In the Matter of the Complaints Against

PARTY SUPPLY, INC., et al.,
P. O. Box 239 at
Gary, Indiana 46401

J & B SALES,
P. O. Box 239 at
Gary, Indiana 46401 and
6915 So. Vernon,
Chicago, Illinois 60637

BANNED,
265 S. Robertson Street at
Beverly Hills, California 90211

NINA,
324 So. First Street at
Alhambra, California 91802

P.S. Docket No. 2/21 P.S. Docket No. 2/23
P.S. Docket No. 2/29 P.S. Docket No. 2/30

H. Richard Hefner, Esq.,
Law Department, U.S. Postal Service, for Complainant

Delars J. Bracy, Esq.,
6306 South Cottage Grove Avenue,
Chicago, Illinois, for Respondent

Before: William A. Duvall, Chief Administrative Law Judge

INITIAL DECISION^1/

This case involves charges that under the various names to be specified later, Respondent is engaged in conducting a scheme or device for obtaining money or property through the mail by means of false representations contrary to the provisions of Section 3005, Title 39, United States Code.

The charges, in substance, are that the Respondent, under the different names, is selling various items through the mail upon the basis of the allegedly false representations that the products are aphrodisiacs which will enhance the user's sexual desire or performance or will enhance the response of the user's sexual partner.

The businesses named in the complaint or complaints in the respective cases are as follows:

Docket No. 2/21, names as Respondents, Party Supply, Ince., P. O. Box 239, Gary, Indiana, Party Aids, and Formulas. In Docket No. 2/23, named as Respondents are J & B Sales, P. O. Box 239, Gary, Indiana, and 6915 South Vernon Avenue, Chicago, Illinois.

In Docket No. 2/29, the named Respondent is Banned, 265 South Robertson Street, Beverly Hills, California.

In Docket No. 2/30, the named Respondent is Nina, 234 South First Street, Alhambra, California.

In the usual case brought under this statute, 39 U.S. Code 3005, there are at least three broad, general issues which are sometimes stated as follows:

1. Does the Respondent use the mails in the conduct of the enterprise?

2. Does the Respondent make the representations that are attributed to it and as set forth in the complaint?

3. If the Respondent does make the representa- tions set forth in the complaint, are those represen- tations false?

In this case, the Respondent insists that the Government has charged it with making representations which Respondent in fact does not make; that the Government has placed a strained and erroneous interpretation on the language used in Respondent's advertisement.

Respondent stipulated as follows: First, the mails are used to seek remittances under the various names set forth in the complaints and Respondents does use the advertisements which are attached to the complaints. Secondly, the products being sold are not aphrodisiacs and will not enhance the user's sexual desire or performance, nor will they enhance the sexual response of one's sexual partner.

In short, then, the sole issue in this case, or in these cases, may be stated as follows: Does the Respondent, under the respective names, make the representations attributed to it in the various complaints, or stated otherwise, does the language or the representations set forth in the complaints constitute reasonable inferences which a reader may draw from the reading of the complaint. It is not necessary to read into the record at this point the various specific charges, but in order to accurately and fairly reflect what the Respondent actually represents in its advertisements, the following exhibits will be made attachments to this decision: A-1, A-2, A-3, B-1, B-4, B-5, B-6, B-7, B-10, C-1 and D-1.

The case in which the Respondent's position in this proceeding may be said to have any degree of persuasiveness is in regard to Docket No. 2/29 involving the enterprise known as Banned. In this case, Respondent's Counsel insists, because of the language used in the advertisement, that the charges set forth in the complaint, are overstatements of what Respondent actually represents in regard to the product being sold. The Respondent's advertisement, which is Exhibit C-1 and is attached to this decision, does refer to "Imitation SPANISH FLY PILLS." The word "Imitation" is in small case, except for the initial capital letter, and the words "SPANISH FLY PILLS" are in all caps. The advertisement in similar form refers to "Imitation SPANISH FLY CHEWING GUM" and Imitation MARIJUANA."

Respondent's Counsel strongly urges that use of the word "Imitation" overcomes any impression that the Respondent was offering an aphrodisiac for sale.

If the language which has just been quoted were the only language in the advertisement, the argument of Respondent's Counsel might be quite strong. However, that argument overlooks other language in the advertisement. For example, the first words in the ad indicate that what are being offered for sale are "BANNED Adult Party Gags." When one reads further into the advertisement, he sees that what is involved is not an afternoon tea party or church social, but the type of party that is being referred to is some sort of sex party or, as I believe some of the young people currently refer to it, an orgy.

Another consideration that enters into the mind of the prospective purchaser is the price that is demanded for the various products. In this case, the SPANISH FLY PILLS are being offered for 12 1/2 cents per pill. The price is stated at 24 for $3.00. My arithmetic works out to that price per pill. Then, with regard to the Spanish Fly Chewing Gum, you get ten sticks for $3.00. That is 30[ for a stick of chewing gum. Finally, the bag of marijuana is being sold for $3.00. It has not been shown and we can't state positively for the record what the ingredients of these various products are, but it has been admitted or stipulated that whatever they are, they are not aphrodisiacs and the entire context of this advertisement when viewed as a whole has strong overtones of sexual matters in it.

When one considers the prices charged for these products, the normal reaction would be that no one would be so callous as to charge those prices for phoney merchandise.

Now, this case involving the Respondent Banned is the only one in which the word imitation is used. Although there is one advertisement in which the word or the prefix "Pseudo" is used in connection with one product, but that argument was not pressed. The other advertisements leave little doubt, if any, in the mind that they relate to sexual matters and, as pointed out by Counsel for the Complainant, the advertisements are to be considered as a whole and from the standpoint of the impact that the advertising matter will probably produce on persons of ordinary mind. That was the holding in Donaldson v. Read Magazine , which was 333 U.S. 178, a 1948 case.

Some Courts have gone beyond that statement and have frequently indicated in various decisions that the purpose of the Postal Statute is not to punish the wrongdoer but it is to protect the consumer or the prospective purchase, and this purchaser has been described as one who is or may be gullible, trusting, ignorant, unthinking and credulous. Those terms are found in the case of Gottlieb v. Schaffer , 141 Fed. Supp., page 7, decided in the Southern District of New York in 1956.

So applying these rules to the advertising literature which is now a matter of record in this case, I make the following findings of fact:

1. The Respondent, under the various names listed in the complaints in the four cases under consideration, is engaged in conducting a business by means of the mail.

2. In the conduct of the businesses, the Respondent does make in its advertising material the representations which have been attributed to it in the various complaints in these cases.

3. It having been stipulated that the Respondent has not been selling aphrodisiacs or materials which will enhance sexual performance or desire or the response of the user or his partner, it follows that the representations found to have been made by the Respondents are false. This leads to the following conclusions of law.

The Respondent is engaged as charged in conducting a scheme or device for obtaining money or property through the mail by means of false representations contrary to the provisions of Section 3005 of Title 39, U. S. Code.

I have considered the proposed findings of fact and conclusions of law previously presented by Counsel for both parties. To the extent indicated herein those proposed findings of fact and conclusions of law are adopted. Otherwise, such proposed findings of fact and conclusions of law are rejected because they are either contrary to or unsupported by the preponderance of the evidence or because they are immaterial.

I find that an order of the type contemplated by the governing statute should be issued against this Respondent.

____________________

1/ Transcribed from oral decision as rendered at close of hearing held March 28, 1973. Minor language changes have been made, but the substance of the decision is unchanged