In the Matter of the Complaint Against

P. A. DIST.,
6311 Yucca at
Hollywood, California 90028

P.S. Docket No. 5/168

07/20/77

Duvall, William A. Chief Administrative Law Judge

Daniel S. Greenberg, Esq.
Law Department
United States Postal Service
Washington, D. C., for Complainant

Joseph Taback, Esq.
10880 Wilshire Boulevard,
Los Angeles, California, for Respondent

Before: William A. Duvall, Chief Administrative Law Judge

INITIAL DECISION^1/

This proceeding was initiated on April 28, 1977, when the Consumer Protection Office of the Law Department of the United States Postal Service filed a Complaint in which it is alleged that P. A. Dist. at Hollywood, California, is 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.

Service of the Complaint and Notice of Hearing was had on the Respondent on May 4, 1977, and the answer was due to be filed on May 19, 1977. The answer was filed on May 16, 1977, and it consists of (1) a denial of each and every paragraph of the Complaint, and (2) an allegation that 39 U. S. Code 3005 is unconstitutional on its face and as applied to Respondent in this case because it allegedly violates Respondent's rights under the First and Fifth Amendments of the Constitution of the United States.

With the answer was filed a request for a change of place of hearing and a request for a continuance of the hearing. While the request for the change of place of hearing was not in the form prescribed by the Rules of Practice, it happened that at the time this proceeding was docketed there were other cases to be heard in California. The matter was, therefore, set down for hearing in Los Angeles at 9:00 A.M. on June 21, 1977. The notice of the place of hearing is dated June 6, 1977, and it was served on Respondent's Counsel as evidenced by a receipt for certified mail executed on behalf of Respondent's Counsel by a person whose signature appears to be Diane Launer. The last name is illegible, but it was receipted for on June 8, 1977.

The advertising material used by the Respondent in this proceeding is attached to this decision as Appendix A hereto, and it advertises for sale through the mails a device called the "Peter Pump" which was received in evidence as Complainant's Exhibit C-6. The price for the device is $14.95.

Attached hereto as Appendix B to this decision is a copy of the charges of the Complaint which set forth the representations which the Complainant alleges that the Respondent makes by means of its advertising material.

This case was investigated by Postal Inspector C. O. Havens who was called as the first witness for the Complainant. Inspector Havens testified that, using a procedure known as test correspondence, he ordered from the Respondent the device for which he made the required remittance. In due course the device was delivered into the hands of the Inspector.

The Inspector obtained a medical opinion with respect to whether the device would perform as represented in the advertisement, and he then delivered the device to the Office of the General Counsel of the Postal Service. As a result of this procedure, the Complaint was filed.

Testifying as a medical expert for the Complainant was Dr. Jack L. Segal, a medical doctor who is Board certified in Internal Medicine. He is an Assistant Clinical Professor of Medicine at the University of California at Los Angeles, and he is also a Fellow of the American College of Clinical Pharmacology.

It is obvious from Dr. Segal's statement of his qualifications that he is well qualified to testify with respect to the subject matter of this proceeding. Dr. Segal testified that the size of the male genital organ is determined before birth, genetically, and there is nothing that medical science can do to increase the size of the penis. There are some cases in which it is possible for an individual to have a smaller penis than his genetic background would indicate, and instances of this nature are found in persons who have a chronic illness or a malfunction of the endocrine system. The treatment in such instances is replacement therapy in cases in which there is a deficiency of hormones, or treatment of the underlying illness. The management of such a situation would be to take a complete medical history of the individual, give the patient a thorough physical examination, and get appropriate laboratory data in order to determine the precise cause of the condition. Then, this underlying cause must be treated and it must be done on an individual basis -- there is no one treatment which is generally applicable to all situations.

