the respondent.
5. The representations found to have been made by respondent are revealed by the expert medical testimony of this record to be false as a matter 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.
An order of the type provided by 39 U. S. Code, 3005, as attached hereto, should be issued against this respondent.