In the Matter of the Complaint Against

COSVETIC LABORATORIES
HEAD START RETAIL THE MAN'S VITAMIN at
Atlanta, Georgia

P.S. Docket No. 7/68;

Cohen, James A.

APPEARANCE FOR COMPLAINANT:
ThomasA. Ziebarth, Esq.
Consumer Protection Division
U. S. Postal Service
Law Department
475 L'Enfant Plaza West, SW
Washington, D.C. 20260

APPEARANCE FOR RESPONDENT:
Christopher S. Barnard,
Esq. Katz, Paller & Land
470 East Paces Ferry Road
Suite 2000 Atlanta, GA 30305

POSTAL SERVICE DECISION

Complainant has appealed from the Initial Decision of Administrative Law Judge Quentin E. Grant in which Judge Grant dismissed the complaint filed against Respondent based on his conclusion that with regard to the sale of its product, "The Man's Vitamin," Respondent is not engaged in a scheme or device for obtaining money through the mail by means of false representations in violation of 39 U.S.C. § 3005.

BACKGROUND

On July 12, 1979, the Consumer Protection Division, Law Department, United States Postal Service (Complainant), filed a complaint alleging that Cosvetic Laboratories, Head Start Retail, The Man's Vitamin (Respondent) is engaged in conducting a scheme or device for obtaining money through the mail in violation of 39 U.S.C. § 3005. Paragraphs 3 and 4 of the complaint state:

"(3) By means of such materials advertising materials attached to the complaint , and others similar thereto, Respondent represents, directly or indirectly, in substance and effect, whether by affirmative statements, omissions or implication that:

(a) Sexual debilities and impotence in the American male are most commonly caused by deficiencies in the vitamins and minerals contained in THE MAN's VITAMIN, especially zinc and vitamin B 6 ;

(b) It is difficult to obtain zinc and vitamin B 6 through normal food sources;

(c) The use of THE MAN'S VITAMIN will improve the average male's sexual potency and capacity for sexual enjoyment;

(d) The zinc contained in THE MAN'S VITAMIN will increase the user's capacity for sexual performance; and

(e) The use of THE MAN'S VITAMIN is effective in preventing the problem of an enlarged prostate during old age.

(4) The aforesaid representations are materially false as a matter of fact."

At a hearing held on the allegations made in the complaint the only witness appearing on behalf of either party was Dr. Johnnie Watts Prothro, a highly qualified nutritionist. Because of the unavailability of Respondent's expert witness, the parties entered into a stipulation, which was accepted by the presiding Judge, permitting the submission of an affidavit from Respondent's expert medical witness within 10 days following the hearing. The stipulation also provided that subsequent to the submission of the affidavit, Complainant would be allowed an opportunity to propound written interrogatories in the nature of cross-examination, and to file a counter affidavit of its expert (Tr. 10). Thereafter, Respondent filed an affidavit of an expert medical witness. Complainant did not propound written interrogatories to Respondent's expert, nor did it file a counter affidavit.

In the Initial Decision Judge Grant concluded that Respondent makes only a part of the representation alleged in paragraph 3(a) of the complaint, and that it does not make the representation alleged in paragraph 3(e) of the complaint. With regard to paragraph 3(b) of the complaint, Judge Grant concluded:

"...It would be inappropriate to find material falsity in the representation concerning difficulty in obtaining zinc and vitamin B 6 ." (I.D. p. 15.)

With regard to the remainder of the representations made by Respondent, Judge Grant concluded:

"Complainant has failed to sustain its burden of proof as to the falsity of the representations characterized in paragraph 3(a), (c) and (d) of the complaint. It relied solely on the testimony of Dr. Prothro, a nutritionist without any clinical or consulting experience in sexual problems or any other special expertise in the field of nutrition as related to sexual problems..."

* * *

"...I conclude that Dr. Prothro's experience and preparation for testimony do not furnish adequate support for her conclusions that her opinions as to the matters in issue conform with the consensus of informed scientific and medical opinion..." (I.D. p. 13.) On the basis of his findings Judge Grant dismissed the complaint.

COMPLAINANT'S EXCEPTIONS

In its Appeal Brief, Complainant challenges Judge Grant's failure to find that the entire representations alleged in paragraphs 3(a) and 3(e) of the complaint are made in Respondent's advertisements and that they are materially false. Complainant does not challenge Judge Grant's conclusion that Dr Prothro's testimony was not proven to be in conformance with the consensus of informed scientific and medical opinion. Complainant's exceptions are discussed below:

Exception 1

Complainant states its first exception as follows:

"The presiding Administrative Law Judge erred in failing to find that the representation described in paragraph 3(a) of the Complaint was made in Respondent's advertising materials and that it is materially false."

With regard to the allegation made in paragraph 3(a) of the complaint, Judge Grant found that Respondent's advertisements represent that the most common cause of impotence in the American male is deficiency in zinc and vitamin B 6 . This conclusion was based on a quotation taken from Complainant's Exhibit 1:

"...But it's especially vital to the male since a deficiency of zine and B 6 are the most common causes of impotence..."

