In the Matter of the Complaint Against

MIDWEST HEALTH RESEARCH,
MIDWEST HEALTH RESEARCH CLINIC AND LABORATORY,
3827 Main Street - Suite 206,
Post Office Box 27086, at
Kansas City, MO 64110

P.S. Docket No. 6/80

June 26, 1978

Quentin E. Grant Administrative Law Judge

APPEARANCE FOR COMPLAINANT:
Thomas A. Ziebarth, Esq.
Consumer Protection Office
Law Department U. S. Postal Service
Washington, D.C. 20260

APPEARANCE FOR RESPONDENT:
Dr. Shane G. Brannson, III
President of respondent
3906 Baltimore Street Apt. 106
Kansas City, MO 64111

INITIAL DECISION

On March 20, 1978, complainant filed a complaint charging respondent with a violation of 39 U.S.C. 3005. Specifically, the complaint alleged that respondent is conducting a scheme for obtaining money or property through the mails by means of representations materially false in fact, contained in advertising brochures distributed with newspapers of general circulation seeking remittances of money through the mails for a "Health Bible Handbook" entitled, "Modern Solution to Age Old Physical Problems." In paragraphs (3) and (4) thereof, the complaint alleges that by means of such advertising materials or others similar thereto respondent represents falsely, and materially so, that the booklet "Modern Solution to Age Old Physical Problems" contains valid, medically accepted methods for the prevention, alleviation and cure of 40 diseases and illnesses including such conditions as malnutrition, arteriosclerosis, gallstones, diabetes, asthma, arthritis and appendicitis and that the colonic treatment kit described in that booklet is effective in preventing those 40 diseases and illnesses.

A hearing in the matter was held in Washington, D.C., on May 15, 1978, at which both parties presented evidence. They have filed proposed findings of fact and conclusions of law.

FINDINGS OF FACT

1. Based on complainant's exhibits CX-A, B, B(1) and C, I find that respondent, under the names contained in the caption of the complaint, is engaged in conducting a scheme for obtaining money or property through the mails.

2. Dr. Shane G. Brannson, III, respondent's president, is a Doctor of Divinity, not a doctor of one of the healing arts (Tr. 61).

3. The answer to the complaint filed herein admits the making of the representations alleged in the complaint but denies the falsity thereof.

4. The only treatment, or preventive method, recommended in respondent's booklet, "Modern Solution to Age Old Physical Problems" (Cplt. Ex. 1; RX-2), is a colonic irrigation, a cleansing of the entire colon (Tr. 49).

5. The diseases, illnesses, and conditions which the colonic irrigation method is represented to prevent, alleviate, treat, or cure are the following (RX-2):

Malnutrition                                            Arthritis
Dizziness                                              Rheumatism
Halitosis                                                Cholecystitis
Coated Tongue                                     Colitis
Arteriosclerosis                                    "Colds"
Fatigue                                                  Neuritis
Hay Fever                                             Appendicitis
Diarrhea                                                Abscesses, Body
Gallstones                                             Abscessed Teeth
Gas Pains                                              Respiratory Diseases
Acidosis                                                Inflammations of:
Diabetes                                                      Sinuses
Asthma                                                        Eyes
Insommnia                                                    Ears
Headache                                                    Throat
Infections of:                                                Nose
      Urethra                                            Acne
      Bladder                                            Eczema
      Kidney                                             Hives
      Anus                                                Boils
      Rectum                                            Carbuncles, etc.

6. Complainant proved the falsity of respondent's representations through the testimony of a well-qualified doctor of medicine, Irving B. Brick, a board-certified specialist in internal medicine with a sub-specialty in gastroenterology. Dr. Brick is a professor of medicine and chief of gastroenterology at Georgetown University School of Medicine (Tr. 10, 11).

7. According to Dr. Brick, colonic irrigation is a procedure which was used many years ago by medical doctors as a treatment for constipation. It is not used much at the present time because there are now available a number of simpler, more scientific methods to evacuate the intestines, including enemas with various preparations and suppositories (Tr. 13).

8. Colonic irrigation may relieve constipation on occasions when it is used but it does not get to the root cause, constipation being, essentially, symptomatic of other conditions or diseases. Colonic irrigation is not a solution or prevention for constipation (Tr. 13).

9. Colonic irrigation will not prevent, alleviate, treat, or cure any of the conditions or diseases listed in "Modern Solution to Age Old Physical Problems" (Tr. 11, 17, 28, 29, 35).

10. The use of colonic irrigation may be dangerous if used by persons having certain conditions or diseases such as ulcerative colitis and granulomatous colitis (Tr. 14).

11. Dr. Brick's opinions are in conformity with the consensus of informed medical opinion (Tr. 18, 49).

12. The numerous exhibits introduced by respondent, several of which are entitled "Death Begins in the Colon," show only that certain chiropractors and naturopaths circulate literature touting "colon therapy with oxygen" as a cure or preventative for a condition called "alimentary toxemia" said to be a cause of a long list of conditions or diseases including ulcers, low blood pressure, heart diseases, foul gases, tooth decay, gallstones, rheumatism, imbecility, insanity, and floating kidneys. Respondent has not shown that its procedure, colonic irrigation, is the equivalent of "colon therapy with oxygen." Further, it has produced not a shred of credible, scientific evidence that either colonic irrigation or "colon therapy with oxygen" will accomplish any of the results represented. According to Dr. Brick, there is no such disease or condition as alimentary, or intestinal, toxemia (Tr. 37, 38).

CONCLUSIONS OF LAW

1. Respondent's advertising brochure and its publication "Modern Solution to Age Old Physical Problems" make the representations alleged in the complaint.

2. Such representations are materially false in fact.

3. There is no effective disclaimer of any such representations.

4. None of the references listed in the bibliography of "Modern Solution to Age Old Physical Problems" has been shown by respondent to contain credible, scientific views supporting the representations made by respondent.

5. The First Amendment of the United States Constitution does not protect false advertising. See Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council , 425 U.S. 748, 771, 772 (1975).

6. A money-back guarantee does not wipe out the illegal taint of false representations. G. J. Howard v. Cassidy, 162 F. Supp. 568, 572-573.

7. The fact that "Modern Solutions to Age Old Physical Problems" may consist largely of reprint of information found in other health publications is not an effective defense in this matter.

8. Respondent is engaged in the conduct of a scheme for obtaining money or property through the mails by means of representations materially false in fact in violation of 39 U.S.C. 3005.

9. An order in the form attached should be issued against respondent.