In the Matter of the Complaint Against

HEALTH PURIFIERS, INC.
380 Madison Avenue
New York, New York 10017

and

HEALTH PURIFIERS INSTANT LEARNING
200 Madison Avenue
New York, New York 10016

and

HEALTH PURIFIERS FULFILLMENT CENTER
120 Smith Street
Farmingdale, New York 11735

and

P.H. SALES
27 Milburn Street
Bronxville, New York 10708

and

P.H. SALES
361 Saw Mill River Road
Yonkers, New York 10701

P.S. Docket No. 6/78;

03/22/79

Cohen, James A.

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

APPEARANCE FOR RESPONDENT:
Gary M. Katz, Esq.
Katz and Katz 141 Central Park Ave.
South Hartsdale, New York 10530

POSTAL SERVICE DECISION

Respondent has appealed from the Initial Decision of Chief Administrative Law Judge William A. Duvall holding that, Respondent with regard to the sale of the publication "Natural Aids for the Prostate Gland," Respondent is engaged in conducting a scheme for obtaining money through the mail by means of false representations within the meaning of 39 U.S.C. § 3005.

BACKGROUND

Respondent, Health Purifiers, Inc. et al., placed advertisements soliciting the payment of money for a document identified as Dr. Morrison's Confidential Report "Natural Aids for the Prostate Gland." According to the advertisements the document contains a method to eliminate or reduce prostate problems in a period of four to six weeks by nonsurgical techniques.

As the result of a complaint filed by the Consumer Protection Office of the U. S. Postal Service, a hearing was held at which the Complainant offered the testimony of a highly qualified medical doctor specializing and certified in urology. The witness testified that he had read the publication being sold by Respondent and that the results claimed to be produced by following the methods outlined in the booklet cannot be achieved (Tr. 23, 25, 26, 28).

No evidence was presented by Respondent. Respondent has consistently taken the position that any action taken by the Postal Service pursuant to the provisions of 39 U.S.C. § 3005 is in violation of Respondent's First Amendment constitutional right of free speech. In motions filed prior to and at the hearing, Respondent sought to have the complaint dismissed on this ground. Respondent's motions were denied by the Chief Administrative Law Judge. In an order dated May 5, 1978, denying the initial motion the Chief Administrative Law Judge stated:

"To begin with, there can be no doubt that Respondent is selling a product - namely, a treatment or a regimen to be followed by those men who seek relief from conditions of the protate gland and from the symptoms of those conditions. Respondent admits that it sells the report and in the advertising circular solicits remittances of $9.98 for it. Therefore, commercial speech is the area of speech for which First Amendment protection is claimed."

Following the evidentiary hearing the Chief Administrative Law Judge, relying on the testimony of the Complainant's witness, issued an Initial Decision holding that Respondent's advertisements falsely represent that the information in the document identified as Dr. Morrison's Confidential Report "Natural Aids for the Prostate Gland" will enable the reader within 4 to 6 weeks to eliminate or substantially reduce a burning and painful urination, incontinence and frequent voiding of the bladder.^*/ The Chief Administrative Law Judge accordingly recommended issuance of a remedial order under 39 CFR § 3005.

RESPONDENT'S EXCEPTIONS TO INITIAL DECISION

Respondent takes the following exceptions to the conclusions of law reached in the Initial Decision:

"1. The error by the Hearing Officer in confusing the limited protection of commercial speech and the broad protection for the expression of ideas and opinions contained in the First Amendment.

2. The error of the Hearing Officer in finding that Respondent's activities were commercial activities and as such were only entitled to limited First Amendment protections.

3. The error in finding that 39 U.S.C. Sec. 3005 allows Complainant to attack the expression and publication of opinions and ideas that may be contrary to current opinion or thought.

4. The error of the Hearing Officer in not following previous decisions of the Post Office."

Respondent's exceptions 1, 2 and 4 are interrelated and will be considered together.

DISCUSSION AND CONCLUSIONS

Respondent alleges that its advertisements truthfully represent the contents of the document it is selling and the document only expresses the opinion and ideas of the author. According to Respondent the opinions and ideas of the author are not commercial speech and the attempt of the Complainant to obtain a remedial order under 39 U.S.C. § 3005 violates the First Amendment.

A review of the evidence and the cases cited by the parties persuades me that the Chief Administrative Law Judge properly found that Complainant was not precluded by the First Amendment from bringing this proceeding under 39 U.S.C. § 3005. Despite Respondent's allegations to the contrary, it is engaged in selling a product which is in the form of a report offering a treatment for certain types of conditions. The sale of such a product is a commercial activity. Therefore the limited First Amendment protection applicable to commercial speech is involved in this proceeding.

