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ORIGINAL COSMETICS PRODS., INC. v. STRACHAN

August 10, 1978

ORIGINAL COSMETICS PRODUCTS, INC. and Love Song Cosmetic Corp., Plaintiffs,
v.
John STRACHAN, Postmaster at New York City, New York, and United States Postal Service, Defendants



The opinion of the court was delivered by: SAND

MEMORANDUM and ORDER

Pursuant to 28 U.S.C. Section 636(b)(1), this Court is called upon to "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made" with respect to the recommendations of Magistrate Sol Schreiber that defendants' motion for summary judgment be granted.

 As set forth in detail in the Magistrate's Recommendation (attached hereto), in November, 1975, the Postal Service instituted an administrative proceeding charging that plaintiffs' advertising was materially false for the following products:

 
Song of Passion Tablets, Super Ginseng Tablets, Spanish Fly Imitation, Ginseng and Imitation Spanish Fly, Jungle Passion Caps, All American Booster Caps with Vit. E, Authentic Turnera Aphrodisiaca Caps, Drive Her Wild, and Instant Erection Oil.

 An administrative decision found that the plaintiffs have been engaged in a scheme to obtain money through the mails by means of false representations in violation of 39 U.S.C. Section 3005. An Order was issued prohibiting delivery of mail to, and payment of Postal Money Orders in favor of, plaintiffs with respect to the above products.

 Plaintiffs appealed unsuccessfully from the decision of the administrative law judge to the Judicial Officer of the Postal Service and, having thus exhausted their administrative remedies, commenced this action. Both parties moved for summary judgment, Fed.R.Civ.P. 56; by Order dated September 23, 1977 of the Honorable Gerard L. Goettel, District Judge (from whom this case was reassigned to the undersigned), the case was referred to Magistrate Schreiber for the purposes of reviewing the administrative record and submitting a report and recommended disposition. On April 25, 1978, after a comprehensive review of the issues presented, Magistrate Schreiber recommended the granting of defendants' motion for summary judgment.

 Plaintiffs thereafter filed a thirty-eight page memorandum in opposition to the Magistrate's Recommendation which they describe as "an informal comment rather than a formal brief . . . because we believe it will suit the convenience of the Court, we herein avoid the conventional approach of setting forth the facts and then the legal arguments, but, as does the Magistrate, bunch together the recitation of the evidence and legal argument in regard thereto". (Plaintiffs' Comments, p. 1).

 This format lends itself to a somewhat discursive but not uninteresting dissertation on sexuality, aphrodisiacs and placebos. However, after a thorough review of the entire record, the Magistrate's Recommendation and the memoranda submitted by the parties, we conclude that none of plaintiffs' objections have merit.

 Plaintiffs begin their contentions by conceding that "the learned Magistrate accurately sets forth the procedural posture and background of this case. Were the facts and issues as stated by the Magistrate, it would be difficult to quarrel with his recommendation. But neither our contentions, the law, nor the facts are as the Magistrate suggests we urged them to be, nor as he finds them to be." (Plaintiffs' Comments, p. 1). We, therefore, examine plaintiffs' specific points to see whether this characterization is sound.

 First, plaintiffs urge that the Magistrate dealt only with the issue of facial constitutionality, whereas plaintiffs urged the unconstitutionality of the statute "as construed and applied" (emphasis in original). (Plaintiffs' Comments, p. 2). But upon analysis, this contention turns out to be nothing more than a semantic variation of plaintiffs' prime argument that the remedy provisions of 39 U.S.C. Section 3005 are unconstitutional. Plaintiffs base their argument on the Supreme Court's holding in Blount v. Rizzi, 400 U.S. 410, 91 S. Ct. 423, 27 L. Ed. 2d 498 (1971), that parallel administrative procedures contained in 39 U.S.C. Section 4006, which deals with obscenity, were unconstitutional.

