In the Matter of the Complaint Against JOHN G. PORTER d/b/a L. BRADFORD & ASSOC., 5265 Fountain Avenue, #911, at Los Angeles, CA 90029-1309 P.S. Docket No. 21/42 August 26, 1985 William A. Duvall Chief Administrative Law Judge APPEARANCES FOR COMPLAINANT: H. Richard Hefner, Esq. Ben A. Kilgrow Consumer Protection Division Law Department United States Postal Service 475 L'Enfant Plaza W., S.W. Washington, DC 20260-1112 APPEARANCES FOR RESPONDENT: Robert De Piano, Esq. Brown, Weston & Sarno 433 North Camden Drive Suite 900 Beverly Hills, CA 90210-4490
*/ The Complainant initiated this proceeding by filing a Complaint on May 22, 1985, alleging that Respondents are engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations in violation of 39 U. S. Code 3005.
In paragraph 1 of the Complaint it is alleged that Respondent, L. Bradford and Associates, is a business name used to direct remittances through the mail to 5265 Fountain Avenue, Number 911, Los Angeles, California 90029-1309. That address is the location of the Mail Parlour, a mail receiving agency. Respondent admits this allegation of the Complaint.
Paragraph 2 of the Complaint reads as follows: "Respondent John G. Porter is an individual and the operator of L. Bradford and Associates. His residence and principal place of business is 6556 Teesdale Avenue, North Hollywood, California 91606-1249." This allegation is admitted.
Paragraph 3 of the Complaint reads "The individual Respondent formulates, directs and controls the acts and practices described below." In the Answer Respondent replies as follows: "Admit, except to the extent that 'the acts and practices described below' are denied." In discussion with Respondent's counsel it was agreed that this language in paragraph 3 of the Answer means that the Respondent admits substantially the remainder of the Complaint with the exception of two paragraphs. Respondent denies making the representations in paragraphs 5 and 6 of the Complaint and admits making the representations in paragraph 7 of the Complaint. Respondent denies the charge in paragraph 8 that the representations set forth in Complaint are materially false as a matter of fact.
Therefore, Complainant admits the charge in paragraph 4 in which it is alleged, in part, that "Respondent, John G. Porter, offers for sale to the public the products RH Formula for Men, RH Formula for Women, the Miracle Penis Lengthener [hereinafter referred to as MPL] and Spanish Fly Plus. The products are offered for sale by means of advertising circulars mailed directly to the public. Portions of an example of the circular referred to are attached to the Complaint as Exhibits 1(a), 1(b), 1(c), and 1(d)." While consideration was given to attaching these exhibits as Appendices A, B, C, and D to this decision, it is concluded that their inclusion here is not necessary. Paragraph 4 continues: "all orders with payments are directed to L. Bradford & Assoc. at the address listed in the caption."
1. Respondent has admitted the use of the mail in connection with the operation of the business name L. Bradford and Associates, 5265 Fountain Avenue, Number 911, Los Angeles, California. This fact is also established by the evidence adduced through Inspector Cook who investigated the case. He ordered and received from the Respondent the three products which are the subjects of this proceeding.
2. Respondent has admitted advertising and selling to the public through the mails the products MPL, RH Formula, and Spanish Fly Plus.
3. Respondent has denied making the representations about RH Formula and Spanish Fly as they appear in the Complaint. So it is now necessary to determine whether or not such representations are made.
The representations about RH Formula will be the first group to be considered.
4. The first representation in this group is that "RH Formula contains a substance derived from the horn of a rhinoceros, e.g., rhino horn, a rare and potent sex stimulant." The language on which that charge may be based is found in Exhibit 1(b) at the bottom of column 1 as follows: "Rhino Horn] The rarest and most highly prized sex stimulant known to man]" It is a powder -- a powder formulated only from the horns of one beast in the entire world. Dicernos Bicornis, the Black Rhinoceros of Africa] Yes, it is Rhino Horn] The rarest and most highly prized sex stimulant known to man."
