In the Matter of the Complaint Against

NORTHLAND DRUGS, and
P. O. Box 484 at
Morton Grove, Illinois 60053

P.O.D. Docket No. 3/32;

APPEARANCES:

Denver H. Graham, Esq.

Leo A. Roth, Esq.

Brault, Graham, Scott & Brault
1314 Nineteenth Street, N.W.

Washington, D.C. 20036
for the Respondent

H. Richard Hefner, Esq.

Thomas A. Ziebarth, Esq.

Mailability Division
Law Department
U. S. Postal Service
Washington, D.C. 20260
for the Complainant

03/30/71

Duvall, William A.

DEPARTMENTAL DECISION^*/

After a full hearing in March, 1970, briefs were submitted and an initial decision was rendered by a Hearing Examiner. Exceptions to that decision were filed and the matter was the subject of final agency decision on August 14, 1970, in which the conclusion was to issue Order No. 70-32 pursuant to 39 U.S. Code 4005 against Medic Aid Laboratories at Skokie, Illinois.

The issuance of that order was predicated upon the finding by the Hearing Examiner, concurred in by the Acting Judicial Officer, that the Respondent, Medic Aid Laboratories, was selling so-called "Bold Bull" tablets through the mails by means of false representations, in substance, that the tablets were an effective sexual stimulant and would heighten and increase the enjoyment of sexual intercourse.

At the hearing on March 24, 1970, one medical doctor testified in behalf of each party. Both doctors said that "Bold Bull" tablets could not be considered a sexual stimulant and that they would not heighten or increase the enjoyment of sexual intercourse.

They made this statement after a review and a discussion of the ingredients of the product which were shown to be as follows:

Each tablet of the "Bold Bull" tablets contains, according to its label, vitamin B1, 5 milligrams; vitamin B2, 5 milligrams; vitamin B6, 5/10ths of a milligram; vitamin B12, 3 micrograms; niacinamide, 30 milligrams; vitamin C, 75 milligrams; vitamin E, one unit; calcium pantothenate, 2 milligrams; inositol, 20 milligrams; methionine, 25 milligrams; choline bitartrate, 25 milligrams; iron (ferrous sulfate), 50 milligrams; Debittered Brewers Yeast, 50 milligrams.

On January 26, 1971, the General Counsel for the United States Postal Service, the Complainant in this proceeding, filed a petition for the issuance of a supplemental order under 39 U.S. Code 4005, alleging that the name and address, Northland Drugs and P. O. Box 484 at Morton Grove, Illinois, are being used to evade or to attempt to evade the provisions of the previously mentioned Order No. 70-32, dated August 14, 1970.

The product currently being sold is called "Devil's Delite" tablets.

From the transcript of the earlier proceeding, to which reference has been made by both parties, and of which official notice is taken, from the pleadings and from the testimony of the promoter in the instant proceeding, it has been established that the owner and operator of Northland Drugs and Medic Aid Laboratories is the same individual, Sy Shimanovsky, 9247 North Lawler, Skokie, Illinois.

Section 952.30 of the Rules of Practice provides as follows:

"When the General Counsel or his designated representative shall have reason to believe that a person is evading or attempting to evade the provision of any such order (and that refers to a misrepresentation order under 39 U.S. Code 4005) by conducting the same or a similar enterprise under a different name or at a different address he may file a petition with accompanying evidence setting forth the alleged evasion or attempted evasion and requesting the issuance of a supplemental order against the name or names allegedly used. Notice shall then be given by the Docket Clerk to the person that the order has been requested and that an answer may be filed within ten days of the notice. The Judicial Officer, for good cause shown, may hold a hearing to consider the issues in controversy, and shall, in any event, render a final decision granting or denying the supplemental order."

The notice requirements of the Rules of Practice, were followed. The Respondent, through Counsel, filed answer to the petition, and the Respondent was represented by Counsel at the hearing, which was held on March 25, 1971. Proposed findings of fact and conclusions of law, together with supporting arguments, have been submitted by counsel for both parties.

