US Courts - Appeal of P.S. Docket No. 5/102 -- MODERN AGE PRODUCTS, INC.
In the Matter of the Complaint Against: MODERN AGE PRODUCTS, INC., P.O. Box 35 at Plainview, New York 11803 and P.O. Box 1357 at Brookfield, Connecticut 06804 P.S. Docket No. 5/102 04/06/77 Grant, Quentin E.; Administrative Law Judge H. Richard Hefner, Esq. Law Department United States Postal Service Washington, D.C., for Complainant Robert Ullman, Esq. Bass, Ullman & Lustigman, New York, New York, for Respondent Before: Quentin E. Grant, Administrative Law Judge
This proceeding was initiated on November 19, 1976 by the filing of a complaint alleging 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.C. 3005.
At the hearing the complaint was amended to add the second address contained in the caption.
The complaint alleges that respondent attracts attention to its scheme by means of advertisements distributed to the public which are calculated and intended to induce readers thereof to remit money or property through the mails to respondent.
There are two products involved in this proceeding, the "Chartham Method" and "Dr. Richard's Ring." The "Chartham Method" includes a device called the "Vacuum Developer." The complaint alleges that by means of such advertisements, respondent expressly and impliedly represents to the public in substance and effect:
"(a) The 'Chartham Method' and 'Vacuum Developer' will enable a male to enlarge the dimensions of his penis. (e.g., 'The Chartham Method is a proven means of increasing the size of the male organ, both in the flaccid and erect state, ... ' 'He next used these two methods in conjunction with each other and achieved considerable success.' 'The result was an entirely new method of penile development.' etc.).
"(b) The 'Chartham Method' and 'Vacuum Developer' is a scientifically evaluated and proven effective means for a male to enlarge his penis. (e.g., ' ... a proven means ..., ' 'DOCTOR DEMONSTRATES PENIS ENLARGEMENT CAN WORK]' ' ... the result of two years research by a world famous Sexologist.' etc.).
"(c) The 'Chartham Method' and 'Vacuum Developer' incorporates new and significantly different principles from all other methods and products intended to increase the size of the male penis. (e.g., ' ... entirely new method.' ' ... this revolutionary method.' 'His initial research showed that the fantastic claims made by many of these methods were backed by no concrete evidence whatsoever and experiments proved them virtually useless.' etc.).
"(d) 'DR RICHARD'S RING is a medically designed and approved device.' ' ... for maintaining an erection.'
"(e) 'DR RICHARD'S RING' ' ... gives the male user heightened pleasure and greater staying power' during sexual intercourse."
Finally, the complaint asserts that the representations alleged are materially false in fact.
Respondent's answer to the complaint denies all allegations thereof except for an admission that the advertisements annexed to the complaint are true copies of advertisements used by respondent in its business enterprise.
A hearing in the matter was held on January 6, 1977 at which both parties presented evidence. After several extensions of time granted at respondent's request the parties submitted proposed findings of fact and conclusions of law.
1. Respondent is engaged in a scheme or device for obtaining money or property through the mails (CX-1a through 4; Ans. 2; Tr. 4-16).
2. Attention is attracted to such scheme or device by means of advertising calculated to induce readers thereof to remit money or property through the mails (CX-1a, 2a; Ans. 2). Typical copies of such advertising are attached hereto as Exhibits A and B.
3. A fair reading of respondent's advertisements for the two products involved in this matter, the "Chartham Method" and "Dr. Richard's ring" discloses that they make the representations alleged in the complaint.
4. The "Chartham Method" consists of four elements.
a. A series of exercises involving the large muscles of the upper thighs, the lower abdominal wall, the gluteal, or buttocks, region, and the larger muscles of the pelvis (Tr. 134).
b. Application of hot compresses to the penis.
c. Massage of the penis.
d. A vacuum developer consisting of a partially sealed plastic tube so designed to permit creation of a vacuum with the penis inserted in the tube.
5. "Dr. Richard's Ring" consists of a length of elastic medical latex tubing with its two ends drawn together through pieces of plastic sleeving forming a ring adjustable in circumference by pulling or pushing the ends of the tubing through the sleeving. Instructions accompanying the product direct the user to place the ring around the penis, adjusting the circumference of the ring until comfortable.
