In the Matter of the Complaint Against NUTRITION HEADQUARTERS, INC. 104 West Jackson St. Carbondale, IL 62901 P.S. Docket No. 12/156; 06/14/82 Mason, Randolph D. APPEARANCE FOR COMPLAINANT: Thomas A. Ziebarth, Esq. Consumer Protection Division Law Department U.S. Postal Service Washington, DC 20260 APPEARANCE FOR RESPONDENT: Robert Ullman, Esq. Bass, Ullman & Lustigman 747 Third Avenue New York, New York 10017
This proceeding was initiated on November 13, l981, when the General Counsel filed a complaint against Nutrition Headquarters, Inc. ("Respondent"). The complaint alleged that Respondent is engaged in conducting a scheme or device to obtain money or property through the mails by means of false representations in violation of 39 U.S.C. § 3005 (1976). It is further alleged that Respondent represents in its advertising that the product Manotex relieves the symptoms of benign prostatic hypertrophy ("BPH"), and that this representation is materially false. Complainant requests that a mail stop order conforming with 39 U.S.C. § 3005 (a)(1) and (2) be issued against Respondent. Respondent denied the allegations of the complaint.
A hearing was held by the undersigned on March 30 and 31, l982, in Washington, D.C. Both parties were represented by counsel and afforded full opportunity to be heard, adduce relevant evidence, and examine and cross-examine witnesses. Both parties filed proposed findings of fact and conclusions of law which have been duly considered. To the extent indicated below, proposed findings and conclusions have been adopted; otherwise, they have been rejected as irrelevant or contrary to the evidence. Based on the entire record herein, including my observation of the witnesses and their demeanor, the exhibits and other relevant evidence adduced at the hearing, I make the following findings of fact and conclusions of law:
1. Nutrition Headquarters, Inc., ("Respondent") seeks remit tances of money through the mails by means of its advertisement for the product Manotex (Stip., Tr. 87; Exh. C-1).
2. Manotex is composed of three nonessential amino acids (Tr. 92). Each six-grain capsule contains glutamic acid, alanine and aminoacetic acid (glycine) (Exh. C-2; Tr. 87).
3. Manotex is made from the same formula s Urex, Prostex, and Prostall. The latter products have been the subject of other liti gation: United Pharmacal Corp., POD Docket No. 1/162 (Urex); Uxbridge Products Company, PS Docket No. 2/199 (1974) (Prostex); and U. S. v. Metabolic Products Corp., C.A. No. 61-570-5, (D. Mass. 1962) (Urex, Prostex, and Prostall) (Stip., Tr. 88).
4. Respondent purchases Manotex from Quincy Pharmacal, which is owned by an individual who until February of 1979 was in charge of manufacturing and shipping operations at Metabolic Products Corporation (Stip., Tr. 88-89).
5. In United Pharmacal Corporation, P.O.D. Docket No. 1/162, the General Counsel alleged in the complaint, in part, that it was fraudulent to represent that Urex would relieve symptoms of benign prostatic hypertrophy "regardless of the cause, nature or extent of the condition." (Respondent's brief, Appendix A; official notice). By consent agreement in 1960 United was permitted to represent that the product "should be used only in the treatment of benign prostrate hypertrophy after proper diagnosis by a physician" but could not represent that the product was efficacious in the treatment of malignancy of the prostate (Exh. R-14). It was further agreed that the General Counsel could institute additional proceed ings if, in his opinion, he found "changed facts and circumstances" warranting such proceedings (id.). The following events constituted such "changed circumstances": (1) the product was held ineffective in the treatment of BPH in United States v. Metabolic Products Corp., C. A. No. 61-570-S (D. Mass. 1962); (2) 1970 amendments eliminated the requirement of fraud from the instant statute (39 U.S.C. § 3005); and (3) experts testified that the product was ineffective in Uxbridge Products, Company, P.S. Docket No. 2/199 (1974).