5. The representation in paragraph 5(b) of the Complaint is as follows: "RH Formula is an effective aphrodisiac or sexual stimulant." The language quoted last in 4, above, is regarded as a reasonable basis for the allegation in paragraph 5(b). In addition, there is the language in Exhibit 1(b) at the bottom of the second column. This language is: "Throughout much of the world it is believed to be the most powerful by far of any of the so-called aphrodisiacs, sex stimulants or virility restoratives]"
6. The next representation in paragraph 5 is 5(c) and it reads as follows: "The type of RH Formula sold for use by males is substantially different than that sold for use by females." In Exhibit 1(c) in column 2, near the bottom of the page is the following language: "RH Formula for Men or RH Formula for Women." Comment on this charge will be reserved for later.
7. The next representation is paragraph 5(d) of the Complaint wherein it is alleged that "Use of RH Formula will enable a male to achieve and prolong an erection." The basis for that allegation is found in Exhibit 1(b), at the top of column 1. Here the circular is describing the values of Rhino Horn. And in item 2 it says that this substance has an astonishing reputation for: "making men retain for hours throbbing, eager hardness for exciting, prolonged sex play and intercourse]"
8. Representation 5(e) of the Complaint 5(e) is as follows:
"Use of RH formula restores diminished sexual virility in older males." That, again, is found on Exhibit 1(b) in column 1, and it is item 3 stated near the middle of the page where it is said that one of the values of this Rhino Horn powder is in "restoring flagging virility in later years]"
9. The charge in paragraph 5(f) of the Complaint is that Respondent represents that "Surreptitious administration of RH Formula will cause a female to be sexually aroused and heighten her receptivity to sexual advances." Basis for the charge is found in Exhibit 1(c), in the upper one-third of column 2 where the following language is found: "Slipped into food or drink, it seems to arouse exciting passion in women - making the most reluctant become open, eager, even demanding sexual attention]"
10. Moving now to Complaint paragraph 6, there is the alleged representation that "Spanish Fly Plus is an effective aphrodisiac or sexual stimulant for females." Language which forms the basis for that representation is found on Exhibit 1(c) in the box in the third column in which the Respondent is advising persons who see this circular that other sex pills are available. Then in larger type are the words Spanish Fly Plus, followed by small type in which it is said as follows: "This has been the long standing favorite for arousing women to sexual passion and eagerness for sex. Please note: Spanish Fly Plus does not contain RH Formula." This note is followed by prices as to the various amounts that the addressees can purchase.
11. The representations in paragraphs 5 and 6 of the Complaint find ample basis in the parts of the advertising literature that have been cited in connection with each one. The representations in paragraph 7 of the Complaint do not need to be shown to be made in the advertising literature, because, as it will be recalled, Respondent admitted the making of the representations. But it also will be recalled that the Respondent did deny that any of the representations are materially false as a matter of fact.
12. The fact that certain language has been quoted under each of the allegations in paragraphs 5 and 6 does not mean that the quoted statements are the only language on which those charges of misrepresentation could be based. The whole tenor and thrust of the advertising material itself is suggestive that the purpose of these products is to increase one's sexual prowess and to increase one's satisfaction in sexual activity. Thus, while the language quoted under each representation is sufficient unto itself, it is not the only language which might be cited to show that the Respondent makes the representations.
13. Based on the foregoing, I find that the Respondent does, in fact, make the representations set forth in paragraphs 5, 6, and 7 of the Complaint.
It is now necessary to determine whether the representations found to have been made by the Respondent are true or false.
In connection with this question there were two witnesses. The witness for the Complainant was Dr. Drenick. Dr. Drenick's curriculum vitae discloses him to be a man of outstanding qualifications. His education is impressive. The positions that he has held and which he now holds are impressive. The professional societies to which he belongs -- the Endocrine Society, for example, Western Society for Clinical Research, American Society for Clinical Research, Western Association of Physicians, and others, the consulting services that he has performed for various agencies of the government, including the National Institutes of Health, the Federal Drug Administration, Federal Trade Commission, as an expert witness for Federal Courts, and also in Postal Service proceedings, and in the State Courts of the State of California --- all distinguish him as a medical doctor whose outstanding knowledge, experience and expertise are nationally recognized.
His bibliography covers writings to the extent of almost a hundred, including articles, chapters in books, editorials, and various other matters on strictly medical subjects. There is no question but that Dr. Drenick is well-qualified to testify as an expert in this proceeding.