Respondent's attempt to distinguish the cases cited in the orders and Initial Decision of the Chief Administrative Law Judge is not persuasive and the cases cited by Respondent in support of the application of what it calls the "broad protection for the expression of ideas and opinions contained in the First Amendment" are not controlling. Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976) is discussed at some length by the parties. The importance of Virginia to this case is the Court's expression that the First Amendment does not bar some form of regulation of commercial speech. Specifically, the Court stated that the regulation of deceptive or misleading speech was not protected by the First Amendment. Id., at pp. 770, 771. See Original Cosmetics Products, Inc. v. Strachan, 459 F.Supp. 496 (S.D.N.Y. 1978).

The cases most analogous to the present case are Parker Publishing Co., P.O.D. No. 3/80 (1971) Recon. den. (1972), and Hollywood House International, Inc. v. Klassen, 508 F.2d 1276 (9th Cir. 1974). In Parker it was held that regardless of the accuracy of a publication, an advertisement accurately representing the contents of the publication did not violate the requirements of 39 U.S.C. § 3005. Hollywood House was decided subsequent to Parker. In Hollywood House Respondent published and sold by mail a diet booklet. At the administrative level it was found that Respondent's advertising misrepresented the contents of the booklet. Grapefruit Diet, P.O.D. Docket No. 3/77 (1972). Although on appeal to the Court, it was argued that the advertising did not misrepresent the contents of the booklet, the Court apparently found it unnecessary to decide the question. Rather it took the position that there was no difference between the sale of literature, or the sale of a product through the mail. The Court stated in this regard:

"The constitutionality of Section 3005 was upheld in Lynch v. Blount, 330 F.Supp. 689 (S.D.N.Y. 1971), aff'd, 404 U.S. 1007, 92 S.Ct. 673, 30 L.Ed.2d 656 (1972), and again in United States v. Outpost Development Corp., 369 F.Supp. 399 (C.D.Cal.), aff'd, 414 U.S. 1105, 94 S.Ct. 832, 38 L.Ed.2d 733 (1973). The appellant argues that Lynch and Outpost Development dealt with false representations of products sold through the mails, whereas the case before us involves literature, protected as free speech. We perceive no difference." Hollywood House International, Inc. v. Klassen, supra, at p. 1277. Hollywood House, in effect, overruled Parker. By the decision in this case, Parker is expressly overruled. On the basis of the Hollywood House decision it is concluded that it is irrelevant whether the product being sold is a physical device or a booklet. See also Cecily Vane, P.S. Docket No. 4/129 (1976). Even though an advertisement correctly describes a booklet if the results represented in the booklet cannot be achieved by following the procedures outlined in the booklet, the advertiser is in violation of 39 U.S.C. § 3005.

Accordingly, Respondent's Exceptions 1, 2 and 4 are denied.

In its Exception No. 3 Respondent claims that 39 U.S.C. § 3005 permits Complainant to attack the expression and publication of opinions and ideas which may be contrary to current opinion or thought. It is true that when the expression and publication of opinions are sold as a product through the mail they are subject to the cited statutory provision. In order for a remedial order to issue, however, Complainant must not only file its complaint, but it must prove that the representations being made are false. One piece of evidence commonly used by Complainant to prove the falsity of representations is testimony establishing the current informed consensus on a particular issue. Certainly such evidence is not conclusive and contrary evidence may always be presented and will be appropriately weighed. Under the rules governing these proceedings Respondents are accorded a full opportunity to present their defense and to show that current opinion or thought is erroneous.

Respondent in this proceeding chose not to present any evidence to rebut the evidence offered by Complainant. Complainant's evidence established that under the test of Donaldson v. Read Magazine 333 U.S. 178 (1948), Respondent's advertisements represent that the booklet "Natural Aids for the Prostate Gland" contains procedures which will enable most men within 4 to 6 weeks to eliminate or substantially reduce burning and painful urination, incontinence and frequent voiding of the bladder, but that these results can not be achieved.

Accordingly, Respondent is engaged in a scheme for obtaining money through the mail by means of false representations. A remedial order under the provisions of 39 U.S.C. § 3005 is being issued contemporaneously with this decision.

____________________

*/ The Chief Administrative Law Judge was unable to find that Respondent's advertisements represented that, as charged in paragraph II(a) of the Complaint, the information contained in the report will enable the reader to cure all prostate problems on his own. Complainant has not excepted to this finding.