In the Matter of the Complaint Against

LIFE LINE LABORATORIES,
Box 73 and 107 South Center St. at
Colfax, IL 61728

P.S. Docket No. 7/41

September 17, 1979

William A. Duvall Chief Administrative Law Judge

H.Richard Hefner, Esq.,
Law Department
United States Postal Service
Washington, D.C. 20260, for Complainant

Donald L. Wilber, Esq.,
132 S. Center Street,
Colfax, IL 61728, for Respondent

Before: William A. Duvall, Chief Administrative Law Judge

INITIAL DECISION ^1/

This case was initiated by the filing of a Complaint by the Office of Consumer Protection, Law Department United States Postal Service, the Complainant, in which it is alleged that Life Line Laboratories at Colfax, Illinois, the Respondent, is engaged in conducting a scheme or device to obtain remittances of money through the mails by means of false representations in violation of 39 United States Code, Section 3005.

In the Complaint it is charged that public attention is attracted to the scheme by means of advertising matter distributed to the public, which is calculated and intended to induce remittances of money through the mails to the Respondent.

It is charged also that Exhibits A, B, C, D and E attached to the Complaint, which are attached to this decision as Appendices A, B, C, D, and E, are samples of the advertising matter used by the Respondent.

It is charged that by means of the advertising matter used by the Respondent, the Respondent expressly or impliedly represents to the public in substance and effect that:

"(a) 'Histidine' or 'L-Histidine' is an effective treatment or remedy for 'STIFF, PAINFUL joints.'

"(b) 'Histidine' or 'L-Histidine' is an effective treatment or remedy for arthritis."

Finally, it is charged that the representations alleged as being made by the Respondent are materially false, as a matter of fact.

In the answer the Respondent denied that it is engaged in conducting a scheme but it does admit that it uses certain advertising material which it distributes to the public, which is calculated and intended to induce readers thereof to remit money through the mails to the Respondent. The Respondent admits the use of the advertising material which is attached to the complaint.

The Respondent denies the making of the representations which are set forth in Paragraph 3 of the Complaint. The Respondent denies that the representations which it makes are materially false as a matter of fact.

I find that the Respondent does make the representation which is set forth in Paragraph III (a) of the Complaint. Appendix A, which is identical with Complainant's Exhibit 1, strongly suggests that if one has stiff, painful joints, if he will get histidine, the amino acid food supplement, he will receive relief for his stiff and painful joints. That is inevitably what the reader of this advertisement would believe, otherwise what would be the purpose of buying histidine if one has stiff and painful joints. One might as well buy a bottle of water if the histidine is not recommended as a means of relief of "STIFF, PAINFUL joints."

In further support of the finding that the Respondent makes the charge which is set forth in Paragraph III (a) of the Complaint, there is language in Appendix C, which is a photocopy of a brochure, on the front page of which is the language in large print, "Stiff - Painful Joints?" and a picture of two hands with arrows pointing to and from various places on the hands. Then, beneath the representation of the two hands, there are the words, "Get histidine." Beneath that is the name and address of the Respondent.

There is a solicitation in this brochure which tells the reader to order one month's supply for $7, tax included, or two month's supply for $12.50, tax included. It instructs the reader to send the check or money order to the Respondent.

I find that the Respondent does make the representation which is set forth in Paragraph III (b) of the Complaint. Appendix D to this decision is a copy of a copy of a letter which is distributed by the Respondent to prospective purchasers. This letter tells of the relief experienced by a person who bought Respondent's product. The last sentence in the first paragraph of this letter reads as follows: "It has one (sic) been one of the best products I've used since my bout with arthritis."

Clearly that is an indication that the product is efficacious as a remedy, treatment or an alleviator of pain for arthritis sufferers.

The finding that the Respondent does make the representations set forth in the Complaint is based on the rule stated in the case of Donaldson v. Read Magazine , 333 U.S. 178, wherein the Court said, in substance, that advertising material is to be judged in the light of the effect that it would have, when considered as a whole, upon the person of the average mind. Earlier, the Court had said, "Advertisements as a whole may be completely misleading, although every sentence separately considered is literally true. This may be because things are omitted that should be said or because advertisements are composed or purposefully printed in such a way as to mislead."

