In the Matter of the Complaint Against E.R.R. P. O. Box 344 at Cleveland, TN 37311 P.S. Docket No. 7/89 October 31, 1979 William A. Duvall Chief Administrative Law Judge Kristin Malmberg, Esq., Law Department United States Postal Service Washington, DC 20260, for Complainant Elmer R. Renner, E.R.R., P. O. Box 344, Cleveland, TN 37311, for Respondent Before: William A. Duvall, Chief Administrative Law Judge
1/In a complaint filed on September 10, 1979, the Consumer Protection Division of the General Counsel's Office, Law Department, United States Postal Service, the Complainant, charged that E.R.R. at Cleveland, Tennessee, the Respondent, was engaged in conducting a scheme for obtaining money through the mail in violation of Title 39, United States Code, Section 3005.
It was charged that public attention is attracted to the scheme by means of advertising matter distributed to the public which is calculated and intended to induce readers thereof to remit money or property through the mails to the Respondent. A copy of one of Respondent's advertisements was attached to the Complaint as Exhibit A. A copy of that advertisement is attached to this decision as Appendix A.
Complainant further charged that by means of this advertisement Respondent expressly or impliedly represents to the public in substance or effect that the product promoted in Exhibit A, now Appendix A, is effective to cure arthritis, and secondly, that the product promoted in Appendix A is effective to provide relief from arthritis.
Finally, it was charged that the aforesaid representations were materially false as a matter of fact.
Respondent filed an Answer on September 27, 1979, in which Respondent, first, admits advertising in newspapers to offer help to arthritis sufferers, but he denies existence of a scheme. In the Answer the Respondent admits that Exhibit A attached to the Complaint is a correct copy of advertising material used by the Respondent.
In the Answer, also, Respondent says that everyone knows there is no cure for arthritis, so there is no foundation for the charge which had been quoted above as paragraph III (a) of the Complaint. The Respondent says that his product does provide relief for arthritis sufferers so he denies the falsity of this representation.
He denies that the representations set forth in the Complaint are materially false as a matter of fact.
The Respondent concludes his answer by saying that he has lost money in this venture. From this fact he proceeds to state that if he were promoting a scheme he would not continue in a losing business. He states that the reason for his continuing in this business is the information that he receives from arthritics indicating that they have received help and relief from pain by following the instructions which he furnishes to them.
1. Based upon the statements in the Respondent's Answer to the Complaint, and based upon Appendix A, which is a copy of the advertisement, and based upon Complainant Exhibits 4 through 7, which consist of evidence showing that a test purchase was made through the mail of the product being sold by the Respondent, I find that the Respondent is in the business of selling through the mails information represented to be beneficial to arthritis sufferers.
2. In the conduct of this business Respondent utilizes newspaper advertising as illustrated by Appendix A and as further illustrated by Complainant's Exhibits 2 and 3.
The capacity of an advertisement to mislead is determined by considering it in the light of the effect it would most probably produce in the minds of the readers. Donaldson v. Read Magazine , 333 U.S. 178.
In Gottlieb v. Schaffer , D.C.N.Y. 1956, 141 F. Supp. 7, the Court held that the statute is aimed at protecting the public, which the Court defined as including "the unwary and unsuspecting as well as the knowledgeable and worldly wise, those who are trusting as well as the suspicious."
3. Keeping in mind the foregoing criteria, a fair reading of the Respondent's advertising matter discloses that Respondent makes the representations substantially as alleged in the Complaint.
4. In its advertising matter Respondent seeks remittances of money through the mail for his product.
5. Respondent's product (Comp.'s Ex. 8) consists of a one-page instruction sheet bearing the caption "ARTHRITIS-RHEUMATISM", in approximately 36-point type. The instructions to the reader are to take one tablespoon of pure cod liver oil, no tablets or capsules, undiluted, or mixed with 2 ounces of either fresh orange juice or milk. This mixture is to be taken four hours after the evening meal. The purchaser is told to eat nothing for four hours afterward. Relief should be apparent in from one day to six weeks. After improvement has been experienced, the purchaser should follow the instructions two or three times per month. The instruction sheet also advises the purchaser that "faith is a big help." It does not say whether faith should be in the product or in the diety.
