In the Matter of the Complaint Against

MIDWEST HEALTH AIDS at
154 East Erie Street
Chicago, Illinois 60611

P.S. Docket No. 2/151

APPEARANCES:
For Complainant:
James J. Robertson, Esq.
Washington, D.C.

For Respondent:
Charles Rowan, Esq.
Rowan, Slaby, Mueller & Ilse
Milwaukee, Wisconsin

POSTAL SERVICE DECISION

The above-captioned proceeding is before the Judicial Officer on Respondent's exceptions to Administrative Law Judge Rudolf Sobernheim's Initial Decision upholding various charges of false representations contained in the complaint filed October 16, 1973, with respect to Respondent's solicitation of mail orders for its products, "Alcorem" or "New Alcorem" and "Pinkies." Alcorem consists of Syrup of Ipecac and is sold for use in aversion therapy for alcoholics without professional medical supervision. "Pinkies" are Vitamin B pills. The complaint contains three paragraphs that set forth representations alleged to be falsely made by Respondent.

Paragraph V details the representations with respect to Alcorem said to be falsely made ^1/ in Respondent's advertisements in magazines which presumably first draw attention of the public to Respondent's products.

Paragraph VIII details representations ^2/ with respect to Alcorem in promotional literature accompanying filled orders for Respondent's products through which re-orders are solicited.

Paragraph XI deals with representations ^3/ alleged to be made with respect to the product "Pinkies".

Not only are some allegations in paragraph VIII similar to those in paragraph V, but there is also some overlapping in the allegations within each of those paragraphs.

The Administrative Law Judge found that representations (2) and (4), (6), (7) and (8) in paragraph V are false, but that representations (1), (3) and (5) in that paragraph were not shown to be false. Respondent's brief on appeal attempts to equate the finding as to the latter into an affirmative finding that those representations are true in all respects. The argument concludes that under such a view there is no basis for finding other representations in paragraph V to be false. As the Initial Decision makes clear, the situation is otherwise. Obviously (1), (3) and (5) were found as not proven in respects other than the areas of overlap with the representations found to be falsely made. The same situation exists in paragraph VIII. The falsity of representations (2), (3) and (4) in that paragraph was found to be established and (1), (5) and (6) were rejected by the Administrative Law Judge.

Respondent excepted to the Administrative Law Judge's evaluation of the merits of the two medical experts who testified at the hearings. The Initial Decision carefully explained why the Administrative Law Judge weighed the testimony he heard. I see no reason to disregard his evaluation of the evidence.

The facts found in the Initial Decision support the Conclusions of Law reached by the Administrative Law Judge and a review of the record in the light of Respondent's exceptions reveals the appropriateness of the findings.

Respondent also objects to the Administrative Law Judge's citation of prior Post Office Department and Postal Service Decisions in his Initial Decision. It contends that those decisions as a practical matter are unavailable to its Counsel because it contends they are not "published". However, decisions cited were published in the same manner as other Initial Decisions issued by the Administrative Law Judges of this agency and Postal Service Decisions issued by the Judicial Officer in that all such decisions are regularly disseminated to those who request them, including publishing companies. They are, of course, also available upon request to the Docket Clerk. The governing statutory provision is 5 U.S.C. 552 (a)(2)(C). ^4/ It equates availability for inspection and copying or actual notice with publication of agency decisions. The practice of courts with respect to judicial decisions does not establish a rule that administrative agencies must follow with respect to administrative decisions. Moreover, Counsel here obviously had notice of one of the decisions in question; viz., Soberin Aids ^5/ since he cited the proceeding in his brief to the Administrative Law Judge. Another of the decisions Slimtyme ^6/ was quoted in the Soberin Aids decision. Counsel, therefore, had notice of that decision as well. Administrative Law Judge Sobernheim's citation of the Postal Service Decisions comported with the only applicable statutory requirement. Likewise no error is seen in his use of the unpublished court decision in N. Van Dyne Advertising Agency v. USPS, 73 Civil 4584 (S.D.N.Y. 1974) that affirmed the Postal Service Decision in Soberin Aids. Not only was that decision rendered in an extension of the Soberin Aids proceeding Respondent relies on, but a copy of the decision was furnished to Respondent's Counsel more than a month before Respondent filed its post-hearing brief. ^7/ Respondent raises a number of other issues, all of which were considered and properly decided in the Initial Decision.

All exceptions raised whether separately discussed or not have been considered and denied and the Initial Decision is affirmed. Respondent is engaged in a scheme or device for obtaining remittances of money or property through the mails. A remedial order pursuant to 39 U.S.C. 3005 is being issued contemporaneously with this decision.

Adam G. Wenchel Judicial Officer

06/28/74

Wenchel, Adam G.

____________________

1/ The following are the representations contained in paragraph V with brackets added to designate the representations not found to be false by the Administrative Law Judge:

"(1) That use of Respondent's product will break the drinking cycle;

"(2) That use of Respondent's product promotes an aversion to all alcoholic drinks;

"(3) That use of Respondent's product will interrupt the drinking cycle;

"(4) That Respondent's product may be taken secretly;

"(5) That use of Respondent's product eliminates the desire for alcohol;

"(6) That the use of the product supplied by Respondent for $11.75, in the quantity provided with such a purchase, will promote an aversion to all alcohlic sic beverages;

"(7) That use of its product is safe;

"(8) That Respondent's product is new."

2/ The following are the representations contained in paragraph VIII with brackets added to designate the representations not found to be false by the Administrative Law Judge:

"(1) That its product may be administered to a non-cooperative drinker, in secret, and be efficious as a means of breaking the drinking cycle, creating an aversion to all alcoholic beverages and be safe;

"(2) That use of Respondent's product causes sudden and complete abstinence from all drinks;

"(3) That its product will create a permanent aversion to all alcoholic beverages;

"(4) That Respondent's product will have an emetic action when placed in alcoholic beverages;

"(5) That use of Respondent's product will effect relief from alcoholism;

"(6) That use of Respondent's product will cause the person upon whom it is used to believe he has developed an allergy or sensitivity to alcoholic beverages."

3/ The Administrative Law Judge found both of the representations contained in paragraph XI to be false. They are as follows:

"That Respondent represents directly or indirectly, in substance and effect in Exhibit D, appended hereto:

"(1) That a vitamin deficiency of the vitamin-B complex is frequently found in excessive drinkers for long periods after they have ceased consuming alcoholic beverages;

"(2) That the use of 'Pinkies' is necessary for many months after the use of Respondent's product."

4/ Section 552 is a revision of Section 3 of the Administrative Procedure Act.

5/ P.S. Docket No. 2/36, Postal Service Decision of October 1, 1973.

6/ P.S. Docket No. 2/11, Postal Service Decision of April 24, 1973.

7/ Counsel first raised a question of his alleged need for a certified copy in the appeal brief. He has not challenged the authenticity of the copy furnished. In any event, Rule 44 FRCP upon which Counsel relies, as its terms make clear, does not establish an exclusive method of establishing the authenticity of documents.