Judge Grant concluded that this language did not represent "that all sexual debilities are most commonly caused by deficiencies in the vitamins and minerals contained in THE MAN'S VITAMIN." (I.D. p. 5.)

Complainant takes issue with this conclusion. Citing Stedman's Medical Dictionary, Second Unabridged Lawyer's Edition (1966), it argues that the terms "sexual debilities" and "impotence" are virtually synonymous. It points out that the word "debility" is defined as a weakness and that "impotence" also is defined as "weakness; lack of power; specifically, lack of power in the male, to copulate." Stedman's, supra. Complainant also argues that other portions of Respondent's advertising materials suggest that vitamin and mineral deficiencies cause sexual debilities.

Respondent contends that its advertisements are to be interpreted in light of an ordinary reader and not by the interpretation they would be given by physicians or by reference to a medical dictionary. Respondent also correctly notes that Judge Grant did not dismiss the entire alleged misrepresentation contained in paragraph 3(a) of the complaint, only a portion thereof.

Considered in their totality and the overall effect they would likely have on the ordinary mind, Respondent's advertisements make the entire representation alleged in paragraph 3(a) of the complaint. This is done by the language of the advertisement quoted in the Initial Decision as well as other statements in Respondent's advertisements which relate to a sexual weakness, i.e., "Science has found that certain vital nutrients are necessary for maintaining your sexual potential." "To function sexually at optimal levels." (CX 1.) "No matter how much of a 'man' you are, if you're not getting plenty of the right nutrients, you won't have a healthy sex drive."; "Reports from returning POW's and others who had been forced to live on substandard diets showed a marked decrease in libido. Authorities hypothesized that this condition occurs when certain necessary nutrients are absent from the diet." (CX 2, 3.)

Respondent's advertisements do not state that they pertain to "all" sexual debilities but neither does allegation 3(a) of the complaint make the charge that all sexual debilities are caused by vitamin deficiencies. Accordingly, Complainant's exception has merit.

Notwithstanding the conclusion that the representation is found to be made, the evidence is not persuasive that the representation is false. Complainant cites pages 6 through 8 of its Proposed Findings of Fact and Conclusions of Law which were submitted to the presiding officer prior to the issuance of the Initial Decision as supporting its contention that the representation is false. These proposed findings, although accurately reflecting the testimony, do not address the adequacy of the evidence presented by Complainant's expert witness with regard to scientific and medical matters.

In this appeal the evidence presented by Complainant's expert witness has certain obvious weaknesses, which were pointed out in the Initial Decision. Moreover, the testimony of Complainant's expert was challenged by the evidence presented by Respondent in the affidavit of its medical expert. Considering the evidence presented in rebuttal of Complainant's evidence, Judge Grant correctly concluded that Complainant had failed to establish by a preponderance of the evidence that the representations set forth in paragraph 3(a) of the Complaint were false.

Accordingly, while it is concluded that the Complainant is correct that the entire representation set forth in paragraph 3(a) of the complaint was in fact made, Complainant has presented no factual or legal arguments which would support a finding that the representation made in paragraph 3(a) of the complaint is false. Accordingly, Complainant's Exception 1 is correct in part, but the cited error has no effect on the result reached.

Exception 2

Complainant's second exception is:

"The presiding Administrative Law Judge erred in failing to find that the representation described in paragraph 3(e) of the Complaint was made in Respondent's advertising materials and that it is materially false."

By this exception, Complainant disagrees with Judge Grant's conclusion as to the inferences which may be drawn from the language contained in Respondent's advertising:

"...It may even be the solution to avoiding the painful debilitating male problem of an enlarged prostate during old age." (CX-1.)

In paragraph 3(e) of the complaint it is alleged that Respondent's advertising makes the representation that Respondent's product "is effective in preventing" the problem of an enlarged prostate during old age. Judge Grant concluded that Respondent's advertising states that the product "may even be the solution" (emphasis added) and that this wording "in the context in which it appears (CX-2) falls short of the representation alleged." (I.D. p. 5). While the word "may" in some advertisements could be understood to mean "will," such is not the case in connection with Respondent's advertising. Respondent's advertising clearly suggests the possibility of relief from prostate problems during old age. However, in the context in which it appears in Respondent's advertising it may not reasonably be interpreted as constituting an absolute representation of relief from that problem as alleged in the complaint. In addition, even if it was concluded that the representation is contained in Respondent's advertising, the evidence in the record does not support a finding that the representation is false. Therefore, Complainant's exception is without merit.

CONCLUSION

After consideration of Complainant's exceptions and the record as a whole, it is concluded that the Initial Decision correctly holds that Complainant has not established that Respondent is engaged in a scheme for obtaining money through the mail by means of materially false representations in violation of 39 U.S.C. § 3005. Accordingly, Complainant's appeal is denied.