In the Matter of the Complaint Against

BRUCE ROBERTS CO.,
89 Worth Street at
New York, New York 10013

P.O.D. Docket No. 3/78

August 16, 1971

Thomas A. Ziebarth and H. Richard Hefner, Esqs.,
Office of the General Counsel,
U. S. Postal Service, for Complainant.

Sidney Schreiberg, Esq.,
New York, New York, for Respondent.

Before: John Lewis, Hearing Examiner.

INITIAL DECISION OF HEARING EXAMINER

STATEMENT OF PROCEEDINGS

This proceeding was initiated by the filing of a complaint by the General Counsel of the Post Office on March 10, 1971, charging the above-named Respondent with conducting a scheme or device for obtaining money or property through the mail by means of false representations, in violation of 39 U. S. Code, Section 4005, now Section 3005. In essence, said complaint charges Respondent with having made false representations concerning the nature of its product, "VIRAN", and the ability of said product to increase a person's sexual desire and capacity for sexual activity. Respondent appeared by counsel and filed answer in which it denied the allegations of the complaint. Thereafter, Respondent filed a motion for summary judgment to dismiss the complaint, which motion was denied by order of the undersigned Hearing Examiner dated April 15, 1971.

Pursuant to notice duly given, a hearing for the reception of evidence was convened on April 16, 1971, in Washington, D. C. Both parties appeared by counsel and were afforded full opportunity to be heard, and to examine and cross-examine witnesses. Counsel for Complainant called two witnesses, (1) a postal inspector, through whom they sought to establish that Respondent's method of operation involved the obtaining of money through the mail by means of statements made in advertising and (2) a physician, through whom they sought to establish the falsity of the representations allegedly made in Respondent's advertising matter. Counsel for Respondent elected not to offer any testimony or other evidence, but relied on the cross-examination of the Government's medical witness, and the purported insufficiency of such witness' testimony, and of the documentary evidence concerning Respondent's representations, to establish a prima facie case. Respondent renewed its motion for summary judgment, prior to the start of the reception of evidence, which motion was denied by the undersigned Hearing Examiner.

At the close of the hearing the parties were granted until May 17, 1971, to file proposed findings of fact and conclusions of law, which date was extended until June 1, 1971, on application of counsel for both sides. Proposed findings of fact and conclusions of law have been filed on behalf of both parties.

After having carefully reviewed the evidence in this proceeding and the proposed findings and conclusions,^1/ and based on the entire record, including his observation of the witnesses, the undersigned makes the following:

FINDINGS OF FACT

A. The Alleged Solicitation of Money Through the Mail

1. Respondent is engaged in the business of selling certain tablets designated as "VIRAN". Public attention is attracted to said tablets by direct mail advertising sent to potential customers. As part of said direct mail advertising Respondent includes an order form for use in ordering said tablets.

2. The order form supplied by Respondent requires that in ordering "VIRAN" tablets payment must be made by the customer by sending either cash or a check or money order through the mail since, as stated therein, Respondent does not accept "C.O.D.'s Because of High Shipping Costs." The record establishes that Respondent does, in fact, obtain money through the mail from customers who complete and mail the order form together with payment for Respondent's product.

B. The Alleged Representations

3. The offer to sell Respondent's product "VIRAN" is made in a one-page leaflet, a copy of which is attached hereto as Appendix "A". The leaflet contains a picture of a young woman standing in a suggestive pose, with the upper part of her body exposed. Alongside the picture is the legend: "I GIVE IT TO MY MAN]", and the following printed matter (CX 1-B): 2/

"We are getting some very GOOD REPORTS from our customers about VIRAN. A new very powerful vitamin which is proving to be the answer to every man's /and woman's/ desire]

This is our new all-organic, all natural SPECIALLY FORMULATED tablet PACKED with VITAMIN 'E". Not an aphrodisiac. No harmful effects. However, it may very well supplement what vitamins are lacking for HEALTHIER NORMAL BODY FUNCTION.

You take it yourself or give it to your loved one. SURPRISE HER] Help her to enjoy life. This is an extraordinary product] It comes in your own PERSONAL SECRET BOTTLE. So secret you can carry it with you and use it whenever you need it] Whenever the occasion arises] Maybe we are not promising miracles but full POTENCIES are shown on the label. A 30 day supply cost only $6 and you may order now by FILLING OUT THE COUPON ON THE OTHER SIDE for fast, fast, FAST DELIVERY. This offer is made with a money back guarantee of course."

