Appeal of P.S. Docket No. 6/174 -- DAMIANA PLUS CAMPBELL, and CAMPBELL PHARMACY


 In the Matter of the Complaint Against

 DAMIANA PLUS CAMPBELL, and CAMPBELL PHARMACY
 (or any variation thereof)
 Box 44241 at Van Nuys, CA 91412

 P.S. Docket No. 6/174;  
 
 06/20/79
 
 Cohen, James A.  

 APPEARANCE FOR COMPLAINANT:
 Daniel S.Greenberg, Esq.
 Consumer Protection Office
 Law Department U.S. Postal Service
 Washington, D. C.  20260

 APPEARANCE FOR RESPONDENT:
 Burton C. Jacobson, Esq.
 424 South Beverly Drive
 Beverly Hills, CA 90212

POSTAL SERVICE DECISION

Respondent has appealed from the Initial Decision of Chief Administrative Law Judge William A. Duvall holding that Respondent is engaged in the conduct of a scheme to obtain money or property through the mail by means of materially false representations within the meaning of 39 U.S.C. § 3005.

Respondent markets through the mail products called Damiana Plus and Damiana + 2 which it represents will increase the user's ability to attain and sustain an erection and increase the firmness of an erection. Respondent claims the evidence does not establish that these representations are materially false as alleged in the Complaint. To support its position, Respondent relies on the testimony of Complainant's expert witness relating to a possible placebo effect from the use of the products, the testimony of a satisfied customer, and the testimony of two persons who are involved with the promotion and sale of the products in question. Respondent concludes from this testimony that the findings as to the falsity of the representations are not only unsupported, but that the weight of the evidence establishes the truthfulness of the representations.

The ingredients of Respondent's products are damiana, sarsaparilla and ginseng (Tr. 4). The record establishes that these herbs, either alone or in com9nation, will not cause the results represented, but may have a placebo effect on some users (Tr. 21, 22). The record also establishes that one user of the products found them to provide satisfactory results (Tr. 38-42), but according to Complainant's expert, these results were due to the placebo effect of the products (Tr. 48). There is also evidence that customers reorder the products, and have filed no complaints about the products with Respondent (Tr. 43, 44, 46, 47).

Respondent's principal contention is that, because of the placebo effect of its product, its representations are not false. This argument has been previously rejected in both court decisions and in final decisions of the Postal Service and is rejected here. See Stauffer Laboratories v. FTC, 343 F.2d 75 (9th Cir. 1965); Original Cosmetics Products, Inc. v. Strachan, 459 F.Supp. 496 (S.D.N.Y. 1978); GeGe Cosmetics, Inc., P.S. Docket No. 6/49 (P.S. Dec. 1978); Manuel Garcia Imports, P.S. Docket No. 5/127 (P.S. Dec. 1977). Accordingly, the placebo effect on some users does not support the efficacy of the products or the truthfulness of Respondent's representations.

The testimony of one user of the products, and the testimony of the two employees of the promoter of the products with respect to refills and lack of complaints is also not persuasive of the efficacy of the products. The testimony of Respondent's expert establishes by a preponderance of the evidence that the use of Respondent's product will not achieve the results represented.

Accordingly, Respondent's appeal is denied and a remedial order under 39 USC Section 3005 is being issued contemporaneously with this decision.