In the Matter of the Complaint Against MR. BOLD COMPANY and L. S. KING, P. O. Box 233 and TERRI-L PRODUCTS, P. O. Box 335 at Mantua, NJ 08051 P.S. Docket No. 7/97 December 11, 1979 William A. Duvall Chief Administrative Law Judge H. Richard Hefner, Esq., Law Department United States Postal Service Washington, DC 20260, for Complainant L. S. King , 1/ P. O. Box 233, Mantua, NJ 08051, Respondent Before: William A. Duvall, Esq. , Chief Administrative Law Judge
2/This proceeding was initiated on October 17, 1979, by the filing of a complaint in which it was alleged that Mr. Bold Company and L. S. King, P. O. Box 233, Mantua, New Jersey and Terri-L Products, P. O. Box 335 at Mantua, New Jersey, are engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations in violation of Section 3005 of Title 39, United States Code.
It is alleged that public attention is attracted to this scheme by means of advertising matter distributed to the public which is calculated and intended to induce readers thereof to remit money through the mails to Respondent.
The product involved in this proceeding is a pill called "Alpha 1". The Complainant alleges that by means of its advertising material Respondent expressly and impliedly represents to the public in substance and effect as follows:
(a) ALPHA 1 is an effective aphrodisiac or sexual stimulant.
(b) ALPHA 1 is peculiarly effective for older persons.
(c) ALPHA 1 will prevent, retard and reverse the physical ailments associated with the process of aging.
(d) ALPHA 1 represents a "newly found formula" (i.e., the product differs significantly from all other vitamin/mineral tablets.)
Complainant further alleges that the foregoing representations are materially false in fact.
Respondent, in the answer to the Complaint, admits the use of the advertisements attached to the Complaint. Exhibits A and B to the Complaint, which are copies of Complainant's Exhibits 1 and 5, are attached to this decision as Appendices A and B.
Respondent, answering further, says that the refund it offers demonstrates that the Respondent is not engaged in a scheme. Terri-L mails Mr. Bold Company's promotional material and fills orders received in response to such material. When, in response to Mr. Bold Company advertising material, Terri-L ships order of "Alpha 1", Terri-L includes its own advertisements.
Respondent states in its answer that Terri-L is not part of a scheme, but that it is a legitimate vitamin/mineral business. Respondent concludes its answer by analyzing the statements made in Appendix A and stating that they do not make the representations which are set forth in the Complaint.
1. Respondent is engaged in obtaining money or property through the mails for a product, namely the pill called "Alpha 1". (Appendices A and B, paragraph one of the Answer, and the testimony of Inspector Powers with respect to the solicitation and test purchase)
2. Attention is attracted to the product by advertising material seeking remittances of money through the mails for the product. (Appendices A and B to this decision; answer paragraph one)
3. a. Respondent makes the representation that "Alpha 1" is an effective aphrodisiac or sexual stimulant in the following language in Appendix A:
"The daily taking of the pills tends to build up and strengthen the natural physiological processes of the mind that are believed to be basically responsible for giving the body its sexual potency, youthfulness, health and long life. 'Thank you' letters keep pouring in and the high percentage of satisfied users is so much greater than we could have ever hoped for. We just can't believe it ... but it is true ... we finally found a pill that does work for most all people."
In this connection, there is to be considered the further statement:
"These capsules are not to be misconstrued as an aphrodisiac. They are considered a placebo when used with sexual thought and are used to supplement what vitamins/minerals you may lack for 'normal healthy body functions.'"
b. Respondent does represent that "Alpha 1" is peculiarly effective for older persons, first by stating in the third paragraph of Appendix A that for over 18 years Respondent has "been in the business of aiding those people who are in need of help due to the many problems that can arise from aging."
The statement just quoted is followed shortly thereafter by suggesting that "Alpha 1" strengthens the physiological processes of the mind which are believed to be "basically responsible for giving the body its sexual potency, youthfulness, health and long life." It might be added parenthetically that the seller of this product does not explain precisely what the physiological processes of the mind are. It might be interesting to hear such an explanation.
c. The language quoted in a. and b., above, from Appendix A establishes that Respondent represents that "Alpha 1" will prevent, retard and reverse the physical ailments associated with the process of aging.
d. Respondent does represent that "Alpha 1" differs significantly from all other vitamin/mineral tablets and that it is a newly found formula by the use of the following language in Appendix A: At the top are these words "ANNOUNCING]]] AT LAST]]]". Shortly after the last quotation is the following language:
"Sometime ago we discovered 'Alpha 1' our newest found formula."