2/ The following abbreviations are used herein in referring to evidence in the record: "TR.", for the transcript of testimony; "CX", for Complainant's exhibits; "RX", for Respondent's exhibits. Such references are to the principal parts of the record relied upon by the examiner, in support of particular findings, but are not intended as an exhaustive compendium of the portions of the record reviewed and relied upon by him.

4. In addition to the above-mentioned leaflet, there is enclosed in the mailing envelope three other pieces of printed matter as follows:

a. A brochure and order blank for a product designated as "FRENCH ticklers", containing an offer to provide as a "free bonus" to customers who order and pay for this product, copies of the publications (1) "FOODS TO STIMULATE SEXUAL DESIRE" and (2) "THE MUTUAL ORGASM." The reverse side of this order blank contains a space for ordering another publication, on payment of $10.00, entitled "HOW TO GET AND HOLD A WOMAN."

b. A brochure and order blank for ordering, on payment of $10.00, entitled "HOW TO GET AND HOLD A WOMAN."

b. A brochure and order blank for ordering, on payment of $10.00, a copy of a publication entitled "SEX AND LOVE TODAY", entitling the customer to receive a free copy of "UNCENSORED SEX COMPENDIUM" which purportedly contains "OVER 200 UNCENSORED PICTURES OF COITION & SEXUAL RELATIONS."

c. An application for membership in the "SWINGERS LIFE" club, entitling one to receive the "SWINGERS STAG ALBUM /which/ contains 28 photos of uninhibited action that will delight you beyond your wildest dreams]"

d. A "Safety Envelope" for use in making a cash remittance, in which the customer is advised that Respondent is "preparing to offer some VERY UNUSUAL ITEMS", and that if the customer "will order any of the items offered herein, we will place your name on our PREFERRED LIST."

5. Although the advertising leaflet for "VIRAN" does not specifically set forth the statements alleged as representations in the complaint, counsel for Complainant contend that such representa- tions are clearly implied therein, and that the leaflet would be so interpreted by the ordinary reader. Counsel for Complainant also suggest that the implications of the leaflet, that "VIRAN" is offered as a product to stimulate or increase sexual prowess and desire, is reinforced by the assortment of sexually oriented material enclosed in the mailing envelope. Respondent contends that the leaflet, by itself, cannot be interpreted as alleged in the complaint, and that while "/t /here is doubtless an aura of sexuality which might have been intended by the inclusion of the other documents in the mailing piece *** that is salesmanship, not fraud." Respondent asserts that since the other material "does not even mention the pill /it/ cannot be stretched to contaminate the innocent and truthful selling document."

6. While the advertising leaflet does not make the challenged representations, in haec verba, such representations are clearly inferable from the statements which are made. The message contained in the leaflet is reducible to the following syllogism: (1) Vitamin E is necessary for a healthy sex life, (2) most people are deficient in this vitamin, (3) "VIRAN", a new product, will provide this need for Vitamin E, and (4) people who use "VIRAN" will thereby improve their sex life. Thus, the leaflet states that "VIRAN" is a "new very powerful vitamin which is proving to be the answer to every man's /and woman's/ desire]", and that it is "PACKED with VITAMIN 'E'", and "may very well supplement what vitamins are lacking for HEALTHIER NORMAL BODY FUNCTION." While the specific nature of the "NORMAL BODY FUNCTION" is not spelled out, in the context of the leaflet the clear implication is that it involves sexual activity. Thus, the leaflet contains the picture of a semi-nude woman in a suggestive pose and the legend "I GIVE IT TO MY MAN]" The ostensible disclaimers that the tablets are not an "aphrodisiac" and that "maybe we are not promising miracles" would be apt to be overlooked or not understood by the average reader, surrounded as these are with references to "full POTENCIES", to a "SECRET BOTTLE /which/ you can carry with you and use it whenever you need it] Whenever the occasion arises]", and to the fact that the tablets are "proving to be the answer to every man's /and woman's/ desire, all of which would strongly suggest to the ordinary reader that the function of the tablets is to act as a sexual stimulant. This impression is deliberately enhanced by the other material in the envelope, which counsel for Respondent concedes was intended to provide "an aura of sexuality *** in the mailing piece." Such impression cannot be ignored as mere "salesmanship", as counsel suggests. However, even without the associated material, the leaflet itself would be interpreted by the average reader as offering the tablets as a sexual stimulant. The fact that various of the statements contained therein, if considered in isolation, might be interpreted in the manner suggested by Respondent, viz., that "VIRAN" is offered merely as a vitamin supplement to improve the general health, is not controlling since this is not the overall impression created by the leaflet.3/ Accordingly, it is concluded and found that the average reader would interpret Respondent's advertising literature for "VIRAN" tablets as making the representa- tions alleged in the complaint, viz., that: (a) The average adult American suffers from a vitamin deficiency, particularly in Vitamin E; (b) as a result of such vitamin deficiency the desire and capacity for normal sexual activity and enjoyment is substantially reduced;

