In the Matter of the Complaint Against

21st CENTURY LABS
P.O. Box 2541 at
New York, NY 10017

P.S. Docket No. 10/88;

Bernstein, Edwin S.

APPEARANCE FOR COMPLAINANT
Dani el E. Lewis, Esq.
Consumer Protection Division
Law Department
United States Postal Service
Washington, DC 20260-1100

APPEARANCE FOR RESPONDENT:
Lee H. Harter, Esq.
2256 Van Ness Avenue
San Francisco, CA 94109

BEFORE: Judge Edwin S. Bernstein

INITIAL DECISION

Complainant alleged and Respondent denied that Respondent is engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations in violation of 39 U.S. Code § 3005. I held a hearing on March 31, 1981.

FINDINGS OF FACT

At the hearing, Dr. Sorell L. Schwartz and Mr. Jeffrey DuPilka testified for Complainant. Although no witnesses testified for Respondent at the hearing, on April 20, 1981, Dr. Theodore R. McIlvenna testified for Respondent by post-hearing deposition. (RX-5).

Dr. Schwartz is a Professor of Pharmacology at Georgetown University Schools of Medicine and Dentistry. He has written approximately 55 articles in Pharmacology and has excellent credentials in that field. Dr. Schwartz testified that there is no ingredient in Respondent's product, Postiche Flavored Nymphomaniac Drops, that will pharmacologically help the user's sex problems (Tr. 33) or increase a woman's desire to engage in sexual intercourse. (Tr. 34) He stated that the product contains glycerine and that at least 10 cc s of glycerine in the vaginal vault would act as a lubricant. (Tr. 81) However, according to the product's label (CX5 and 5a), only one or two drops are to be used and one or two drops contain insufficient glycerine to lubricate. (Tr. 92)

Dr. Schwartz admitted that some people with libido problems who took this product might respond to it in a way claimed by Respondent in its advertising. He said these people would be placebo responders. (Tr. 86 That is, a certain number of people will respond, not because of a product's inherent biological activity, but because of suggestion or intervention. (Tr. 31)

In answer to Respondent's counsel's questions, Dr. Schwartz emphasized that although he is not an expert in sexology, he is knowledgeable about the effects on the body of various drugs. He stated that if drops of the preparation were rubbed on a woman's clitoris or breasts, the woman might become more sexually aroused, but not because of the drops. He arousal would result from the rubbing itself. (Tr. 61, 62)

Dr. Schwartz said that numerous widely available products and substances such as water, cold cream, and baby oil, would lubricate in a manner similar to Respondent's product. (Tr. 90)

Dr. Schwartz also testified that his opinions are consistent with informed medical, pharmacological and scientific opinions. (Tr. 38)

Mr. DuPilka is a postal inspector assigned to the Postal Service's Special Investigations Division. He stated that he saw an advertisement for Respondent's product (CX-6) in the October 1980 issue of Penthouse Magazine. (Tr. 104, 105) He initiated a test purchase under the fictitious name of Ernest Duckett by sending money and a completed coupon found in CX-6 to Respondent. (Tr. 105, 106) He identified CX-2 as the advertisement with the coupon removed, CX-3 as the postal money order that he used to buy the product, and CX-4 as the envelope that he used to order the product by mail. (Tr. 107, 108) He identified CX-5 as a transcript of the product's label and CX-5A as the product. (Tr. 108-110)

Dr. McIlvenna first obtained several divinity degrees and then studied and practiced in the field of sexology. He testified that there is no such thing as an aphrodisiac. (Dep. 15, 52) He stated that Postiche Flavored Nymphomaniac Drops will increase a woman's desire for sexual intercourse if she is touched at the same time and " W without the touching, this product would not be anything more than if she dropped something and rubbed herself." (Dep. 15), 16) When asked if he agreed with Dr. Schwartz' statement that based on the ingredients contained in the product there would be no physiological effect from use of the product, Dr. McIlvenna stated, "Of course, with the use of this product you would have a physiological reaction, because it goes with the rubbing." (Dep. 70)

Dr. McIlvenna stated that the representation that Respondent's product will turn a woman into a raging inferno is "a little bit of an exaggeration." (Dep. 70) He stated that this product was not made for the impotent man. (Dep. 58) He would not use the product for people who have problems related to premature ejaculation. (Dep. 58, 59) He stated that the product would not be helpful for hysterically frigid women. (Tr. 60 When asked if, aside from its aroma, the product differs from baby oil, Dr. McIlvenna replied, "Well, baby oil tends to have a little more lubrication or consistency. Again, baby oil tends to stain if you use a lot of it." (Dep. 61)

He further testified that the product is an eroticized object and that the whole product --the label, the way it's packaged and the ingredients --make it help people to have a better sex life.

