P.S. Docket No. 5/165
July 25, 1977
In the Matter of the Complaint Against
VITAL NUTRIENTS,
Post Office Boxes 1059 and 1082 at
Southgate, Michigan 48195
P.S. Docket No. 5/165
07/25/77
Sobernheim, Rudolf Administrative Law Judge
APPEARANCES: Thomas A. Ziebarth, Esq.
Consumer Protection Office
Law Department U. S. Postal Service
Washington, D. C. 20260 for Complainant
Mr. R. E. Gumen (?) 1/
14162 Ziegler Taylor,
Michigan 48180 for Respondent
INITIAL DECISION
This is a proceeding by complainant against respondent under 39 USC 3005 which authorizes action against respondent on evidence satisfactory to the Postal Service that respondent is "engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations." Complainant alleges that respondent is engaged in such a scheme in the sale of a pep pill called "VITALITY PLUS." Specifically complainant in paragraphs (2) and (3) of the complaint alleges that respondent through the use of advertisements (Compl. Ex. 1 and 2) makes representations, directly or indirectly, in substance and effect, whether by affirmative statements, omission or implication, as follows:
"(a) The PEP PILL is a new medication which has only recently become available to the public; and
(b) The PEP PILL will quickly bring 'added energy' to the user."
Complainant further alleges in paragraph (4) of the complaint that these representations are false and materially so.
Respondent in its answer admitted the use of the advertisements, copies of which were attached to the complaint, in the sale of the pep pill advertised therein and the making of the representations set forth in paragraph (3)(a) and (b) of the complaint. It denied, however, their falsity.
As to the representation charged in paragraph (3)(a) of the complaint it admits that the use of caffeine as a stimulant was not new but asserts that the particular pep pill was placed on the market for the first time and, hence, could be referred to as a new medication.
As to the representation charged in paragraph (3)(b) of the complaint it claimed that caffeine was a general cerebral and body stimulant and that it could be said to bring "added energy" to the user since pep, stimulation and energy were synonymous, usable interchangeably. Webster's Dictionary in an unspecified edition was cited as authority.
Respondent further stated that it would be unable to attend the hearing set in this proceeding. The hearing was held on 16 June 1977 and respondent did not appear. Accordingly, under 39 CFR 952.11(b) complainant proceeded to present evidence in support of the complaint, as to a test purchase made by a postal inspector (T 5-8) and expert medical testimony regarding the alleged falsity of respondent's representations.
FINDINGS OF FACT
1. Respondent is engaged in the sale of a pep pill, called "Vitality Plus", through the mails and receives money through the mails from purchasers thereof.
2. Purchasers are attracted by means of advertisements (Compl. Ex. 1, 2) which advertise the pep pill as a "new" energy boosting pill which is "now" available and which contains the "strongest ENERGIZER" and "quickly brings ADDED ENERGY" back into the user's life.
3. I find that respondent makes the representations alleged in paragraph (3)(a) and (b) of the complaint.
4. In response to the test purchase the postal inspector received a bottle of 30 VITALITY PLUS energy boosting capsules together with an order blank (Compl. Ex. 3, p. 2).
5. The bottle label (Compl. Ex. 3, p. 1) states that each capsule contains "approximately 200 milligrams of dexikianne (Vital Nutrient's brand name for caffeine) in a special timed formula that provides for prolonged therapeutic effect."
6. The average adult dosage is one capsule initially and one capsule every five (5) hours thereafter but not before retiring. This dosage would mean taking about 3 capsules per day, one each in the morning, at noon and later in the afternoon.
7. Complainant's expert medical witness was a well-qualified physician, employed by the federal Food and Drug Administration as a medical officer and assigned since 1971 as Postal Collaborative Officer (see Compl. Ex. 4).
8. This witness testified that caffeine as a drug has been available for at least 50 years (T 10) and that it will not bring energy since it is a cerebral stimulant and does not provide caloric intake to the body (T 10).
9. According to the witness the 200 mg of caffeine per capsule represent about two cups of coffee or a little over 1/2 cup per hour. If three capsules are taken daily, this could amount to the equivalent of 6 cups of coffee per day (T 10-11). Such intake would increase mental alertness but it would not increase expendable energy (T 12).
10. The records of the Office of the Administrative Law Judges of the U. S. Postal Service disclose that in the Matter of the Complaint Against American Research Labs, P.S. Docket No. 5/160 (init. dec. 21 July 1977), a time-release pep pill was sold under the same label, with the same sole ingredient and dosage except that it was given by that respondent the trade name "ALIVE." In that proceeding a complaint against the false representations of newness and energy-boosting capacity of the product was upheld and the issuance of a mail stop order under 39 USC 3005 proposed.
11. Based on the foregoing detailed findings of fact and the record as a whole I find:
a. Respondent's representation of newness of its product is false. For the record shows that it is sold by at least one other firm under the same label except for its name. Moreover, the representation means to the ordinary reader not newness of label or exact dosage but newness of the effective ingredient. It conveys the image of pharmacological or medical newness not of a change in merchandising. For such a representation of medical or pharmacological newness of respondent's product the record provides no factual basis whatever. On the contrary, the record shows the opposite to be true.
b. Respondent's representation of energy-boosting capacity of its caffeine pep pill is also false. The effect of caffeine is as a brain stimulant and its consumption does not increase the physical resources of the body. The representation as made by respondent and alleged in paragraph (3)(b) of the complaint is apt to mislead the ordinary reader into believing that taking respondent's pep pill will increase physical strength or resources of the body as would the consumption of food, rather than to stimulate the brain. Such a belief, however, would be contrary to the fact, borne out by the record here, that caffeine has no such effect.
12. Respondent's representations are also materially false since they misrepresent both the capabilities and novelty of the product which would induce potential purchasers to buy it.
CONCLUSIONS OF LAW
1. Respondent's representations create in the mind of the ordinary reader the impression and take on the meaning found herein and are materially false as a matter of law. Donaldson v. Read Magazine, 333 U.S. 178 (1948).
2. Respondent is engaged in a scheme or device for obtaining money through the mails by means of false representations contrary to 39 USC 3005.
3. An order, as provided for in 39 USC 3005 and in the form annexed, should be issued.
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