The Complainant presented two witnesses in this proceeding, the first of whom was Inspector Kenneth Newman. Inspector Newman is employed in the Special Investigations Division of the Postal Inspection Service.

He stated that he noted the Respondent's advertisement in the August 29, 1978, issue of the publication known as "National Enquirer," a publication of wide circulation.

Subsequent to his notice of this advertisement, he initiated test correspondence through the mail which culminated in his ordering, paying for, and receiving, the product in question. In addition to the product, he received some of the literature which has been cited heretofore, namely: the advertising brochure (Appendix C) and the endorsement of the product (Appendix D).

The next witness appearing on behalf of the Complainant was Dr. John L. Skosey. Dr. Skosey is Board certified in internal medicine. He is a diplomate in internal medicine and, since 1974 he has been, also, a diplomate in the subspecialty of rheumatology. His very impressive curriculum vitae is part of the record as Complainant's Exhibit 18.

In substance, Dr. Skosey said that there are approximately 41,000,000 people in the United States who are afflicted with sore and painful joints, symptoms which indicate some form of arthritis in most of the cases. If a person is subject to sore and painful joints for a period of six months it is very likely that that person has arthritis.

Dr. Skosey is with the Department of Medicine of the University of Illinois Hospital in Chicago. He also has a private practice. In the course of his experience, he has never encountered a person who has a deficiency of L-histidine, so far as he knows. Such a deficiency, if it appeared, would show up in the blood of the individual when subjected to specific tests. He does not know of any practicing physician who has encountered a person with an L-histidine deficiency of the blood.

Dr. Skosey is aware of two tests which were given for the purpose of determining whether L-histidine, if added to the diet of a person with L-histidine deficiency of the blood, would produce beneficial results. The first test was conducted by a Dr. Gerber. The results of that test, which, incidentally, was an uncontrolled test, indicated that there might be some beneficial results to a person with an L-histidine blood deficiency to whose diet should be added this substance, which is an amino acid. It was administered in doses of 4500 milligrams per day, which is 400 times the amount of L-histidine present in the Respondent's product.

Because of the hope that was generated as a result of this first and uncontrolled test, Dr. Gerber and two other doctors participated in a controlled test in which that same dosage of L-histidine was added to the diet of persons known to have an L-histidine deficiency. The results of the ingestion of this substance by one group of subjects were compared with the results of the ingestion of a placebo by another group. This test resulted in a finding, in which Dr. Gerber permitted his name to be used as one of the investigators, that compared with the placebo, this quantity of L-histidine showed no beneficial results to these persons having the L-histidine blood deficiency.

It was Dr. Skosey's testimony, that in his opinion, neither L-histidine nor pantothenic acid in the quantities found in the Respondent's product, when added to the diet of a person having an L-histidine deficiency and having sore, stiff, painful joints, would provide any relief for such persons. Dr. Skosey's opinion on this matter is in accord with the consensus of informed scientific and medical opinion on this subject. Dr. Skosey is a member of a number of societies and professional associations of rheumatologists. In connection with his position at the University of Illinois Hospital he must keep abreast of the current literature on the subject, since he provides the curriculum to be followed by medical students, resident physicians, interns, and doctors who are at the University in pursuit of their recognition as specialists in rheumatology. Dr. Skosey also attends numerous seminars, at a number of which he has appeared as a panelist. He has also attended many other seminars as an observer.

It is the accumulative impact of all of this experience and study that leads Dr. Skosey to conclude that these substances are not beneficial for the purposes for which they are being offered for sale to the public. Dr. Skosey, does not, himself, use amino acids in the treatment of patients with sore and stuff joints. He knows of no one in his profession or in his specialty who uses such substances for those purposes. Furthermore, if there were physicians who used amino acids to treat patients who have sore and stiff joints, he would know about it, because that is the area of his primary interest and his information is kept up to date in that field.