Dr. Segal had previously examined the device being sold by this Respondent and he had read the instructions for its use which accompany the device when it is sent to a remitter. It is the doctor's testimony that this device will not increase the size of the penis for individuals who are normal in this respect, or for individuals who are less than normal in that respect. The size and firmness of an erection experienced by an individual is the result of several factors, including psychogenic factors, one's environment at a given time and the absence or presence of anxiety. Again, if one is not in ideal physical condition, his ability to have a complete erection may be impaired. Also, if one's psychological situation is not as would be desired, there can be untoward results in the obtaining and maintaining of an erection. The precise cause must be determined and the treatment must be individualized for the particular patient. Much inability to obtain and maintain an erection is due to psychological problems and if the patient does not respond to the treatment administered by his own physician, he is frequently referred to a psychiatrist of a psychologist where, hopefully, he will receive the treatment that is necessary to correct the underlying condition. Success is by no means the certain result of these procedures.

There are no muscles that contribute to the size or the firmness of the penile erection and the device being sold by this Respondent would have no effect on such muscles as there are in the penis. That is not to suggest that there are significant muscles in that area. The use of the device will not increase the size or the firmness of an erection. The strength of ejaculation that occurs during sexual climax is the product of a number of factors on one of which will the device being sold by this Respondent have any effect whatsoever.

The staying power of an individual is a term used by the laity to describe the ability of the individual to maintain an erection and prolong coitus. Again, physical and psychogenic factors enter into this capability of an individual. There is nothing in this device, in the way it is to be used or in any other manner of its use, that would produce any increase in one's ability to maintain erection or prolong coitus. As a consequence, it would have no effect upon the staying power of the individual.

The function of the circulatory system in connection with the occurrence of an erection and the later return to flaccidity of the male sex organ was explained in detail by Dr. Segal. The pump device would have no effect upon this factor of the phenomenon.

Sent with the device when it was purchased, as a bonus, is another device known as the ERECTION KEEPER. This consists of a length of what appears to be rubber tubing in which there has been formed a loop and the loop is held by a device which appears to be capable of sliding up and down on the tubing to vary the size of the loop. It is represented that the erection keeper blocks the flow of blood away from the penis, thereby maintaining erection for longer periods than would normally occur. The use of this device by an individual would not increase staying power and, in addition, it is possible that it could occlude the outflow of blood from the penis and produce stasis. In that event the blood would be retained for an abnormally long period of time and this fact could produce coagulation which in turn could result in a thrombosis or clotting, leading to impaired tissue of the penis. This device (the KEEPER) is not advertised in the advertising literature upon which this Complaint is based but, in view of the fact that it is delivered with the device which is being offered for sale, it is mentioned here because it points up an additional hazard that could result to one who follows the instructions sent out by this Respondent. As a matter of fact, the Respondent states in the directions for the use of the erection keeper that excessively long use could be harmful to your health, but he does not indicate in what manner or to what degree one's health could be harmed but, in fact, this device could result in serious physical impairment.

Looking at the advertising material employed by this Respondent and interpreting it in the light of the effect it would most probably produce upon persons of ordinary minds (Donaldson v. Read Magazine, 333 U.S. 178), it is clear that the Respondent does make the representations which are set forth in the Complaint. The expert testimony in this record is emphatically and unequivocally to the effect that the pump device will not accomplish any of the results which the Respondent holds forth in his advertising literature. It follows that the representations made by this Respondent with respect to the pump product are false and materially false as to matters of fact.

As a matter of law, it is concluded that the Respondent is 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 has been pointed out earlier that in the answer to the Complaint the Respondent raised as defenses the propositions that proceedings such as this, and this one in particular, offend the First and Fifth Amendments of the Constitution of the United States. Those defenses have been raised in other cases. They were raised perhaps most recently in the United States Court of Appeals for the Ninth Circuit in the case of Hollywood House International, Inc. v. Klassen, 508 F.2d 1276, decided in 1974. In that case the defenses raised by the Respondent in this proceeding were rejected by the Court. They have also been rejected in the case of Lynch v. Blount, 330 F. Supp. 689, a 1971 case which later was affirmed by the Supreme Court of the United States in 1972 and reported at 404 U.S. 1007.

In view of all of the foregoing considerations, an order of the type provided for in 39 U. S. Code, Section 3005 should be issued against this Respondent.

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1/This decision was rendered orally at the close of the hearing. It has been edited and transcribed for formal issuance.