In the Matter of the Complaint Against

ATHENA PRODUCTS, LTD.
at Box 81371
Atlanta, GA 30366 etc.

P.S. Docket No. 11/77;

06/21/82

Cohen, James A.

APPEARANCE FOR COMPLAINANT:
Thomas A. D C L U WZiebarth, Esq.
aniel E. Lewis, Esq.
onsumer Protection Division
Law Department
United States Postal Service
Washington, DC 20260

APPEARANCE FOR RESPONDENT:
T J B S A om Benham, Esq.
anie F. Duncan, Esq.
enham & Cohen uite 210,
6600 Powers Ferry Road
Atlanta, GA 30339

POSTAL SERVICE DECISION

Respondent has appealed from the Initial Decision of an Administrative Law Judge which holds that, with regard to the sale of the product Pollen-Ade, Respondent is engaged in a scheme to obtain money or property through the mail by means of materially false representations in violation of 39 U.S.C. § 3005.

BACKGROUND

On May 11, 1981, the General Counsel of the United States Postal Service (Complainant) filed a Complaint alleging that Respondent was selling bee pollen capsules through the mail, marketed under the trade name Pollen-Ade, by means of false representations in violation of 39 U.S.C. § 3005. Specifically, the complaint alleged that Respondent, through various advertisements attached as exhibits thereto, falsely

"represents, expressly or by implication, in substance and effect, that:

a. Pollen-Ade is an effective energy booster.

b. Pollen-Ade effectively aids circulation.

c. Pollen-Ade helps to regulate blood pressure.

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

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

f. One capsule of Pollen-Ade taken daily effectively increases stamina and improves general physical health.

g. One capsule of Pollen-Ade taken daily provides effective nutritional energy." (Complaint Para. 3.)

In a timely filed Answer, Respondent denied all of the allegations of the Complaint. Respondent also asserted the following "defenses" in its Answer: (1) that proper service had not been obtained; ^1/ (2) that the Complaint fails to state a claim upon which relief may be granted; (3) that 39 U.S.C. § 3005 is unconstitutional; (4) that "the Complainant is guilty of laches, bad faith, and harassment and is not entitled to equitable relief"; and (5) that "the Rules of Practice and Proceedings relative to false representations deny the Respondent due process of law . . . in that they limit the use of lay testimony, thus prejudicing the rights of the Respondent to present an adequate defense."

At a hearing held in Atlanta, Georgia, before an Administrative Law Judge, Complainant presented the testimony of Postal Inspector Michael Flynn and Sorell L. Schwartz, Ph.D. Respondent presented the testimony of Richard S. Lord, Ph.D. By deposition held at the direction of the Administrative Law Judge and subsequently incorporated into the record, Respondent also presented the testimony of Paul Hagan.

On November 24, 1981, the Administrative Law Judge issued an Initial Decision which found that Respondent made the misrepresentations alleged in subparagraphs 3 (a)-(3) of the Complaint and that they are false. He found, however, that Respondent did not make the representations alleged in subparagraphs 3 (f) and (g). Respondent appealed the Initial Decision to the Judicial Officer on December 14, 1981. Both parties subsequently filed written briefs.

RESPONDENT'S EXCEPTIONS TO THE INITIAL DECISION

Respondent has filed seven exceptions to the Initial Decision which are discussed, in turn, below.

EXCEPTION 1

"The Administrative Law Judge erred in finding that Respondent misrepresented that Pollen-Ade is 'an effective energy booster' and increases 'vitality, and physical endurance by stimulating the production of more energy,' as set forth in Paragraphs 3(a) and 3(e) of the Complaint."

Respondent argues that the Administrative Law Judge improperly based his finding that Pollen-Ade is not an energy booster upon Dr. Schwartz's testimony that bee pollen only contains two calories. Respondent states that the assumption that "calories are the only factor which are determinative of levels of energy . . . is contrary to common as well as scientific knowledge and is patently absurd. According to Respondent, if it were true, then a person who lived on a diet of soft drinks, candy bars and pastries would have more energy than a person who ate meat, vegetables, fruit and milk." (Brief at p. 6.)

