In the Matter of the Complaint Against RANEY'S MEDICAL RESEARCH Box 104 at Drasco, Arkansas 72530 P.S. Docket No. 7/34 June 13, 1979 Quentin E. Grant Administrative Law Judge APPEARANCE FOR COMPLAINANT: Daniel S. Greenberg, Esq. Consumer Protection Division Law Department United States Postal Service Washington, DC 20260 APPEARANCE FOR RESPONDENT: Jack L. Lessenberry, Esq. Lessenberry & Carpenter 807 West Third Street Little Rock, AR 72201
A Complaint filed on March 9, 1979 charges respondent with engaging in a scheme or device for obtaining money or property through the mails by means of false representations in violation of 39 U.S.C. 3005.
Specifically, the complaint (Par. II) alleges that by means of advertising matter respondent falsely represents:
"II B (1) That its unnamed plan or product will cure arthritis for most people;
(2) That the entire plan or product will be supplied by Respondent, without additional cost, upon receipt of a 15[ stamp."
Complainant (Par. II) further specifically alleges that respondent falsely represents:
"II B (1) That Respondent's "ANTI-STRESS TABLETS" (also referred to by Respondent as "ANTI-STRESS 16," both names hereinafter included in references to the "tablets") will, for most people, cure or effectively treat:
(a) arthritis;
(b) stress;
(c) nerve problems;
(d) heart disease;
(e) heart failure;
(f) anemia;
(g) scurvy;
(h) beriberi;
(i) alcoholism;
(j) pellagra;
(k) neuritis;
(l) scaley skin disease
"(2) That the tablets will, for most people, boost resistance to infection and promote faster healing after surgery;
"(3) That the tablets will, for most people:
(a) improve circulation;
(b) reduce the likelihood of clogging and hardening of the arteries;
(c) boost resistance to all types of infection;
(d) help throw off existing infections;
(e) prevent permanent damage to liver cells due to liver disease;
(f) retard degeneration of nerves, muscles, and bones;
(g) reverse degeneration of nerves, muscles, and bones;
(h) cure or effectively treat many skin diseases;
(i) cure or effectively treat gastrointestinal conditions including, but not limited to, peptic ulcer and ulcerative colitis;
(j) cure or effectively treat psychiatric disorders;
(k) cure or effectively treat diabetes;
(l) cure or effectively treat pancreatitis;
(m) cure or effectively treat osteoporosis during menopause;"
At respondent's request a hearing was held in Little Rock, Arkansas. Both parties presented evidence thereat. Only complainant has filed proposed findings of fact and conclusions of law.
1. Based upon the stipulations of the parties (Tr. 5, 6), I find that respondent is engaged in a scheme for obtaining money or property through the mails using advertising material identical, or substantially similar to, the advertisements annexed to the complaint (CX-2 through CX-6)
2. The product involved in the scheme is tablets variously called ANTI-STRESS TABLETS or ANTI-STRESS 16 (hereinafter called the product). The ingredients of the product as listed on the label (CX-1) are as follows:
A 10,000 I.U.
B-1 10mg.
B-2 10mg.
B-6 5mg.
B-12 5mcg.
C 200Mg.
D 400 I.U.
E 15 I.U.
Calcium -
Pantothenate 20mg.
Niacinamide 100mg.
Iron 12mg.
Iodine -
(From potassium
Iodide) 150mcg.
Manganese 1mg.
Copper 2mg.
Zinc 1.5 mg.
Magnesium 65mg.
3. I find in the wording "arthritis *** completely wiped out *** To receive our proven *** plan send 15 cent stamps" (Ex. A*) and similar wording in other advertisements of respondent (Ex. B & C)
* Letter exhibit references are to exhibits annexed to the Complaint. express or implied representations as alleged in Paragraph II A (1) and (2) of the complaint.
4. I find that respondent's other advertising (Exs. D(1) & (2)) expressly represents that the ingredients of the product are being used by doctors in the treatment of the numerous diseases or conditions and for the purposes listed in Paragraphs II B(1), (2) and (3) of the complaint and thereby indirectly or by implication represents that the product will, for most people, cure or effectively treat the diseases or conditions listed in Paragraph II B(1) of the complaint; will for most people, boost resistance to infection and promote faster healing after surgery; and will for most people produce the results set forth in Paragraph II B (3) of the complaint.