6. Complainant's evidence in support of its allegation as to the material falsity of respondent's representations consisted mainly of the testimony of Vincent A. Cordaro, M.D., a medical doctor employed by the Food and Drug Administration (Department of Health, Education, and Welfare) assigned to work as collaborative medical officer in liaison with the United States Postal Service. Dr. Cordaro's specialty in private practice was anesthesiology. Dr. Cordaro is not a specialist in urology. He received instruction in medical school and during his internship in human sexual performance and response (Tr. 24). His general practice and service as a medical officer in the U.S. Air Force involved a few patients with various sexual complaints (Tr. 24). In medical school and in the practice of medicine Dr. Cordaro became familiar with the function and anatomy of the penis (Tr. 30). During the past six years, in his employment with the FDA, Dr. Cordaro has had occasion to examine and comment upon a number of products and devices advertised as enhancing sexual performance or increasing the size of the penis (Tr. 29). He examined and commented on the two products involved in this proceeding (Tr. 30). He did not conduct tests or studies of any kind with respect to either product (Tr. 93). Dr. Cordaro testified that he did not do any research in ethical, competent, scientific literature concerning such products "because it is generally well known by anyone trained in medicine or endocrinology that the size and girth, length or other *** aspects or characteristics of the penis cannot be altered by drugs, chemicals or devices" (Tr. 116). The record does not contain any indication that there is anything to be found in such literature concerning the exact products involved in this proceeding.
7. The essence of Dr. Cordaro's testimony and opinion with respect to the "Chartham Method" is that its use would not enable a male to enlarge the dimensions of his penis because the size and girth of the penis are genetically determined, and except for some few cases of prepubertal underdevelopment caused by hormonal deficiency and treatable with testosterone, cannot be altered by drugs, chemicals or devices (Tr. 30-32, 47). Dr. Cordaro testified that he had found no controlled studies, no evidence of true scientific investigation, and no evidence of physiological rationale to the entire program to support the "Chartham Method" as a scientifically evaluated and proven effective means for a male to enlarge his penis (Tr. 47, 48). Based on his experience with other products or methods intended to enlarge the penis, in Dr. Cordaro's opinion the "Chartham Method" does not incorporate any new of significantly different principles (Tr. 48, 49). However, Dr. Cordaro had never seen any other method which includes all the steps of the "Chartham Method" (Tr. 63, 64).
8. Dr. Brian Alfred Richards, a doctor of medicine in the United Kingdom, with bachelors degrees in medicine and surgery, testified for respondent. Following his internship, he served as a senior medical officer with the rank of major in Her Majesty's 1st Brigade of Guards. Thereafter he returned to civilian medicine in general practice as a family physician, including areas of surgery, obstetrics, and psychiatry. His particular field of interest is sexual medicine which he described as a study of sexual dysfunction, its treatment and cure (Tr. 121-125). He is regarded by his peers as an expert in sexual medicine (Tr. 157). Approximately 50 percent of his practice is in the field of sexual medicine. He has seen many hundreds of patients in this area (Tr. 126). Many patients seek out Dr. Richards for his expertise in the area of sexual dysfunction and others are referred to him by other physicians (Tr. 202). For several years he has lectured on the subject of sexual medicine at hospitals and post-graduate medical schools (Tr. 126-127). He has written about 100 articles in the field and is a member of the editorial board of the British Journal of Sexual Medicine, a reputable journal read almost exclusively by the medical profession (Tr. 127-129).
9. Dr. Richards first learned of the "Chartham Method" when it was mentioned to him by a patient who claimed to have used it with success. Some time later he ordered it through the mail in the course of investigating various sexual aids in connection with his interest and practice in sexual medicine (Tr. 164, 165). In mid-1975, at a luncheon attended by several persons interested in the field of sexual medicine including a representative of respondent, Dr. Richards was invited to conduct a trial on the "Chartham Method," Dr. Richards to provide the expertise and labor, respondent to provide the equipment free of charge. Dr. Richards agreed, thinking such a trial would be useful. According to Dr. Richards, he was not paid to conduct the test, has no interest in the company distributing the "Chartham Method", and his fee for testifying is in no way dependent on the outcome of this proceeding (Tr. 180).
10. Dr. Richards conducted the trial and prepared a report thereon received in evidence as respondent's exhibit 5. Sixty-four randomly selected patients of Dr. Richards participated in the study, thirty-two as test subjects using the "Chartham Method" and thirty-two as a control group (Tr. 140, 186). Dr. Richards excluded from the test group those who by reason of special problems or conditions would cause confusional factors (Tr. 192). None of the test subjects had what Dr. Richards would characterize as an underdeveloped penis (Tr. 184).
