In the Matter of the Complaint Against

OSCAR R. FALCONI, d/b/a WHOLESALE NUTRITION CLUB
P. O. Box 3345
Saratoga, CA 95070-1345

and P. O. Box 1113
Sunnyvale, CA 94086-1113

and 19010 Portos Drive
Saratoga, CA 95070-5121

P.S. Docket No. 16/18;
P.S. Docket No. 16/19

03/22/84

Cohen, James A.

APPEARANCE FOR COMPLAINANT:
Sandra C. McFeeley, Esq.;
James A. Harbin, Esq.;
Consumer Protection Division,
Law Department,
U. S. Postal Service,
Washington, DC 20260-1112

APPEARANCE FOR RESPONDENT:
Kirkpatrick W. Dilling, Esq.;
Dilling, Dilling & Gronek,
150 North Wacker Drive,
Chicago, IL 60606-1111

POSTAL SERVICE DECISION

Respondent has appealed from an Initial Decision of an Administrative Law Judge which holds that Respondent is engaged in conducting a scheme or device for obtaining money or property through the mail by means of materially false representations in violation of 39 U.S.C. § 3005.

BACKGROUND

The Consumer Protection Division, Law Department, United States Postal Service (Complainant), initiated these proceedings by filing Complaints alleging that Respondent is engaged in conducting a scheme or device to obtain money through the mail by means of materially false representations relating to a drug rehabilitation kit and a product called "C-Strips", which consists of chemically treated test papers. Specifically, the Complaint in P.S. Docket No. 16/18 alleges that Respondent falsely represents:

"IV

. . . directly or indirectly, in substance and effect, by affirmative statements, implications, or omissions, that:

1. Respondent's Drug Rehabilitation Kit is effective to easily withdraw any addict from any narcotic within a few days.

2. Respondent's Drug Rehabilitation Kit is effective to withdraw an addict from any narcotic with few, if any, withdrawal symptoms.

3. Respondent's Drug Rehabilitation Kit is effective to withdraw an addict from any narcotic for a period of three months.

4. The slow injection of 30 to 40 grams of Respondent's 'pure sodium ascorbate' product into a vein of a person who is unconscious as a result of an overdose of any drug will be effective within a few minutes to restore consciousness and alleviate any life threatening symptoms or conditions.

5. This antidote [the injection described in subparagraph 4] is non-specific and works as described in subparagraph 4 on all drugs, so no time need be wasted in identifying the drug involved in the overdose.

6. A person dependent on alcohol, nicotine, caffeine or valium may, by using Respondent's Drug Rehabilitation Kit, reasonably expect to easily and quickly withdraw from his or her dependence.

7. During the course of using Respondent's Drug Rehabilitation Kit, should the user inject any of the narcotic or other substance sought to be avoided, particularly heroin or methadone, that substance is immediately detoxified and no 'high' is produced for the user.

8. Respondent's Drug Rehabilitation program has been scientifically demonstrated to be wholly effective to achieve the results described in subparagraphs 1 through 6."

The Complaint in P.S. Docket No. 16/19 alleges that Respondent falsely represents:

"IV

. . . directly or indirectly, in substance and effect, by affirmative statements, implications, or omissions, that:

1. Ingestion of vitamin C in amounts greater than the body's immediate need for it is effective to

* * *

(b) 'dissolves (and prevents) [the formation of] kidney and bladder stones.'

(c) 'cures (and prevents) painful urination due to inflammation of the urethra.'

(d) 'cures (and prevents) urinary tract infections. . . n1

2. Vitamin C deficiency is the cause of Sudden Infant Death Syndrome.

3. Ingestion of 'ample amounts' of vitamin C by infants will prevent the occurrence of Sudden Infant Death Syndrome."

n1 The allegations set forth here reflect the parties' post-hearing Consent Agreement which disposed of the issue relating to subparagraph 1(a) and modified the allegation in subparagraph 1(d) of the Complaint.

In timely filed Answers, Respondent admitted that it makes the representations alleged in both Complaints but denied that those representations are false. At a hearing before an Administrative Law Judge, both parties presented documentary and testimonial evidence. Following the filing of proposed findings of fact and conclusions of law, the Administrative Law Judge issued an Initial Decision in which he found that Respondent makes the representations alleged in both Complaints and, with the exception of Complaint subparagraph 1(d) of Paragraph IV, P.S. Docket No. 16/19, Complainant had proved the falsity of the representations by a preponderance of the reliable and probative evidence.

Respondent's Exceptions

The principal issue in these proceedings is whether Vitamin C will have the beneficial effects represented by Respondent in its promotional materials. Vitamin C is the active component of the drug rehabilitation kit and is the substance touted by the advertisements for the C-Strips and sold with them. In its exceptions on appeal, Respondent contends that Complainant has not presented evidence sufficient to show that its claims regarding Vitamin C are false. Respondent also argues that Complainant has not established that there is a medical and scientific consensus on the efficacy of Vitamin C. Finally, Respondent contends that greater reliance should have been placed on the testimony of its witnesses because of their experience, training and particular knowledge of the subject matter.

The entire record has been reviewed and Respondent's arguments considered. Based on this review it is concluded that the findings and conclusions of the Administrative Law Judge relating to the falsity of the representations alleged in the Complaint are supported by a preponderance of the reliable and probative evidence.

As the Administrative Law Judge found, the evidence, including the testimony of Respondent's witnesses, establishes a consensus of medical and scientific opinion which does not support the representations made in Respondent's promotional materials. Also, the Administrative Law Judge properly found the opinion testimony of Complainant's experts to be reliable and persuasive that the results represented by Respondent would not be achieved by the use of large quantities of Vitamin C. While Respondent presented contrary documentary evidence and opinion testimony, the views expressed in the documents and by its witnesses were admittedly unorthodox and not supported by tests utilizing recognized scientific methods. Thus, Respondent did not persuasively rebut Complainant's evidence establishing the falsity of the representations alleged in the Complaint. Accordingly, no error is found in the findings and conclusions of the Administrative Law Judge relating to the falsity issue.

Respondent also takes exception to the language of the false representation order recommended by the Administrative Law Judge. Respondent argues that the product, Vitamin C, should not be included in the proposed order because the Complaints only relate to "C-Strips" and a drug rehabilitation kit.

Respondent's representations and the allegations of the Complaints relate primarily to the efficacy of Vitamin C. The testimony presented at the hearing also pertained almost entirely to the issue of whether Vitamin C would cure or prevent the various physical conditions mentioned in Respondent's promotional materials. Thus, the inclusion of the product Vitamin C in the recommended false representation order was proper.

Conclusion

After consideration of the entire record it is concluded that Respondent is engaged in a scheme to obtain money through the mail by means of materially false representations. Accordingly, the Order authorized by 39 U.S.C. § 3005 is issued herewith.

This page was posted on July 2, 2008.

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