6. In Uxbridge, supra, as in the instant case, the General Counsel alleged, inter alia, that it was false to represent that the same product (then known as Prostex) was effective in relieving the symptoms of simple BPH. The Acting Judicial Officer found it unnecessary to decide that issue.
7. As alleged in paragraph 3(a0 of the Complaint, Respondent's advertisement (Exh. C-1) represents that the use of Manotex relieves the symptoms of BPH. The following quotations from the advertise ment make this clear:
A scientific formula of pure food substances for relieving the symptoms of Benign Prostatic Hypertrophy.
...before using Manotex for the relief of symptoms due to Benign Prostactc Hypertrophy, such as frequency, nocturia (getting up nights), abnormal retention, and dribbling....
Manotex is only effective in relieving the symptoms of Benign Prostatic Hypertrophy.
...the exact reasons why Manotex often furnishes welcome relief to many men suffering from the distresses of this ailment are not known.
The use of Manotex capsules indicates many advantages:
Manotex capsules may be used with expected benefits in many cases of Benign Prostatic Hypertrophy.
Manotex capsules often relieve urinary frequency, abnormal retention, urgency, nocturia, and dribbling if due to Benign Prostatic Hypertrophy.
8. The above representation is also made when the advertisement speaks of medical studies demonstrating the "effectiveness" of the Manotex formula for relieving the symptoms of BPH in a majority of cases. Moreover, the label on Respondent's product states that it is "for relief of symptoms of Benign Prostatic Hypertrophy, such as frequency, nocturia, continence of urine, urgency and dribbling" (Exh. C-2; Tr. 6).
9. Respondent's advertisement correctly indicates that the symptoms of BPH may be the same as the symptoms of other conditions (Tr. 97).
10. A layman would not be able to diagnose or determine, with out reference to expert medical diagnosis, whether his particular condition is due to BPH or one of the other conditions enumerated in the advertisement (Tr. 97-98). The advertisement advises the reader to see a doctor before using Manotex to determine if BPH is the cause of his symptoms (Exh. C-1).
11. BPH is an enlargement of the prostate gland. This enlargement begins around the periurethral gland in the area closest to the uretha. Urine crosses the uretha after it leaves the bladder. The growth will be either in the gland itself (glandular hyperplasia) or in the stroma tissue between the glands (stroma hyperplasia). The growth may also occur in both the gland and the stroma tissue (Tr. 8-9).
12. Growth of the gland can result in urethral obstruction of the flow of urine. This can cause symptoms such as frequency of urination, noctria, abnormal retention of urine, urgency, and dribbling (Tr. 9, 10).
13. The condition of enlarged prostate gland is frequent in males over the age of 50 (Tr. 38). The growth of the gland is not linear, i.e., it does not occur at a given rate over a given period of time, but has periods of both growth and plateau (Tr. 98). The symptoms of obstruction of urinary flow also vary; thus the natural history of the disease and its symptoms is variable (Tr. 98-99).
14. The symptoms of BPH frequently disappear for periods of time without any medical intervention (Tr. 99). This is particu larly true if one of the concomitant conditions that also give the same symptoms is superimposed on the simple mechanical enlargement of the gland. Infection of the prostrate or the bladder exacerbates the symptoms, and when the infection subsides, the symptoms are relieved (Tr. 99).
15. The precise pathogenesis of BPH is unknown; however, it is now thought the growth of the prostate is directed by the hormone testosterone, which is produced by the leydig cells within the testicle. The latter cells are under the influence of the pitutiary gland at the base of the brain. Testosterone has a direct effect on all of the male sexual organs, including the prostate. Diseases of the leydig cells often result in a small prostate which does not develop (Tr. 7-8).
16. BPH is usually diagnosed initially by an internist by means of a digital rectal examination. Since such an examination includes only the posterior portion of the gland, which is not usually affected in BPH, such an examination is only a rough gauge to deter mine the size of the prostate (Tr. 11-12). As previously indicated, an enlarged prostate usually results in a urethral obstruction of the prostatic uretha (Tr. 12).
