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;

02/11/82

Cohen, James A.

APPEARANCE FOR COMPLAINANT:
H. Richard R C L U WHefner, Esq.
Hobert H. Hausman, Esq.
Consumer Protection Division
Law Department
U.S. Postal Service
Washington, DC 20260

APPEARANCE FOR RESPONDENT:
C B P harles W. Ford, Esq.
Box 100 ascagoula, MS 39567

POSTAL SERVICE DECISION

Respondent has appealed from an Initial Decision of an Administrative Law Judge which found that with respect to the advertisement for and the booklet entitled "Stale Food vs. Fresh Food" Respondent is engaged in the conduct of a scheme or device to obtain money or property through the mail by means of materially false representations in violation of 39 U.S.C. § 3005.

BACKGROUND

This proceeding was initiated by a Complaint filed by the Consumer Protection Division, Law Department, United States Postal Service (Complainant), against Magnolia Lab and Magnolia Laboratory (Respondent) at the captioned addresses. The Complaint alleged that Respondent falsely represents that:

"The dietary regimen set forth in the book Stale Food vs. Fresh Food will effectively cleanse and clear blocked arteries."

Respondent filed an Answer generally denying the allegations of the Complaint. With its Answer Respondent filed a "Motion For Dismissal or Judgment On The Pleadings In Favor Of Respondent." The Motion was denied by Order of the Administrative Law Judge, which concluded that the pleadings present genuine questions of law and fact. Subsequently, a Motion to Reconsider the Petition for Dismissal was filed by Respondent. The decision on the motion for reconsideration was reserved pending completion of the hearing and the submission of briefs and proposed findings of fact and conclusions of law.

At a hearing to take evidence on the allegations in the Complaint, Complainant called as witnesses Michael P. Flynn, an Inspector in the Postal Service's Special Investigations Division, and Robert E. Murray, M.D., who is board-certified in family medicine and teaches family practice at the University of South Alabama. Respondent called as a witness Claude Warren, Jr., M.D., who is board-certified in Ophthalmology and Otorhinolaryngology, a member of the American Academy of Opthalmology, and a long-time practitioner in his specialty. At the conclusion of Complainant's evidence Respondent moved to dismiss the Complaint for failure to make a prima facie case. This Motion was denied by the Administrative Law Judge.

The product which is the subject of this proceeding is a booklet titled "Stale Food vs. Fresh Food," by Robert S. Ford. The contents of the booklet are described on its cover as containing "A NEW DIETARY DISCOVERY," and "THE CAUSE AND CURE OF CHOKED ARTERIES and Related Problems." Pictures of what are purported to be typical diseased human arteries also are included on the cover of the booklet. Respondent's advertisement for the booklet states that "ARTERIES CAN CLEANSE THEMSELVES WITHOUT SURGERY BY DIET ALONE." It goes on to state:

"A startling new discoveraa 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.

. . . .

"You can read all about it in an exciting booklet by the original discoverer. It tells how the old cholesterol diets won't cleanse arteries. How by my discovery you can now enjoy many of the rich and tasty foods denied you by the old humbug cholesterol diets, while your own natural blood flow washes your arteries clean. It tells which familiar foods to eat and which to avoid. . . ." (CE 1; Exh. A to Complaint)

The advertisement, Complainant's Exhibit No. 1, is the same advertisement as Exhibit A attached to the Complaint with the addition of the copyright symbol followed by the words "Robert S. Ford 1978."

The Administrative Law Judge found that Respondent's advertisement and also order information contained within the booklet (CE 7), together with Inspector Flynn's testimony and the exhibits introduced in connection with his testimony establish that Respondent seeks remittances of money through the mail in connection with the sale of the booklet. The Administrative Law Judge also found that the advertisement makes the representation alleged in the Complaint by stating that the arteries cleanse themselves without surgery by diet alone, and that the "arteries can cast out lumps when you stop forming them with the wrong foods." (I.D. p. 6). After evaluating the evidence and testimony of the two medical witnesses, the Administrative Law Judge found that these representations are materially false. While concluding that the booklet contained some helpful suggestions, the Administrative Law Judge determined that the representations in the booklet were unproven and contrary to the weight of informed medical and scientific opinion and that the danger of the publication is that it will deceive people who have arteriosclerotic problems into believing that they can cure the problems by diet alone instead of seeking medical help. Thus, he denied the Motion to Dismiss and concluded that Respondent, through its advertisement and the booklet, is engaged in activities which violate 39 U.S.C. § 3005.