The daily amount of Pollen-Ade prescribed by Respondent is one capsule, which contains 400 milligrams of bee pollen (CX 13). Dr. Schwartz, a professor pharmacology at Georgetown University Schools of Medicine and Dentistry, testified that this amount affords approximately "2 calories for energy resource" (Tr. 47). This conclusion was also accepted by Respondent's witness, Dr. Lord, a Professor of biochemistry at Life Chiropractic College (Tr. 113). Even assuming that "meat, vegetables, fruit and milk" are better gauges of energy than "soft drinks, candy bars and pastries," Dr. Schwartz testified that a capsule of Pollen-Ade would, in terms of nutritional benefit, be equivalent to "no more than 400 milligrams of steak" which is "about one-seventy fifth of an ounce" (Tr. 47).

Dr. Lord stated that bee pollen is an effective energy booster despite its small calorie content because "it supplies the nutrients required to produce energy" (Tr. 113-114). However, he conceded that the levels of nutrients in bee pollen would be on the order of a "few percent or two" of the Recommended Dietary Allowances (RDA) (Tr. 118). Respondent's witness, Mr. Hagan, a journalist who has written on nutrition, generally agreed that the nutrients in bee pollen would supply only a few percent of the RDA (Deposition 31).

Respondent also relies upon testimony of Dr. Lord and Mr. Hagan to the effect that bee pollen contains ingredients which may not be nutritional but nonetheless cause benefit and act as an energy booster (E.g., Tr. 110; Deposition 39). However, this testimony is based upon unreliable hearsay and the report of a study of mice involving the ingestion of bee pollen in amounts and frequencies which bear no relationship to the prescribed human ingestion of Pollen-Ade. ^2/

Respondent further argues that the Administrative Law Judge erroneously accepted Dr. Schwartz's characterization of Respondent's claims as "therapeutic" rather than "nutritional" and that Dr. Schwartz was not qualified to testify with regard to "nutritional" claims, since he is not a nutritionist. In this regard, at the hearing, Complainant's counsel specifically asked Dr. Schwartz whether his "education, experience and training in the field of pharmacology enable s him to evaluate the efficacies of products being offered in the health products field with respect to claims of therapeutic effects" (Tr. 43; emphasis added). Respondent questioned this witness at some length regarding the distinction between "therapeutic" and "nutritional" claims (Tr. 75; 80-81), and the Administrative Law Judge expressed interest in whether particular representations made by Respondent were "therapeutic" or "nutritional" (Tr. 81-83). In the Initial Decision, the Administrative Law Judge stated that he "found persuasive Dr. Schwartz's testimony that the claims in these subparagraphs (a)-(3) are for therapeutic effects." (I.D., p. 9)

Notwithstanding the parties' concern with this question, the technical characterization of the claims at issue as "therapeutic" or "nutritional" is not determinative of the existence of falsity of the representations, or Dr. Schwartz's qualifications to testify as a witness. Representations are looked at from the standpoint of their effect on ordinary minds. Donaldson v. Read Magazine, Inc., 333 U.S. 178, 189 (1947); Peak Laboratories, Inc., v. United States Postal Service, 556 F.2d 1387, 1389-90 (5th Cir. 1977). Under this standard, Respondent made the representations specified in paragraph 3 of the Complaint, whether they be termed "therapeutic" or "nutritional". Indeed, the testimony relevant to whether these representations are true or false is the same regardless of how they are characterized.

The fact that Dr. Schwartz is not an expert in the subspecialty of nutrition does not, in itself, disqualify him from providing this testimony. Cf. Leucadia Pharmacals, P.S. Docket No. 11/90 (P.S.D. May, 1982, at p. 7). Dr. Schwartz testified that his conclusions were based upon research of the medical literature (Tr. 59) and were consistent with the consensus of informed scientific and pharmacological opinion (Tr. 50). Although Respondent contends that Dr. Schwartz had not researched the nutritional aspects of bee pollen, the witness's statements regarding the caloric content of a Pollen-Ade capsule were undisputed, as previously noted. In view of these statements, the testimony of Respondent's own witnesses regarding the nutritional content of bee pollen, and the lack of credible evidence regarding any extra-nutritional value, the conclusion that Pollen=-Ade is not an effective energy booster is persuasive.

According, the Administrative Law Judge's findings that the representations specified in subparagraphs 3(a) and (3) of the Complaint are materially false are affirmed.

EXCEPTION 2

"The Administrative Law Judge erred in finding that Respondent misrepresented that Pollen-Ade effectively aids circulation and helps to regulate blood pressure, as set forth in Paragraph 3(b) and 3(c) of the Complaint."

