In the Matter of the Complaint Against:

XTR COMPANY,
P.O. Box 409 at
Knoxville, Arkansas 72845

P.S. Docket No. 4/40

12/12/75

Duvall, William A., Chief Administrative Law Judge

H. Richard Hefner, Esq.,
Law Department, United States Postal Service,
Washington, D.C., for Complainant

No appearance on behalf of Respondent

Before: William A. Duvall, Chief Administrative Law Judge

INITIAL DECISION^1/

This proceeding was instituted on July 17, 1975, when the Consumer Protection Office of the Law Department of the United States Postal Service, the Complainant, filed a Complaint in which it was alleged that XTR Company at Knoxville, Arkansas, the 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 of Title 39, United States Code.

After some correspondence, there was filed on behalf of the Respondent, on August 25, 1975, an Answer over the signature of Linda Myer, who is identified in the Answer as "secretary." It is not shown exactly what the status of this secretary is, whether she is the secretary of the owner and operator of the business, or whether she is the secretary of the business concern, but, giving the Respondent the benefit of the doubt, this Answer was accepted and treated as the Answer of the Respondent to the Complaint previously filed in this case.

In the Answer, the Respondent suggests, without actually saying so, that the Postal Service is misconstruing the Respondent's statements with respect to its product, but there is no denial that the Respondent is engaged in the activity of selling a device which has as its purpose the increase in the size of the male genital organ.

This matter came on for hearing pursuant to notice on November 24, 1975. At the hearing the Respondent was not represented, either in person or by counsel, and the matter was heard ex parte and a decision was issued in accordance with Section 952.11 of the Rules of Practice where it is provided as follows:

Subsection (b) "If the respondent files an answer but fails to appear at the hearing, the presiding officer shall receive complainant's evidence and render an initial decision."

The first witness called by the Complainant was Postal Inspector Gene F. McHale. Inspector McHale testified that he did not personally conduct the investigation of the operations of this business, but that Inspector Jane Currie, who was in the division to which Inspector McHale is assigned, did conduct the investigation. Inspector Currie voluntarily terminated her assignment with the Special Investigations Division of the Postal Inspection Service, and the supervisor of that division, in turn, reassigned this case to Inspector McHale. Inspector McHale became familiar with the exhibits which have been received in evidence in this proceeding. He is acquainted with Inspector Currie, with whom he has worked in other matters, and he identified the various exhibits which came into his possession from Inspector Currie who obtained them in the course of her investigation of this case. The first exhibit is an advertisement, which is identified as Complainant's Exhibit 1, and it appears to be clipped from some newspaper or periodical in which the device being sold by this Respondent is advertised. The advertisement gives as the seller of this article the name "XTR Co. Pob 409", presumably standing for Post Office Box 409, Knoxville, Arkansas 72845. This exhibit was received by the Inspector from a postal patron who objected to the use of the mail in the manner in which it was being used by the Respondent. Complainant's Exhibit No. 1 will be attached to this decision as Appendix 1.

Following the receipt of Exhibit 1, the Inspector sent a letter of inquiry to the Respondent over the test name Earl Fristoe, Post Office Box 5071, Bossier City, Louisiana 71010, requesting information with respect to the device being offered for sale in the Respondent's advertisement. This letter was mailed to the Respondent from Bossier City as requested by the investigating Inspector.

In response to this request for information the Inspector received material which was received in evidence as Complainant's Exhibit 2 with sub-exhibits 2(a) through 2(f).

Exhibit 2(a) is an envelope addressed to the test name used by the Inspector, and the envelope bears the name of the Respondent and its return address.

Exhibit 4 is an envelope bearing the return address of the Respondent and addressed to the test name used by the Investigating Inspector. This envelope was received by the postmaster at Bossier City, Louisiana, on May 21, 1975, who forwarded the exhibit to the Inspector in Washington, who, in turn, received it on May 27, 1975.

Exhibit 4(a) is a circular printed on two sides which contains, among other things, instructions on how to apply the device which was contained in the envelope and which also was received in evidence as Exhibit 4(b). This communication from the Respondent was received in response to a request sent to the Respondent by the Investigating Inspector under the test name previously used, and in that test letter, there was enclosed a money order in the amount of $35.00 payable to the Respondent. The next witness called by the Complainant was Dr. Vincent F. Cordaro, a medical doctor who is well qualified by virtue of his education, experience and training to testify in the area of medicine which is the subject of this proceeding. Dr. Cordaro testified that the size and shape of the penis and other secondary sex characteristics of the male are genetically controlled; that is to say they are passed by the genes to the individual. Dr. Cordaro examined Exhibits 4(a) and 4(b), being the device and instructions for its use, and he described the method of application of this device as recommended in the instructions. Dr. Cordaro testified that the use of this device as instructed by the Respondent would result in extreme pressure on the male genital organs, and it would produce a great diminution in the circulation of the blood. It would also produce edema in the area affected, and, if worn long enough, could produce a gangrenous condition. If the device should be worn permanently it would produce very serious results in that it would be extremely painful, and it would injure the tissues in the area affected. For one wearing this device coitus would be so uncomfortable that it would be a most unpleasant experience and would cause a great deal of pain. Furthermore, the device would probably produce a great amount of pain in the female.