RESPONDENT'S EXCEPTIONS

In its Appeal Brief, Respondent has posed issues and has abstracted certain testimony of the medical witnesses which it cites in sixteen exceptions to the Initial Decision. These exceptions are addressed below.

"I. Dr. Warren's material testimony showing clinical proof of the Ford diet was distorted or ignored and excluded."

II. Dr. Warren's material testimony regarding a minority view and plaque reversal was distorted or ignored and excluded. (De 5, Tr. 117)."

In these two exceptions Respondent contends that Dr. Warren's own use and practical clinical use of the regimen described in the booklet for over thirteen years "is the most convincing kind of proof of medical science" and that the Administrative Law Judge failed to the stated: "It's published. It's been published before." (Id.) However, he did not cite any specific medical or scientific literature to support his views. Neither did he persuade that his own experience or his clinical observations could be considered to be controlled scientific studies which should be given greater weight than the consensus of informed medical opinion. In view of the evidence which is not denied by Dr. Warren, that the weight of scientific and medical opinion is contrary to his views, his anecdotal experience and opinion does not constitute a sufficient evidentary basis for establishing the efficacy of the regimen described in Respondent's booklet. Cf. Simeon v. F.T.C., 579 F.2d 1137 (9th Cir. 1978); Cosvetic Laboratories, et al., P.S. Docket Nos. 9/173-9/185 (P.S.D. December 11, 1981). Accordingly, there is no merit to these exceptions.

"III. The court stated that 'it is not necessary to accept one witness and reject the other.' Yet this is exactly what the court itself did without explanation. (De 8.)"

"IV. Dr. Murray's qualifications and testimony were given more than six times the text space given Dr. Warren's, without justification by the court. Dr. Warren got only one distorted paragraph."

"V. Dr. Warren's superior qualifications and experience were distorted or ignored and excluded, but Dr. Murray's far less impressive standing was detailed and glorified."

Respondent's argument under these exceptions is essentially that the Administrative Law Judge did not properly evaluate the testimony of the two expert witnesses. Respondent contends that Dr. Warren's testimony should have been given determination in p.s order, order Weight than the testimony of Dr. Murray. Respondent criticizes the Administrative Law Judge's decision for discussing more of Dr. Murray's testimony than that of Dr. Warren. Respondent also contends that the experience of Dr. Murray was inflated in the decision while that of Dr. Warren was given minimal consideration. The gist of Respondent's contention is in effect that Dr. Warren has forty-three years of practical medical practice during which he has observed his patients' arteries through the retina and that he has successfully used the booklet with his patients and has found that it works, whereas Dr. Murray is a young postgraduate fellow with no public practice experience.

Respondent also contends the Administrative Law Judge erred by referring to Dr. Warren's experience with the Ford diet as personal and by stating that neither witness knew of any controlled human experiments supporting Respondent's theory. It is Respondent's position that Dr. Warren's clinical experience and observations are "the strongest and most acceptable proof of all to the practicing physician."

All of the evidence in the record has been reviewed. On the basis of such evidence it is concluded that the Administrative Law Judge properly evaluated the testimony of the expert witnesses and that the Initial Decision contains no error of fact or law. Dr. Warren's testimony could be accepted for what it was, namely, the observations and opinion of an opthamologist, based upon his own long years of private practice experience in his specialty. Although Dr. Murray is young and without the many years of private practice experience, he is board-certified in a specialty which includes the treatment of patients for arteriosclerosis, the most common disorder he sees in his practice (Tr. 37). Despite Respondent's attempts to discredit him and to impeach his testimony, his testimony as to the state of medical and scientific knowledge and opinion concerning arteriosclerosis is persuasive and not contradicted in that regard by Dr. Warren.

