In the Matter of the Complaint Against

ATHENA PRODUCTS, LTD.
at the following addresses:

Box 81371 Atlanta, GA 30366

1551 Dunwoody Village Pkwy.
P. O. Box 888653
Dunwoody, GA 30338

3545 Broad Street
P. O. Box 81112
Chamblee, GA 30366

5999 New Peachtree Rd.
P. O. Box 48392
Doraville, GA 30362

3545 Broad Street
P. O. Box 80783
Atlanta, GA 30366

780 Morosgo Dr., N.E.
P. O. Box 13321
Atlanta, GA 30324

3104 Briarcliff Rd., N.E.
P. O. Box 29501
Atlanta, GA 30359

780 Morosgo Dr., N.E.
P. O. Box 14152
Atlanta, GA 30324

3176 Marjan Dr.
Atlanta, GA 30340

P. O. Box 757
520 W. Ponce de Leon Avenue
Decatur, GA 30030

P. O. Box 311
15 Franklin Street Avondale
Estates, GA 30002

P. O. Box 893
3328 E. Ponce de Leon Ave.
Scottsdale, GA 30079

P. O. Box 98377
3104 Briarcliff Rd., N.E.
Atlanta, GA 30359

and
P. O. Box 95294
4 Executive Park Drive, N.E.
Atlanta, GA 30347

P.S. Docket No. 11/77;

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:
Janie F. Duncan, Esq.
Benham & Cohen
Suite 210
6600 Powers Ferry Road
Atlanta, GA 30339

BEFORE: Judge Edwin S. Bernstein

INITIAL DECISION

Complainant alleged and Respondent denied that Respondent is conducting a scheme to obtain money through the mail by means of false representations in violation of 39 United States Code § 3005. I held a hearing in Atlanta, Georgia on July 9, 1981. At the hearing, Inspector Michael Flynn and Dr. Sorrell L. Schwartz testified for Complainant and Dr. Richard Lord testified for Respondent. Mr. Paul Hagan testified for Respondent on September 10, 1981 by post-hearing deposition.

FINDINGS OF FACT

I find that Respondent solicits money through the mail in connection with the sale of its product, Pollen-Ade, at the addresses set forth in the caption of this proceeding.

The parties stipulated and I find:

1. That Respondent has solicited the remittance of money through the mail in its advertising for the sale of Pollen-Ade.

2. Exhibits 1 through 8, attached to the Complaint, are true and correct copies of advertisements for Pollen-Ade, which have appeared in Soma Magazine. (Tr. 3-4)

Michael Flynn is an Inspector with the Postal Service's Special Investigations Division. He stated that Soma Magazine promotes products sold by Respondent and appears to be owned by Respondent (Tr. 13). Inspector Flynn testified that the Special Investigations Division received copies of Soma under various test names. He stated that the January/February 1980 issue of Soma contains an advertisement for Pollen-Ade on page 29 of this issue and a form soliciting orders for Pollen-Ade to P.O. Box 81371, Atlanta, Georgia 30366 (Tr. 14-16).

Inspector Flynn also testified:

1. That the March/April 1980 issue of Soma contains an advertisement for Pollen-Ade on page 27 and a form soliciting orders for Pollen-Ade to 1551 Dunwoody Village Parkway, P. O. Box 888653, Dunwoody, Georgia 30338 (Tr. 16-17).

2. That the May/June 1980 issue of Soma contains an advertisement for Pollen-Ade on page 13 and a form soliciting orders for Pollen-Ade to 3545 Broad Street, P. O. Box 81112, Chamblee, Georgia 30366 (Tr. 17).

3. That the July/August 1980 issue of Soma contains an advertisement for Pollen-Ade to 5999 New Peachtree Road, P. O. Box 48392, Doraville, Georgia 30362 (Tr. 18).

4. That the September/October 1980 issue of Soma contains an advertisement for Pollen-Ade to 3545 Broad Street, P.O. Box 80783, Atlanta, Georgia 30366 (Tr. 18-19).

5. That the November/December 1980 issue of Soma contains an advertisement for Pollen-Ade on page 14 and a form soliciting orders for Pollen-Ade to 780 Morosgo Drive, N.E., P.O. Box 13321, Atlanta, Georgia 30324 (Tr. 19).

6. That the January/February 1981 issue of Soma contains an advertisement for Pollen-Ade on page 15 and a form soliciting orders for Pollen-Ade to 3104 Briarcliff Road, N.E., P.O. Box 29501, Atlanta, Georgia 30359 (Tr. 20).

