In the Matter of the Complaint Against:

MARK HUNTER, Box 2608 at
Sepulveda, California 91343

P.S. Docket No. 5/83

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 initiated by the filing, on September 29, 1976, of a Complaint by the Consumer Protection Office, Law Department, United States Postal Service, Complainant, in which it is charged that Mark Hunter of Sepulveda, California, the Respondent, is engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations, contrary to the provisions of Section 3005 of Title 39, United States Code.

The charges set forth in the Complaint are attached to this decision as Appendix A, and the advertisement on which the charges are based is attached to this decision as Appendix B.

Service of the Complaint and Notice of Hearing was had on the Respondent and the Respondent filed a lengthy answer, to which were attached a number of exhibits. They are listed in the answer as Exhibits B through H.

The answer is, in substance, a general denial of the charges set forth in the Complaint, except that the Respondent does admit that he uses the advertisement, a copy of which was attached to the Complaint, and he admits that he does use this advertisement for the purpose of inducing readers to remit money or property through the mails to the Respondent.

A comparison of the charges in the Complaint, Appendix A, with the advertisement, Appendix B, is all that is necessary to establish the fact that the Respondent does make the representations which are set forth in the Complaint.

Because of the nature of this answer it will be treated -- despite the fact that the statements there made are argumentative and that they are not made under oath -- as testimony that would be given by this Respondent.

Called as a witness by the Complainant was Dr. Vincent F. Cordaro, a medical doctor who, by virtue of his education, training, and experience, is well qualified to testify with respect to the area of medicine which is involved in this proceeding.

The product being sold by the Respondent is a pamphlet which gives instructions which purport to describe a method by means of which the user can prevent or overcome impotency, and the user will also be enabled to increase the size of the male sexual organ. These results are represented as being not only capable of achievement but, also, long-lasting.

Dr. Cordaro testified that the size of the penis in the male with normal hormonal functions is controlled by heredity. Where there are abnormal hormonal functions, there may be conditions of either over- or underdevelopment of the penis.

Impotence, the medical expert defined as the inability to perform the sex act, either by reason of failure to achieve erection or because of the inability to experience orgasm. Sexual impotence arises primarily from psychogenic factors but, at times, there may be hormonal malfunctions which could produce impotence, and, also, this condition is a concomitant of the aging process.

In terms of treatment, the deficiency in the size of the penis, if it results from hormonal malfunction, may be remedied by the treatment of that malfunction, but not in every case, particularly if the pituitary is malfunctioning in some respect. Also, sexual impotence, if it results from hormonal malfunction, may be remedied by treatment with hormones. However, hormonal treatment of psychogenically caused sexual impotence does not produce satisfactory results. In other words, it will not overcome sexual impotence which arises from psychogenic causes.

The method that is being offered for sale by this Respondent involves the use of a rubber band. The user is supposed, initially, by means described in Respondent's literature, to achieve an erection, and when that occurs the user is supposed to apply the rubber band to the base of the penis and hook the last loop of the rubber band in some way around the scrotum. This is supposed to remain until the penis becomes engorged with blood. When this occurs, there is supposed to be what the Respondent calls a "super-erection."

In the literature sold by this Respondent, he warns of wearing the band for too great a length of time, because he says to do so may result in capillary fracture. But, he says, this particular result is not dangerous, but that there are other results which can be dangerous.

The medical testimony on this subject is that Respondent's statement that, if capillary fracture occurs it is not dangerous, is false because of the fact that when this does occur there is danger that there may be caused a thrombus, or clot, in the penis which could be dangerous because gangrene could result.

In addition, the user is instructed to go through this process and maintain this erection for periods of five to ten minutes and then release the rubber band from its position so that the penis will resume its normally flaccid state. After ten minutes the user may repeat the procedure. Clearly, and the expert testimony so indicates, the repetition of this method is not medically desirable.

The sum and substance of Dr. Cordaro's testimony is that there is nothing about the procedure being sold by this Respondent which will overcome impotence, whether the cause of it is psychogenic or hormonal; there is nothing about this procedure recommended by this Respondent which will cause an enlargement of the male genital organ, and since neither of these results will be achieved, it follows logically that the results will not be permanent, since the results will not occur in the first place.

On the basis of the record in this proceeding, it is found as a fact as follows:

1. The Respondent is engaged in the sale of a product through the mails.

2. In engaging in this business the Respondent does advertise.

3. In engaging in this business the Respondent does seek remittances of money through the mails by means of his advertisements.

4. The Respondent makes the representations which are set forth in the Complaint.

5. The representations found to have been made by Respondent are medically false as a matter of fact.

On the basis of these findings of fact it is concluded as a matter of law that the Respondent is, as charged, engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations, within the meaning of Section 3005 of Title 39, United States Code.

It follows that an order of the type provided in 39 U.S. Code 3005, should be issued against this Respondent.

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1/ Transcribed from oral decision as rendered at close of hearing held October 29, 1976. Minor language changes have been made, but the substance of the decision is unchanged.