In the Matter of the Complaint Against

MAGNOLIA LAB,

and

MAGNOLIA LABORATORY
P.O. Box 1306 and
701 Beach Boulevard at
Pascagoula, MS 39567

P.S. Docket No. 10/123;

Bernstein, Edwin S.

APPEARANCE FOR COMPLAINANT:
H. R ichard Hefner, Esq.
Robert G. Hausman, Esq.

Consumer Protection Division
Law Department
U.S. Postal Service
Washington, DC 20260-1100

APPEARANCE FOR RESPONDENTS:
Charles W. Ford, Esq.
Box 100 Pascagoula, MS 39567

BEFORE: Judge Edwin S. Bernstein

INITIAL DECISION

Complainant alleged and Respondents denied that Respondents were engaged in conducting a scheme or device for obtaining money or pro- perty through the mail by means of false representations in viola- tion of 39 United States Code § 3005. The Complaint alleged that Re- spondents falsely represented in their publication that "The dietary regimen set forth in the book, 'Stale Food -vs- Fresh Food' will effectively cleanse and clear blocked arteries."

On March 18, 1981, I denied Respondents' motion for dismissal or judgment on the pleadings. On April 13, 1981, Respondents filed a lengthy motion to reconsider this decision. By Order of April 15, 1981, I reserved decision on the motion to reconsider pending completion of the April 21, 1981 hearing and submission of proposed findings of fact, proposed conclusions of law and briefs following the hearing. At the hearing, Inspector Michael P. Flynn and Dr. Robin E. Murray testified for Complainant while Dr. Claude Warren, Jr. testified for Respondents.

FINDINGS OF FACT

The Publication at issue (CX-7) is a booklet of approximately 50 pages entitled "Stale Food -vs- Fresh Food" by Robert S. Ford.

Mr. Michael P. Flynn is an inspector with the Postal Service's Special Investigations Division. he testified that he saw an advertisement for Respondents' booklet in the October 14, 1980 edition of the National Enquirer newspaper. Using a fictitious or test name of Maureen R. Reagan, he mailed a $5.00 money order to Respondents with an order for a copy of the booklet. He received the booklet by return mail. (Tr. 9-12)

Dr. Robin E. Murray teaches family practice at the University of Alabama, is board-certified in Family Medicine, is involved on the local level on the Board of Directors of the American Heart Association, and is the Federal Medical Director of his region for the Emergency Medical Services System. (Tr. 19-21)

Dr. Murray testified that arteriosclerosis involves the obstruction of blood flow or reduction in blood supply in arteries.

This can cause a stroke or a heart attack. (Tr. 22, 23) Plaques can build up in the arteries. These can be composed of lipid type materials, platelets and fibrin, a chemical structure that binds them together. Platelets which collect on the plaque can form a clot. The clot can produce coronary occlusion, a blockage of the coronary artery known as a heart attack. (Tr. 25) He stated that individuals seem to be genetically loaded for this disorder. (Tr. 29) He places individuals in whom he diagnoses arteriosclerosis on a low lipid diet. Lipid is a broad term for a number of fats that float around in the bloodstream. Cholesterol is one of these. (Tr. 30)

Dr. Murray stated that the majority of medical knowledge be lieves that, although the progression of plaques can be retarded, the formation of plaques cannot be reversed. (Tr. 33) He stated, "Dietary factors are thought to exacerbate the problem, but most people feel that they do not in and of themselves cause the problem." (Tr. 30) Thus, he stated that the majority of medical knowledge feels that diet can retard but cannot reverse the progress of arteriosclerosis. (Tr. 33)

Dr. Murray stated that the theory in Respondents' booklet is that if a person who has arteriosclerosis eats fresh food he can reverse the process or arteriosclerosis. (Tr. 34) Dr. Murray tes tified that in his opinion the dietary regimen in Respondents' book let will not cleanse and clear blocked arteries. (Tr. 35) He dis agrees that the amount of lipids in cholesterol decreases if food including meat is fresh. (Tr. 35) Dr. Murray testified that he keeps current with scientific literature, consults with his peers, attends and participates in programs regarding arteriosclerosis, and is aware of scientific research being performed concerning arterio- sclerosis. He stated that his views are in accord with the consen- sus of informed medical and scientific opinion in the field. (Tr. 36-39)