While the device is being worn it probably would increase the size of the male genital organ to the size that it assumes in a state of erection, but, in addition to the untoward side effects that the wearing of this device would produce, the size of the organ would revert to normal when the device is removed if no permanent damage has occurred.

Dr. Cordaro testified that it is a matter of which he is professionally aware that with a large number of men the size of the genital organ is a matter of concern to them.

Dr. Cordaro defined semen as the ejaculatory release of semenal and prostatic fluid at the moment of male climax. The amount of semen cannot be controlled, and the use of Respondent's product as directed would not increase the amount of semen.

With respect to the muscles which the Respondent says would be strengthened, the doctor testified that any muscles in the area where this device is worn actually are posterior to the device, and would not be affected in any way by the wearing of the device.

As previously indicated, the device being sold by the Respondent cannot be worn a lifetime or for an extended period of time without producing serious side effects. In no event will the use of this so-called Developer permanently enlarge the male genital organ.

The specific representation which the Complainant charges Respondent with making are as follows:

"A.that use of Respondent's product will add more semen to a purchaser's ejaculation."

This representation is made in just those words in the third sentence appearing at the top of Exhibit 2(b).

"B.that use of Respondent's product will strengthen a purchaser's penis muscles."

That statement appears on the next to the last line on Exhibit 2(d).

"C.that Respondent's product is safe to wear all one's life, 'with never a side effect'."

This statement is taken from a sentence that appears about mid-page of Exhibit 2(a).

"D.that Respondent's product will enlarge the penis permanently."

That statement appears in the Respondent's advertisement which was received in evidence as Exhibit 1 and is Appendix 1 to this decision.

The test purchases made in this case establish the use of the mail in the conduct of Respondent's business.

Since the representations set forth in the Complaint which are charged by the Complainant as being false are taken directly from the Respondent's literature, it is established beyond cavil that the Respondent does make the representations which are set forth in the Complaint.

There remain two questions, (1) whether these representations found to have been made are material, and (2) whether they are false.

These representations are material based upon the testimony of the medical expert that from his professional experience he is aware of the fact that there are numbers of men who are concerned with respect to the size of their genital organs. They are interested in any device or substance which would increase the size of that organ. It is the doctor's testimony that there is no device or chemical or other substance which will serve that purpose. So, there is this large and ready made audience, and body of prospective customers, to whom the Respondent addresses his advertising materials. Clearly these representations found to have been made by the Respondent are material.

The doctor's testimony in this case is that each and every one of the representations found to have been made by the Respondent are false. Specifically, there is no way that one can increase the amount of semen he produces. In any event, there is nothing about this device that would produce such a result. There are really no muscles in the male genital organ, and the nearest muscle to the male genital organ would not be affected in any way by the use of Respondent's device. Should a person undertake to wear this device all his life or even for an extended period of time, he would subject himself to severe pain and to the risk of serious physical damage.

Finally, the Respondent's product, if worn, will probably cause some enlargement of the organ for the period of time during which it is worn. When the device is removed, however, if no permanent damage has occurred, the organ will revert to its normal size, and there is nothing which is capable of producing a permanent increase in the size of the male genital organ. Dr. Cordaro testified that the statements that he made with respect to this device represent the consensus of the views of the medical profession concerning the subject.

In the case of U.S. Health Club, Inc. v. Major, 292 F.2d 665, a case decided in 1961 by the United States Court of Appeals for the Third Circuit, it was held that the "uncontradicted testimony [of one qualified medical expert] established a universality of medical opinion on the crucial issues." That finding is applicable to the situation presented in this case.

It has been established that the Respondent is engaged in the business of selling a product through the mails. It has been established that the Respondent, in the conduct of this business, makes the representations which are set forth in the Complaint.

It has been established by competent, credible, expert testimony, that the representations made by this Respondent in the conduct of this business are false, and that they are false as to matters of material fact.

In view of all of the foregoing considerations, it follows that the Respondent is engaged in conducting a scheme or device for obtaining money or property through the mail by means of misrepresentations within the meaning of the provisions of Section 3005 of Title 39, United States Code. Accordingly, an order of the type provided by 39 United States Code 3005 should be issued against this Respondent.

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1/ Transcribed from oral decision as rendered at close of hearing held November 24, 1975. Minor changes have been made, but the substance of the decision is unchanged.