In the Matter of the Complaint Against DR. CORRINE ALLEN d/b/a AGAPE HEALTH, 207 North Mission at Placentia, CA 92670-5114 and P. O. Box 235 at Atwood, CA 92601-0235 P.S. Docket No. 29/1 March 9, 1988 Quentin E. Grant Chief Administrative Law Judge APPEARANCE FOR COMPLAINANT: Jerry Belenker, Esq. Benjamin A. Kilgrow, Esq. Consumer Protection Division Law Department U. S. Postal Service Washington, DC 20260-1144 APPEARANCE FOR RESPONDENT: Dr. Corrine Allen, Pro Se Agape Health Company 207 North Mission Placentia, CA 92670-5114
In a complaint filed on November 19, l987, the Postal Service alleged that Respondent Dr. Corrine Allen, doing business as Agape Health, is in violation of 39 U.S.C. 3005 by seeking money or property through the mails by means of false representations for a product called "Doctor's Signature Intestinal Cleanse Program." The complaint alleges that by means of advertising circulars typified by that annexed to the complaint as Exhibit 1, Respondent falsely represents that ingestion of the product will produce the following beneficial effects:
(a) Renewed vitality
(b) Better elimination
(c) Less or no depression
(d) More energy
(e) No itching
(f) Reduced pain
(g) No more bloating
(h) Less or no gas
(i) Clearer skin
(j) Reduced stress
(k) Healing of conditions that the recipient never though were connected to the colon
(l) Cleaning the colon, liver, and gall bladder of toxic accumulations of drugs, chemicals, and pesticides
In her answer filed January 19, l988, Respondent raised jurisdictional issues and argued failure of the complaint to state a cause of action. She also argued that the representations alleged in the complaint were made by the manufacturer of the product, not by Respondent. There was no denial, however, that the representa- tions were made and used to obtain remittances of money through the mails.
By order dated January 15 the hearing was continued from January 28 to February 8, l988, to permit Respondent to file an answer. By order dated January 21, following receipt of the answer containing a statement that she would not appear at a Washington, DC hearing, Respondent was again notified that the hearing would proceed on February 8. She received the January 21 order on January 28. Respondent made no request for a change of location of the hearing.
The hearing was held on February 8 in Washington, DC. There was no appearance thereat by or on behalf of Respondent.1/ Complainant's evidence was received through its witnesses James Hendricks Lewis, M.D., and Postal Inspector Carl Stephens.
1. Dr. Corrine Allen, doing business as AGAPE HEALTH at 207 North Mission, Placentia, CA 92670-5114, by means of representations made in advertising circulars typified by Exhibit 1 to the Complaint, obtains money or property through mail addressed to P. O. Box 235, Atwood, CA 92601, for the product Doctor's Signature Intestinal Health Program (CX-3-8; Tr. 5-13).
2. The representations alleged in paragraph 5 of the Complaint (set forth above), are made expressly in Respondent's advertising circulars (CX-7; Answer, 3rd page, 2nd parag.).
3. Complainant's expert witness, James Hendricks Lewis, is a physician, highly qualified to testify in this proceeding. He received his undergraduate education (B.A.) at Oberlin College, Oberlin, Ohio and his M.D. degree from SUNY Downstate Medical Center, School of Medicine, Brooklyn, NY in l975. He is a Fellow of the American College of Physicians and of the American College of Gastroenterology. He is board certified in internal medicine and its subspecialty, gastroenterology. He is an assistant professor of medicine in the department of gastroenterology of the Georgetown University School of Medicine, Washington, D.C. He is a member of the Gastrointestinal Drugs Advisory Committee of the Food and Drug Administration, U. S. Department of Health and Human Services. He has authored or co-authored a large number of published papers, book chapters, books, commentary and abstracts in the field of gastroenterology (CX-1; Tr. 15-20). Gastroenterology is the branch of medical science that has to do with the function and disorders of the stomach and intestines (Stedman's Medical Dictionary, 23rd Edition 1976).
