In the Matter of the Complaint Against

HYDROMASSAGIC RESEARCH CENTER of
Los Angeles, and
H.M.R. CENTER
at
Los Angeles, California 90029

P.O.D. Docket No. 3/12

APPEARANCES:

Arthur S. Cahn, Esq.
Office of the General Counsel
Post Office Department
Washington, D.C.  20260
for the Complainant

Joseph Taback, Esq.
Gold, Herscher & Taback
8500 Wilshire Boulevard
Beverly Hills, California  90211
for the Respondent^[1]

INITIAL DECISION OF HEARING EXAMINER^[2]

            This decision is being issued in accordance with the provisions of Section 592.11 of the Rules of Practice.^[3]

            In this case the Complainant has charged the Respondent with being engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations[4] in violation of the provisions of Section 4005 of Title 39, United States Code.  More specifically the Complainant has charged the Respondent with making the following representations which Complainant alleges are false:

            1.  That the use of Jaqualator Mark II advertised by respondent in its circular matter will greatly increase development of the erectile tissue of the penis.

            2.  That hydrotherapy will aid in the growth of the erectile tissue of the penis.

            3.  That the use of this device will keep man's sexual ability active or will reactivate that which seems lost.

            4.  That the beneficial results advertised by the respondent are positive and that they are medically acknowledged.

            5.  That the "Research and Development Division" of Hydromassagic Research Center is engaged in scientific research and development.

            6.  That the use of the device sold by the respondent will assure all men sexual gratification, easy penetration, and it will increase the development of their sexual organs.

            The Complainant's case consisted of the testimony of the inspector who investigated the case, Inspector Martin I. Dworkis, and two extremely well qualified medical experts in the persons of Dr. Richard B. Dunham and Dr. David M. Fried.

            The inspector testified as to his investigation of the activities of the Respondent and he described how, through the use of test names, he acquired advertising literature used by the Respondent and the device which is sold by the Respondent.

            In addition to the material obtained through the use of test names, the inspector testified that he received from the Respondent advertising literature which came to him unsolicited addressed to a test name which the inspector has used in the past in investigating other enterprises.

            Through the testimony of the inspector the use of the mails by the Respondent concern was established.

            Examination of the circular matter used by the Respondent to describe the device which it is selling clearly establishes the fact that the Respondent does make the representations which have been set forth above, and which were charged in the complaint filed by the Complainant as being false.

            The next question then to be determined is whether within the meaning of Section 4005 of Title 39, United States Code, these representations are false.  Dr. Dunham was the first medical witness to testify, and he is a board certified urologist.  As much he practices in the area of medicine which has to do with the management of diseases involving the urinary tract of human beings.  Dr. Dunham described in detail the anatomy of the penis, and he gave a description of its functions.  It was Dr. Dunham's testimony that the size and the shape of the penis depends largely upon certain genetic and ethnic factors and that the size and shape of the penis reached their final stage of development at the completion of puberty and the achievement of adulthood.  After this time the fascial investment surrounding the corpora is a limiting factor which inhibits its further growth and development and prevents it.

            Not only is the device ineffective for the purposes for which it is offered for sale, but it is capable of being injurious to the user in certain circumstances such as an individual who is in an advanced stage of diabetes, who may have the outer covering of the penis damaged by use of this device if that use is extended beyond a reasonable period of time.

            Dr. Fried is now and has been since 1954 the Chief of the Department of Rehabilitation at the National Institutes of Health.  He is a specialist in the field of physical medicine, and in connection with the pursuit of his profession he uses various devices in physical therapy and rehabilitation, including exercise, electrical stimulation, heat and water, or hydrotherapy.  Hydrotherapy is not used by reputable physicians to build up tissues of the human anatomy.  In fact hydrotherapy will not and cannot accomplish this purpose.

            Dr. Fried expressed an idea previously expressed by Dr. Dunham when Dr. Fried said that the penis is incapable of organic enlargement, and that there is no growth potential in the erectile tissue of the penis.

            Persons who use this device might subject themselves to risk of injury from one of at least three causes, for example, too much water pressure, secondly having the water at too high a temperature and, thirdly, having the water agitated too much or having the tissue agitated too much as a result of the application of the water under pressure.

            For purposes of the record it might be well to describe this device about which testimony was taken.

            It is a tubular device approximately 10 inches in length with an inner diameter of approximately two inches.  The inner sheath of the tube contains rows of perforations.  The perforations appear to be perhaps three quarters of an inch apart, and the rows of perforations are approximately an inch and a half to two inches apart.

            On one surface of the circumference of the tube there is a smaller tube leading off, which is about three feet in length and has on it a device which would fit over the nozzle of a faucet.  On the end of the device which is distal from the place where the small tube enters the large tube is a cushion of what appears to be sponge rubber that is about 3 inches in diameter and about an inch thick and it has a hole in the center of approximately 1 1/4 inches in diameter.

            Upon the basis of the entire record in this case, I find as a fact:

            1.  That the Respondent makes the representations imputed to it in the complaint.

            2.  That the representations in the charges which have been listed above as numbers 1, 2, 3, 4, and 6 are false.

            3.  There is insufficient proof in regard to the charge that the Respondent falsely represents itself as being engaged in scientific research and development to warrant the making of a finding of falsity in regard to the charge which has been heretofore listed as number 5.

            Based upon the foregoing findings of fact I conclude that the Respondent is, as charged in the complaint, engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations in violation of Section 4005 of Title 39, United States Code.

            Based upon the foregoing findings of fact and conclusion of law I recommend that the Judicial Officer issue an order which would be appropriate under the governing statute.

            That is the end of the decision but I want to continue here with a statement for the benefit of counsel, present and not present.

            Under our contract with the reporting company we will receive the transcript of this proceeding within 10 days after today.  When that transcript is received I will have this decision transcribed and mailed to the parties, and with that transcribed decision there will be a notice of the right to appeal, and either party may appeal this decision to the Judicial Officer within the time that will be allowed in that notice.

William A. Duvall
Chief Hearing Examiner

^[1] Mr. Taback filed the answer to the complaint, and other papers, on behalf of the Respondent, but the Respondent was not represented in person or by counsel at the hearing.

^[2] Transcribed from oral decision rendered at close of the hearing held February 13, 1969.  Changes have been made to correct typographical errors and, where necessary, for the purpose of clarity, but no change has been made affecting the substance of the decision.

^[3] A brief history of this proceeding is attached hereto as Appendix A.

^[4] A copy of the Respondent's advertising circular is attached hereto as Appendix B.