In the Matter of the Complaint Against

RFN ASSOCIATES,
Box 216 at
Carlisle, PA 17013

P.S. Docket No. 6/69

April 7, 1978

William A. Duvall Chief Administrative Law Judge

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

Lee H. Harter, Esq.,
2822 Van Ness Avenue,
San Francisco, California, for Respondent

Before: William A. Duvall, Chief Administrative Law Judge

INITIAL DECISION ^1/

This case was initiated on February 13, 1978, and rather than give the year each time a date is stated, every date that is mentioned will be in 1978 unless it is otherwise indicated.

The complaint charged that RFN Associates, Box 216, at Carlisle, Pennsylvania, (Respondent) is engaged in conducting a scheme or device for obtaining money through the mails by means of false representations in violation of 39 U. S. Code, Section 3005. The complaint had attached to it a copy of an advertisement said to have been extracted from the November 1977 issue of "Playgirl Magazine". The complaint charged that the Respondent attracted attention to its scheme by means of that advertisement and of similar advertisements and that in this advertisement the Respondent represents expressly or impliedly in substance and effect that:

"(a) Ingestion of 'KNOCKOUT PILLS' will induce a state of unconsciousness.

"(b) 'KNOCKOUT PILLS', surreptitiously administered to a female, will render her incapable of resisting sexual advances."

A copy of the advertisement used by this Respondent is attached to this decision as Appendix A hereto.

That complaint, a notice of hearing, and a copy of the Rules of Practice were mailed to the Respondent. There is a receipt in the files which indicates that it was received by the Respondent at 9:500 a.m. on February 18. An answer to the complaint on behalf of the Respondent was filed by Respondent's Counsel, and it was docketed on March 7. On that same day, there was issued to both parties a notice that if it appeared to be appropriate and in the public interest to do so, an oral decision might be issued at the close of the hearing in this proceeding as provided in 952.24(c) of the Rules of Practice.

Later, the hearing was continued from March 16 to March 22. The notice of hearing was served upon Respondent's Counsel, as indicated by a receipt in the file, on March 9. At that time, of course, the hearing was scheduled for March 16, but it was continued on March 10th to the new date, March 22.

On March 21, I received from Respondent's Counsel a document captioned Objection to Oral Decision. That document is dated March 20, 1978. Mr. Harter was an attorney in the Office of the General Counsel for some years, the precise number of which I do not recall, but it was two or three years to the best of my recollection. It is possible it was more than that. I do not think it could have been any less than that.

In addition to that fact, there was sent to his client, the Respondent, a copy of the Rules of Practice, which presumably the client forwarded to his attorney. My question is, what was Mr. Harter doing between March 9, when he received the notice of the possibility of the issuance of an oral decision at the end of this hearing, and March 20, the date on which it is indicated that he prepared and mailed his objection to the issuance of an oral decision?

He states in his objection that although he had announced in his earlier letter that he did not intend to be present at the hearing, that he wanted to submit proposed findings based upon the transcript. He points out in the written objection that if the Postal Service regulations will not allow a change in the place of hearing for the convenience of Respondent's Counsel, then the regulations and the presiding officer's initial oral decision, if given at the hearing, operate together to deny Respondent the opportunity to be heard.

I have to disagree with that conclusion on the part of the Respondent's Counsel. This is the opportunity to be heard, and if he elects not to avail himself of that opportunity, that is the decision that attorney and client have to make. There is provision in the Rules of Practice, previously served on the Respondent, for requests for transfer of the hearing to some place other than Washington, D.C.

There was ample time between the time that notice of the possibility that an oral Initial Decision might be rendered was served upon the Respondent's attorney, and prior to the day before the hearing, for him to have filed a request for the transfer of the hearing. In his objection to an oral decision which was received just yesterday, he did request that the hearing be held in San Francisco. But under the Rules of Practice, in 952.15, the requirement is that such a request must be filed "not later than the date fixed for the filing of the answer."

Sometimes in special circumstances a request for a change of place of hearing is accepted a day or two after the answer is filed, but to file such a request on the day before a hearing is simply too untimely to be granted. This is particularly so in a situation such as this one in which in the objection to the oral decision that was filed yesterday it is stated Respondent has no witnesses to offer.