5. Vincent F. Cordaro, a well-qualified doctor of medicine testified for complainant. Dr. Cordaro testified that the product would not cure or effectively treat arthritis (Tr. 13). Nor would it cure or effectively treat stress (Tr. 15) or nerve problems, whether referring to mental illness (Tr. 16, 17) or to diseases of the nervous system (Tr. 17), or heart disease and heart failure (Tr. 18-22); or pernicious anemia, although it might be of some help in treating anemia due to iron deficiency (Tr. 22-26).
Although Dr. Cordaro stated that the tablets would be "more than adequate" to treat scurvy, he noted that scurvy could not be diagnosed by the lay person (Tr. 28). Additionally, he noted that scurvy is "unseen in the United States" (Tr. 26).
Similarly, Dr. Cordaro testified that beriberi is not common in the United States (Tr. 28) and cannot be diagnosed by the lay person (Tr. 30) although the tablets might have some ameliorating effect in a properly diagnosed case of beriberi (Tr. 30).
Dr. Cordaro testified that alcoholism is a dependency on alcoholic beverages, and that the tablets will neither prevent nor overcome this dependency (Tr. 30).
As with scurvy and beriberi, supra , Dr. Cordaro testified that pellagra is not common in the United States today (Tr. 31) and cannot be diagnosed by the lay person (Tr. 32), although he thought that the tablets could help in cases of pellagra (Tr. 32).
Complainant's expert further testified that the tablets would not treat neuritis (Tr. 33) or scaley skin disease (except pellagra, supra ), (Tr. 33-37).
7. Dr. Cordaro further testified that the tablets would not boost resistance to infection and promote faster healing after surgery for most people. While he noted that some studies are being made with respect to the effect of vitamin C on healing, nothing conclusive has been shown (Tr. 38-40).
8. Dr. Cordaro testified that circulation could be impaired by various means which the lay person could not diagnose, including arteriosclerosis and atherosclerosis, and that the tablets would not treat those conditions (Tr. 40-43).
He further testified that the tablets would not reduce the likelihood of clogging and hardening of the arteries inasmuch as that condition is due to the arteriosclerosis and atherosclerosis (Tr. 43-44).
He further testified that the tablets would not boost resistance to all types of infections (Tr. 44) or help throw off existing infections (Tr. 44) or prevent permanent damage to liver cells due to liver disease (Tr. 44-46), or retard or reverse degeneration of nerves, muscles, or bones except that degeneration of bones due to lack of calcium might be reversed. However, he testified that such effect would depend on whether the lack were due to inability to absorb calcium, or merely to a lack of same in the diet. He also stated that this condition could not be self-diagnosed (Tr. 46-49).
9. Dr. Cordaro further testified (Tr. 49) that the only skin diseases caused by vitamin deficiency are those associated with pellagra, beriberi, and scurvy (Tr. 26-28, 30-32). Other skin conditions (e.g., seborrheic dermatitis, psoriasis, scabies, athletes foot, and ringworm) could not be cured or effectively treated by the tablets (Tr. 34-37).
10. Dr. Cordaro further testified that the tablets would not cure or effectively treat peptic ulcer, ulcerative colitis, or other common diseases of the gastrointestinal tract (Tr. 49-52); or cure or effectively treat psychiatric disorders (Tr. 52); or diabetes (Tr. 54); or pancreatitis (Tr. 55). Dr. Cordaro testified that the tablets might help in cases of osteoporosis during menopause but that its effect would depend on whether the calcium deficiency were due to a problem with utilization, as opposed to a lack of same in the diet (Tr. 55).
11. Lastly, Dr. Cordaro testified that his testimony reflects the consensus of informed medical opinion (Tr. 55(a)-55(b)).