11. The trial lasted approximately three months. It began with measurement of the penis of each test subject at maximal erection. Length was measured with a metal rule and slide marker, the base of the rule being placed on the pubic symphysis and pressed firmly against it. The slide was then moved to the top of the glans where the measurement was read. Girth was measured with a flexible metal tape at a position one inch proximal to the coronal sulcus. The same technicians conducted all measurements throughout the trial with the object of reducing personal error factors (RX-5).
12. After the initial measurements, test subjects were instructed in the "Chartham Method" and told to start practicing it (Tr. 139). Insofar as possible the penis of each subject was thereafter measured, in the method above described, on a weekly basis (Tr. 139, 140). Dr. Richards recorded each measurement. Of the test subjects two dropped out of the test and two achieved no gain in dimensions. Dr. Richards recorded gains among the twenty-eight remaining subjects ranging from 2.4 cm. to 3.6 cm. (.94 in. - 1.4 in.) in length and from 1.4 cm. to 3.1 cm. (.55 in. - 1.2 inc.) in girth (Tr. 142; RX-5). No changes of any significance were found in the measurements taken of the control subjects (Tr. 145, 146). He reported the success rate as 87.5 percent in the test group (Tr. 143). In Dr. Richards' opinion, the study was conducted in accordance with prevalent medical and scientific standards (Tr. 142). The report of Dr. Richards' study has been accepted for publication in the British Journal of Sexual Medicine (Tr. 143).
13. Dr. Richards' conclusion as a result of the test was that the "Chartham Method" is a very certain and very positive working method for enlargement of the penis (Tr. 146, 147). His rationale for the results observed was that as the result of the intense application of the "Chartham Method" for three months the actual tissue spaces of the penis had increased sufficiently to account for the changes in measurement; that the tissue spaces of the erectile tissue of the penis had been expanded to the extent that they would accept more blood during erection (Tr. 146, 147).
14. In Dr. Richards' opinion the "Chartham Method" will enable a large percentage of males to enlarge the dimension of the penis and, to his satisfaction, is a scientifically evaluated and proven effective means for so doing. Further, in his opinion, it incorporates new and significantly different principles from all other methods and products intended to increase the size of the penis that he knows of (Tr. 148).
15. Dr. Richards was skeptical that enlargement of the penis produced by the "Chartham Method" would be sustained for any considerable length of time. He will not be satisfied on that point until he has done further investigation (Tr. 208, 211).
16. With respect to "Dr. Richard's Ring" and its efficacy, Dr. Cordaro testified that erection of the penis is the result of its engorgement with arterial blood and decrease in venous return resulting from compression of the dorsal vein of the penis by action of the bulbocavernosus muscle; that after ejaculation erection is usually lost; that some engorgement might continue if a device such as "Dr. Richard's Ring" were applied tightly enough but that such engorgement could not be considered an erection (Tr. 51-52); that "Dr. Richard's Ring" would not increase a user's pleasure or staying power (the user's ability to continue the sexual act without ejaculation (Tr. 87)) during intercourse (Tr. 53, 56); that there is no such thing as a device which will maintain an erection and, therefore, "Dr. Richard's Ring" is not a medically designed and approved device for maintaining an erection (Tr. 52).
17. With respect to "Dr. Richard's ring" (with which respondent's witness has no connection), Dr. Richards testified that the purpose of the ring would be to maintain pressure around the basis of the penis with the intention of restricting venous return from the penis to the body and that the device used as directed would do that (Tr. 150). He explained that all blood is a circulating process; that blood passes into an area of the body via the arteries and returns via the venous drainage system (Tr. 150). Erection is caused by increase in the arterial flow of blood into the penis and a restriction of the venous return by compression of the muscles around the base of the penis (Tr. 84, 85, 130); that if the arterial input and venous return are in balance there is no change in the size of the penis; that the effect of the use of "Dr. Richard's Ring" would be to restrict venous return and thereby cause a larger volume of blood to be retained in the shaft of the penis (Tr. 150, 151), the result being what Dr. Richards termed an "assisted" erection (Tr. 196). He testified that the ring might help retain such an erection after ejaculation but would not necessarily do so (Tr. 198, 199).
18. Dr. Richards testified that the techniques and principles applicable to the ring have been approved and applied by members of the medical profession. The only specific instances of such approval cited by Dr. Richards were a mention of it in Human Sexual Response by Masters and Johnson and articles written by Dr. Richards on the subject (Tr. 152). According to Dr. Richards, Masters and Johnson mentioned the technique of pressure "in assistance of erection" and recommended that it be done by hand (Tr. 188). Respondent did not specify the exact location of reference to the technique in Human Sexual Response. Complainant's post-hearing brief states that a search of the book fails to disclose such a reference. The undersigned attempted to locate the reference in that book but found none. Dr. Richards' writings concerning the techniques were not produced. Moreover, he did not testify as to what his writings actually said about the matter. He did not testify that he recommends its use in his practice.