 This contention, however, is foreclosed by Lynch v. Blount, 330 F. Supp. 689, 694 (S.D.N.Y.) aff'd 404 U.S. 1007, 92 S. Ct. 673, 30 L. Ed. 2d 656 (1971), where Judge Medina explicitly held:

 
"We think the safeguards defined in Blount v. Rizzi, 400 U.S. 410, 91 S. Ct. 423, 27 L. Ed. 2d 498 (1971), for obscenity cases are wholly inappropriate, unnecessary and inapplicable to the field of commercial fraud."

 Plaintiffs seek to avoid the impact of Lynch on two grounds. First, that Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 96 S. Ct. 1817, 48 L. Ed. 2d 346 (1976), holding certain commercial advertising protected by the First Amendment, opens to question the continued validity of Lynch. But, as the Magistrate noted, in Virginia State, the Supreme Court went to some lengths to make clear its view that the First Amendment does not prohibit the State from dealing with deceptive or misleading advertising. 425 U.S. at 770-72, 96 S. Ct. 1817.

 Second, in its Reply Memorandum of Law in Support of Plaintiffs' Motion for Summary Judgment, plaintiffs seek to distinguish Lynch on the grounds that the court there was dealing with "good old-fashioned schemes to defraud" which are "easily recognized". 330 F. Supp. at 695. Plaintiffs urge that when one deals in the area of human sexuality, where the state of our knowledge is far from complete and where new research is being conducted producing new insights and attitudes, different principles should obtain. The Court finds little basis to quarrel with plaintiffs' philosophic discussions concerning the inadvisability of dogmatism with regard to sexuality, but we do find it difficult to distinguish cases dealing with "good old-fashioned schemes to defraud" with the instant case where plaintiffs, among other things, sold common variety red pepper as "Imitation Spanish Fly" for $ 5.95 per 24 tablet bottle.

 We have examined all of plaintiffs' other contentions. Many of them seemingly put forth as separate objections are but variations on plaintiffs' principal themes; others are "quibbles" which either fail to undermine the basic soundness of the Magistrate's conclusions or lack support based on a fair reading of the record.

 We have concluded that the Magistrate applied the appropriate standards for review of the administrative decision under challenge and correctly interpreted the applicable law.

 It is entirely fitting that governmental action which has consequences as drastic as those which flow from a Post Office stop order and which could potentially impinge upon First Amendment rights be subject to careful scrutiny. We are satisfied that plaintiffs' contentions received full and fair consideration both administratively and before the Magistrate.

 The Magistrate's Recommendation is accepted by this Court and summary judgment is granted in favor of defendant.

 SO ORDERED.

 TABLE

 By order of the Honorable Gerard L. Goettel, District Judge, this case was referred to the undersigned to review the administrative record on cross motions for summary judgment, Rule 56, Fed.R.Civ.P., which seek review of a U.S. Postal Service ("Stop-Mail") Order issued pursuant to 28 U.S.C. § 1339.

 An administrative decision of the U.S. Postal Service found that the plaintiffs have been engaged in a scheme to obtain money through the mails by means of false representations in violation of 39 U.S.C. § 3005 *fn1" with respect to the sale of the following products:

 
Song of Passion Tablets, Super Ginseng Tablets, Spanish Fly Imitation, Ginseng and Imitation Spanish Fly, Jungle Passion Caps, All American Booster Caps with Vit. E, Authentic Turnera Aphrodisiaca Caps, Drive Her Wild, and Instant Erection Oil.

 The Postal Service alleged the following misrepresentations:

 1) Express and implied representation of Song of Passion Tablets, Spanish Fly Imitation, Jungle Passion Caps, and Authentic Turnera Aphrodisiaca Caps as effective aphrodisiacs or sexual stimulants;

 2) Express and implied representation of Super Ginseng Tablets as an effective means of increasing and prolonging sexual virility and potency, and of All American Booster Tabs with Vitamin E, as an effective means of increasing sexual virility and performance;

 3) Expressly and impliedly represented that Ginseng and Imitation Spanish Fly would effectively heighten and prolong sexual performance, capacity and enjoyment;

 4) Expressly and impliedly represented that Drive Her Wild would heighten sexual enjoyment and cause frigid women to engage in sexual intercourse;

 5) Expressly and impliedly represented that Instant Erection Oil would instantly and for prolonged periods of time enable a man, who was ...


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