6. a. According to the testimony of Complainant's witness, Dr. Vincent F. Cordaro, a qualified medical doctor, there are several kinds or varieties of arthritis. The most common variety of arthritis is rheumatoid arthritis which can occur to persons of any age. Osteo-arthritis occurs primarily in older persons. It is a concomitant of the aging process. Infectious arthritis is caused by some infecting organism which has invaded the body. Gouty arthritis is the result of the collection of uric acid crystals in the joints of the bones of the body.
b. The treatment of arthritis varies according to the type of the disease which the individual has. The treatment of rheumatoid arthritis includes the following procedures: at the head of the list is dosage with aspirin as a means of relieving pain; next in order is treatment by injections of cortisone or the taking of cortisone tablets; another method of treatment has been the use of gold injections; and other remedies employed have been immune reaction treatments, mild exercise, weight reduction for overweight persons and diet to maintain a generally healthy condition.
The treatment of gouty arthritis is by the taking of a product known as Allopurinol which serves to metabolize uric acid which otherwise would collect in the joints. The treatment of infectious arthritis depends upon the procedure necessary to treat particular infections which are present in the joint.
c. In the treatment of arthritis, it is necessary, or certainly it is desirable, that the treatments be started as early as possible to prevent the spread of the condition or to reduce the progress of the disease. In the case of the gouty arthritis the objective, of course, is to produce a complete cure, as can be done with this form of arthritis. In order to begin the proper therapy promptly, it is necessary that there be a proper diagnosis so that the type of arthritis with which the individual is afflicted can be correctly identified. This is not an easy matter. It is not a matter which is to be performed by non-professionals. The diagnosis should be made by physicians who are thoroughly skilled and knowledgeable with respect to this disease.
7. a. The medical witness examined Complainant's Exhibit 8 which is the instruction sheet furnished to remitters by Respondent. With respect to the cod liver oil, it was the testimony of the medical expert that oil would not go to a joint. He expressed the rather fervent hope that it would not go to a joint for the reason that if it did it would be extremely painful and could possibly lead to degeneration of the joint.
b. The vitamin primarily present in cod liver oil is vitamin D and there is some vitamin A. Neither of these vitamins is of any value in the treatment of arthritis.
c. The digestion of oil by the human body is accomplished by means of a very complex process. Oil is digested through the small intestine and it is then absorbed through the lymphatic system, from whence it eventually goes to the liver.
8. The remedy recommended and sold by the Respondent will not cure or provide relief for arthritis.
9. The opinions expressed by the medical witness in this case are in conformity with the consensus of the informed medical and scientific opinion.
10. Based on the testimony of the medical expert, it is found that the following of Respondent's instructions as directed in Complainant's Exhibit C by persons suffering with arthritis and rheumatism will not, as alleged in the Complaint, produce the results represented in Respondent's advertising matter. The representations set forth in the Complaint, therefore, are materially false in fact.
11. At Respondent's request, Complainant's Counsel offered into evidence the book entitled "Arthritis and Common Sense" by Dale Alexander. The offered book was rejected because the author is not shown to be a medical doctor, the expert medical witness testified that he is not familiar with the author, and that the witness has never encountered the author's name in any of the witness's research into the pertinent scientific literature.
1. Respondent is engaged in conducting a scheme or device for obtaining money or property through the mail by means of materially false representations within the meaning of Section 3005, Title 39, United States Code.
2. That persons following Respondent's instructions may obtain some relief due to the placebo effect is no defense to a proceeding of this sort. Original Cosmetic Products, Inc. , and Love Song Cosmetics, Corp. , P.S. Docket No. 4/120, August 23, 1976; Original Cosmetic Products, Inc., et al. v. John Strachan, Postmaster, et al. , 76 CIV. 4111 (LBS), DC, SDNY, July 13, 1978, affirmed No. 78-6165, CA 2, April 30, 1978.
3. An order pursuant to 39 U. S. Code 3005, in substantially the form attached, should be issued against this Respondent.