Respondent's contention that Dr. Warren's clinical experience and observations therefrom should be "the strongest and most acceptable proof of all to the practicing physician" is not persuasive. Where the weight of medical and scientific opinion is contrary to his opinion, his opinions based on his anecdotal accounts of his own personal experience and that of some of his patients, which is not substantiated by verifiable scientific or medical methods, is not sufficient evidence to rebut the weight of medical and scientific opinion and to substantiate the advertised claims. Cf., Simeon v. F.T.C., supra; Cosvetic Laboratories et al., supra. As explained by Dr. Murray, the acceptable method in the scientific and medical field for proving a proposition is by means of double blind studies. These are controlled and omit the possibility of personal bias and influence by the person or persons conducting the expeotiments and those subject to the experiments (Tr. 54-56). Such experimentation has not been shown by Respondent and for this reason Dr. Warren's opinion primarily based upon his observations of the arteries in his patients' eyes cannot be accepted as proving Respondent's claims. Thus, these exceptions have no merit.

"VI. Dr. Murray's key self-contradiction and lack of arteriosclerosis background knowledge was ignored and excluded."

"VII. Both Dr. Murray's and Dr. Warren's extensive material testimony supporting Ford's findings was ignored and excluded."

VIII. Dr. Murray's admitted ignorance of the actual dietary regimen in Ford's booklet, making his speculative testimony on the probable effects of the diet groundless, was ignored and excluded."

IX. Dr. Murray's statements that medicine has not found a good answer to the problem, offers no help for generalized arteriosclerosis, that low lipid diets have little effect, that the disease is still the number one scourge, were ignored and excluded. (Tr. 92, 93, 94).

"X. The dietary regimen and major premise of the Ford booklet and its results are grossly distorted and misrepresented in the decision, apparently to make it support Dr. Murray's groundless testimony, and to support the charge. (De 6, 7)"

Respondent, by these exceptions, is challenging again the weight attached to the testimony of the two medical witnesses. In this regard Respondent urges that the Administrative Law Judge "ignored and excluded" certain evidence which supports its position. Except for the items discussed under Exception XI, infra, Respondent has pointed to no evidence which was excluded by the Administrative Law Judge at the hearing. Appellant's arguments thus go to the omission from the Administrative Law Judge's decision of matters which Respondent believes should have been mentioned with a consequent ruling in Respondent's behalf.

It was unnecessary for the Administrative Law Judge to summarize any or all of the evidence in the record so long as proper findings of fact are included in the Initial Decision. See, Stauffer Laboratories, Inc. v. F.T.C., 343 F.2d 75, 82 (9th Cir. 1965); Athena Products, Ltd., P.S. Docket No. 7/99 (P.S.D. June 26, 1981). The evidence in the record has been reviewed in connection with a consideration of these exceptions and with Respondent's Proposed Findings of Fact and Conclusions of Law. The evidence supports the findings and conclusions of the Initial Decision.

Although Respondent argues that Dr. Murray contradicted himself and therefore his testimony should be disregarded, this contention is not supported by reading all of Dr. Murray's testimony. The alleged "key" contradiction refers to his testimony that it is almost impossible to document reversal of arteriosclerosis because there is no way to observe the effects of the diet the Contrasted with his testimony that arteries in the eye may be observed without cutting. The two statements are not inconsistent since choking and clogging of arteries may be due to matters other than diet (see Tr. 82-85). Thus, any changes in the arteries observed through the eyes may not necessarily be caused by diet changes.

Dr. Murray's alleged lack of knowledge of certain historical information and of certain books with information and of certain books with information concerning arteriosclerosis does not detract from his testimony. He adequately displayed a knowledge of the recent medical and scientific information concerning arteriosclerosis. In an attempt to impeach the witness Respondent asked him about books, some of which were published more than fifteen to thirty years ago. His unfamiliarity with such books does not discredit his testimony, especially when there was no expert testimony which would demonstrate that such texts reflect the current informed views of the medical and scientific community. Respondent's own witness, Dr. Warren, could be discredited for the same reason since he was unfamiliar with some texts which Respondent most relies on and refers to in its booklet (CX-7, p. 13; Tr. 121-126).

Respondent also attempts to discredit Dr. Murray's testimony alleging he did not have time to read the booklet and prepare his testimony and he misunderstood the Ford regimen, as demonstrated by his definition of the diet. Respondent asserts that Dr. Murray demonstrated ignorance of the booklet's explanation of how arteries cleanse themselves by natural ulceration. Dr. Murray's statement that he had not studied the booklet, as compared with having read it (Tr. 80), does not make his testimony speculative as Respondent contends. Dr. Murray explained his understanding of the main theory of the booklet (Tr. 34, 80) and this understanding along with his testimony with regard to the relationship of diet to the disease of arteriosclerosis is sufficient to support the findings of the Initial Decision. That he did not discuss each aspect of the booklet is not significant. Moreover, Respondent has failed to show that the statements by Dr. Murray, and the Administrative Law Judge's reliance thereon, as to the main premise of the booklet are incorrect.