Dr. McIlvenna claimed that he gave 30 bottles of Respondent's product to couples who already were participating in a larger sex study. He said that a majority of the participants felt that it helped them in their sociosexual activity. (Dep. 10) On cross- examination, however, Dr. McIlvenna admitted that the 30 couples tested the nymphomaniac drops along with a number of sex aids including vibrators, lubricants, vibrating penis rings, dildos and various other "sex toys." The study group was selected from friends of the staff at Dr. McIlvenna's sex clinic and also included graduate students. (Dep. 64) The study is not yet complete (Dep. 65); was not a controlled clinical trial (Dept. 66); and was not a double-blind test. (Dep. 69)

A copy of Dr. McIlvenna's deposition is received into evidence as Respondent's Exhibit 5(RX-5). A copy of Complainant's Exhibit 2 (CX-2), Respondent's Advertisement, is attached to this decision.

CONCLUDING FINDINGS AND
CONCLUSIONS OF LAW

1. Through its Advertising, Respondent Seeks Remittances of Money Through the Mails

Inspector DuPilka's testimony established that Respondent solicits the remittance of money through the mails in the sale of Postiche Flavored Nymphomaniac Drops. Respondent offered no evidence or testimony to dispute this.

2. Respondent's Advertisements Make The Representations Specified in Paragraph III, Subparagraphs (a) and (b) of the Complaint

Subparagraph (a) alleges that Respondent represents in its advertisements:

"POSTICHE FLAVORED NYMPHOMANIAC DROPS will effectively increase a woman's desire to engage in sexual intercourse."

This allegation is supported by the following language in Respondent's advertisements (CX 2 and 6):

"Just a few luscious drops where she needs it most will turn her into a raging inferno."

The words "turn her into a raging inferno", read with "nymphomaniac" in the name and the words "where she needs it most", represent to the average reader that the drops will increase a woman's sexual desire.

Subparagraph (b) alleges that Respondent represents in its advertisements:

"POSTICHE FLAVORED NYMPHOMANIAC DROPS will help solve a user's sex problems"

This allegation is supported by the following language in Respondent's advertisements (CX-2 and 6).

"HELP SOLVE YOUR SEX PROBLEMS NOW"

3. The Representations Set Forth in Paragraph III, Subparagraphs (a) and (b) of the Complaint are Materially False

Dr. Schwartz and Dr. McIlvenna are in total agreement that, without any touching, Respondent's product is worthless. With touching, a person may become aroused because of touching and not because of the product's ingredients. (Tr. 61, 62, Dep. 15, 16, 70)

Thus, the representation that Postiche Flavored Nymphomaniac Drops will increase a woman's desire to engage in sexual intercourse is false. Dr. Schwartz testified that there is no ingredient in the product that will increase a woman's desire to engage in sexual intercourse. (Tr. 34) Dr. McIlvenna testified that there is no such thing as an aphrodisiac (Dep. 15, 52) and the representation that the product would turn a woman into a raging inferno was "a little bit of an exaggeration." (Dep. 70) I find that this representation has no basis in fact.

I also find that the representation that Postiche Flavored Nymphomaniac Drops will help solve the user's sex problems is false.