Inspector Flynn also testified that the March/April 1981 issue of Soma contains an advertisement for Pollen-Ade on page 31 and a form soliciting orders for Pollen-Ade to the following addresses:

1. 520 West Ponce de Leon Avenue, P.O. Box 757, Decatur, Georgia 30030 (Tr. 20-21).

2. 780 Morosgo Drive, D.E., P.O. Box 14152, Atlanta, Georgia 30324 (Tr. 21).

3. 15 Franklin Street, P.O. Box 311, Avondale Estates, Georgia 30002 (Tr. 22).

4. 3328 East Ponce de Leon Avenue, P.O. Box 893, Scottsdale, Georgia 30079 (Tr. 22)

5. 3104 Briarcliff Road, N.E., P.O. Box 98377, Atlanta, Georgia (Tr. 22).

6. 4 Executive Park Drive, N.E., P.O. Box 95294, Atlanta, Georgia 30347 (Tr. 22).

Inspector Flynn further testified that a direct mailing by Athena Products, Ltd. under the name, "Athena Health and Beauty News," contains a form soliciting orders for Pollen-Ade to 3176 Marjan Drive, Atlanta, Georgia 30340 (Tr. 151-2 and CX-17).

Respondent presented no contradictory evidence. Therefore, I find that Respondent solicited mail orders for the sale of Pollen-Ade at all of these addresses.

I also find that Respondent's advertisements make the representations alleged in Paragraph 3, subparagraphs (a) through (e) of the Complaint.

In determining what representations are made by an advertise- ment, it is important to view the advertisement from the perspective of the person to whom it is directed, usually an ordinary person, rather than from the viewpoint of a sophisticated individual. Donaldson v. Read Magazine, Inc., 333 U.S. 178 (1948); Aronberg v. F.T.C., 132 F.2d 165 (7th Cir. 1942). The reasonable implications of a statement should be considered. If an advertisement is worded so that an express representation is not made, but the wording is artfully designed to mislead, then it is a violation of 39 United

States Code § 3005. G. J. Howard v. Cassidy, 162 F. Supp. 568 (E.D.N.Y. 1958). The advertisement as a whole can be considered misleading, even if every statement is literally true, if something is omitted that should be said. Donaldson v. Read Magazine, Inc., supra.

With these considerations in mind I find that, except for subparagraphs 3(f) and (g), the representations alleged in the Complaint are made by Respondent's advertisements in the following manner:

a. Pollen-Ade is an effective energy booster.

"With Pollen-Ade you have at your disposal an easy way of increasing your energy and stamina." (CX-1)

"Pollen-Ade gives you the stamina to go further than you ever dreamed possible." (CX-2)

"The bee pollen used in Pollen-Ade has been shown to greatly increase vitality and physical endurance by stimulating the body's metabolism to produce more energy." (CX-2)

"The bee pollen used in Pollen-Ade has been shown to greatly increase vitality and physical endurance by stimulating the production of more energy." (CX-3)

"Bee pollen naturally stimulates the body to produce more energy." (CX-4)

"Pollen-Ade gives you the energy and endurance you need to finish whatever you start --with energy to spare." (CX-5)

"All of the ingredients in this nutritional storehouse act together to fulfill the body's demands for more energy throughout the day."

(CX-7)

"So, when the work you have to do, or the fun you want to have, demands more stamina and energy, use Pollen-Ade." (CX-8)

b. Pollen-Ade effectively aids circulation.

"In addition bee pollen has been reported to improve blood circulation . . ." (CX-1)

"Pollen-Ade is also capable of aiding circulation . . ." (CX-2)

"Pollen-Ade also aids the body's circulatory and hormone systems . . ." (CX-5)

"Pollen further bolsters your energy capabilities by aiding circulation . . ." (CX-8)

c. Pollen-Ade helps to regulate blood pressure.

"In addition bee pollen has been reported to . . . lower blood pressure . . ." (CX-1)

"Pollen-Ade is also capable of aiding circulation and blood pressure . . ." (CX-2)

"Pollen-Ade also aids the body's circulatory system, helps regulate blood pressure . . ."

(CX-4)

"Pollen-Ade also aids the body's circulatory and hormone systems, helps regulate blood pressure . . ." (CX-8)

"Pollen further bolsters your energy capabilities by aiding circulation, helping regulate blood pressure . . ." (CX-8)

d. Pollen-Ade effectively provides immunity against hay fever or other fatiguing allergy reactions.