12. Dr. William Troy Raney, brother-in-law of respondent's promoter, Loys Raney, testified for respondent. Dr. Raney is a medical doctor specializing in family practice. Dr. Raney had found a Squibb vitamin product, Theragran-M, helpful to some patients for particular problems (Tr. 75, 76). Based upon 29 years of medical practice and feeling that Theragran-M had been a reliable product, he chose a vitamin tablet identical to Theragran-M when his sister-in-law and brother wanted to find a product to market (Tr. 75). In preparing for respondent a statement of therapeutic benefit available from use of the product he used the claims made by Squibb for Theragran-M as contained in the 1973 edition of Physician's Desk Reference (PDR) (Tr. 76, 84). He testified that the claims made in respondent's advertising (Ex. D(2)) are very closely related to what was said in the 1973 PDR concerning Theragran-M (Tr. 84). On cross-examination Dr. Raney acknowledged that PDR, for reasons he did not know, no longer contains the Squibb claims relating to Theragran-M. He agreed that the elimination of such claims might have been for the reason that Squibb had decided they were not correct (Tr. 115).
13. Dr. Raney testified that a lay person is not able to diagnose most of the diseases and conditions mentioned in respondent's advertising. Dr. Raney was in general agreement with Dr. Cordaro that with the exception of scurvy, beriberi, pellagra and iron deficiency anemia the conditions and diseases listed in respondent's advertising cannot be cured or effectively treated using only respondent's product.
14. Respondent's other expert witness, Dr. Larry David Milne, a registered pharmacist and Dean of the College of Pharmacy at the University of Arkansas for Medical Sciences, was also in essential agreement with Dr. Cordaro and Dr. Raney as to the limited number of diseases and conditions that might be cured or effectively treated using the ingredients in respondent's product (Tr. 156). However, he stated that cure or effective treatment of such diseases would probably require large doses of the ingredients (Tr. 156). Dr. Milne acknowledged that respondent's advertisements would be inaccurate if interpreted to represent that the product, used alone, would cure or effectively treat all the diseases and conditions mentioned therein (Tr. 159).
15. Based on the testimony of Drs. Cordaro and Raney, I find that lay persons generally are not capable of diagnosing the conditions and diseases mentioned in respondent's advertising.
1. The meaning of advertising representations is to be judged from a consideration of an advertisement in its totality and the impression it would most probably create in ordinary minds. Donaldson v. Read Magazine , 333 U.S. 178 (1948); Vibra-Brush Corp. v. Schaffer , 152 F. Supp. 461 (S.D.N.Y., 1957); Borg-Johnson Electronics v. Christenberry , 169 F. Supp. 746 (S.D.N.Y., 1959). Express representations are not required. It is the net impression which the advertisement is likely to make upon purchasers to whom it is directed which is important, and even if an advertisement is so worded as not to make an express representation, if it is artfully designed to mislead those responding to it the mail fraud statutes are applicable. G. J. Howard v. Cassidy , 162 F. Supp. 568. See also Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council , 425 U.S. 748 (1976).
"Advertisements as a whole may be completely misleading although every sentence separately considered is literally true. This may be because things are omitted that should be said, or because advertisements are composed or purposefully printed in such way as to mislead." Donaldson v. Read Magazine , supra , p. 188.
2. A reader possessing an ordinary mind would probably believe from a reading of respondent's advertisements (Cplt. Exs. A, B & C) that in exchange for a 15 cent stamp he would receive respondent's plan or product for cure of arthritis. This representation is false. In exchange for the 15 cent stamp, one who answers the advertisements receives only a piece of promotional literature for respondent's product which can be obtained for prices ranging from $4.98 to $65.00 depending on the quantity ordered.
3. Respondent's promotional literature (Cplt. Exs. D(1) and D(2)) states explicitly that the ingredients of its product are used by doctors for the purposes described in the literature. Based on the testimony of Dr. Raney these statements may be literally true. But they imply that the lay person buying the product can, using only the product, cure or effectively treat the diseases and conditions listed in the literature. This implication contains two elements of falsity. First it conveys to the ordinary mind the impression that the lay person is competent to perform self-diagnosis of the conditions and diseases listed. The medical testimony is to the effect that such an impression is false, with unimportant exceptions. The second element of falsity is that the product will cure or effectively treat such conditions and diseases. With the possible exceptions of iron deficiency anemia, scurvy, beriberi, and pellagra, none of which can be diagnosed with any degree of certainty by lay persons, the medical testimony is clear that, the product will not in and of itself cure or effectively treat such diseases and conditions.
4. 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 in violation of 39 U.S.C. 3005.
5. The money back guarantee does not dispel the effect of respondent's false representations. Borg-Johnson Electronics v. Christenberry , supra .
6. An order pursuant to 39 U.S.C. 3005 in the form attached should be issued.