The president of Life Line Laboratories, Mr. John Robert Braatz, sometimes referred to as the Respondent, testified that he has been in business for 12 years as the president of Vi-Amino Feeds of Colfax, Illinois, the business of which is to prepare food for livestock. In the course of this business, an amino acid balance is attempted to be achieved for the feeds that are used for livestock.

Because of his experience in this business with histidine and other amino acids, Mr. Braatz came to the conclusion that a product of the type which is under consideration today might be beneficial to human sufferers of sore, stiff, painful joints. Over some period of time he gave it away to a number of his friends who reported to him that they felt better. As the demand grew he decided to incorporate, and he did so about two years ago. In the time since he has been selling this product he has received only two complaints. Also, during this same period of time he has received many re-orders.

The sale of the product under consideration is not, at the present time, a money making proposition for Mr. Braatz. In the past two years his net financial result has been a loss of $800. He pays his wife and his daughter the minimum wage rate, which he said is $2.95 per hour, for getting the materials into the mail. His costs generally exceed his income. Mr. Braatz is engaged in this business at the present time out of humanitarian concerns. He hopes, however, to make it profitable in the future, which is a perfectly legitimate ambition.

Mr. Braatz graduated from Ripon College in Ripon, Wisconsin, with a major in economics and a minor in business administration. This is scarcely the background required of a person who is going to sell through the mails, to people he does not know and has never seen, a product which he obviously recommends for use in treating or alleviating stiff and painful joints.

In the first place, he has no means of knowing whether the persons to whom he sells the product have a deficiency of L-histidine in their blood nor do the purchasers themselves. His customers, also, can not be expected to have that information. Furthermore, as has been seen, even if sufferers with sore and painful joints do have a deficiency of L-histidine in their blood, the only competent, valid test that has been given, so far as this record shows, indicates the addition of this substance to the diet of such people, does not produce relief.

Also appearing as a witness for the Respondent, was Mrs. Lois Garner, who is the mayor of Colfax, Illinois. She is an accountant for Protein Plus, a division of Vi-Amino Feed Company, of which Mr. Braatz is the president.

Mrs. Garner testified that she took Respondent's product and that she was aided by it. The joints of her fingers which had been swollen and sore were reduced in size, or, at least, the swelling did not increase, and they were less painful. Although the brochure instructs the user to "take one capsule daily," Mrs. Garner said she found it necessary, at times, to take two capsules a day - one in the morning and one at evening.

I do not question the sincerity, the honesty of the statements made by Mr. Braatz and Mrs. Garner. I do know, however, that I am obliged, in view of the quality and of the quantity of the testimony that has been presented in this proceeding by a highly qualified medical expert, to accept the latter testimony over the testimony offered by the Respondent.

On the preceding point, it was stated by the Respondent that if it had been known that other lay witnesses could be produced as witnesses, more of such witnesses would have been brought from Colfax to testify. In the motion for a change of place of hearing that was filed on April 17, 1979, there are other witnesses whose names are listed and who it is said would testify. The Respondent must have known that more than one lay witness would be permitted to testify if they were offered for that purpose. No additional witnesses were called by the Respondent.

As findings of fact, I list the following:

1. The Respondent is engaged in conducting an enterprise for obtaining money through the mails.

2. In connection with the operation of this business, the Respondent does advertise in publications of wide circulation and he does solicit remittances of money through the mail.

3. The Respondent does make the representations which are set forth in the Complaint.

4. The representations found to have been made by the Respondent are material representations because they are of the character which are calculated to, and do, persuade people to make remittances of money for the product, to take it for the hoped for relief of the pain which they suffer in their sore joints.

5. The representations found to have been made by the Respondent in this proceeding are false as matters of medical fact.

Finally, it is concluded as a matter of law that the Respondent is 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.

Accordingly, it is found that an order of the type provided for in 39 U. S. Code, Section 3005, and substantially in the form attached, should issue 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.