The witness for the Respondent was Mr. John G. Porter, who quite frankly disclaimed any expertise in medical subjects, and he did not claim to be able to know how the ordinary reader would interpret certain advertisements.
Reference is again made to the charges in paragraph 5. RH Formula does not, as represented by Respondent, contain a substance derived from the horn of a rhinoceros, nor, incidentally, is rhino horn a rare and potent sex stimulant. But this product, which was introduced as Exhibits CX-6, for men, and CX-7, for women, has on the wrapper in which it comes the statement that it is "synthesized", "simulated" and "offered as an adult innovation." On the side along the edge of the label, these words are printed "contains 20 milligrams of calcium."
It was Dr. Drenick who said that rhino horn is not a sex stimulant. It is a form of protein, and it is similar in that respect to hair. Protein when ingested, as these pills are designed to be, is degraded and digested, broken into its constituent parts such as amino acids and it is absorbed in the body if the body has a need for those particular amino acids and those other constituent parts. But if the constituents of the degraded and digested protein are not needed by the body it is metabolized and used for energy. It has no effect on sexual function of either males or females.
It would be well to point out some of the features of the testimony of Respondent's witness in connection with this point. Mr. Porter may not be a medical expert, but he is quite a semanticist as shown by the positions that he has taken with respect to his advertising. This advertising literature talks of the great history and the mythology related to the sexual potency that would be imparted by the ingestion of rhino horn. He said that that is all that he intended to state, that he just wanted to relate the history of rhino horn, but he was not saying that his product either was rhino horn or had the qualities of rhino horn.
But it is inescapable that this glowing history of rhino horn that is given in this advertisement is bound to rub off on the product that is being offered for sale when there actually is no disclaimer that the product for sale is actually rhino horn. The disclaimer doesn't really come along until the product has been paid for. When the purchaser looks at the packet in which it comes, he sees the words "synthesized and simulated." Even the word "synthesized" does not necessarily mean that the product does not impart the same benefit as genuine rhino horn. It is common knowledge that certain vitamins are synthesized. Vitamin E is an example. There is a natural vitamin E and there is synthesized Vitamin E. But from the medical standpoint one is equally efficacious, for whatever purpose it serves, as the other. "Simulated" means that it is an imitation. But, unfortunately, the purchaser is not aware of this fact until he has received the product. And that is too late, under the statute. The buyer is entitled to be advised of what he is buying before he parts with his money. And to be advised after he has sent in his money, or his check, or his money order is not satisfactory.
Through the course of Mr. Porter's testimony there is that type of testimony, wherein he attempts to rationalize the language of the advertisement to bring it into some sort of harmony with the truth. And they just do not harmonize.
With respect to the representation in paragraph 5(f), it previously has been pointed out that the testimony of Complainant's expert witness is that there is nothing in RH Formula that will increase the sexual function or desire of males or females.
Moving to paragraph 6 of the Complaint, it is there represented that Spanish Fly Plus is an effective aphrodisiac or sexual stimulant for females. In connection with this representation, again Mr. Porter said that in his circular it is stated only that this has been the longstanding favorite for arousing women to sexual passion, and that he is talking about Spanish Fly Plus. He then said: "Oh, I didn't say that it still is." But the point is that he didn't say that it no longer is regarded in that light. The fact of the matter is, as Dr. Drenick testified, that true Spanish Fly is a substance that is an irritant to the bladder, and that it can be taken to excess. When that happens it is a dangerous substance. That is not suggested in the advertisement. Therefore, the purchaser is led to believe that not only is this product great, but, also, it has a great history and a great mythology behind it. In the absence of any statement to suggest that it no longer is, the reader reasonably believes that it continues to be a favorite for arousing women to sexual passion. That representation is false.
Referring now to paragraph 7 of the Complaint. This is the place where the representations have to do with MPL. The first one is that the MPL will increase the length of the user's penis by up to two to three and a half inches. Mr. Porter points out that the advertisement uses the word "prosthetically" when they talk about the increase in the size of the user's penis.