Respondent argues that the Administrative Law Judge improperly accepted the conclusion of Dr. Schwartz that Pollen-Ade would not aid circulation and help regulate blood pressure. Respondent contends that Dr. Schwartz did not state the factual basis for his conclusions and that, therefore, "his testimony does not constitute evidence." (Brief at p. 19.)

Rule 705 of the Federal Rules of Evidence states that an expert witness "may testify in terms of opinion or inference and give his reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise." Dr. Schwartz testified that the opinions expressed during his testimony are consistent with the consensus of informed scientific and pharmacological opinion (Tr. 50). As an experienced pharmacologist, he was qualified to give such opinions. Moreover, although Respondent contends that Dr. Schwartz's conclusions were based upon inadequate research, both of its own witnesses conceded to being unaware of any clinical results supporting a representation that bee pollen can help regulate blood pressure (Tr. 120; Deposition 35). Dr. Lord, when asked whether he would advise someone with a circulation problem to take Pollen-Ade or see a doctor, responded: "It probably would not be to take Pollen-Ade. This is a very special situation . . . in which you have an individual clinical evaluation of nutritional deficiency and certainly I would say go and see your physician." (Tr. 120)

Accordingly, the Administrative Law Judge's findings that subparagraphs 3(b) and (c) of the Complaint are materially false are affirmed.

EXCEPTION 3

"The Administrative Law Judge erred in finding that Respondent misrepresented that Pollen-Ade helps to provide immunity against hay fever and other 'fatiguing allergy reactions' as set forth in Paragraph 3(d) of the Complaint."

Respondent argues that Complainant did not meet its burden of proof on the issue of whether Pollen-Ade would help provide immunity against hay fever or other allergic reactions, since Dr. Schwartz's testimony that bee pollen would not provide such immunity was disputed by Dr. Lord and Mr. Hagan.

Dr. Schwartz testified that "there is a therapeutic use of pollen which is used in desensitization of hay fever, but that pollen is not generally recovered from bees, it's recovered from plants directly." (Tr. 45) He further stated that in such cases pollen is administered by subcutaneous interdermal injections and that "bee pollen taken orally as a desensitizing agent has been associated with hypersensitivity reactions, . . ." (Id.). Since, as previously noted, Dr. Schwartz testified that his opinions reflected a consensus of scientific and pharmacological opinion, the burden of going forward on this issue shifted to Respondent.

In this regard, Dr. Lord testified that he has seen studies where bee pollen was orally administered for the purpose of desensitizing individuals who are sensitive to plant pollens (Tr. 121). However, he was unable to cite specifically any such study (Id.). Mr. Hagan testified that "There has been a tremendous amount of work done early in the 30's and 40's" with administering pollen pills for desensitization of "hay fever and such." (Deposition 36.) However, he conceded that "In current American medical practice" administrative of pollen for this purpose is accomplished by injection (Id.). he could not offer an opinion as to whether administration of bee pollen through capsules and injection were equally effective (Deposition 27).

Evaluation of these three witnesses' testimony leads to the conclusion that Dr. Schwartz's statements are more persuasive. Moreover, his opinions are consistent with a consensus of scientific and pharmacological opinion.

Accordingly, the Administrative Law Judge's finding that the representation in Paragraph 3(d) of the Complaint is materially false is affirmed.

EXCEPTION 4

"The Administrative Law Judge erred in finding that orders issued under 39 U.S.C. § 3005 are not in violation of the First Amendment of the United States Constitution."

While Respondent concedes "that there is no constitutional right to disseminate false advertising, obscenity or slander," it argues that Congress, in enacting 39 U.S.C. § 3005, has selected inappropriate and, therefore, unconstitutional means for achieving its objective of curtailing false advertising (Brief at p. 21).

This argument was previously addressed in G.H.P. Laboratories Inc., P.S. Docket No. 10/149 (P.S.D. Nov. 30, 1981) as follows:

"Neither the Administrative Law Judges nor the Judicial Officer determine the constitutionality of statutes. 39 C.F.R. § 224.1 (c)(4)(iii) and (iv)(B). If authorized to make such a determination, however, the constitutionality of § 3005 would be upheld based on persuasive court precedent." (Ibid at p. 5) The persuasive court precedent referred to in G.H.P. included United States Postal Service v. Athena Products, Ltd., 654 F.2d 362 (5th Cir. 1981), cert. den. 50 L.W. 3802 (1982). Relying on Athena, the G.H.P. opinion continued at pages 6 & 7:

"The Court also addressed the breadth of an order issued under § 3007. The Court concluded that the injunctive relief provided in § 3007 was not overly broad and that the probable cause standard of that section did not deprive an advertiser of due process of law (ibid at 368-69). The Court's reasoning applies equally to an order issued under § 3005.