Dr. Murray stated that although Respondents' diet is not a bad diet, it will not reverse arteriosclerosis or cure choked or blocked arteries. (Tr. 34, 35) He stated that the best way to prove a theory is through statistically controlled observations. In such a study, neither the patients nor the testing personnel know which group of patients has the active ingredient and which group has a similar appearing inactive substance. Then, after the test period, a crossover is done in which the two groups are reversed. (Tr. 54, 55) In response to cross-examination about a 1954 symposium about arteriosclerosis in which diet was stressed, Dr. Murray stated that the genetics field has developed greatly since 1954 and it is now felt that arteriosclerosis is caused mostly by genetic predisposi- tion. (Tr. 57-60)

Dr. Murray stated that the danger of Respondents' diet is that people with arteriosclerosis may delay diagnosis and treatment of their problem in believing that they can be helped by this diet. (Tr. 58) In response to cross-examination about his witness fee, Dr. Murray stated that he planned to testify without fee because of his affiliation with the heart association. (Tr. 97)

Dr. Claude Warren, Jr. is a board-certified Ophthalmologist. he examined Mr. Robert Ford, the author of Respondents' booklet in 1965 or 1967 and found that Mr. Ford's arteries in his eyes looked beautiful. Mr. Ford attributed this to his diet. Dr. Warren followed the diet himself and recommended it to others, including his patients. He and his wife feel younger since they have followed the diet. (Tr. 105-107) He feels that the diet has also helped others. (Tr. 111) Dr. Warren also stated, "All the scientists might disagree..." (Tr. 107, 117) He conceded that his view relative to reversal and curing clogged arteries was a minority view. (Tr. 117)

CONCLUSIONS OF LAW
AND CONCLUDING FINDINGS

An advertisement must be considered as a whole and its meaning will be determined in the light of its probable effect on persons of ordinary minds. In considering the meaning of an advertisement, that which is implied as well as that which is expressed will be considered. Donaldson v. Read Magazine, Inc., 333 U.S. 178 (1948); Vibra-Brush Corp. v. Schaffer, 152 F. Supp. 461 (S.D.N.Y. 1957).

The offer of a refund of the purchase price if purchaser is dissatisfied does not dispel the effects of false representations. Borg-Johnson Electronics, Inc. v. Christenberry, 169 F. Supp 746, 751 (S.D.N.Y. 1959).

Constitutional guarantees against restrictions of freedom of speech do not protect false advertisements. Donaldson v. Read Magazine Inc., supra. In United States Postal Service v. Beamish, 466 F.2d 804, 807 (3d Cir. 1972), the Court held, "Advertisers possess no constitutional right to disseminate false or misleading materials." In Hollywood House International, Inc. v. Klassen, 508 F.2d 1276, 1277 (9th Cir. 1974), a case that also involved a publication, the Court held, "Fraudulent commercial appeals are not a protected form of expression..." Recently, in Health Purifiers, Inc., P.S. Docket No. 6/78 (1979), the Judicial Officer held, "...when the expression and publication of opinions are sold as a product through the mail they are subject to the cited statutory provision." 39 U.S.C. § 3005 (page 8)

I find that Respondents seek remittances of money through the mails in connection with the sale of their publication, "Stale Food -vs- Fresh Food." Respondents' advertisements (CX-1) direct readers who wish to respond to send $4.80 plus 60c / for postage by mail. The page before page 1 of the booklet contains direct mail prices and mailing instructions. The page in the booklet after page 48 contains mail order coupons. Additionally, Inspector Flynn's testimony and the exhibits introduced in connection with his testimony support this finding.

The Complaint alleged that Respondents represented, "The die- tary regimen set forth in the book 'Stale Food -vs- Fresh Food' will effectively cleanse and clear blocked arteries." This allegation is supported by the weight of the evidence. The heading in Respon- dents' advertisement (CX-1) reads, "Arteries Can Cleanse Themselves Without Surgery, By Diet Alone." The advertisement begins with the words, "A startling new discovery shows how arteries can cleanse themselves without surgery. Just as your skin can cast out thorns, your arteries can cast out lumps when you stop forming them with the wrong foods." Other statements in that advertisement also support this finding.