17. Urethal obstruction is properly determined by means of (l) a cystoscope or urethroscope, or (2) by using a catheter and measuring the amount of residual urine remaining in the bladder after voiding. These are standard procedures employed by urologists in making such examinations (Tr. 13).
18. The symptoms of BPH are also manifested in a variety of other diseases involving the kidneys, ureters, and the bladder, including inflammatory, infectious and neoplastic (cancerous) conditions. In this regard, infections of the areas around the prostate are common (Tr. 99). The above conditions may produce either some or all of the symptoms of BPH. A typical layman would be unable to distinguish between BPH and the other diseases mentioned above (Tr. 11).
19. There is no generally accepted medical treatment for BPH (Tr. 102-103).
20. During the past 20 years, medical knowledge regarding the pathogenesis of BPH has changed. The importance of hormonal interplay with the prostate gland is a fairly recent development, and the use of anti-androgens is being studied. Moreover, new discoveries have been made relating to the stroma or supporting tissue network in which the glandular cells and ducts are situated (Tr. 103, 127-128).
21. The only accepted method for treating BPH is surgery (Tr. 15). However, surgery is only recommended in the more severe cases of BPH. When patients have only minimal symptoms of BPH, the doctor merely establishes whether or not an infection is present. In this regard, the presence of residual urine frequently results in infection (Tr. 16).
22. Where no infection is present, the doctor merely recom mends certain restrictions of diet and fluid intake (Tr. 61). In this regard, alcohol and spicy foods are eliminated from the diet because they tend to irritate the base of the bladder where the prostate is located. Szechwan and Mexican food also cause fre quent urination (Tr. 16). Also, by reducing fluid intake, the symptoms of frequency and nocturia can be controlled (Tr. 42).
23. As previously indicated, patients with BPH frequently report intermittent periods of time during which their symptoms are alleviated. This is so because the disease develops gradually over a long period of time and typically involves cyclical instances of remission (Tr. 19). Remission occurring after ingestion of a medication such as Manotex can also be due to the placebo effect (Tr. 19-20).
24. It is generally accepted that an individual requires 65 grams of average-quality protein per day to meet nutritional needs, however, when high-quality protein in consumed, an individual requires only 40 or 45 grams per day (Tr. 171, 175). The average American diet usually contains more than 65 grams and can range up to 120 grams (Tr. 110).
25. Amino Acids are the building blocks of protein. There are about 22 amino acids, eight of which are called "essential." An essential amino acid is one which the body cannot make out of the building blocks available to it and, therefore, it must be present in food which is eaten (Tr. 92).
26. The amino acids found in Manotex (glutamic acid, alanine and glycine) are widely present in food typically consumed in the United States. They are "nonessential" amino acids, which are produced by the body in an indigenous manner by conversion of one amino acid into another. These amino acids are present in large quantities in persons having an adequate diet (Tr. 17-18; 70-71; 93).
27. A normal, well-balanced diet provides approximately 20 to 40 grams per day of the amino acids found in Manotex (Tr. 29, 93-94, 152). In contrast, Manotex, when taken as prescribed, provides only about 2.5 grams of these amino acids each day during the first three weeks, and 1.25 grams per day thereafter (Tr. 29-30).
28. Essential amino acids play a role in the body's ability to manufacture the nonessential amino acids (Tr. 136). Thus, when essential amino acids are not ingested in the proper amounts, the body may have difficulty manufacturing the nonessential amino acids (Tr. 136).
29. Estimation of protein allowances in man are intended to apply to healthy individuals. Superimposed infection, alternate gastrointestinal function and the metabolic changes which often accompany any chronic disease states would all be expected to reduce dietary efficiency. Since elderly people are more commonly affected by these factors, an increase in the amount of protein may be necessary to maintain protein nutritional status (Tr. 158).