Dr. Drenick in discussing this product said that because of its thickness and its construction, and contrary to the representation in the advertisement, this device will not lengthen the penis of the person who wears it. Additionally, it will not increase his pleasure derived from sexual intercourse, because it reduces, impairs, or takes away entirely the physical sensations that would be received if intercourse is engaged in without the use of such a device. In addition, he said that the use of the device could contain quite an element of danger to the woman partner in that it might result in cutting the vaginal walls thereby causing considerable bleeding and pain, as well as otherwise being unsatisfactory. But the principal fact is that it does nothing to increase the length of the user's penis. That representation is therefore false.
"The MPL will increase the diameter of the user's penis by up to 25 percent." That is the next representation and the last representation in paragraph 7. In Dr. Drenick's testimony, he more or less brushed aside that claim saying that, of course, it would not do any such thing as that. He is the expert. He is the man who knows more about it than anybody else, so far as this hearing is concerned. And I certainly accept that testimony. On the basis of that testimony I find that both the representations in paragraph 7 of the Complaint are false.
14. It is found that all of representations in paragraphs 5, 6, and 7 are false.
15. The false representations found to have been made by Respondent are material representations because they are of the kind and character that are capable of, and do, cause persons to order the products through the mail and pay for them.
16. I find as a fact that the Respondent is engaged in conducting a scheme and device through the mails by means of false representations within the meaning of 3005 of Title 39, United States Code.
1. Representations are to be interpreted on the basis of the impression that they would make upon the person of average mind. And that yardstick is established in the case of Donaldson v. Read Magazine , 333 U. S. 78 (1948). 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 Fed. Supp. 568.
2. The purpose of 39 U. S. Code 3005 is to protect the public, both the wary and the gullible, and the Postal Service is an instrumentality through which this protection is to be provided. Lynch v. Blount , 389 F. Supp. 689 (S.D.N.Y. 1971), aff'd 404 U. S. 1007 (1972); Gottlieb v. Schaffer , 141 F. Supp. 7 at 15-16, (S.D.N.Y. 1956). In Virginia Pharmacy Board v. Virginia Citizens Consumer Council , 425 U. S. 748, 772 fn. 24, (1975), quoting from United States v. 95 Barrels of Vinegar , 265 U. S. 438, 443 (1924), it was said: "It is not difficult to choose statements, designs and devices which will not deceive." "***Advertisements which are capable of two meanings, one of which is false, are misleading***. Advertisements which create a false impression, although literally true, may be prohibited." Rhodes Pharmacal Co. v. F.T.C. , 208 F.2d 382, 387 (7th Cir. 1953), modified on other grounds, 348 U. S. 940 (1954).
3. Applying the foregoing criteria to Respondent's advertisements, it is concluded that the Respondents make the representations alleged in paragraphs 5, 6, and 7 of the Complaint.
4. The person of ordinary mind, on reading Respondents' advertisements, would interpret them substantially as expressed in paragraphs 5, 6, and 7 of the Complaint.
5. It is concluded that the representations herein found to have been made by Respondents are material representations for the reason that they can, and do, cause readers of Respondents' advertising to buy Respondents' products which the readers would not do had the truth been told in the advertising. Chaachou v. American Central Insurance Co. , 241 F.2d 889, 893 (5th Cir. 1957).
6. The representations heretofore found to have been made by Respondents are materially false.
7. Complainant has established its case by a preponderance of the competent, reliable, and probative evidence of record. S.E.C. v. Savoy Industries , 587 F.2d 1149, 1168 (D.C. Cir. 1978); S.E.C. v. National Student Marketing , 457 F. Supp. 682, 701 n. 43 (D.D.C. 1978); Wilmont Products , P.S. Docket No. 6/46 (P.S.D. 1979).
8. Respondent is engaged in the conduct of a scheme for obtaining remittances of money through the mails by means of materially false representations within the meaning of 39 U.S.C. 3005.
Proposed findings of fact and conclusions of law made orally on the record by counsel for the parties in this case have been fully considered. Such proposed findings of fact and conclusions of law have been adopted to the extent herein indicated. Otherwise, such proposals are rejected because they are unsupported by and contrary to the law and the evidence in this case, or because of their irrelevance or immateriality.
Orders of the types authorized in 39 U. S. Code 3005(a)(1), (2), and (3) substantially in the form submitted with the Complaint should be issued against the Respondents at the address shown in the caption of this decision.