4. The items received in the test purchase made by USPS are the first three listed in the directions for morning and evening use of the program set forth below (CX-7):
DIRECTIONS FOR USE
Follow the Intestinal Cleansing Program twice a day for best results in cleaning your colon, liver and gall bladder of toxic accumulations of drugs, chemicals, and pesticides. Regain your natural health, vitality, and energy.
MORNING
Take the following ingredients in the order given:
1. 1-2 tsp. Activated Charcoal in or with water or juice.
2. 1 1/2 tsp. Intestinal Tone in apple, pineapple or papaya juice.
3. 2-4 Herbal Laxative tablets. NOTE: Do not take Activated Charcoal without also taking Herbal Laxative. Taking charcoal alone leads to constipation.
4. 2 oz. Life Force aloe vera juice (cranberry, or coconut-pineapple).
5. 5 VF-70 tablets.
EVENING
Take the following ingredients in the order given:
1. 1-2 tsp. Activated Charcoal, as above.
2. 1 1/2 tsp Intestinal Tone, as above.
3. 2-4 Herbal Laxative tablets, as above.
4. 2 oz. Life Force aloe vera juice, as above.
5. 5 VF-70 tablets, as above.
IT IS VERY IMPORTANT TO DRINK AT LEAST 8 GLASSES OF WATER OR OTHER HEALTHY LIQUID DURING YOUR TIME WITH THE INTESTINAL CLEANSING PROGRAM.
Take the Activated Charcoal for one month or longer, depending on how much you take at a time. Take the Intestinal Tone twice daily. Drink the aloe vera juice for at least 90 days (4 oz.), then continue with 2 oz. each day for MAINTENANCE.
Items 4 and 5 in the directions were not received in the test purchase and are not elsewhere mentioned in the program brochure whereas the first three items are described in detail along with the benefits they are represented to confer on users. Consequently, I find that items 4 and 5 (Life Force aloe vera juice and VF-70 tablets) to not constitute part of Respondent's product with respect to the issues to be decided in this proceeding.
5. The ingredients of the components of the product received in the test purchase are as follows (CX-2):
(a) Activated Charcoal - activated charcoal
(b) Intestinal Tone - plantago ovata and blond psyllium
(c) Herbal Laxative Tablets
Senna Leaves
Buckthorn Bark
Comfrey Root
Licorice Root
Casacara Sagrada
Psyllium Husks
Pepsin
Fennel Seeds
Rhubard Root
Culver Root
Anise Seed
Blue Malva Flower
Sea Life . . . . . . . . . . . 200 mg.
6. According to Respondent's circular the purpose of the program is cleansing and detoxification of the colon which, the circular says, is "our body's garbage dump" and "quite frequently *** just doesn't work right," causing it to "become clogged, infected with parasites, or even poisoned," the effects of the "toxic wastes" being carried through the bloodstream and felt throughout the entire body in the form of depression, constipation, gas and bloating, headaches and general discomfort. Use of the program, so the circular represents, will help the body return to its "natural, healthy functions" and produce the specific benefits alleged in the representations set forth in paragraph 5 of the Complaint, supra .
7. The opinions as to the efficacy of the program expressed by Complainant's expert witness, Dr. Lewis, are in accord with the informed medical consensus in the area of internal medicine (Tr. 30) The following findings are based on his testimony:
In the United States, we are bombarded by ads telling us that if we don't have at least one bowel movement a day, we are irregular. As a result, many people are caught up in laxative use and abuse, trying to have a daily bowel movement to feel that they are normal (Tr. 25). In medicine, however, normal bowel function can be in the range of one movement a week to four or five a day. The production of intestinal gas, passed 25 to 30 times a day, is considered normal, depending on diet. In health, the colon works well (Tr. 24). Its main role is to regulate the volume and fluidity of fecal material. Essentially, all the food and fluid ingested is delivered to the colon in liquid form. The colon absorbs most of the water and much of the solid material, leaving fecal matter which is excreted, generally in solid form, as a relatively small amount of what was initially delivered to the colon (Tr. 23, 24).
