In the Matter of the Complaint Against

SAMPSON RESEARCH COMPANY,

and

SAMSON RESEARCH CO.
at Hollywood, Los Angeles, California
(hereinafter called Respondent)

is engaged in conducting a scheme for obtaining money through the
mails in violation of 39 U.S. Code 4005
(formerly 39 U.S. Code 259 and 732)

P.O.D. Docket No. 2/143;

APPEARANCES:
Ralph B. Manherz, Esq.
Office of the General Counsel
Post Office Department
for the Complainant

Joseph Taback, Esq.
8500 Wilshire Boulevard, Suite 703
Beverly Hills, California
for the Respondent

DEPARTMENTAL DECISION

In this case the Respondent was charged with violating 39 U.S. Code 4005 by obtaining remittances of money through the mails by means of false and fraudulent representations.

The subject matter is an advertising sheet--Exhibit "A"--entitled "HAS THE ANCIENTS' KNOWLEDGE OF SEXUAL STIMULATION BEEN TAKEN FROM US?" The sheet advertises "Stimulads #1, #2, #3, #4"--with the effect of each described.

The complaint alleges that this advertising sheet represents in substance and effect the following

"(3)(a) That the use as directed of products called 'Stimulads', being sold by the Respondent through the mails, will restore sexual virility to impotent men and women, regardless of the cause or chronicity thereof;

(b) That the use of the said 'Stimulads' as directed provides 'quick effect' in producing the restoration of sexual virility to impotent persons;

(c) That the said 'Stimulads' possess 'identical properties of testosterone' in the successful treatment of sexual impotence in 'even so-called hopeless cases';

(d) That by reason of the inclusion of a certain ingredient in 'Stimulads' the said product provides a 'pronounced aphrodisiac effect';

(e) That the said "Stimulads', when used as directed, have 'an undoubted effect in stimulating the libido and erection center';

(f) That 'modern scientists and medical doctors' are in agreement concerning the value of the said 'Stimulads' for the purposes for which the said product is being sold through the mails by the Respondent;

(4) That said representations are false and fraudulent."

At the hearing in Hollywood, Los Angles, California, held on February 5, 1964, two witnesses appeared for the Complainant but the Respondent had none. The main witness for the Complainant was Dr. Okun, a clinical pharmacologist, a Doctor of Medicine, and Assistant to the Professor of Medicine and Pharmacology at the U.C.L.A. Medical School. There is no doubt about the witness's qualifications.

The witness described the cause of impotency in men Tr. 26 (1) the majority of cases being due to a neurosis condition; (2) organic causes.

Dr. Okun in his testimony gave no credence to the efficacy that "Stimulads" would have on a man's sexual virility; that as stated in the initial decision "that the ingredients of 'Stimulads' as listed by Respondent, when ingested into the human body, would have no effect whatsoever and particularly would have no effect in reviving or restoring sexual powers"; his opinions were those of informed consensus of medical opinion Tr. 38 and 42.

I believe that the representations as charged in the complaint are made by the Respondent. I believe, too, that the average person reading this advertising would be led to believe what is set out in the allegations made by the Complainant Donaldson v. Read Magazine, Inc., 333 U.S. 178. The law is very clear that one considers the advertisement as a whole.

The Respondent's attorney in his Appeal Brief made much of the fact that the representations of the advertisement would not show falsity by the Respondent because of the description of testosterone. But the implication is certainly in the advertisement that the ingredients of "Stimulads" possess properties of testosterone. If this implication is not meant then why was there such a description and set out so attractively in the advertising? This is effective "power of suggestion".

The argument by Respondent that "Stimulads" may be placebos and thereby effective is insignificant when weighing the representations in the advertisement against the expert testimony of what Dr. Okun said about the "Stimulads."

A money-back guarantee gives a flavor of honesty to any advertising but in this case the flavor of honesty in the money-back guarantee does not change the falsity of the representations. Harris v. Rosenberger, 145 F. 449.

I agree with the initial decision that the "constitutionality or unconstitutionality of a statute is beyond the power and jurisdiction of this Hearing Examiner." It is beyond the jurisdiction of the Judicial Officer also.

I hereby affirm the initial decision in the above-named case--that there was sufficient evidence to show that the Respondent has violated 39 U.S. Code 4005 and that the representations set out on the advertising sheet are false and fraudulent; and that there is an intent to defraud, and may as the initial decision says, "be established by circumstantial evidence". Gottlieb v. Schaffer, 141 Fed. Supp. 7. A fraud order is hereby issued.

06/09/64

Bosone, Reva Beck