(c) the product which it sells under the trade name, "VIRAN", is unusual, "powerful", "extraordinary" or substantially different from many other vitamin-mineral preparations which are universally available; (d) the use of "VIRAN" will cause an increase in a person's sexual desire and capacity for normal sexual activity and enjoyment.

C. The Alleged Falsity of the Representations

7. The uncontradicted and credited testimony of the medical witness called by counsel for Complainant establishes that the 3/ "The important question to be resolved is the impression given by an advertisement as a whole. Advertisements which are capable ot two meanings, one of which is false, are misleading. *** Advertise- ments which create a false impression, although literally true, may be prohibited." Rhodes Pharmacal Co. v. Federal Trade Commission, 208 F.2d 382, 387 (7th Cir., 1953). representations made by Respondent, as hereinabove found, are materially false, for the following reasons:

a. The diet of the average American is sufficient in vitamin content and he has no need for vitamin supplements (Tr. 25-6).

b. While nutritional deficiency may affect certain body functions and result in decreased libido, this is not a common condition. Moreover, the percentage of cases where such nutri- tional deficiency is due to a vitamin deficiency is small. Examples of vitamin deficiencies which may affect body function are (1) deficiency in Vitamin B12, which may result in pernicious anemia and neurological disease of the spinal cord, (2) deficiency in Vitamin C, which may lead to scurvy, and (3) deficiency in Vitamin D, which may lead to rickets. None of these conditions is common today (Tr. 26-9).

c. Respondent's tablets are multi-vitamin tablets of the type contained in ordinary "One-A-Day" tablets. They may be used as a dietary supplement, but are not therapeutic vitamins. They would have no impact on the sexual desire or capacity of the average individual. They would likewise have no value in the case of individuals suffering from vitamin deficiencies such as Vitamin B12, Vitamin C or Vitamin D. While Respondent's tablets contain Vitamin E, this is not a new vitamin and, moreover, such vitamin has no known therapeutic use, and has no value in restoring or improving sex desire or drive (Tr. 29-36, 42).

d. The greatest cause of lack of sex drive or libido is psychogenic, not physiological (Tr. 50). While vitamin deficiency may result in poor health and in some cases affect sex drive, the latter is not a normal noncomitant of vitamin deficiency. In those cases where vitamin deficiency has affected an individual's health and caused a loss of libido, proper treatment requires the prescription of therapeutic vitamins which are geared to the particular individual's vitamin deficiency. Such vitamins are generally of much higher dosages than are contained in Respondent's vitamins and must be administered over a substantial period of time in order to restore good health. The taking of ordinary "One-A-Day" vitamins, on a spot basis or even over a period of several weeks, will have no effect in improving the health of such individuals or restoring any loss of libido which may exists (Tr. 32-33, 38, 39, 45-6).

e. While Respondent's tablets also contain other ingredients, such as protein supplements and minerals, these ingredients have no significant value in improving an individual's health or in restoring any loss of libido (Tr. 33-4, 47).

CONCLUSION OF LAW

Respondent is engaged in conducting a scheme or device for obtaining money or property through the mail by means of false representations, in violation of 39 U. S. COde 3005. It is accordingly recommended that an order in the form attached, as provided in 39 U. S. Code 3005, should be issued.

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1/ Proposed findings not herein adopted, either in the form proposed or in substance, are rejected as not supported by the evidence or as involving immaterial matters.