The opinion of the court was delivered by: LEVET
This is a motion by the above-named plaintiff to enjoin the defendant (hereinafter sometimes referred to as the complainant) from enforcing a certain fraud order relative to receiving payment of money orders and receiving letters relating to the sale of a certain so-called 'royal jelly' known as 'Jenasol RJ Formula 60.' The action was instituted by the filing of a complaint on April 15, 1959. The order which it is sought to enjoin was made on April 10, 1959. By cross-motion the defendant has moved for summary judgment.
Plaintiff has been marketing a product known as 'Jenasol RJ Formula 60.' Certain claims in respect to its beneficial effects upon various human maladies were made by plaintiff in literature sent through the mails.
The history of the proceedings connected with this matter may be summarized as follows:
(1) On March 14, 1957, a complaint was filed in the Post Office Department by the Assistant General Counsel of the Fraud Division against the Jenasol Co. and others to the effect that a fraudulent scheme was being conducted in violation of Title 39 U.S.C.A. §§ 259 and 732 and that the respondent was then and had been obtaining remittances of money through the mails for a preparation called 'Jenasol RJ 60 Capsules' by means of false and fraudulent pretenses, representations and promises as hereinafter set forth. Certain advertising matter sent through the mails was attached to the complaint and it was stated therein that the respondent was representing to the public in substance and effect:
'a. That the use of the said 'Jenasol RJ 60 Capsules' will restore sexual virility to all impotent men;
'b. That the said preparation, when used as directed, will restore 'new pep and vitality' to persons lacking therein, that is to say that the said preparation will restore general physical vigor to users deficient therein;
'c. That the said preparation, when used as directed, will restore fertility to women 'at the age of menopause';
'd. That the said preparation, when used as directed, will 'cure the ills of old age';
'e. That the use of the said preparation as directed 'grows hair', that is to say that persons with thin hair or bald heads will, by the use of the said preparation, obtain a full head of hair;
'f. That the said preparation, when used as directed, 'cures ailments ranging from Parkinson's Disease to heart conditions';
'g. That the use of the said preparation as directed will relieve 'those after 40 suffering from' 'aches and pains';
'h. That the said preparation, when used as directed, will prove 'completely successful in certain cases' of 'low blood pressure', that is to say will cure that condition;
'i. That the said preparation, when used as directed, will cure 'disabilities of the motor nerves' and 'climatic sicknesses';
'j. That the said preparation, when taken as directed, will insure substantially 'longer life' to users.'
(2) On or about July 17, 1957, a hearing was commenced before the Hearing Examiner. Apparently at the outset of the hearing Marvin Schere, the owner of the enterprise conducted through the mails under the names of Jenasol Co., etc., voluntarily agreed that in the future mail order operations of his enterprise he would not represent or make any claims for the preparation being sold in said enterprise that:
'1. it will cure or eliminate sexual impotency or lost manhood in humans, except where the overall increase in vitality is reflected in an increase in sexual vitality;
'2. it will restore fertility to women at or during the age of menopause;
'3. it will grow hair or will cure baldness;
'4. it is an effective treatment for Parkinson's Disease;
'5. it is an effective treatment for heart conditions ...