"In addition bee pollen has been reported to . . . build up resistance to illness and in many cases alleviate allergies better than traditional medications." (CX-1)

"Pollen-Ade is also capable of . . . alleviating many allergy symptoms including hay fever." (CX-2, CX-3)

"Pollen-Ade . . . even provides immunity against hay fever-type allergies." (CX-4, CX-6)

"Pollen further bolsters your energy capabilities by aiding circulation, helping regulate blood pressure, and by providing immunity against hay fever or other fatiguing allergy reactions, particularly sinus and breathing congestion." (CX-8)

e. Bee pollen will greatly increase vitality and physical endurance by stimulating the production of more energy.

"Pollen-Ade has been shown to greatly increase vitality and physical endurance by stimulating the body's metabolism to produce more energy." (CX-2)

"Famous athletes and endurance experts the world over have been using and recommending Pollen-Ade to increase stamina and improve general physical health." (CX-4)

"Bee pollen naturally stimulates the body to produce more energy." (CX-4)

"Perfectly balanced by nature, Pollen-Ade has practically no fats or carbohydrates, but does contain an entire spectrum of vitamins, minerals and enzymes, as well as all 22 amino acids --all of which act naturally to stimulate the body and to producing more energy." (CX-5)

"It's the natural energy food that assures you'll have all the endurance and stamina to keep going even when the going gets toughest." (CX-8)

With respect to subparagraphs (f) and (g) of Paragraph 3 of the Complaint, however, neither Complainant's Proposed Findings nor any evidence in this proceeding supports these allegations. Nowhere in the advertising introduced in this proceeding does Respondent represent that "One capsule of Pollen-Ade taken daily" will accomplish the results alleged. Therefore, Complainant has failed to prove these allegations.

I further find that the representations in subparagraphs (a), (b), (c), (d) and (e) of Paragraph 3 of the Complaint are materially false. In reaching these conclusions I was impressed by the testimony of Complainant's witness, Dr. Sorrell L. Schwartz. Dr. Schwartz is a Professor of Pharmacology at Georgetown University Schools of Medicine and Dentistry who has written extensively in his field (CX-14). I found persuasive his testimony that the claims in these subparagraphs are for therapeutic effects (Tr. 82-83). My reasons for each finding are as follows:

a. Pollen-Ade is an effective energy booster.

e. Bee pollen will greatly increase vitality and physical endurance by stimulating the production of more energy.

Pollen-Ade consists solely of 400 mg of bee's pollen (CX-13). I found persuasive Dr. Schwartz's testimony that Pollen-Ade would provide little energy. He testified that 400 mg of bee's pollen contains two calories for energy, the equivalent of two diet sodas and the equivalent protein and carbohydrates of one-seventy fifth of an ounce of steak (Tr. 47).

Dr. Richard Lord obtained his doctorate in biochemistry and presently teaches at Life Chiropractic College (Tr. 93-94). Although he generally espoused bee pollen's nutrient properties, he agreed with Dr. Schwartz that 400 mg contains few calories (Tr. 113). I was unable to understand how Pollen-Ade would boost or stimulate the production of more energy, based on Dr. Lord's testimony. Similarly, the testimony of Respondent's other witness, Mr. Paul Hagan, a writer of nutritional books, was far from convincing on this issue. When asked if the substance would effectively increase stamina, he answered, "it would be difficult to say" (Dep. 38).

b. Pollen-Ade effectively aids circulation.

c. Pollen-Ade helps to regulate blood pressure.

Dr. Schwartz testified that the substance would not aid in either of these objectives (Tr. 46). He also testified that his testimony on these and other matters in issue is consistent with the consensus of informed scientific and pharmacological opinion (Tr. 50).

Dr. Lord testified that he knew of no evidence to support the claim that Pollen-Ade will aid circulation (Tr. 119). He stated that if someone had a circulation problem he would not advise them to take Pollen-Ade as an aid for that problem (Tr. 120). He also stated that he knew of no scientific articles to support the claim that Pollen-Ade would help to regulate blood pressure (Tr. 120).

Mr. Hagan stated that he knew of nothing that indicates that Pollen-Ade would help to regulate blood pressure. (Dep. 35). When asked if Pollen-Ade effectively aids circulation, he said "yes" in the sense that reaction to fatigue would have "something to do with circulation." When asked if a person who had a circulation problem could benefit from Pollen-Ade, Mr. Hagan responded, "Possibly." (Dep. 35).

d. Pollen-Ade effectively provides immunity against hay fever or other fatiguing allergy reactions.