These representations are materially false. Respondents' major premise is that arteriosclerosis can be reversed and "choked arteries" can be cleared or cleansed if one eats food which is primarily fresh instead of food that is primarily frozen or preserved. At page 11 of his book (CX-7), Mr. Ford states, "I finally determined that the true cause of arteriosclerosis is simple: STALE FOOD". At page 13, he states,

6. FRESH FOOD - THE CURE FOR ARTERIOSCLEROSIS

Stale food being the source of the fatty rubbish which causes arteriosclerosis, to prevent the disease we have only to stop eating stale food, and eat fresh food instead according to the diet chart herein.

But what about the fatty rubbish already clogging our systems? Fortunately Nature has taken care of this, by designing into the body an efficient housecleaning system in which non-living material is attacked and gradually removed. Few people even among doctors seem to know famous scientists have long ago proven that arteries have their own natural cleansing system. That each arterial deposit tends to go through a natural cycle wherein it grows, becomes mature, then shells out and heals. this self- cleansing action can be easily seen by anyone viewing the deposits in a choked artery, wherein some are obviously new and growing, some fully mature, and others shelled-out craters or fully healed scars. It is evident that this action would result in clean arteries if formation of new deposits were somehow stopped.

The weight of the evidence in this case is contrary to this theory. Dr. Murray stated that the consensus of informed medical and scientific opinion is that diet may retard but cannot reverse the progress of arteriosclerosis. (Tr. 33-39) In fact, Dr. Murray stated that certain foods, advocated by the diet such as animal fat and butter, are generally not recommended by most physicians for patients with arteriosclerosis. (Tr. 95) Dr. Murray emphasized that a danger of Respondents' diet is that people with arteriosclerosis may delay diagnosis and treatment of their problem in the belief that this diet will cure the condition. (Tr. 58)

Respondents attacked Dr. Murray's youthfulness in their proposed findings and conclusions. Although Dr. Murray is under 30, I found him to be a serious and dedicated physician. The range of his associations and experience in just a few years following his completion of medical school attest to this. Board-certification often takes many years. Dr. Murray already have accomplished this. He testified logically and persuasively, not for any fee but because of his dedication. I have no reason to doubt his statements that the weight of informed medical and scientific opinion is contrary to Respondents' theories as alleged in the Complaint. ^*/

In their proposed findings and conclusions, Respondents compare the qualifications of Drs. Murray and Warren. However, it is not necessary to accept one witness and reject the other. Although Dr. Warren testified that his personal experiences and those of others supported Respondents' thesis, he agreed with Dr. Murray that his is a minority opinion (Tr. 117) and that "all the scientists might disagree" with Respondents' thesis. (Tr. 107, 117) Neither witness knew of any controlled experiments involving humans which supports Respondents' theory. (Tr. 53, 113)

Although I found that the booklet contained some helpful suggestions and its author, Mr. Robert Ford is a knowledgeable and sincere person who thinks that he is performing a beneficial service, I found the representations in Respondents' booklet to be unproven and contrary to the weight of informed medical and scientific opinion. As indicated by Dr. Murray, a danger of this publication is that it will deceive people who have arteriosclerosis problems into believing that they can cure these problems by diet alone instead of seeking medical help.

Because the advertisements and this booklet contain materially false representations, they violate the provisions of 39 U.S. Code § 3005. Therefore, Respondents' motion to dismiss is denied and a mail stop order, substantially in the form attached, should be issued against Respondents.

*/ After the hearing, Respondents filed a "Petition For Discovery of Misleading Information As To Qualification and Preparation of Witness Dr. Robin Murray." The Petition attached an affidavit attacking some of Dr. Murray's statements and requested an Order requiring Complainant to Confirm or Deny allegations and if Complainant fails to do so An Order Striking Dr. Murray's testimony and Dismissing the Complaint. I find no provision for the requested relief in the applicable rules of practice of the Postal Service. Additionally, I do not find that the allegations, even if true, detract from Dr. Murray's testimony. Therefore, the motion is denied.