The idea that a normal person needs to cleanse the colon on a daily basis using a program like Respondent's, is not medically sound (Tr. 24). The daily ingestion of activated charcoal can even be harmful. Activated charcoal is generally used in emergencies to bind drugs taken in overdose, preventing absorption and toxifica- tion. There is no good reason for ingestion of activated charcoal or a daily or continued basis. Used on a daily basis as part of Respondent's program, it may even eliminate some of the nutrients beneficial to the body (Tr. 24, 25).
The brochure states that one of the modes by which the Herbal Laxative promotes well being is the control it provides for intestinal mucous, preventing such mucous from traveling through the bloodstream to the sinuses, reducing sinus drainage, runny nose, and allergic feelings. This is blatantly false. Intestinal mucous is made by the lining of the cell walls, providing lubrication for the smooth flow of fecal matter through the colon. Such mucous is not absorbed into the bloodstream. Nasal mucous is made in the nose. This mucous which causes runny and clogged noses and sinusitis is entirely unaffected by laxatives (Tr. 26).
With the exception of the promise of "better elimination," which use of the product may cause to be much more than sufficient, none of Respondent's representations as to benefits produced by use of the program has any scientific basis (Tr. 29).
With the exception of "better elimination" taken to mean more frequent bowel movements, I find that the representations made by Respondent as alleged in the Complaint are materially false in fact.
1. This proceeding was properly initiated under 39 U.S.C. 3005 and the implementing regulations (39 C.F.R. Part 952) which provide for a hearing before an Administrative Law Judge qualified in accordance with law.
2. The authority of the Postal Service and the statutory scheme for issuance of a False Representation Order where either false representations or a lottery has been found under the statute have been held to be constitutional. E.g. Public Clearing House v. Coyne , 194 U.S. 497 (1904); Donaldson v. Read Magazine , 333 U.S. 178, 190-91 (1948); United States Postal Service v. Athena Products, Ltd. , 654 F.2d 362 (5th Cir. l981), cert . denied , 456 U.S. 915. There is no merit to Respondent's constitutional and jurisdictional attacks on the proceeding.
3. An advertisement must be considered as a whole and its meaning determined in the light of its probable effect on persons of ordinary minds. Donaldson v. Read Magazine, Inc. , 333 U.S. 178 (1948); Vibra-Brush Corp. v. Schaffer , 152 F. Supp. 461 (S.D.N.Y. 1957), rev'd on other grounds , 256 F.2d 681 (2nd Cir. l958). Applying this principle, I conclude that Respondent's advertisements make the representations alleged in paragraph 5 of the Complaint
4. Based on the opinions of Complainant's well-qualified medical expert witness, I conclude that such representations are false, with the exception of "better elimination" (Cplt. par. 5(b)).
5. The representations found are material because individually and collectively they tend to induce individuals to remit money through the mail to purchase the Respondent's product. See Chaachou v. American Central Insurance Co. , 241 F.2d 889, 893 (5th Cir. l957).
6. No evidence of consumer complaints is required to establish a violation of the false representation statute. Farley v. Heininger , 105 F.2d 79, 84 (D.C. Cir. 1939)
7. It is no defense to this proceeding that the false representations are made in a circular or brochure prepared by a third party. By using such representations to sell the program, Respondent adopted them and thereby subjected herself to the possibility of a proceeding under 39 U.S.C. 3005.
8. Respondent's claim that she is not a proper or correct party was rejected in my order dated December 31, l987 which is hereby reaffirmed for the reasons given therein.
9. Respondent is engaged in the conduct of a scheme for obtaining money or property through the mails by means of materially false representations in violation of 39 U.S.C. 3005. Accordingly, false representation and cease and desist orders in the forms attached hereto should be issued against Respondent.
___________________