The questions to be resolved are, one, is the Respondent under the name Northland Drugs evading or attempting to evade the provisions of Order No. 70-32, issued August 14, 1970, against Medic Aid Laboratories? In resolving this issue two subsidiary questions must be answered. Is the product sold under the name Northland Drugs substantially the same, from a medical point of view, as the product that was sold under the name Medic Aid Laboratories? The third question is, are the representations used by the Respondent under the name Northland Drugs in selling "Devil's Delite" substantially the same as those which were used by Respondent under the name Medic Aid Laboratories in the sale of "Bold Bull" tablets? If any one of these three questions is answered in the negative, then the present petition must be dismissed.

First to be considered are the products sold under both names. Ingredients of "Bold Bull" tablets shows that each three tablets contain the following: Vitamin B1, 30 milligrams; Vitamin B2, 2 milligrams; Vitamin B6, 5/10ths of a milligram; Vitamin B12, 10 micrograms; Niacinamide, 10 milligrams; Vitamin C, 30 milligrams; Vitamin E, 1 unit; Calcium Pantothenate, none; Inositol, 20 milligrams; Methionine, 20 milligrams; Choline bitartrate, none; Iron (ferrous sulfate), 60 milligrams; Debittered Brewers Yeast, none; desiccated liver, 150 milligrams; wheat germ, 30 milligrams.

Regardless of the testimony of the different witnesses, and more will be said about that later, the actual labels on the products reveal a number of facts which must now be noted. There are 3 ingredients in "Devil's Delite" which were not present in "Bold Bull." These are: desiccated liver, wheat germ and Vitamin B12. The label stated that desiccated liver and wheat germ have not been established as being necessary to human nutrition, and no minimum daily adult requirement or recommended dietary allowance has been established for Vitamin B12. Three ingredients in "Bold Bull" tablets have been omitted from "Devil's Delite" tablets. They are: calcium pantothenate, Debittered Brewers Yeast, and choline bitartrate. No minimum daily adult requirement or recommended dietary allowance has been established for calcium pantothenate, or Debittered Brewers Yeast, and no need in human nutrition has been established for choline bitartrate. These statements appear on the face of the labels of the products as sold by Respondent.

Of the nine ingredients common to both products, only Vitamin B1 would be ingested in larger quantities in "Devil's Delite" as compared to "Bold Bull." That amount is 30 milligrams as compared with 15 milligrams. The remaining eight ingredients are contained in significantly smaller quantities in "Devil's Delite" than in "Bold Bull" on the basis of the recommended daily dosage of each. Thus, of the ingredients not common to both products, it can be said that no need for them has been established or that it has been established that they are not needed in human nutrition. Of the ingredients which are contained in both products, there are less of them, except in one instance, in "Devil's Delite" than in "Bold Bull." The one exception, Vitamin B1, would be ingested in a medically insignificantly greater amount in "Devil's Delite." In short, the ingredients of "Bold Bull" which were established as worthless as a sexual stimulant in the March, 1970, proceeding would be worth even less as they are incorporated in "Devil's Delite" because they would be ingested in smaller quantities. The three ingredients contained in "Devil's Delite" which were not present in "Bold Bull" tablets are admitted by Respondent to be neither a sexual stimulant nor a remedy for male impotency.

In regard to the testimony, there were some superficial differences of opinion expressed at the hearing as to whether "Devil's Delite" and "Bold Bull" tablets are substantially the same or similar. The pharmaceutical chemist, Oppenheim, and the pharmacist, Mirsky, tried unsuccessfully to indicate differences by referring to the slightly different ingredients. The promoter, Shimanovsky would not use the word "similar" in regard to the two different tablets, but practically no weight can be accorded to his testimony for other reasons appearing in this record.

