In the Matter of the Complaint Against

SOBERIN AIDS COMPANY
Box 42, Rugby Station at
Brooklyn, New York 11203 and
P. O. Box 405
Montvale, New Jersey 07645

P.S. Docket No. 2/36;

APPEARANCES:

James J. Robertson, Esq.
Law Department
U. S. Postal Service
Washington, D.C. 20260
for Complainant

Robert Ullman, Esq.
Bass & Ullman
342 Madison Avenue
New York, New York 10017

POSTAL SERVICE DECISION

The above-captioned proceeding is before the Judicial Officer on Respondent's exceptions to the Chief Administrative Law Judge's Initial Decision upholding three of six charges of false representations contained in the complaint filed February 16, 1973, with respect to Respondent's solicitation of mail orders for its product, "Soberin Aids". The product consists of Syrup of Ipecac and is sold fo ruse in aversion therapy for alcoholics without professional medical supervision. The advertising representations involved here are contained in magazine advertising.

Exception I

Respondent contends that the presiding officer should have granted Respondent's motion to dismiss the complaint at the conclusion of Complainant's case for failure to make out a prima facie case. Respondent contends that Dr. Staker's testimony on which Complainant relied in attempting to establish the falsity of the representations should not be considered substantial evidence because, it contends, Dr. Staker has limited experience in treating alcoholism.

Assuming without deciding that the Judicial Officer should review the proceeding to determine whether it was error to deny Respondent's motion to dismiss rather than review the whole record to determine whether the evidence supports the decision, I find that the Complainant had made out a prima facie case and the ruling was not error.

To determine whether Dr. Staker's testimony should be accepted as substantial, we do not look to see whether he has the ideal qualification or whether a subsequent witness is better qualified. Complainant has produced substantial evidence so long as the testimony of his witness would be accepted if he were the sole witness. It cannot be said, as Respondent implies, that only a subspecialist is competent to testify concerning any of the many common diseases coming within the internal medicine specialty, such as alcoholism. The witness is a qualified specialist in internal medicine and sees and treats a substantial number of patients with problems of alcoholism and specifically was familiar with the literature relating to aversion therapy for alcoholics. Accordingly, the judge was justified in accepting Dr. Staker's testimony as credible and substantial evidence.

Exception II

Respondent excepts to the finding that it falsely represents that the product helps promote an aversion to all alcoholic drinks. The question here is not so much how the product works but what is meant by the advertisement as well as the charge. Thus, Complainant's witness testified that the aversion caused by the product initially would be only to the particular alcoholic beverage (e.g., Scotch, bourbon, beer) in which it was used but that a general aversion could be produced if it should be used in a number of different kinds of alcoholic beverages.

The advertisement states the product helps to break the "drinking cycle". It further states the product "helps promote an Aversion dislike to all alcoholic drinks. May be used secretly in Whiskey, Wine, Beer, Gin, etc." (Underscoring supplied). Reading the advertising as a whole and particularly the language quoted, the message received is that when used in one alcoholic beverage it will produce a temporary aversion to all. Since it is clear that the product will not have that effect the representation must be regarded as false.

Exception III

Upon review of the evidence, I find that Complainant, as Respondent contends in his third exception, has not established that Respondent's product is not part of a medically recognized treatment for alcoholics. Complainant's evidence shows only that while the witness would use aversion therapy, he would use a different drug, along with other therapy. This does not establish that Syrup of Ipecac is not medically recognized as part of an acceptable treatment for some alcoholics. Accordingly, Respondent's Exception No. III is allowed.

Exception IV

Respondent attacks both the finding that Respondent represents that its product may be used safely and the finding that the representation is false. Without attempting to define the exact limits of implied representations of safety, it may be said that certainly members of the public have the right to expect that products intended for internal use will not be offered for sale without disclosure of substantial unexpected hazards to the health of users. ^1/ See 67 Am. Jur. 2d Sales § 460 et seq. It must be concluded that Respondent's advertising represents that the product may be used safely. The record amply supports the Administrative Law Judge's finding that the representation as to safety is false for the reasons given by him.

"In my view it is reasonable, therefore, to conclude that in offering a product and program for weight reduction the seller does make a representation as to safety." (Page 6, Postal Service Decision in Slimtyme Co., P.S. Docket No. 2/11, April 24, 1973)

Exception V

Respondent excepts to the Initial Decision in that it proposed a disposition that is alleged to be inconsistent with the disposition made by the Complainant in what is said to be substantially the identical enterprise and advertisement of a competitor of Respondent.

The presiding judge allowed Respondent to amend his answer to bring this issue into the proceeding. The judge refused, however, to adjourn the hearings for the substantial period that would have been needed to obtain and present the records of the prior matter as evidence in the proceeding on the ground that the evidence, even if it was as Respondent's Counsel represented it to be, would not be cause to refuse to find that an order under 39 U.S.C. 3005 was warranted.