Also, although as Respondent contends, certain testimony of Dr. Murray and Dr. Warren support some statements in the booklet, the failure to cite such testimony in the Initial Decision does not demonstrate error. The testimony referred to by Respondent does not prove that the basic representations in the advertisement and booklet are true. To the contrary, Dr. Murray's firm testimony is persuasive that there is no scientific or medical proof that arteries can be cleansed by diet alone, and particularly that use of fresh food will cure arteriosclerosis (e.g. Tr. 39, 77079, 91-92, 95-96).

For the above reasons, these exceptions have no merit.

"XI. The natural cleansing process described in the booklet is quoted out of context so as to exclude the text section which quotes the supporting medical books, apparently to support the charge and Dr. Murray's groundless testimony. No ruling is given on admissibility of Dr. Jones' book, per motion for in the finding of fact."

At page 7 of the Initial Decision the Administrative Law Judge quoted two paragraphs from page thirteen of the booklet (CX-7). Respondent contends that the next paragraph also should have been quoted. That paragraph states:

"Medical scientists of worldwide reputation have been saying for years that arteriosclerotic deposits tend to be self-cleansing. (Drs. L. N. Katz, Ruth Pick, Ira Gore, Richard Jones, Campbell Moses, H. Bredt, and others.) Their writings may be read in ethical medical books as follows: 'Atherosclerosis' by Schettler & Boyd, pub. by American Elsevier, 1969. 'Evolution of the Athero. Plaque,' by R. J. Jones, pub. by University of Chicago Press, 1963. 'Atherosclerosis' by Campbell Moses, pub. by Lea & Febiger, 1963."

Respondent contends that because certain publications are mentioned in the above quotation from the booklet, Dr. Murray had a duty to learn about them. Respondent also requests that pages from two of the books referred to in the quoted paragraph should be admitted into the evidentiary record. Respondent attempted to introduce both documents into evidence by asking Dr. Warren about them. However, he was not familiar with them and they were properly rejected since they did not serve as the basis for his expert opinion nor was there any other proper foundation established for their admission (Tr. 121-126).

At the hearing Respondent's attorney requested that Robert Ford, the owner of Respondent and author of the booklet which is the subject of this proceeding, be permitted to conduct the examination of the witnesses. Over Complainant's objection, the Administrative Law Judge granted the request. The parties stipulated to the admission of Mr. Ford's diploma and patents received by him, but he was not sworn and did not testify as a witness. During the course of the hearing while questioning the witnesses, he made many statements concerning various treatises, articles and authors, as well as statements concerning his regimen and various purported scientific or medical propositions. Since he did not testify as a witness, his statements were not subject to cross-examination and are not part of the evidentiary record. Cf. Mil-Pak Co., Inc., PSBCA No. 609, 80-1 BCA § 14,230 at p. 70,107. Therefore his statements cannot be used as a basis for accepting the rejected exhibits into evidence. Furthermore, Respondent has not shown that the admission of the documents into evidence would compel a different result than that reached in the Initial Decision. Since it has not been established that the documents should have been admitted into evidence there is no merit to this exception.

"XII The court found that the content of the booklet is unproven, whereas the burden of proof is on the government."

The burden was upon the Complainant to make a prima facie case, which it did through the testimony of Dr. Murray as to the consensus of informed medical and scientific opinion concerning the representations made in the advertisement and in the booklet. It then became Respondent's burden to rebut that evidence. E.g., Peak Laboratories, Inc v. United States Postal Service, 556 F.2d 1387, 1390 (5th Cir. 1977); Standard Research Labs, P.S. Docket Nos. 9/63 and 9/64 (P.S.D. August 31, 1981). It failed to do so.

The Administrative Law Judge did not improperly shift the burden of persuasion to Respondent. In the absence of persuasive rebuttal evidence, Complainant has sustained its burden of persuasion in this case. Respondent's additional contention that the Administrative Law Judge erred by censoring the booklet will be considered in connection with Exception XVI, infra.

"XIII. The charge is defective, and does not truthfully describe the advertisement."