The question concerning the similarity of the pills was nailed down and was settled, however, by Dr. Samuel N. Becker, M.D., testifying as Respondent's witness, when he said that he "would anticipate about the same response to the medication" regardless of which was used. In other words, the effect on the patient, on the person taking one pill would be the same as the effect on the same individual taking the other pill. (Tr. 103)

Furthermore, when Dr. Becker was asked whether he would agree with the testimony in the Medic Aid Laboratories case, there was nothing in the "Bold Bull" tablets that would be regarded as a sex stimulant or as an aphrodisiac, he responded "I doubt that one can claim this is a sex stimulant, but anything which adds to the well being of the patient where there was some debilitating or other problem that brings the response, increased sex activity, I still wouldn't say that that was a sex stimulant. It improves the well being of the patient." (Tr. 104)

Now, to be considered is a comparison of the representations used by the Respondent in selling "Devil's Delite" tablets with those used by the Respondent in selling "Bold Bull" tablets. Rather than at this time go into a discussion of the language of the separate advertisements, Appendix A to this decision is a copy of Respondent's advertisement appearing in the December 25, 1970, issue of National Informer. Appendix B to this decision is a copy of Respondent's advertisement appearing in the National Informer of February 22, 1970. Appendix A advertises "Devil's Delite" tablets, Appendix B advertises "Bold Bull" tablets.

In regard to this advertising literature, the Respondent, in his answer, has the following comments to make (quoting now from paragraphs 3, 4, 5 and 6 of the answer):

"3. *** A reading of the two advertisements discloses that the Bold Bull advertisement contains 39 words in the body of the advertisement down to the words 'Guaranteed 100 per cent safe.' The body of the advertisement for Devil's Delite contains 75 words down to the words 'Guaranteed 100 per cent safe.' The only words that are repeated, or are identical or are similar, are 'Tablets' which appears once in each advertisement, the word 'the' which appears three times in the Bold Bull advertisement but only two times in the Devil's Delite advertisement, the word 'a' which appears one time in the Bold Bull advertisement but three times in the Devil's Delite advertisement, the word 'you' which appears one time in each advertisement, the word 'to' which appears one time in each advertisement, and the word 'your' which appears one time in each advertisement.

"4. A reading of the advertisement for Devil's Delite tablets shows that it carefully disclaims and omits the words contained in the Bold Bull advertisement, specifically objected to by the Post Office Department, such as 'Bold Bull,' 'From Your Mystic Past Into Your Future]', 'drive', 'Be the man you've always hoped to be.', 'Satisfy the woman in your life.', and 'For 100 Days of Added Pleasures.'

"5. The advertisement for Devil's Delite tablets clearly states that it is a blend of vitamins and minerals and is not manufactured or sold as an aphrodisiac or a sexual stimulant. The Record herein discloses that the Post Office Department did not object to Bold Bull tablets as such, but merely objected to the failure to advertise it as such and to claim it was 'a sexual stimulant.' These objections are obviated by the clear and concise wording of the advertisement for Devil's Delite Tablets.

"6. The only word in the advertisement for Devil's Delite Tablets that might possibly have a sexual connotation is 'masculine,' but it is well recognized that the lack of vitamins in the body is a deficiency disease, and it is further recognized that this disease affects both the masculine gender and feminine gender, but not in the same manner, since each sex needs and utilizes different vitamins in different quantities. Indeed, there is an advertisement that appears regularly on television for a well known product that clearly points out the fact that women need and use more iron than men."

This argument and the dissection by counsel, in the answer and in argument this morning, of Respondent's advertisement is contrary to the pronouncement in G. J. Howard v. Cassidy, 157 Fed. Supp. 297, a 1957 case in which the court said, at page 299, "Since the applicable test is the effect that the advertisement would be expected to produce on ordinary minds, meaning those of the majority of the community to whom it is addressed, it is not necessary to indulge in an acute analysis of possible meanings that might be attributed to certain somewhat obscure allusions discoverable by critical study of plaintiff's solicitation."

