In the Matter of the Complaint Against

R. H.
P.O. Box 239
at
Gary Indiana  46401

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
P. S. Docket No. 1/47

INITIAL DECISION OF HEARING EXAMINER^[1]

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 18, 1972, charging the Respondent herein, R. H., P. O. Box 239 at Gary Indiana, 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 “MEXICAN SPANISH FLY”, and specifically concerning the effectiveness of said product as an aphrodisiac or sexual stimulant.  Respondent appeared through counsel in the proceeding and filed an answer in which it purported to deny the 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.  Complainant was represented by counsel, but Respondent failed to make an appearance and was not represented at said hearing.  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, and (2) a physician through whom he sought to establish the falsity of the representations allegedly made in Respondent’s advertising matter.

            A motion was made prior to the hearing by counsel for Complainant for an oral decision pursuant to the provisions of §952.24(c) of the Rules of Practice, which motion was granted conditionally by the Hearing Examiner’s order dated February 15, 1972, the condition being that an oral decision would be rendered if it appeared to be appropriate to do so at the close of the reception of evidence.  such motion was renewed by counsel for Complainant at the close of the evidence and granted by the Hearing Examiner.

            Respondent, having failed to appear at the hearing or to offer any evidence in its behalf, and the evidence offered on behalf of Complainant being plausible and credible, it is accepted by the Hearing Examiner as the basis for findings hereinafter made.  After having carefully considered the evidence in this proceeding, and based upon the entire record, including the complaint and the answer, the testimony of the two witnesses and the exhibits offered through them, 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 a product which it designates in its advertising matter as “MEXICAN SPANISH FLY”.  Public attention is directed to said product by advertisements which it places in various publications, including the publication known as “National Star Chronicle” and another known as “Screw”.  In such advertisements, it requests the customer to send $3.00 in payment of a one-fluid ounce bottle of “Mexican Spanish Fly, in Liquid Form”.

            2.  The record establishes that Respondent does, in fact, solicit money through the mail from customers who have seen these advertisements and mail the sum of $3.00 in payment of the product in question.

B.  The Alleged Representations.

            3.  The offer to sell Respondent’s product is made in various advertisements such as that which has been received in evidence as Complainant’s Exhibit 1, which describes the product as follows

MEXICAN
SPANISH FLY
IN LIQUID FORM
A great gag!  It is powerful –
just a drop or two will start
the fun.  Keep a supply on hand
for parties, conventions, etc.
1 Fl. Oz $3.00
R. H. – P.O. Box 239
Gary, Indiana 40401

            4.  The complaint alleges that through the foregoing statements in its advertisements, Respondent has represented to the public, in substance and effect, that (a)  “MEXICAN SPANISH FLY IN LIQUID FORM” contains a substance commonly known as Spanish Fly, and (b) “MEXICAN SPANISH FLY IN LIQUID FORM” is an effective aphrodisiac or sexual stimulant.  In the answer filed through its attorney, Respondent has denied having made the foregoing representations.  There is no doubt that Respondent has specifically made the first of the representations alleged in the complaint, namely, that its product contains Spanish Fly.  Its designation of the product as “Mexican Spanish Fly” contains the implicit, if not the explicit, representation that the product contains Spanish Fly.  While Respondent ha snot specifically stated in its advertisement that Spanish Fly is an effective aphrodisiac or sexual stimulant, the public generally, including particularly the ordinary reader, would infer from Respondent’s designation of the product as “Spanish Fly”, that the product is an effective aphrodisiac or sexual stimulant.  Historically, the product Spanish Fly has been understood by the public as being associated with sexual stimulation.  This impression is reinforced by the type of advertising literature or leaflets enclosed with the product, and by the fact that the advertisement appears in publications which are to a greater or lesser extent sexually oriented and calculated to cater to readers interested in sexual matters.  Accordingly, I find that the advertisement in question does, in fact, make the representations alleged in the complaint.

C.  The Alleged Falsity of the Representations.

            5.  It is my finding that the uncontradicted and credited testimony of the medical witness, Dr. Vincent F. Cordaro, establishes that the representations made by Respondent, as above found, are materially false for the following reasons:

                        a.  None of the ingredients listed on the label of Respondent’s product has any value or effect as an aphrodisiac or sexual stimulant.  Such ingredients consist primarily of matter which is used for the seasoning of food or as antacids, and some food coloring.  At best, some of the ingredients, such as Spanish pepper, might produce some irritations to the genital-urinary tract and possibly to the gastro-intestinal tract.  However, this would not have the effect of an aphrodisiac or sexual stimulant.  On the contrary, such irritation might adversely affect sexual interest.

                        b.  The ingredients included in Respondent’s product do not include the product commonly known as Spanish Fly.  The technical term for Spanish Fly is cantharidin, which is an extract of a beetle.  Although in popular mythology Spanish Fly, as such, is believed to be an aphrodisiac or sexual stimulant, the medical and scientific community does not accept it as having any positive value as an aphrodisiac or sexual stimulant.  The consumption of Spanish Fly or cantharidin has been known to cause irritation to the genital-urinary tract and to the gastro-intestinal tract, but it is not effective as an aphrodisiac or sexual stimulant.  On the contrary, such irritation may result in a decrease in sexual interest or desire.  In any event, as has been found above, Respondent’s product does not include Spanish Fly or cantharidin among its ingredients.

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 for in 39 U. S. Code 3005, should be issued.

John Lewis
Hearing Examiner

[1] Transcribed from oral decision rendered at close of hearing, except for correction of certain nonsubstantial typographical or grammatical errors