19. In Dr. Richards' opinion the use of "Dr. Richard's ring" can give the male who has difficulty maintaining an erection heightened pleasure and greater staying power during sexual intercourse by enabling him to maintain an erection, thus his "staying power," thereby engendering a greater degree of pleasure (Tr. 152, 196, 197).
20. According to Dr. Cordaro, the opinions he expressed are in accordance with the consensus of informed medical opinion (Tr. 57, 58). Dr. Richards was not asked that question with respect to his opinions and did not so state.
1. Respondent is engaged in a scheme or device for obtaining money or property through the mails by means of representations substantially as characterized in the complaint.
2. Complainant has sustained its burden of proving the falsity of the representations alleged in paragraphs II (a) and (b) of the complaint, viz., (a) that the "Chartham Method" and "Vacuum Developer" will enable a male to enlarge the dimensions of his penis and (b) that the "Chartham Method" and "Vacuum Developer" is a scientifically evaluated and proven effective means for a male to enlarge his penis. Dr. Cordaro, a medical doctor qualified to testify as to the matters in issue, expressed the consensus of informed medical opinion that there is no device or method which will enable the male to increase the dimensions of his penis in the flaccid or erect state. Dr. Richards did not deny that consensus. He acknowledged it, in fact (Tr. 148). Dr. Cordaro does not possess the same degree of expertise in the field of sexual medicine as respondent's witness, Dr. Richards. But he was qualified to testify as to the matters on which this decision turns, particularly the consensus of informed medical opinion in the various areas involved.
Dr. Richards has impressive experience in the field of sexual medicine. He conducted a careful and interesting trial of the "Chartham Method" and "Vacuum Developer". It may well be that in time, with further testing of such devices, including observation of the long term or permanent results thereof, the consensus will change. But his test results and his opinion based thereon, particularly in view of his scientific skepticism as to the lasting or permanent results of such test, are insufficient to cause me to ignore the consensus of medical opinion to the contrary. It is noted that respondent did not produce evidence as to tests which, according to its advertisement, were conducted by Dr. Robert Chartham, Ph.D, Consultant Editor to Penthouse Forum.
Complainant failed to sustain the allegation that respondent falsely represents that the "Chartham Method" (and "Vacuum Developer") incorporates new and significantly different principles from all other methods and products intended to increase the size of the male penis. Dr. Cordaro testified that in all his experience with methods and devices intended to enlarge the penis, he has never seen one incorporating all the elements of the "Chartham Method" and that it may very well be new and different in respect of such combination (Tr. 63, 64). Dr. Richards expressed the opinion that the method incorporates new and significantly different principles from all other methods intended to increase the size of the male penis.
Complainant sustained its burden as to the allegations concerning "Dr. Richard's ring" on the basis of the testimony of Dr. Cordaro that the consensus of informed medical opinion is that there is no such thing as a device which will maintain an erection and that use of the ring will not give the male heightened pleasure and greater staying power. I find that his definition of "staying power" as the duration of intercourse before ejaculation (Tr. 87) is the meaning that the average reader would attach to those words. Respondent's witness, Dr. Richards, apparently attached to the words "staying power" the concept of retaining a degree of engorgement of the penis and his opinion that the device would give the male user heightened pleasure was dependent on its ability to retain a degree of engorgement in the penis. However, Dr. Richards admitted that engorgement maintained by the ring would not be a normal erection, but rather an "assisted" erection, and that the maintenance of such an erection could be, but not necessarily would be, aided by the ring (Tr. 198, 199).
Complainant's other allegation concerning the falsity of respondent's representations as to "Dr. Richard's Ring," viz., that it is a medically designed and approved device for maintaining an erection, being dependent on proof of the allegation as to its efficacy to produce heightened pleasure and greater staying power, has been sustained through Dr. Cordaro's testimony. The opinions expressed by respondent's witness, Dr. Richards, insofar as they conflict with those of Dr. Cordaro, were not supported by substantial evidence as noted in the foregoing findings of fact.
Summarizing I find that complainant has sustained with substantial evidence the allegation as to falsity of respondent's representations made in paragraphs II (a), (b), (d) and (e) of the complaint but not as to paragraph II (c).
3. I find that such false representations are materially false in fact.
4. An order pursuant to 39 U.S.C. 3005 should issue.