In the Matter of the Complaint Against PERMA PRODUCTS, 6311 Yucca Street at Hollywood, CA 90028 P.S. Docket No. 6/94 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 May 4, 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 Perma Products of Hollywood, California, 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.
Specifically, the Complainant alleges that by means of certain advertisements Respondent represents directly or indirectly, in substance and effect, whether by affirmative statements, omissions, or implication, that Respondent's product, the "Perma Pump," will, (a) increase the length and thickness of the penis; (b) increase the user's ability to sustain an erection during intercourse; and (c) increase the strength of the user's ejaculation during climax.
Based on the stipulation of Counsel for the parties, it is found that the Respondent employs an advertisement of the type which is appended to this decision as Appendix A. It is also found that a test purchase of Respondent's product was made by a Postal Inspector as part of his investigation. It is further found on the basis of the two foregoing findings that the Respondent is engaged in a scheme for obtaining money or property through the mails.
Based on the Respondent's advertisement, (Appendix A hereto), and applying the rule of interpretation enunciated in Donaldson v. Read Magazine , 333 U.S. 178, I find that the Respondent makes the representations concerning the Perma Pump substantially as characterized in paragraph II of the Complaint.
The Perma Pump is a plastic device which is approximately one foot, overall, in length. There is one large clear plastic tube to which there is permanently attached a shorter pump device with a rubberized or plastic tube leading from the bottom of the pump device to the center of the cap of the clear plastic device. At the bottom of the clear plastic device is a ring of spongy-type material.
If this object is to have any effect on the penis, it is mandatory that the spongy-type material at the bottom of the clear plastic tube be placed over the base of the penis. The instructions for the operation of the device are that to operate the plunger one is to hold his finger over the hole in the large, clear plastic tube to which an arrow is pointed, in order that the pump may create a suction. The instructions then continue that to stop the suction one is to remove his finger from the previously indicated hole near the top of the clear plastic portion of the device.
On the label setting forth the instructions for the use of the device, there is the following language: "Warning, this pump is sold as a novelty only and is not intended for use. It has not been clinically tested nor is it approved."
The device was received in evidence as Complainant's Exhibit 8.
Appearing as an expert witness called by the Complainant was Don H. Katlin, M.D., a well qualified doctor of medicine, who at the present time is on the faculty of the University of California at Los Angeles in the Department of Medicine and in the Department of Pharmacology. Dr. Katlin testified that genetic factors and embryological factors are the primary determinants of the size of the normal adult penis. The size of this organ is determined to some small extent by hormonal activity that takes place, particularly, at puberty.
There is no way known to medical science to alter the size of either the flaccid penis or the erect penis. Of course, the penis becomes enlarged when proceeding from its flaccid state to its erect state, but aside from this type of increase, there is no way in which the size of the flaccid penis can be increased over its normal size, and no way in which the erect penis can be increased over its normal size when in the state of erection.
There are various psychological factors which have an effect upon the sustaining of an erection. One of these factors is the frame of mind of the individual at the time erection occurs. Other types of psychological factors relating to the capability of sustaining erection have to do with such matters as inhibitions of the individual, or feelings of guilt. Psychological factors must be treated, usually, by psychiatric measures and treatment.
There are certain physiological reasons why one has difficulty in sustaining an erection. Some of these are neurological disease or damage to the spinal cord or the brain, vascular conditions that inhibit the proper flow of blood. These may be treated medically or surgically, as the needs of the individual case require. Neurological diseases are generally progressive and in most instances there is no effective treatment.
The strength of the ejaculation that occurs is due, among other things, to the volume of the ejaculate, and the period of time in between instances of ejaculation. Other than these factors, there is no method known to medical science by which the strength or force of ejaculation can be affected.
It was the testimony of the medical expert that the use of the device being sold by the Respondent in the manner directed by the Respondent will not have the effect of increasing the normal length and thickness of the penis when it is in either its flaccid or erect condition. It is also the testimony of the medical expert that the use as directed of the Perma Pump will not increase the user's ability to sustain an erection during intercourse, and that it will not increase the strength of the user's ejaculation during climax.
It was brought out on cross-examination by Respondent's counsel that Dr. Katlin had not tested the device on himself or on any other individual, and it was also suggested that the device received in the test purchase was itself defective in that no vacuum was created by using the device according to the instructions printed on the label that was attached to the side of the device. Reliance on expert medical opinion testimony despite the fact that the doctor has neither used nor tested the product under consideration is proper and it has received judicial approval. Farley v. Heininger, 105 F.2d 79; Cable v. Walker , 152 F.2d 23. Particularly is this reliance justified when there is no contrary opinion or other evidence. U. S. Health Club, Inc. v. Major , 292 F.2d 665.
It was the testimony of Dr. Katlin that if the device, when used as directed, was capable of creating a temporary enlargement and thickness of the penis, if no injury were done to the male genital organ, then, upon cessation of the use of the device, the organ would return to its normal size. Further, if the device, when used as directed is capable of producing an enlargement or increased thickness of the penis, it is possible that serious injury might be done to the user. The doctor's testimony on this point was not specific because of the possibility that the device would not be capable of removing all of the elasticity from the spongy portion of the tissue of the penis.
The doctor testified that on the basis of his medical education, training, and experience, and his review of the literature, the testimony that he gave in this proceeding was in conformity with the consensus of informed medical opinion.
In interpreting advertising statements, the criterion to be followed is the effect that such statements would most probably produce on the mind of the ordinary reader. See Donaldson v. Read Magazine, supra . In judging the meaning of an advertisement, that which is implied must be considered as well as that which is expressly stated. Aronberg v. F.T.C. , 132 F.2d 165 (7th Cir., 1943); Cates v. Haderlein , 189 F.2d 367 (7th Cir., 1951).
Applying these principles to the statements contained in the advertisement involved in this proceeding, I find that the Respondent makes the representations which are set forth in the Complaint. The medical testimony that was given in this matter is to the effect that the Perma Pump will not increase the length and thickness of the penis on any permanent basis; that the use of this device will not increase the user's ability to sustain an erection during intercourse; and that the user of Perma Pump will not increase the strength of the user's ejaculation during climax.
The representations made by the Respondent are false in fact, and they are materially false because of the importance to the prospective purchaser of the matters to which those representations relate. The Respondent is engaged in a scheme 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 pursuant to 39 U. S. Code 3005, in the form attached, should be issued against this Respondent.