In the Matter of the Complaint Against

MANUEL GARCIA IMPORTS
Box 1426 at
Studio City, California 91604

P.S. Docket No. 5/127;

05/05/77

Lussier, Edward F.

APPEARANCES FOR COMPLAINANT:
ThomasA. Ziebarth, Esq.
Law Department
United States Postal Service
Washington, D.C.

APPEARANCES FOR RESPONDENT:
Roger Jon Diamond, Esq.
Hecht, Diamond & Greenfield Pacific
Palisades, California

POSTAL SERVICE DECISION

This matter is before the undersigned on the appeal of Manuel Garcia Imports, the Respondent, from the Initial Decision rendered in these proceedings by Administrative Law Judge Quentin E. Grant.

The product which Respondent merchandises through the mails is described in its advertisement as follows:

"SPANISH FLY

I have both the Mexican type to make her hot for you and the Imported Spanish type to driver her wild like a dog in heat. Instructions included. Guaranteed not aphrodisiacs."

The Complaint in this proceeding alleged that the advertisement was false in that the product does not contain the substance generally known and referred to as "Spanish Fly" and that the product would not sexually stimulate a female.

Respondent has taken two basic exceptions to the Initial Decision the first being that there is insufficient evidence to justify the findings and the second being that the representations made in its advertising are not false.

Respondent contends, in support of its first exception, that the record reflects that Complainant's medical expert was not competent to offer the expert opinions which formed the basis for the Initial Decision. On the contrary the record reflects that this witness has the credentials to offer the medical opinion testimony which Judge Grant relied upon. Moreover the following exchange in cross-examination of the witness makes it clear that he was expressing not only his own opinion but the consensus of medical opinion on the matter.

"Q. You have not tested this on a human being?

A. I have not tested this on a human being, no.

Q. So, Doctor, then, you can't really say with certainty -- you can't say with certainty, other than drawing upon your knowledge of the contents of what is labelled, what is the actual effect of that product?

A. I can say with certainty, because it's not drawing on my knowledge alone, it's drawing on the sum total knowledge of the medical community, and the consensus of opinion of that community in relationship to these products, in addition to the consensus of the pharmacologic and pharmaceutical community -- so it's not just my knowledge that I am drawing on." (Tr. 47, 48)

Respondent argues further, as it does in support of its second exception regarding the falsity of the advertising, that the potential for a "placebo" effect somehow waters down the testimony and at the same time renders the representations true. In fact the opposite is the case. If the product contains no ingredients to produce the promised results but depends rather upon the purchaser believing it does, then Respondent relies inherently upon false advertising. To permit such a position to prevail would make a mockery of the false representation statute. This argument has been rejected in past cases and is rejected here. Peak Laboratories, Postal Service Docket No. 3/124, aff'd Peak Laboratories, Inc. v. USPS, Order Sept. 30, 1975, Civil Action C 75-711A, U.S.D.C., N.D. GA. See also Original Cosmetic Products, Inc., Postal Service Docket No. 4/120 (1976), where it was held:

"* * * From the fact that a doctor may treat a patient with a placebo, where medically indicated, and attain results therefrom it does not follow that a commercial enterprise may sell a product on the basis of false claims of its effectiveness and justify the practice on the theory that the customer may conceivably thereby overcome a possible psychological obstacle. The tool is deception and deception for profit. This the postal false representation law prohibits." Nor is testing of the product a legal prerequisite to the competence of expert medical testimony. See Roger Laboratories,Inc., Postal Service Docket No. 4/123 (1976), Skinny Suit, Postal Service Docket No. 3/44 (1976), Beauty Originals, Postal Service Docket No. 3/24 (1975).

Respondent further contends that before the mail-stop order sought in these proceedings can issue there must be evidence and findings that the claims were made with an intent to deceive, citing Bruce Roberts Company v. Mailly, 254 F.Supp. 861 (D.C. N.J. 1966). This contention completely overlooks the fact that the postal statute was specifically amended in 1968 (after the cited case) to exclude the requirement for intent to deceive. Judge Medina stated the law in Lynch v. Blount, ^1/ 330 F.Supp. 689 (1971), aff'd 404 U.S. 1007, when, in referring to the 1968 amendment (82 Stat 1153) to 39 USC § 3005, he said,

"The reasoning is that the law now plainly permits a stop order to issue without proof of scienter or intent to defraud ***. The purpose of these laws is not to punish the offender but to protect the public. The Post Office Department strongly supported the 1968 amendment for the very purpose of making it less difficult to put an end to these swindles. We think that was a worthy purpose."

Respondent also contends that it did not falsely represent the product because of the last three words of the advertisement which state "Guaranteed not aphrodisiacs." Following, as they do, the only other language in the advertisement that

"I have both the Mexican type to make her hot for you and the Imported Spanish type to drive her wild like a dog in heat. Instructions included.",

Respondent, in effect, expects the average reader to equate the words "Guaranteed not aphrodisiacs" to "Guaranteed not to work." If Respondent had said so in its advertisement one can safely assume the case would not be here. Nor in all likelihood would there be any mail to stop. Applying the standard of interpretation set forth in Donaldson v. Read Magazine, 333 U.S. 178 (1948), there is no doubt that the advertisement makes the representations found to be false. Nor is lay testimony necessary to confirm this conclusion. See Beauty Originals, Postal Service Docket No. 3/24, supra.

The Initial Decision is fully supported by substantial evidence and clearly correct. The Respondent's exceptions are disallowed and the Initial Decision is hereby affirmed. A remedial order under the provisions of 39 USC § 3005 is being issued contemporaneously with this final Postal Service Decision.

1/ Respondent in fact cites the Lynch v. Blount case but for the proposition, with which there is no quarrel, that mere puffing is not sufficient to support a mail-stop order. Here, however, the representations have been found to be false and materially so.