30. Individuals over the age of 60 often have poor food habits because of physical disabilities, lack of mobility necessary to purchase food, and a decreased interest in food preparation (Tr. 169). About 21% of the male population over the age of 60 consumes less than 50 grams of protein per day (Tr. 74, 170). However, nutritional surveys have demonstrated that elderly people do not typically have dietary protein deficiencies (Tr. 156).
31. Generally speaking, the pharmacological effect upon the body is the same when amino acids are administered in their pure, "free" form and when they are ingested in the form of food stuffs (Tr. 137, 92, 93).
32. There are two amino acids (triptophan and tyrosine) which are known to produce a different effect when taken in their pure form; however, these are not contained in the product Manotex. The amino acids in Manotex have the same effect whether ingested in pure form or bound in food (Tr. 93, 201, 202, 205, 210).
33. The use of amino acids in their free form (as opposed to bound in food) is generally desirable only for patients with gastrointestinal abnormalities or abnormalities of digestive organs (Tr. 149). An individual with BPH normally has no problem with the ingestion, digestion, and use of amino acids and proteins bound in food (Tr. 181).
34. The amino acids found in Manotex will not relieve the symptoms of BPH (Tr. 18, 16-17, 105, 188). Therefore, Respondent's representations as to the effectiveness of Manotex for this pur pose are false.
35. The above findings are in conformity with the informed medical and scientific consensus (Tr. 30, 114).
36. The false representations set forth above are material because they have the effect of inducing individuals to remit money through the mail in order to purchase the product.
1. The first issue presented for consideration is whether Complainant should be precluded from bringing the instant action because of a consent agreement executed in 1960 with respect to the case of United Pharmacal Corp., P.O.D. Docket No. 1/162. Although United and Respondent Nutrition Headquarters, Inc., are apparently unrelated companies 1/ , that case involved representations concerning "Urex," which is the same product at issue in the instant case with a different name. The complaint in United, of which I have taken official notice, alleged that it was fraudulent to represent that the product would relieve BPH symptoms" regardless of the cause, nature or extent of the conditions." Complainant settled the case by allowing United to represent that the product "should be used only in the treatment of BPH after proper diagnosis by a physician" but that it could not be represented that the product was efficacious in the treatment of malignancy of the prostate. It was further agreed that the General Counsel could institute additional proceedings if, in his opinion, he found "changed facts and circumstances" warranting such proceedings (Exh. R-14).
2. The First Circuit has previously held that the 1960 con sent agreement with United did not preclude a subsequent action by Complainant against Uxbridge Products Company. Kurzon v. United States Postal Service, 539 F.2d 788 (1st Cir. l976). The com plaint in the latter case alleged, inter alia, that it was false to represent that the same product (then known as "Prostex") was effective in relieving the symptoms of BPH. The same allegation is made in the instant case with respect to the same product, now known as "Manotex." The First Circuit held that the District Court's decision in United States v. Metabolic Products Corp., C.A. No. 61-570-S (D. Mass. 1962) (same product held not effective in treatment of BPH) and the 1970 amendments eliminating the require ment of fraud from the statute, both constituted "changed circum stances" which would justify a reopening of the case. Kurzon, supra at 798.
