The opinion of the court was delivered by: SUGARMAN
Plaintiffs have commenced this action to restrain the Postmaster of the City of New York from enforcing a 'Fraud Order' dated February 11, 1957, which was issued after appropriate administrative proceedings.
Plaintiffs now move for a preliminary injunction as prayed for in the complaint.
The defendant moves for summary judgment 'dismissing the complaint herein on the merits, on the grounds that no genuine issue as to any material fact exists, and that defendant is entitled to judgment as a matter of law * * *.'
The elements of the conduct prohibited by the statutes
under which the Postmaster General purportedly acted through his delegates int he instant case are three, viz., (1) a scheme for obtaining money through the mails, (2) by means of false pretenses, and (3) with intent to defraud.
through his delegates in the instant case drug product, 'Propex Tablets,' which is sold through the mails to overweight persons who respond to advertising materials mailed to them by plaintiffs apparently without prior request of the buyers.
The administrative complaint against the plaintiffs in this action sets forth eight allegations of 'false pretenses, representations and promises.' For purposes of this decision, these eight allegations are divided into two categories. The first is comprised of allegations the essence of which is that the plaintiffs falsely claim in their advertising that the ingredients of 'Propex Tablets' affect the human body in certain ways.
'[The] respondents are representing to the public in substance and effect:
'a. That 'Propex, Tablets' are: 'The most revolutionary and sensational reducing development ever achieved', 'unique and different than anything known for reducing', and 'more effective than any other reducing product';
'b. That for any obese user thereof, the ingredients of 'Propex Tablets' 'acts directly against the fat itself' and 'helps nature dissolve the fat into a liquid waste which your body eliminates quickly';
'c. That by the use of 'Propex Tablets' any obese person will lose as much fat as they want to lose; and specifically will lose 6 pounds of 'ugly fat' within the first 48 hours, 9 pounds the first week, and '30, 40, 50 or even 100 pounds in a reasonable length of time'; and will lose '* * * as many pounds and inches the first few days, as you could hope to lose in one week with any other reducing product';
'f. That 'Propex Tablets' contain ingredients that will control
and satisfy the hunger and regulate the stomach of any obese person;
'h. That by the use of 'Propex Tablets' any obese person will lose fat 'under the chin, back of neck, abdomen, legs, things, arms, etc.', in the areas designated in the diagram accompanying such advertisements, because ingredients of 'Propex Tablets' '* * * act directly against this fat by removing its excessive water and helping nature dissolve the fat itself'; i.e., that said preparation will enable any person to lose fat in the areas so designated and enumerated, that selective weight-reduction is possible in any such areas through the use of said preparation, and that the elimination of excess water in the body is an effective method for, and is equivalent to, the reduction of fat in corpulent individuals.'
The second category is comprised of allegations which substantially charge that the plaintiffs advertised falsely that the use of 'Propex Tablets' without dieting, i.e., without the necessity of consciously curbing the user's appetite, would enable the user thereof to lose weight. Thus, the complaint further ...