In quasi-judicial proceedings as in a court proceeding, the decision is dictated by the quality of the evidence presented in that proceeding. Thus, it is possible for apparently inconsistent results to be reached in seemingly similar cases even before the same tribunal. It is also recognized that somewhat the same considerations lead attorneys to commence proceedings in one instance and refrain from doing so in another. Thus, a single inconsistency is not grounds for precluding the institution of a compliant on the ground of discrimination. In the instant case, Respondent sought records that were sufficiently old to have been retired to central storage files (Tr. 215). Thus, it was clear that the other matter was not a current one. This point has now been clarified by documents annexed to Respondent's brief on appeal. They show a precitation letter was directed to Midwest Health Aids on January 11, 1971, by then Assistant General Counsel, Mailability Division, the predecessor to the present Assistant General Counsel, Consumer Protection Office, who signed the pending complaint and who is not bound to follow policies established by his predecessor. ^2/ Whatever inconsistency there may have been between the actions of the two officials, there is no reason to believe that the present incumbent would act inconsistently with his actions in the pending case nor that he will not now resolve any prior inconsistency. See Transcript, page 216.

Exception VI

Respondent excepts to the Administrative Law Judge's announcing his Initial Decision orally at the conclusion of the hearing on the grounds that the action denied Respondent reasonable opportunity to submit proposed findings and conclusions of law in writing. In support thereof Respondent cites Section 557(c) of Title 5 U.S.C., formerly Section 8(b) of the Administrative Procedure Act, which provides in part:

"Before a n *** initial *** decision, the parties are entitled to a reasonable opportunity to submit for the consideration of the employees participating in the decisions--

(1) proposed findings and conclusions;

* * * * *

(3) supporting reasons for the *** proposed findings and conclusions."

The statute cited does not expressly provide that the parties are entitled to make written submissions. It is contended, however, that the legislative history shows Congressional intention to that effect.

Not content with adding "written" to the language of the section, Respondent would add as well "after opportunity to review the transcript of the hearing" as language implied by the implied word "written." Although more than twenty years have passed since the APA was enacted, no court decision, insofar as I know, has determined that the word "written" should be interpolated into the quoted language. Throughout that period the Rules of Practice governing false representation proceedings have contemplated that some cases would be decided with no greater period for submitting proposed findings and conclusions than the presiding officer allowed in this case under the current rules. ^3/

Presumably other agencies have similar provisions in their Rules of Practice. I do not doubt that in some instances, because of the complexity of the record, a reasonable opportunity to submit findings and conclusions would include allowance of a period to review the transcript. But the instant proceeding is not such a case.

Respondent was on notice long before the hearing opened 4 that "if it appears to be appropriate and in the public interest to do so, the presiding officer may render an oral initial decision at the close of the hearing." The parties were advised to be ready at the close of the hearing to submit proposed findings of fact and conclusions of law "either orally or in writing". The evidence adduced consisted of several routine exhibits and the testimony of one expert witness for the Complainant and one for the Respondent. The factual matters so presented were not complex. Nor does the proceeding involve unusual problems of interpreting the promotional material or novel applications of 39 U.S.C. 3005. The course and scope of the testimony was readily predictable. No reason is seen why part of Counsel's preparation for the hearing could not have included drafts of proposed findings and conclusions if he desired to present them in writing. Further, Counsel had two and one-half days following the testimony of Complainant's witness to prepare a presentation and presumably knew in advance the testimony of the witness he would present. Under all the circumstances, Respondent did have reasonable opportunity to submit proposed findings and conclusions and supporting reason therefor for consideration of the presiding officer before he rendered his Initial Decision.

Conclusion

The charges are sustained to the extent indicated above and Respondent is found to be engaged in conducting a scheme or device for obtaining money through the mail by means of false representations within the meaning of 39 U.S.C. 3005. A remedial order as authorized by that law is being issued contemporaneously with this decision.

10/01/73

Wenchel, Adam G.

____________________

1/ "Since ancient days, Anglo-American law has held sellers of goods chargeable with impliedly warranting the utility of goods sold for the purpose for which they are sold; i.e., an implied warranty of merchantability. The content of the warranty has been found to be broader in some periods of time than others and in more recent years has been held to cover safety. See e.g., Green v. American Tobacco Co., 154 So.2d 169 (Fla. 1963), and Green v. American Tobacco Co., 325 F.2d 273 (1963).

2/ Cf. National Association of Trailer Owners, Inc., v. Day, C.A.D.C. 1962, 299 F.2d 137 at 139.

3/ See e.g., 39 C.F.R. 151.22 and 151.23 as published December 30, 1948, 13 F.R. 9273 et seq.; 39 C.F.R. 150.421 and 150.422 as published December 1, 1954, 19 F.R. 7848 et seq.