In the Matter of the Complaint Against

SOBERIN AIDS COMPANY,
Box 42, Rugby Station at
Brooklyn, New York 11203

P.S. Docket No. 2/36

James J. Robertson, Esq. ,
Law Department,
U. S. Postal Service, for Complainant

Robert Ullman, Esq.
Bass and Ullman,
342 Madison Avenue,
New York, New York 10017, for Respondent

Before: William A. Duvall , Chief Administrative Law Judge

INITIAL DECISION ^1/

This proceeding was initiated on February 16, 1973, when the Consumer Protection Office of the General Counsel's Office of the United States Postal Service filed a complaint in which it charged that Soberin Aids Company at Brooklyn, New York, is engaged in conducting a scheme or device to obtain money or property through the mails by means of false representations in violation of Section

3005 of Section 3005, Title 39 of the United States Code.

The Complaint set forth charges, that are allegedly false, on the basis of which the Respondent was selling a product to enable any person to break the habit of the excessive ingestion of alcohol. The specific representations are as follows:

(1) That Respondent's product represents a marvelous medical discovery;

(2) that thousands have used Respondent's product to break the drinking habit;

(3) that Respondent's product helps promote an aversion to all alcoholic drinks;

(4) that Respondent's product may be used secretly in the drinks of persons other than the purchase, and that such use is legal;

(5) that Respondent's product is part of a medically recognized method for treating over long periods alcoholics or those who over-indulge in alcoholic beverages;

(6) that Respondent's product may be used safely.

Attached to this decision as Appendix A is a copy of an advertisement which was attached to the Complaint. This advertisement was inserted in the publication Movie World, the January, 1973 issue, and it was inserted by the Respondent.

Considering the advertising material as a whole, and in the light of the effect that it would most probably produce on the average reader, Donaldson v. Read Magazine , 333 U.S. 178, it is found that the Respondent does make the representations set forth in paragraph V of the Complaint. In fact, many of the representations are lifted verbatim from the advertisement of the Respondent.

The next question that we must consider is whether these representations are true or false. In connection with this issue the Complainant produced as a witness a medical doctor, who is Board certified as an internist; and the Respondent produced as a witness a gentleman with a Ph.D. in pharmacology, and whose specialty formerly was chemistry.

In connection with the first representation quoted above, I agree with Counsel for the Respondent that there is no proof as to the falsity of this representation.

Similarly, there is no proof as to the falsity of the second representation. As a matter of fact, the proof indicates that for a number of years this product, or a similar product, has been used for the purpose of breaking the drinking habit. There is not proof that the purpose for which this product was taken was achieved.

In regard to the third representation, the implication of the Respondent's advertisement is that by taking this product as directed one time, the user would be successful in overcoming his desire for all kinds of beverages of an alcoholic nature. The proof on this point, however, is that the taking of this product as directed produces an aversion to the particular type of alcoholic beverage with which it is taken.

This is true in regard to at least two or three different kinds of alcoholic drinks. After the product has been taken with as many as two or three alcoholic drinks, it is then possible that the user may have developed an aversion to alcohol in all of its forms, but the proof of record in this case is that taking this product with just one form of alcohol is not sufficient to create an aversion to all forms of alcohol.

In regard to the fourth representation set forth in paragraph V of the Complaint, there is inadequate proof to establish the falsity of this alleged representation which is, in fact, an implied representation.

In regard to representation number 5 in paragraph V of the Complaint, I find that this representation is materially false as a matter of fact for reasons which I will indicate.

Both of the Witnesses -- that is to say, the Witnesses for both of the parties in this proceeding were unequivocal in their testimony that this product if taken as directed would at best create an aversion to alcoholic beverages for a period of from two to five days. There is complete agreement on that point. In that connection I want to point out that basic credit for that point is ascribed to the testimony of Dr. Staker, who appeared for the Complainant, because of his status as a medical doctor. But what he had to say on this subject was agreed to and concurred in by Dr. Lampe, the pharmacologist.

The Complainant's medical expert testified that in order for there to be a reasonably effective treatment for an alcoholic the following things must be present: First, the individual must be examined to determine whether there is any medical illness. If so, this must be treated. While this medical history is being taken, the person must be analyzed as to the reason for his alcoholism. That does not mean analysis in terms of psychoanalysis, but the doctor must form an opinion as to the reason for the alcoholism of that person. There has to be a good relationship between the doctor and the patient if the treatment is to be successful, and the doctor must not be condemnatory or judgmental in the matter.

