P.S. Docket No. 1/49
March 21, 1972
In the Matter of the Complaint Against
P. O. BOX 239, and POST BOX 239, Dept. 7 at
Gary, Indiana 46401
P.S. Docket No. 1/49
H. Richard Hefner, Esq.,
Law Department, U. S. Postal Service,
for Complainant.
Delars J. Bracy, Esq.,
Chicago, Illinois, for Respondent.
Before: John Lewis , Hearing Examiner
INITIAL DECISION OF HEARING EXAMINER1/
STATEMENT OF PROCEEDINGS
This proceeding was initiated by the filing of a complaint by the General Counsel of the United States Postal Service on January 19, 1972, 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 3005.
In substance, the complaint charges Respondent with having made false representations concerning the nature of its product, which it describes in its advertisements as "KNOCK-OUT DROPS", and specifically concerning the ability of said product to favorably affect sexual desire in women and to act as an aphrodisiac. Respondent appeared by counsel in this proceeding and filed an answer purporting to deny various allegations of the complaint.
Pursuant to notice duly given, a hearing for the reception of evidence was convened on March 3, 1972, in Washington, D. C., before the undersigned Hearing Examiner. Although duly notified of said hearing, Respondent failed to appear at said hearing, either personally or by counsel. Counsel for Complainant called two witnesses, (1) a postal inspector through whom he sought to establish that Respondent's method of operation involved the obtaining of money through the mail by means of statements made in advertising matter, and (2) a physician through whom he sought to establish the falsity of the representations allegedly made in Respondent's advertising matter.
By order issued February 15, 1972, the Hearing Examiner conditionally granted a motion by counsel for Complainant for an oral decision pursuant to 952.24(c) of the Rules of Practice, to the extent that the Hearing Examiner would render such a decision if it appeared appropriate to do so at the close of the reception of evidence. Such motion was renewed at the conclusion of the reception of evidence and the Examiner concluded that it would be appropriate to grant such motion and issue an oral decision.
Since counsel for Respondent has failed to appear or offer any testimony or other evidence to controvert the testimony of Complainant's witnesses, and the testimony of such witnesses is uncontradicted and reasonable and plausible, it is accepted as credible evidence upon which to base the findings hereinafter made. After having carefully considered the evidence in this proceeding, and based upon the entire record, including the complaint and answer, the exhibits, and the testimony of the witnesses, I make the following decision:
FINDINGS OF FACT
A. The Alleged Solicitation of Money Through the Mail .
1. Respondent is engaged in the business of selling pills or tablets which it designates in its advertising matter as "KNOCK-OUT DROPS".2/ Public attention is directed to such product by advertisements inserted in publications of general circulation. As part of said advertisements, Respondent invites readers to order said product by sending $3.00 through the mail.
2. The record establishes that Respondent does, in fact, obtain money through the mail from customers who, pursuant to Respondent's invitation, order said product through the mail. Respondent does, in fact, ship such product through the mail in response to orders received from customers who respond to Respondent's advertisements.
B. The Alleged Representations .
3. The offer to sell Respondent's product is made in advertise- ments, several of which have been received in evidence and read as follows:
"KNOCK-OUT DROPS (for fun parties).
Drive a woman to such peaks in sexual
pleasure that she herself will hardly
believe it is true. No harmful effects."
In certain of the advertisements, the word "peace" appears therein in lieu of the word "peaks" quoted above.
4. The complaint alleges that Respondent has represented to the public in such advertisements, in substance and effect, that (a) "KNOCK-OUT DROPS" are an effective aphrodisiac or sexual stimulant, and (b) "KNOCK-OUT DROPS" will enable the purchaser to "drive a woman to such peaks in sexual pleasure that she herself will hardly believe it is true." In the answer filed through its attorney herein, Respondent has denied subparagraph (b) above set forth, but has failed to deny subparagraph (a). Assuming, however, that the latter omission was inadvertent, it is my finding that Respondent has, in substance and effect, made both of the representations alleged in the complaint. While it does not expressly state that Knock-Out Drops are an effective aphrodisiac or sexual stimulant, the context of the advertisement, including reference to "driving a woman to peaks of sexual pleasure", and the context of the publications in which such advertisements appear, would cause the average reader to infer that the Knock-Out Drops are some type of aphrodisiac or sexual stimulant. With respect to the second of the representations charged, the advertisements do contain the specific representation charged, in haec verba.
C. The Alleged Falsity of the Representations .
5. It is my finding that the uncontradicted and credible testimony of Dr. Vincent F. Cordaro establishes that the representations made by the Respondent, as above found, are materially false for the following reasons:
a. The product in question "KNOCK-OUT DROPS" does not contain any ingredients which would have any positive effect as an aphrodisiac or sexual stimulant, or which would in any way increase a woman's sexual stimulant, or which would in any way increase a woman's sexual pleasure. The ingredients include sugar, glucose, maize and vegetable oil, none of which would product any effect insofar as sexual stimulation is concerned. One of the ingredients, Spanish pepper, is used in the seasoning of foods and if contained in sufficient quantities in the tablets, might irritate the genital- urinary tract or the gastro-intestinal tract, but would not affirmatively increase sexual interest or desire. On the contrary, such irritation might adversely affect such interest or desire.
b. The product itself is described in the envelope in which it is contained as "SPANISH FLY KNOCK-OUT DROPS". The term "Spanish Fly" is associated with a product known as cantharidin, which is derived from the crushing of certain types of beetles. In popular mythology, Spanish Fly or cantharidin is associated with sexual stimulation and reportedly has aphrodisiac qualities. However, in fact, it has no such ability or capacity. Its use may result in irritating the genital-urinary tract and the gastro- intestinal tract, but would have no favorable effect in stimulating sexual interest or acting as an aphrodisiac. On the contrary, such irritation may adversely affect sexual interest or activity. In any event, Respondent's product, although using the terminology "Spanish Fly", does not, according to its own list of ingredients, purport to contain any cantharidin. It is clear, therefore, that Respondent's "KNOCK-OUT DROPS" are not an effective aphrodisiac or sexual stimulant and will not enable the purchaser to drive a woman to such peaks or peace in sexual pleasure that she herself will hardly believe it is true.
CONCLUSION OF LAW
Respondent has 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 usual form, as provided in 39 U. S. Code 3005, should be issued.
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1/ Transcribed from oral decision rendered at close of hearing, except for correction of certain nonsubstantial typographical or grammatical errors.
2/ On motion of counsel for Complainant the address of Respondent, as reflected in the caption, was amended by adding "Dept. 7" and correcting the Zip Code from "40401" to "46401".