This is not a difficult case and any attorney would know what the nature of the testimony in this case was going to be. There would be the identification and the receipt of the advertisements and the test correspondence and the product, and then the testimony of a medical expert as to whether the product will produce the results which are set forth in the complaint.

There was nothing that could have or should have prevented Respondent's attorney from submitting proposed findings of fact and conclusions of law in support of his client's position. But they were not filed. He chose, instead, at the last minute to object to the procedure of which he had been notified 10 days previously. He ignored the procedures set forth in the Rules under which a hearing might have been conducted elsewhere.

In view of all these considerations, I will proceed now to decide this case. The first witness for the Complainant was Postal Inspector O. J. Broadwater, who is regularly assigned to the Special Investigations Division of the Postal Inspection Service in Washington, D.C. A portion of his duties consists of investigating companies thought to be engaged in business contrary to the provisions of Section 3005 of Title 39.

In carrying out his assignment in that Division of the Postal Inspection Service, there came to the Inspector a complaint from the Attorney General of the State of New York, which complaint was based upon a citizen complaint that had been referred to the Attorney General of the State of New York. The complaint contained an advertisement which was said to have been exised from the November 1977 issue of the publication known as "Playgirl". As is usual in such cases, the Inspector, using a test name, corresponded with the Respondent. As a result of this correspondence, and the payment of $6.25 by money order, the Inspector received an envelope containing a cellophane or plastic envelope of pink capsules. The envelope in which the Inspector received this product, known as "Knockout Pills," bears the stamped return address of the Respondent in this case.

The next witness for the Complainant was Dr. Vincent F. Cordaro, a Medical Doctor who is with the Food and Drug Administration and consults with the Inspection Service and the Law Department of the Postal Service in matters of this kind and renders advice to them. Dr. Cordaro is by virtue of his education, training, and experience well-qualified to testify with respect to the questions involved in this proceeding.

Dr. Cordaro pointed out that the label of this product indicates that the contents are capsicum annuum and albus simila. Dr. Cordaro stated that capsicum annuum is the technical name for red pepper or cayenne pepper. There are no medical dictionaries or references in which a substance known as "albus simila" is identified.

Dr. Cordaro did state that he has seen these words, albus simila, in connection with other products similar to the one under consideration in this proceeding, but that nowhere has that product been identified insofar as his research would indicate. The conduct of research consumes a large part of Dr. Cordaro's time.

Dr. Cordaro stated that medical science recognizes no medicinal product that has an aphrodisiac effect. He has been unable to locate a definition of albus simila; he is quite certain that the ingestion of capsicum annuum will not produce an aphrodisiac effect. If taken as directed, it is the testimony of the medical expert that the ingestion of Knockout Pills would not induce a state of unconsciousness in a female. Further, Knockout Pills surreptitiously administered to a female will not render her incapable of resisting sexual advances.

The foregoing remarks summarize the testimony with respect to the capsules being offered for sale by this Respondent. Let us turn now to the question of the advertisement and find out what is promised with respect to Knockout Pills.

To begin with, the very name, Knockout Pills, suggests to the person who reads the advertisement that the ingestion of the product would render one unconscious. The word "knockout" itself means lack of consciousness, and particularly in the common parlance of the day. The advertisement says further, among other things, "Do anything you desire with these fast acting pills without anyone ever knowing]" This is a short advertisement, but the whole tenor of it is that the taking of this product by a female will render her more or less at the pleasure and mercy of anyone around her who would care to take advantage of the physical state of the female who took the capsule.

Clearly, the Respondent is seeking remittances of money through the mail for the product known as "Knockout Pills". The Respondent's advertisements do make the representation that by taking this product a person will be rendered unconscious. The advertisement also represents that if the product is surreptitiously administered to a female, she will be rendered incapable of resisting sexual advances.

The expert medical testimony previously summarized leads one to find as a fact that these representations found to have been made by the Respondent are materially false as a matter of medical fact.

Based upon the foregoing findings, 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 mail by means of false representations within the meaning of Section 3005 of Title 39, United States Code.

An order of the type contemplated by the statute will be prepared and appended to this decision. Such an order should be issued against this Respondent.

____________________

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