3. I agree with, and adopt, the reasoning of the First Circuit on this point. Moreover, it does not appear that the General Counsel ever challenged the effectiveness of the product in United Pharmacal for relief of symptoms caused solely by BPH (rather than some other cause such as cancer). Subsequently, the General Counsel reinvestigated the matter and introduced the testimony of experts in Uxbridge Products Company, P.S. Docket No. 2/199, as to the ineffectiveness of the same product for relief of symptoms caused by simple BPH. Thus circumstances, at least from the General Counsel's point of view, had clearly changed over the past 22 years such that the 1960 consent agreement with United should not preclude the instant action. 2/
4. The next issue for consideration is whether complainant is precluded by res judicata or collateral estoppel from bringing the instant case in view of the decision in Uxbridge Products Company, P.S. Docket No. 2/199 (1974), aff'd sub. nom. Kurzon v. United States Postal Service, supra. Under the doctrine of res judicata, a final judgment on the merits is an absolute bar to a subsequent action between the same parties (or their privies) on the same cause of action. Lawlor v. National Screen Serv. Corp., 349 U. S. 322, 326 (l955). Collateral estoppel precludes the relitigation in a subsequent suit on a different cause of action of any issues actually litigated and determined in the prior suit between the same parties. Commissioner of Internal Revenue v. Sunnen, 333 U. S. 591, 597-598 (1948). It has been held in certain limited circumstances that where a party has had a full and fair opportunity to litigate an issue in a previous case, but a decision was rendered against him on the issue, he may be estopped from relitigating the issue against a new party. Blonder-Tongue v. University Foundation, 402 U. S. 313 (l971); Parklane Hosiery Co. v. Shore, 439 U. S. 322 (1979). But the Supreme Court pointed out that it was necessary for the issue to have been decided in the previous case before it could act as a bar to subsequent litigation. This is consistent with the fundamental rule set forth in Conn. Light & Power Co. v. Federal Power Com'n, 557 F.2d 349, 353 (2nd Cir. l977).
The doctrine of collateral estoppel is operative only as to facts that were actually litigated and decided. Facts which might have been decided, but were not, are not precluded. citations omitted .
5. It is true that the General Counsel litigated the issue of the effectiveness of a Manotex formula product in Uxbridge. On brief Respondent alleges that Complainant failed to meet its burden of proof on that issue in Uxbridge. However, the Acting Judicial Officer in that case stated that it was "not necessary to determine" that issue. Uxbridge, supra, at 33. On appeal, the First Circuit also held that he "chose to leave the question open." "Kurzon, supra at 793-792, n. 7. Since the issue was not decided, Uxbridge cannot act as a bar to the instant proceeding. 3/
6. Turning to the alleged violation of 39 U.S.C. § 3005, the primary issue for consideration is whether Respondent's represen tations as to the effectiveness of Manotex for relieving the symptoms of BPH are false. 4/ Complainant established through the testimony of two highly-qualified expert witnesses, a urologist and an internist, that the informed medical and scientific consensus is that Manotex (or any other amino acid product) is not effective for relieving symptoms of BPH. These experts were forthright, credible witnesses and I have based my findings primarily on their testimony.5/ Although Respondent questions the existence of this consensus, it did not present evidence of a contrary consensus.
7. Respondent's primary position is that the informed medical and scientific consensus is in error. Respondent has attempted to prove this point by introducing a number of studies, and the testimony of two doctors and three lay witnesses. In analyzing this evidence I have been guided by the following principle set forth in Standard Research Laboratories, P.S. Docket No. 7/48 (P.S.D. 1980):
It is apparent that it is equally within the ability of the parties to establish the consensus of medical opinion with regard to any particular medical matter. However, when an organization makes representations concerning a product and those representations are not in accordance with the consensus of authority, it is only reasonable to expect that organization to have data which will adequately support such representations. Accordingly, if Respondent takes the position that medical consensus is incorrect because of new or recent developments which have not been reported in reliable medical literature and received acceptance by a signifi- ficant body of the medical community, it cannot merely allege or present limited evidence concerning the existence of such developments and, in effect, challenge the Postal Service to prove it isn't so....It is incumbent on Respondent to present persuasive evidence in support of that position. If it does not do so, it may properly be concluded that such evidence does not exist.
