In the Matter of the Complaint Against

BEHAVIORAL SCIENCE LABORATORIES at
College Park, Maryland 20740

P.O.D. Docket No.3/83;

APPEARANCES:
H. Richard Hefner, Esq.
Mailability Division
Law Department United States Postal Service
Washington, D.C. 20260 for the Complainant

FINAL DECISION OF THE POSTAL SERVICE^*/

This case was initiated by the filing on April 5, 1971, of a complaint by the Law Department of the United States Postal Service against the Behavioral Science Laboratories at College Park, Maryland. The complaint charged Behavioral Science Laboratories, referred to hereafter as the Respondent, with conducting a scheme or device for obtaining money or property through the mail, by means of false representations, contrary to the provisions of Section 4005 of Title 39 of the United States Code.

The activity in which the Respondent was engaged is the sale through the mails of a product called "Excite-X". In the complaint it is charged that the Respondent represents this product as being "a true, safe aphrodisiac"; "guaranteed to induce sexual desire"; and capable of causing "old men suddently to lust after nurses, bedridden females chase doctors, caged rabbits attempt to mount each other all at the same time in wild sex orgies."

On April 21, 1971, the Respondent filed an answer to the complaint in which he denied the allegations of the complaint, but he alleged that his product consists of d-AlphaTocopheryl Acetate, which is commonly known as vitamin E. In the answer, the Respondent admits advertising his product in a publication known as Screw, published by Milky Way Productions, Inc. A copy of the Respondent's advertising is attached to the Complaint as Exhibit A, and an earlier advertisement appeared in Screw Magazine, Number 66, dated June 8, 1970, and this was admitted in evidence as Complainant's Exhibit Number 1. We have already indicated the advertisements appeared in this magazine, the character of which is so well known that it will not be necessary to besmudge this record by repeating a description of this publication.

The use of the mails by this Respondent was clearly established by testimony of Inspector A. W. Pfanmiller, and the exhibits which were admitted in evidence in connection with his testimony. And the use of the mails is further established by the test correspondence conducted by Inspector Pfanmiller under the name of Marvin Fleming, at Box 1674, Amarillo, Texas. He ordered and received the product.

In regard to the efficacy of the product to accomplish the results which are claimed for it in the advertising matter, Complainant presented as an expert witness Dr. Angel E. Salazar, Doctor of Medicine, who is extremely well qualified and who has had years of experience both in private practice and as an employee of the Government. In his capacity as an official of the Food and Drug Administration, Dr. Salazar specialized for a period in excess of a year in inquiring into foods for special dietary uses, and a large part of this study was concentrated on the effect of vitamins in the diet.

Now, Dr. Salazar testified that an aphrodisiac is a substance which would, if it existed, tend to increase the sexual desire or the libido of the individual. But, Dr. Salazar testified that not only is vitamin E not such a product, but that there is no such product known to the medical profession today. Dr. Salazar testified that this statement of his represents the universality of informed medical opinion on the subject.

On the basis of the record made in this case, I find that the Respondent is engaged in the sale through the mails of a product called "Excite-X".

I find that this product consists of vitamin E.

I find that the Respondent makes the representations set forth in the complaint.

I find that these representations are materially false.

I conclude, as a matter of law, that the Respondent is, contrary to the provisions of 39 U.S. Code 4005, engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations.

A remedial order pursuant to that section of the Code will be issued.

05/06/71

Duvall, William A.

___________________

*/Transcribed from oral decision as rendered at close of hearing held May 5, 1971. Minor corrections have been made in punctuation, grammar and otherwise as appropriate, but no change in substance has been made.