Dr. Schwartz testified that sex problems relate to a physiological, neurological or psychiatric deficit which will not be solved by any biological activity of the ingredients of Respondent's product. (Tr. 37)

At the hearing, Respondent's Counsel, identified seven sexual problems-impotence, guilt, premature ejaculation, lack of lubrication, inhibitions provided in the male and female, frigidity and a combination of dullness/routine. (Tr. 81) Dr. Schwartz said there is no pharmacologically active substance in the product which would help any of these problems. (Tr. 81)

Dr. McIlvenna testified that this product is not a massage lotion and thus would not be recommended for an impotent man. (Dep. 56) He also testified that it is not made for the impotent man (Dep. 58); that a guilty person would be not likely to seek this product out (Dep. 58); that it is not likely that a person suffering from premature ejaculation would be lubricated enough by the product (Dep. 59); and that the product is not recommended for use as lubricant in the vaginal vault (Dep. 59) or for women suffering from hysterical frigidity. (Dep. 60)

Dr. Schwartz said none of the seven problems listed by Respon dent's Counsel would be solved by this product. Dr. McIlvenna said the product would not help in five of the problems. Dr. McIlvenna recommended the product for the remaining two problems --inhibi tions and dullness/routine --because it would help people to touch each other. (Dep. 60) Thus, at best, Respondent's product benefits but two of the problems named by Respondent's Counsel and only because in using it one touches his partner's body, something that can be done without this product.

The meaning of advertising representations is to be determined in the light of the probable impact of the entire advertisement on a person of ordinary mind. Donaldson v. Read Magazine, Inc., 333 U.S. 178 (1948); Vibra-Brush Corp. v. Schaffer, 152 F. Supp. 461 (S.D. N.Y. 1957); Borg-Johnson Electronics, Inc. v. Christenberry, 169 F. Supp. 746 (S.D.N.Y. 1959). I conclude that the average person reading Respondent's advertisements would interpret them substantially as characterized in Paragraph III of the Complaint.

In his brief, Respondent's Counsel argued that there is no evidence of complaints by the public. (pages 18, 19) However, in Farley v. Heininger, 105 F.2d 79, 84 (D.C. Cir. 1939) the Court held, "The decisive factor, therefore, is not whether 'anyone complains of fraud, or was in fact defrauded' but whether the mails are being used to project a scheme which may result in obtaining money from members of the public by means of false and fraudulent statements."

Respondent's Counsel argued that the advertisement only states that the product will "help" solve sex problems; not that it will solve them "in toto." (pages 4, 5) However, as held in American Image Corp. v. United States Postal Service, 370 F. Supp. 964, 966 (S.D.N.Y. 1974):

"The cases are clear that such advertisements are to be viewed not with a lawyer's eye to 'fine spun distinctions' but with an eye to their over-all effect on the average reader."

In determining the totality of an advertisement a court will examine inferences. In Aronberg v. Federal Trade Commission, 132 F. 2d 165, 168 (7th Cir. 1942) the Court stated:

"The term 'relief' is not of definite connotation or entirely free from ambiguity; in a common sense, it connotes permanent removal of organic or functional disturbances, as distinguished from alleviation of discomfort."

The Court continue, "A representation that a medicine is 'for' or a 'treatment for' a disorder is equivalent to labeling it 'as a cure or remedy'."

Applying these principles, I find that when Respondent's adver- tisement represented that its Nymphomaniac Drops would help solve sex problems it promised that the product would do more than provide an excuse for rubbing one's partner's body.

Respondent's Counsel also argued that by using the word "postiche" in the product's name, a word that means false or artifi cial, Respondent nullified its advertisement's false representa tions. An analogous case is Original Cosmetics Products, Inc. v. Strachan, 459 F. Supp. 496 (S.D.N.Y. 1978). There the Court stated at page 502:

"The more sophisticated reader would note the less obvious language at page bottom, 'All items on this sheet sold as novelties only' and page top, 'More legendary aphrodisiacs with the placebo qualities doctors have used for years] But the 'Stop Mail' Statute was not designed solely for the cynical or cautious."

The use of the rarely utilized word, "postiche" does not nullify the representations. In fact, Respondent's own witness, Dr. McIlvenna, who possesses a number of advanced degrees, stated that he did not know the word's meaning and that he would have to look it up in the dictionary since it is not a word that is used often. (Dep. 52, 53)

Finally, in Original Cosmetics, the Court also stated and I agree:

"...if products are represented as causing a physical reaction, when used, and this representation is false, the fact that they incidentally have a favorable psychological effect does not vitiate the falseness of the representations." Page 506

Therefore, I conclude that Respondent is engaged in conducting a scheme or device for obtaining money or property through the mails by false representations in violation of 39 United States Code § 3005 and that a mail-stop order substantially in the form attached should be issued against Respondent.