8. Respondent first relies upon two older studies which were reported in reputable medical journals: (1) Feinblatt & Gant, Palliative Treatment of Benign Prostatic Hypertrophy, J. Maine Medical A., (1958); and (2) Damrau, Benign Prostatic Hypertrophy; Amino Acid Therapy for Symptomatic Relief, J. Am. Geriatrics Soc'y (1962) (Exh. R-1, R-2). In accordance with the testimony of Com plainant's experts, I have concluded that these studies were improperly conducted and scientifically invalid, and that it would be improper to base any conclusions on them (Tr. 26). Some specific objections to these studies are set forth below:
(a) The studies were not "double blind." When subjective endpoints are used, neither the patient nor the physical should know when the active ingredient is being given (Tr. 22-23; 112). This is so because the subjective reports and statements of feelings of a patient are subject to a variety of influences other than the product being tested (Tr. 112-113).
(b) Since the disease process under investigation was one which by its natural history has a remitting course, then the period of observation should have been extended to control for natural variations in the symptoms (Tr. 113).
(c) Considering the large number of patients with BPH, too few people (40 and 45, respectively) were used for the studies (Tr. 22).
(d) Both studies relied solely on a digital examination whereas residual urine determinations or cystoscopic examinations should have been made (Tr. 25-26).
(e) The Feinblatt-Gant study fails to indicate how the physicians graded the degree of prostate enlargement in gram size. In 27 of the 45 patients, only slight enlargement of the prostate was noted; these patients may not have had BPH at all (Tr. 25).
(f) Damrau used the controls of the previous study by Feinblatt-Gant. He relied upon the subject diagnosis of BPH based upon Feinblatt's digital examination of the patients in the original study (Tr. 24-25).
9. In view of the above objections to these studies, I must conclude and hold that the studies do not constitute the requisite "persuasive evidence" to prove the consensus to be in error.
10. Respondent also relies upon seven Japanese studies (Exh. R-3 through R-9) appearing in a reputable Japanese publication, Acta Urologica Japonica, between 1968 and 1972. With the exception of brief abstracts consisting of a few conclusory sentences, these studies are printed in Japanese and no translation has been introduced. Limited conclusory statements of this nature, without the detailed basis necessary to subject them to meaningful analysis, clearly do not constitute persuasive evidence. Moreover, it appears from the limited evidence presented that these studies were flawed by some of the same objections noted above with respect to the Feinblatt-Gant and Damrau studies (e.g., testing period was too brief, too few patients). Only two of the studies were double blind (Exh. R-5, R-9). One of these (Exh. R-9) merely stated that the amino acids were "effective" in relieving symptoms of 4 out of a total of 5 patients with BPH and failed to indicate how effectiveness and prostate enlargement were measured or the duration of the test, all of which are important considerations. The other double blind test (Exh. R-5) found improvement in "subjective symptoms" but no improvement was observed on rectal palpation or X-4ay examination in any case. Only nine patients were tested; it does not appear that residual urine determinations or cystoscopic examinations were used, and the duration of the test is unknown. Finally, the authors of all of these studies were unknown to any witness in this proceeding.
11. Respondent also relies upon the testimony of a medical doctor who is an advocate of the "holistic" school of medicine, wherein the emphasis is on the whole patient rather than simply a specific problem. He has been in practice for about seven years. During that time has run a clinic primarily designed for the nutritional treatment of geriatric patients with cardiovascular disease, arthritis, brain damage, senility, and terminal cancer. Many of his patients complain of BPH in addition to their primary complaint. In all of these cases, after performing an initial set of tests, he recommended a change in eating habits and life style (Tr. 223). In this regard, alcohol, highly spiced foods, caffeine, and other medications (if possible) were eliminated from the diet (Tr. 223).
12. This doctor testified that he had given Manotex, or an identical product, to about 200 patients with BPH. He admittedly never conducted any "actual statistical study" or any double blind or single blind tests with respect to the product (Tr. 221, 227). Although he did not maintain any data, he claims that "upwards of 80 percent" of his patients indicated to him that they had experienced improvement (Tr. 221, 229). In addition to a Manotex-type product, almost all of these patients were also given various nutritional supplements containing, in part, amino acids (Tr. 223, 224, 226).