"The Court's conclusions on the constitutionality of ??3005 and 3007 and the implementing orders are persuasive and dispositive of the constitutional aspects of the issues raised by Respondent. Respondent's additional argument that there may be a more effective means for promoting the Government's interest is also unavailing. The means for enforcing the Government's interest is a matter for Congress to decide."

Respondent's arguments provide no basis for altering the conclusion reached in G.H.P., supra. Accordingly, Respondent's exception to the finding that orders issued under 39 U.S.C. § 3005 are unconstitutional is rejected.

EXCEPTION 5

"The Administrative Law Judge erred in finding that Complainant had established its case, as to Paragraphs 3(a) through 3(e) of the Complaint, by a preponderance of reliable and probative evidence."

Respondent's advertisements, on their face, make the representations specified in subparagraphs 3(a)-(3) of the Complaint. (CX 1-8). A typical example (CX 2) shows a runner and states, in part:

"POLLEN-ADE gives you the stamina to go further than you ever dreamed possible . . . Pollen-ade has been used for years by world renowned athletes and busy executives. 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. Pollen-ade is also capable of aiding circulation and blood pressure, and even alleviating many allergic symptoms including hay fever. . . ."

As discussed, supra, the Administrative Law Judge's findings that these representations are materially false are supported by the record. Accordingly, his conclusion that Complainant has established its case as to these representations by a preponderance of reliable and probative evidence is affirmed.

EXCEPTION 6

"the Administrative Law Judge misapplied the principle 'that a difference in 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.'"

As discussed, Dr. Schwartz's testimony was represented as reflecting a consensus of scientific and pharmacological opinion. The Administrative Law Judge properly determined that this testimony was more persuasive than the conflicting testimony of Dr. Lord and Mr. Hagan. Respondent has not presented any argument to challenge the settled view that a difference of medical opinion, in itself, does not preclude the issuance of an order under 39 U.S.C. § 3005. Leach v. Carlisle, 258 U.S. 138, 139 (1922); Original Cosmetics, Inc. v. Strachan, 459 F.Supp. 496, 503 (S.D.N.Y. 1978).

Accordingly, the Administrative Law Judge's conclusion that an order under 39 U.S.C. § 3005 may be issued notwithstanding the existence of contrary but unpersuasive evidence, is affirmed.

EXCEPTION 7

"The Administrative Law Judge applied the wrong standard of proof. In Conclusion of Law 7, page 13 of the Initial Decision, he found that the Government proved its case by a preponderance of evidence. The correct standard is substantial evidence."

The standard of proof applied in an administrative proceeding under 39 U.S.C. § 3005 is the preponderance of the evidence standard. United States/Great Lakes Federal Surplus Depository, P.S. Docket No. 7/136, Slip Op. at p. 6 (P.S.D. March 1981). Respondent's reliance on United States Health Club, Inc. v. Majors, 182 F.Supp. 759 (D.N.J. 1960) is inapposite. that case correctly applied the substantial evidence standard for the purpose of judicial review.

Accordingly, the Administrative Law Judge's conclusion that Complainant established its case by a preponderance of the evidence is affirmed.

CONCLUSION

After consideration of the entire record and Respondent's exceptions, it is concluded that Respondent is engaged in a scheme to obtain money through the mail by means of materially false representations.

Accordingly, Respondent's appeal is denied and a remedial order under 39 U.S.C. § 3005 is being issued with this decision.

1/ Prior to filing the Answer, Respondent raised this issue in a motion to quash service, which was filed on May 26, 1981, alleging that the Complaint had not been delivered by a Postmaster, a supervising employee of a post office, or Postal Inspector, as required by 39 C.F.R. § 952.8. In a telephone conference held on June 2, 1981, Respondent withdrew its motion and it was thereafter dismissed.

2/ This study was introduced into evidence as Respondent's Exhibits 1 & 2. The witnesses made references to other reports or studies as either supporting or negating a conclusion that bee pollen is an energy booster. These other reports were not offered into evidence by the parties.