Respondent contends that the charge in the Complaint is defective. In the Complaint it is alleged that Respondent's advertisement represents that "The dietary regimen set forth in the booklet Stale Food vs. Fresh Food will effectively cleanse and clear blocked arteries." Respondent asserts that the advertisement doesn't mentioned the word "blocked." Respondent would differentiate between choked arteries and blocked or occluded arteries, which it contends are treatable by diet. While it is true the advertisement does not use the word "blocked" the ordinary reader would not differentiate between "choked", "blocked" or "occluded" arteries. While the Complaint may be inartfully worded it was sufficient to put Respondent on notice of the evidence to be introduced. The hearing proceeded on the issue of whether the representations made in the advertisement and booklet concerning choked arteries was true. Respondent has shown no prejudice in defending against this charge and the evidence relates to choked arteries. Thus, even taking Respondent's assertion that there is a difference between blocked or occluded arteries and choked arteries as true, there is no reversible error.

Respondent also objects to the charge that the advertisement claims the dietary regimen will "cleanse and clear." It asserts that the advertisement and booklet make clear that the cleansing action is a natural process and the diet only stops new materials from coming in. The charge goes to the effect, not necessarily to the process. The clear implication from the advertisement and booklet goes to the effect of the regimen, which promises that choked arteries can be cleansed and cleared if a person follows the regimen. Therefore, there is no reversible error in this regard.

"XIV. The proposed mail stop order is incorrectly worded for a case involving books."

Respondent contends that the recommended false representation order is worded so that it would interdict all mail dealing with the Ford booklet, whereas the case is only concerned with the advertisement. It contends that the Order should allow delivery of all other mail not traceable to the advertisement. It does not suggest how this could be done. In any event, there is no merit to this exception. The statute, 39 U.S.C. § 3005, permits the issuance of a false representation order upon a finding that a Respondent is engaged in a scheme for obtaining p.s.

Respondent contends that the case should have been dismissed on constitutional grounds. It contends that the representations of the advertisement are true because they accurately describe the booklet. It contends that the effect of the decision in this case is to censor the Ford booklet and that such censorship is unconstitutional.

In making its arguments Respondent refers to "Parker II," which was a Postal Service decision rendered on December 14, 1971, captioned Parker Publishing Co., P.O.D. Docket No. 3/80, in which a false representation order was denied because of the possibility that it would abridge the first amendment right of freedom of press because of the necessity of finding the contents of a book to be false. Respondent also refers to an "anticensorship" policy of the Federal Trade Commission referring to Exhibits I and L to its "Brief in Support of its Motion for Reconsideration of Petition to Dismiss."

As noted in the Initial Decision and in the briefs, the Parker decision was overruled in a more recent Postal Service decision, Health Purifiers, Inc., P.S. Docket 6/78 (P.S.D. March 22, 1979), which relied on Hollywood House International, 508 F.2d 1276 (9th Cir. 1974). Respondent contends that Hollywood House has been misconstrued and should be read as only prohibiting advertisements which falsely represent the product, when that product is a book or booklet.

The issues in this case must be decided under the controlling statute, 39 U.S.C. § 3005. Many of Respondent's arguments concerning the constitutional application of this statute are similar to those addressed in Health Purifiers, Inc., supra, where the commercial product being sold was a booklet report offering treatment for certain types of ailments. Relying on Hollywood House International, supra, it was held in Health Purifiers, Inc., supra, at p. 7:

"Even though an advertisement correctly describes a booklet if the results represented in the booklet cannot be achieved by following the procedures outlined in the booklet, the advertiser is in violation of 39 U.S.C. § 3005."

Respondent's argument that it was improper to rely on Hollywood House to reach this result is not persuasive. In Hollywood House, the court took the position that there was no difference between the sale of literature% is, as was done in Health Purifiers, Inc., the same position is taken in this case. Respondent's booklet is a commercial product sold through the mail. As in Health Purifiers, Inc., supra, it is essential to explore the truthfulness of the claims made in the booklet which relate to the claims made in the advertisement in order to determine if the advertised claims are true or false. Based on the evidence in the record it was proper to conclude that Respondent's advertised claims are false.

CONCLUSION

Accordingly, on the evidence in the record it is concluded that Respondent is engaged in a scheme or device for obtaining money through the mail by means of false representations. A remedial order under the provisions of 39 U.S.C. § 3005 is being issued contemporaneously with this decision.