Furthermore, as stated by the Supreme Court of the United States, in Federal Trade Commission v. Standard Education Society, 302 U.S. 112, at page 116, "Laws are made to protect the trusting as well as the suspicious." The publications in which Respondent's advertisements appear, and the advertisements themselves, are not addressed to a sophisticated, analytical audience. They are addressed primarily to an audience that acts on general impressions. Even a sophisticated reader might conclude that the "potency vitamins" could remedy a sexual "masculine deficiency."

In the light of the foregoing facts and considerations it is concluded that the impact on the average reader of Respondent's advertisement for "Devil's Delite" tablets is, to all practical intents and purposes, the same as the impact on the average reader of Respondent's earlier advertisements for "Bold Bull" tablets.

Findings of fact are as follows:

1. Prior to August 14, 1970, Respondent was engaged under the name of Medic Aid Laboratories in the sale through the mails of a product known as "Bold Bull" tablets.

2. On August 14, 1970, Order No. 70-32 was issued pursuant to 39 U.S. Code 4005 against Medic Aid Laboratories because it was found to have been engaging in a scheme for obtaining money or property through the mails by means of false representations in the sale of "Bold Bull" tablets.

3. Respondent, subsequent to the issuance of Order No. 70-32, has been engaged under the name of Northland Drugs in the sale through the mails of "Devil's Delite" tablets.

4. "Devil's Delite" tablets, as were "Bold Bull" tablets, were brought to the attention of prospective purchasers by means of advertisements placed in such publications as Confidential Flash, the National Informer and Rampage.

5. The representations in regard to "Devil's Delite" tablets are the same or the same in substance as were the representations in regard to "Bold Bull" tablets, that is, the advertisements of both products convey the impression to the mind of the average reader to whom they are addressed that taken as directed the tablets will act as a sex stimulant and will, in and of themselves, enhance the user's prowess and satisfaction in sexual intercourse.

6. The impression created by Respondent's advertisement is not dispelled by the so-called disclaimers placed in the advertising language.

7. The effect on the user of the tablets called "Devil's Delite"is the same as the effect on the user of the tablets called "Bold Bull."

8. "Devil's Delite" tablets will not enhance or increase the user's sexual prowess or enjoyment.

9. Respondent, under the name Northland Drugs, is evading or attempting to evade Order No. 70-32, dated August 14, 1970.

Conclusions of law are as follows:

1. Advertisements are to be interpreted in the light of the effect they would produce, when considered as a whole, upon persons of ordinary minds, (Donaldson v. Read Magazine, Inc., 333 U.S. 178, 189 (1948)).

2. The mere presence of a disclaimer does not necessarily counteract misleading impressions created on the ordinary reader by the advertisement as a whole (Farley v. Simmons, 99 F.2d 343 (1938)).

3. The evidence presented by the Complainant in this proceeding establishes that Respondent, under the name Northland Drugs, Post Office Box 484, Morton Grove, Illinois, is evading or attempting to evade the provisions of Order No. 70-32, dated August 14, 1970.

4. The medium chosen by a business in which to advertise its products may be taken into consideration in assessing the impact of the advertising representations on the average audience by whom the advertising matter is seen (Farley v. Simmons, 99 F.2d 343).

Proposed findings of fact and conclusions of law submitted by the parties have been carefully considered and they are adopted to the extent indicated herein. Otherwise, such proposed findings of fact and conclusions of law are rejected because they are immaterial or because they are contrary to the evidence.

An order under 39 U.S. Code 4005, supplemental to Order No. 70-32, dated August 14, 1970, will be issued.

____________________

*/ Transcribed from oral decision as rendered at the close of hearing held March 25, 26, 1971. Minor corrections have been made in punctuation, grammar and otherwise as appropriate, but no change in substance has been made.