13. The testimony of this witness was not persuasive. 6/ It would be inappropriate to draw any conclusions from his "study" because it was not scientifically valid. Any improvement in BPH symptoms that may have occurred may have been attributable to factors other than Manotex formula products. Moreover, after observing his testimonial demeanor, I did not find him to be a credible witness. However, even if I had believed him, his clinical observations cannot be considered controlled scientific studies which studies which should be given greater weight than the informed medical consensus. In view of the evidence that the weight of scientific and medical opinion does not constitute a sufficient evidentiary basis for establishing the efficacy of the product. Magnolia Lab and Magnolia Laboratory, P.S. Docket No. 10/123 (Feb. 11, l982); Cf. Simeon Management Corp. v. F.T.C., 579 F.2d 1137 (9th Cir. l978); Cosvetic Laboratories, P.S. Docket Nos. 9/173-9/185 (P.S.D. Dec. 11, l981).
14. Similarly, the testimony of three lay witness presented by Respondent is of little value when compared to the testimony of Complainant's experts regarding the informed consensus. There is no way of determining on the basis of the present record whether any relief that may have been experienced was due to ingestion of a Manotex formula product. In this regard, BPH typically involves cyclical instances of remission (Tr. 19), and symptoms often disappear with a reduction in liquid intake or change of diet (Tr. 16, 42).
15. Respondent also relies upon a study in 1973 from Singapore which was not introduced into the record. The study apparently concerned the effect of gelatine, which included 25% glycine, on BPH. Even if this study had been introduced, it would have been of little value of the instant proceeding. In this regard, Complainant's expert in urology showed that it was uncontrolled, involved a different product, and failed to reveal necessary data relating to quantification (Tr. 175-176; 187).
16. Respondent's evidence, whether considered in part or in the aggregate, fails to persuade that the informed medical and scienti fic consensus is in error. Accordingly, I must conclude and hold that Complainant has proved by a preponderance of the reliable and probative evidence that Manotex will not relieve the symptoms of BPH and that Respondent's representations as to the effectiveness of the product for that purpose are false. S.E.C. v. Savoy Industries, 587 F.2d 1149, 1168 (D.C. Cir. l978). Such representations are material since they have the effect of inducing individuals to remit money through the mail in order to purchase the product.
17. In conclusion, Respondent's motion to dismiss is denied, and I hold that Respondent is engaged in conducting a scheme or device for obtaining money or property through the mail by means of false representations with respect to the product Manotex in violation of 39 U.S.C. § 3005. Accordingly, an order pursuant to the statute in the form attached should be issued against Respondent.
1/ The record merely shows that Respondent purchases Manotex from a company owned by a former employee of Metabolic Products Corporation. Metabolic and United are separate companies. See, United Pharmacal Corporation v. U. S., 306 F.2d 515 (5th Cir. l962).
2/ I need not decide whether a consent agreement with one respondent concerning a product could, in an appropriate case, preclude a subsequent action against another respondent about the same product merely because different parties are involved.
3/ In view of these conclusions, I need not decide whether the Blonder-Tongue doctrine of nonmutual estoppel could be applied in other § 3005 cases. That will ultimately require balancing "competing policy considerations" against the economy concerns that undergird the estoppel doctrine. Standefer v. United States, 447 U.S. 10, 25 (l979).
4/ Respondent no longer seriously denies that these representations were made.
5/ The fact that these experts did not personally test the product does not detract from their testimony. Original Cosmetics Products, Inc. v. Strachan, 459 F. Supp. 496 (S.D.N.Y. 1978), aff'd mem. no. 78-6165 (2nd Cir. April 20, l979).
6/ In reaching this conclusion, I have disregarded the witness's admission that he is considered a "quack" (Tr. 235).