4. The representations found to have been made by the Respondent are material representations because they are of the character, and the content, which would induce readers to purchase Respondent's product.
5. In support of its allegations as to the material falsity of Respondent's representations, Complainant relied principally upon the testimony of Vincent F. Cordaro, a medical doctor whose curriculum vitae was received in evidence as Complainant's Exhibit
7. This statement of the training and experience of Dr. Cordaro establishes that he is qualified to testify in the area of medicine which is involved in this proceeding.
In further connection with this point, Dr. Cordaro testified that he has studied nutrition, that he has for a period of many years read the current literature on the subject of nutrition, that he discusses nutrition and human sexuality with his colleagues in the medical profession, and also with his colleagues at the Food and Drug Administration with which he presently holds a position, and that he hears discussions on these topics at seminars and medical meetings which he attends.
The ingredients of the product being sold by this Respondent are not new products by any means. (Ingredients shown on envelope containing product which is part of Comp. Ex. 6) It was the testimony of the expert that when he was graduated from medical school in 1937 those products were known and being offered to the public at that time. For at least forty years these products have all been available on the market. There is no basis for any claim that this product constitutes a newly found substance.
Similarly, there is nothing in the products which would serve to stimulate human sexual desire or the capacity of humans to engage in sexual activity. The doctor sought to avoid the use of the word "aphrodisiac" because he said that there is no such substance which may be taken which would perform the function which is ascribed to that which would be an aphrodisiac, namely, intensifying more than normal sexual feeling or increasing one's capacity to engage in the sexual act. In any event, Respondent's product does not accomplish those purposes.
There, also, is nothing in Respondent's product which would make them peculiarly effective for older persons, nor is there any reason or basis for the belief or the statement or the suggestion that "Alpha 1" will prevent, retard or reverse the physical ailments associated with the process of aging.
6. The medical testimony given by the medical expert in this proceeding is in conformity with and reflects the consensus of modern medical and scientific opinion.
In his answer the Respondent argued that because some persons may be led to believe that they receive improvement in their physical conditions by virtue of the placebo effect, there is no misrepresentation involved in the manner of the sale of Respondent's product.
This argument has been previously rejected in both court decisions and in final decisions of the Postal Service. It is rejected here. (See Stauffer Laboratories v. F.T.C. , 343 F.2d 75 (9th Circuit, 1965); Original Cosmetic Products, Inc. v. Strachan , 459 F. Supp. 496 (S.D.N.Y. 1978, affirmed, Docket No. 78-6165, April 30, 1979); GeGe Cosmetics, Inc. , P.S. Docket No. 6/49 (P.S.D. 1978); Manual Garcia Imports , P.S. Docket No. 5/127 (P.S.D. 1977)).
Accordingly, the fact that the placebo effect may occur in the case of some users does not support the efficacy of the product or the truthfulness of Respondent's representations.
1. An advertisement must be considered as a whole and its meaning must be determined by the impression it creates upon the mind of the average reader. ( Donaldson v. Read Magazine , 333 U.S. 178)
In the consideration of advertising material it must be kept in mind that "it is not each separate word or a clause here and there of an advertisement which determines its force, but the totality of its contents and the impression of the entire advertisement upon the general populace.*** The ultimate impression upon the reader results not only from the total of what is stated but also from what is reasonably implied". ( Vibra-Brush Corporation v. Schaffer , U.S.D.C., S.D.N.Y., 152 Fed. Supp. 461 at page 465.)
2. When applying the foregoing criteria to the representations made by the Respondent, it is found that the Respondent does make the representations which are set forth in paragraphs 3. a., b., c. and d. of the Complaint.
3. The opinion of doctors which is in consonance with medical knowledge gained over years of experience is entitled to great credence. ( Reilly v. Pinkus , 338 U.S. 269.)
4. The uncontradicted testimony of one qualified medical expert establishes a universality of medical opinion on the crucial issues. ( U. S. Health Club v. Major , 292 F.2d 665.)
5. The evidence in this proceeding establishes that the representations found to have been made by the Respondent are material representations.
6. Based upon the testimony of the expert medical witness called by Complainant, it is concluded as a matter of law that the Respondent's representations are false in fact.
7. Mr. Bold and L. S. King are simply parts of the "device" employed by Terri-L Products in the conduct of its scheme.
8. 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, substantially in the form attached, should be issued against this Respondent.