After these things have been done, the treatment must be such as to get at the basic cause of the person's alcoholism, and frequently this does involve such matters as counselling, psychoanalysis, and various other forms of motivation.

It was Dr. Lampe's testimony that the ingestion of an ounce and a half of syrup of ipecac would produce vomiting in approximately 80 percent of the population, and that in the remaining 20 percent, there might or might not be produced some nausea which could have an effect in the short term for the person's desire for alcohol. But in any event, in 20 percent of the cases, vomiting would not occur and there would be significantly less likelihood of the creation of an aversion to alcohol.

This contrasts considerably with the advertising material that is used by this Respondent. It is not suggested that there is a relatively high incidence of failure to achieve the desired results, and in this connection it was stated also in Donaldson v. Read Magazine that the advertisements as a whole could be misleading although every sentence separately considered is literally true. This may be because things are omitted that should be said, or because advertisements are composed or purposefully printed in such a way as to mislead. So it seems that there is some obligation on the part of the seller of a product of this type to suggest rather strongly that there is a fairly high failure rate among those who try to follow the methods recommended by this Respondent.

In regard to the last representation -- that is, that Respondent's product may be used safely, I find that this representation is also materially false. As previously pointed out, Respondent's witness is a pharmacologist, and his testimony is accepted as to the effect of substances which are taken into the body, but he specifically disclaimed information as to the medical effects of the ingestion of various substances. His testimony related to the chemical and pharmacological effects.

Dr. Staker testified that the taking of this product as directed would produce violent vomiting. Dr. Lampe testified, and I made a note which I believe to be accurate, that one tablespoon would not provide violent vomiting. In any event, Dr. Lampe defines violent vomiting as that vomiting which extends over a rather lengthy period of time. Violent vomiting can also be that kind of vomiting which occurs in the period of a short space of time, but which produces severe stress and strain upon the body of the person who is vomiting.

There is testimony by the medical expert produced by the Complainant that heart disease is prevalent in people who are 45 to 50 years old, but that in that same group those people who are alcoholics have a higher incidence of heart disease. Dr. Staker testified also that 10 to 20 percent of adult males have intestinal ulcers, but that 30 to 40 percent of adult male alcoholics have ulcers. There are high percentages, and they represent large numbers of people, human beings.

When this violent vomiting takes place, with its accompanying retching, there is bound to be a considerable strain upon the body; and even the Respondent's Witness said that when this occurred, when there is strain upon the body, persons who have heart conditions and ulcers are susceptible to great physical shock and damage. He specifically said that ulcers would be more prone to perforate during a seizure of vomiting. He specifically said, again echoing the testimony of the medical doctor, that persons with heart disease would be more apt to have adverse effects during a seige of vomiting. Therefore, I repeat that the evidence of record in this case is that the taking of this product presents an appreciable medical risk.

The decision in this case has been made without reference to any matter found in the Physician's Desk Reference or in any matter found in 21 CFR 3.30 in regard to a statement of policy by the Food and Drug Administration. The decision in this case is based, as has been indicated, on the advertisement of the Respondent and the testimony of the Witnesses who have been produced at this hearing.

In addition, I have considered the proposed findings of fact and conclusions of law, which have been submitted by the parties, and I have adopted them to the extent indicated. Otherwise such proposed findings of fact and conclusions of law are rejected because they are either unsupported by or contrary to the evidence of record in this case or because of their immateriality.

It is pointed out that on march 6, 1973, Complainant's Counsel made a motion for an oral decision in this case. On March the 7th, 1973, an order was issued in which it was stated that if it appeared to be appropriate or in the public interest to do so, the presiding officer might render an oral initial decision at the close of the hearing in this proceeding. Counsel were therein advised to be prepared to submit proposed findings of fact and conclusions of law either orally or in writing at the close of the hearing.

Those oral proposed findings of fact and conclusions of law were made. They were quite detailed, and they were addressed to every facet of the case.

In view of the record in this case and in consideration of all the exhibits and the testimony, an order as provided in 39 U.S.C. 3005 should be issued against this Respondent.

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1/ Transcribed from oral decision as rendered at close of hearing held May 1 and 4, 1973. Certain language changes have been made, but the substance of the decision is unchanged.