Dr. Schwartz disputed this representation with respect to bee pollen taken orally as in this product (Tr. 46). He testified that pollen is used for desensitation for hay fever but plant pollen and not bee pollen is used and, to be effective, it is administered by subcutaneous injections (Tr. 45). He stated that, to the contrary, bee pollen taken orally sometimes has caused hypersensitivity reactions (Tr. 45). When questioned on the latter assertion, Dr. Lord first stated that he knew of no studies that showed this but when shown CX-15, a peer review publication entitled "Acute Allergic Reaction After Composite Pollen Injection," Dr. Lord conceded that he was wrong (Tr. 107).

Additionally, Dr. Lord could not cite any study or research to support the representation that bee pollen, taken orally, is effective in providing immunity against hay fever or other fatiguing allergic reactions (Tr. 121).

Mr. Hagan similarly could offer nothing to support this representation regarding orally administered, as contrasted with injected, pollen (Dep. 25-29). When asked "Isn't it true that the typical manner in which bee pollen is used for immunity purposes, if used at all, is by injection," he answered, "In current American practice, that's true" (Dep. 36).

It seems clear to me that Dr. Schwartz's testimony that Pollen-Ade does not fulfill the claims, represented in subparagraphs (a) through (e) of Paragraph 3 of the Complaint, is consistent with the consensus of informed scientific and pharmacological opinion. None of the testimony of Respondent's witnesses or other evidence presented by Respondent refuted this conclusion.

CONCLUSIONS OF LAW

1. Postal Service stop orders do not violate the First Amendment of the Constitution. Donaldson v. Read Magazine, supra; Lynch v. Blount, 330 F. Supp. 689 (S.D.N.Y 1971); Hollywood House International, Inc. v. Klassen, 508 F.2d 1276 (9th Cir. 1974); and United States Postal Service v. Beamish, 466 F.2d 804 (3d Cir. 1972). In the latter case, the Court held "Advertisers possess no constitutional right to disseminate false or misleading materials. Therefore, Congress has the power to prohibit such deceptions through appropriate legislation." p. 807

2. Respondent solicits money through the mail, in connection with its sale of Pollen-Ade, at the addresses listed in the caption of this proceeding.

3. The meaning of advertising representations is to be determined in light of the probable impact of the entire advertisement on the person of ordinary mind. Donaldson v. Read Magazine, supra; Peak Laboratories, Inc. v. United States Postal Service, 556 F.2d 1387, 1389 (5th Cir. 1977); Unique Ideas, Inc. v. U.S. Postal Service, 416 F. Supp. 1141, 1145 (S.D.N.Y. 1976).

4. The average person reading Respondent's advertisements, would interpret them substantially as characterized in Paragraph 3, subparagraphs (a) through (e) of the Complaint.

5. Complainant is not required to make a test purchase at each address to which a single Respondent directs remittances for the purchase of its product. Leasure Time Products, P.S. Docket No. 5/177 (1977) held:

"For representations in the advertisements of a respondent to be found false and for the application of 39 U.S.C. 3005 it is not necessary that a test purchase be made by the postal inspector in response to a particular advertisement." Initial Decision at 10.

6. The representations specified in Paragraph 3, subparagraphs (a) through (e) of the Complaint are materially false.

7. Complainant has established its case by a preponderance of the reliable and probative evidence of record. S.E.C. v. Savoy Industries, 587 F.2d 1149, 1168 (D.C. Cir. 1978); S.E.C. v. National Student Marketing, 457 F. Supp. 682, 701 n. 43 (D.D.C. 1978); Wilmont Products, P.S. Docket No. 6/46 (P.S. Decision, 7/19/79, p. 7).

8. A difference of medical opinion concerning a product's worth does not preclude the issuance of an Order under 39 U.S.C. § 3005 where it is shown that Respondent represents its product to have a far greater therapeutic value than it could in fact have. Leach v. Carlile, 258 U.S. 138, 139 (1922); Original Cosmetics, Inc. v. Strachan, 459 F. Supp. 496, 503 (S.D.N.Y. 1978).

In Leach v. Carlile, the Court stated: "it is sufficient to say that the question really decided by the lower courts was, not that the substance which the appellant was selling was entirely worthless as a medicine, as to which there were some conflict in the evidence, but that it was so far from being the panacea which he was advertising it through the mails to be, that by so advertising it he was perpetrating a fraud upon the public."

Therefore, I conclude that Respondent is engaged in conducting a scheme for obtaining money through the mail by false representations in violation of 39 U.S.C. § 3005 and that a mail stop order, substantially in the form attached, should be issued against Respondent.