In the Matter of the Complaint Against CIRCULATION P. O. Box 8302 at South Charleston, WV 25303 and P. O. Box 8302 at South Charleston, WV 25303 P.S. Docket No. 8/111; 08/26/80 Grant, Quentin E. APPEARANCE FOR COMPLAINANT: Kris tin L. Malmberg, Esq. Consumer Protection Office Law Department United States Postal Service Washington, D.C. 20260 APPEARANCE FOR RESPONDENT: John Boettner, Jr., Esq. Boettner, Campbell & Crane 1115 Charleston National Bank Charleston, WV 25301 (in pleadings only)
In a complaint filed June 4, 1980 Complainant alleges that Respondent is violating 39 U.S.C. Section 3005 by seeking remittances of money or property through the mails by means of false representations in advertising that its product: (a) will cure cramps no matter what the cause; (b) will provide relief from cramps no matter what the cause; (c) will cure hemorrhoids; and (d) will provide relief from hemorrhoids.
Respondent filed an answer to the complaint denying all allegations thereof except that it admits that the advertisement attached to the complaint as Exhibit A is typical of its advertisements. Respondent stated in its answer that it would not appear at the hearing in person or by counsel and requested that the matter be submitted for determination pursuant to Section 952.11(b) of the rules. The matter came on for hearing on July 30, 1980 at 10:00 A.M. Complainant's evidence has been received and the following findings of fact and conclusions of law are made.
1. By means of advertisements such as the following, Respondent seeks remittances of money or property through the mails for its product consisting of a four-page brochure with recommended treatments for cramps and hemorrhoids (Tr. 3-6; CX 1-5).
CIRCULATION, CRAMPS, hemorrhoids
P.O. Box 8302, South Charleston, WV 25303
$1.50.
2. Although Respondent's advertisement does not contain the words "cure" or "relieve" the only reasonable interpretation which could be given the advertisement by the ordinary mind is that the recommended treatments will cure or provide relief for cramps and hemorrhoids.
3. The product recommends biting the lip to provide relief for cramps. It prescribes application of a homemade salve consisting of three parts lard and one part kerosene as a remedy for, or relief of hemorrhoids.
4. Vincent F. Cordaro, M.D. testified as a medical expert witness for Complainant. According to Dr. Cordaro cramps are experienced most commonly by swimmers and by elderly persons during sleep at night. They are caused by unfamiliar use of muscles, overstretching of muscles and lack of oxygen. Quinine sulfate is often prescribed for relief of cramps in the elderly. Cramps experienced by swimmers will disappear unaided, once swimming is discontinued, or by massage.
Dr. Cordaro testified that biting of the lips might distract attention from the pain of cramps but will not provide any true relief or cure. Dr. Cordaro testified that hemorrhoids are ordinarily caused by pregnancy or by pressure on the plexus of nerves at the lower rectum and anus due to straining to overcome constipation. They are treated surgically or by injection or topical application of anesthetics. The homemade salve prescribed by Respondent is unheard of in medicine and would not be an effective cure or provide relief for hemorrhoids. At most the kerosene might substitute one pain for another.
5. Based on the testimony of Dr. Cordaro, which he stated is in conformity with the medical consensus, I find that the representations made by Respondent found above are false in fact and materially so in that their natural effect is to induce purchases of the product.
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 Electronic 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 Council, 425 U.S. 748 (1976).
2. Applying the foregoing standards, I find that Respondent's advertisements make the representations alleged in the Complaint.
3. The representations found are materially false in fact.
4. Testing of the product is not required to sustain a Complaint under 39 U.S.C. § 3005. Without it, the opinion of a medical expert is sufficient evidence of falsity of advertising claims. Original Cosmetic Products, Inc. v. John Strachan and United States Postal Service, 459 F. Supp. 496 (S.D. N.Y. 1978) aff'd w/o Op. 2d Cir., 78-6165, 4/30/79.
5. Respondent is engaged in the conduct of a scheme for obtaining remittances of money through the mails by means of materially false representations in violation of U.S.C. § 3005.
6. An order pursuant to 39 U.S.C. § 3005 in the form attached should be issued against Respondent.
____________________