Reilly v. Pinkus

• Decision Date: 14 November 1949
• Docket Number: No. 31,31
• Citation: 94 L.Ed. 63,70 S.Ct. 110,338 U.S. 269
• Parties: REILLY v. PINKUS
• Court: U.S. Supreme Court

338 U.S. 269

70 S.Ct. 110

94 L.Ed. 63

REILLY

v PINKUS.

No. 31.

Argued Oct. 13, 1949.

Decided Nov. 14, 1949.

Mr. Robert L. Stern, Washington, D.C., for petitioner.

Mr. Bernard C. Segal, Philadelphia, Pa., for respondent.

Mr. Justice BLACK delivered the opinion of the Court.

Federal statutes have long authorized the Postmaster General to forbid delivery of mail and payment of money orders to 'any person or company' found, 'upon evidence satisfactory' to him, to be 'conducting any * * * scheme or device for obtaining money * * * through the mails by means of false or fraudulent pretenses, representations, or promises * * *.'¹ Following a hearing the Postmaster General issued such an order restricting respondent's use of the mails.²

The representations on which the order is based relate to respondent's anti-fat treatment, nationally advertised under the name of 'Dr. Phillips' Kelp-I-Dine Reducing Plan.' 'Kelp-I-Dine' is a name used by respondent for granulated kelp, a natural seaweed product containing iodine. The Reducing Plan is twofold: It requires users to take one-half teaspoonful of 'Kelp-I-Dine' per day, and suggests following a recommended daily diet which accompanies the vials of kelp.

Respondent's advertisements made expansive claims for its plan. They represented that persons suffering from obesity could 'eat plenty' and yet reduce 3 to 5 pounds in a week surely and easily, 'without tortuous diet' and without feeling hungry. Unhappy people eager to reduce but also eager to eat plenty were repeatedly reassured with alluring but subtly qualified representations such as these: 'Remember with the Kelpidine Plan, you don't cur out ice cream, cake, candy, or any other things you like to eat. You just cut down on them.' The alleged safety of the remedy and extraordinary efficacy of kelp were emphasized in advertisements stating that it 'makes no difference if you are 16 or 60, or if you have diabetes, rheumatism or any other ailment. Kelpidine is always safe and doctors approve the Kelpidine plan. You simply take a half teaspoon of Kelpidine once each day and eat three regular sensible meals. Kelpidine decreases your appetite.'

Two doctors with wide general knowledge in the field of dietetics and treatment for obesity were called by the Government in the fraud hearing. They testified that iodine, to which respondent chiefly attributed the fat-reducing powers of kelp, is valueless as an anti-fat; that kelp would not reduce hunger; that the suggested diet was too drastic to be safe for use without medical supervision, particularly where users suffered from chronic diseases such as diabetes and heart trouble. The one physician called by respondent testified that iodine was used by physicians as a weight reducer, and expressed his judgment that it did have value for such use. Even he, however, conceded that the daily dosage of iodine to reduce weight would be fifty to sixty times more than the iodine in respondent's daily dosage of kelp. The respondent's witness also admitted that the recommended diet was 'rigid,' and might prove harmful to persons suffering from tuberculosis, anemia, or heart disease.

The findings of the Postmaster General were that kelp is valueless as a weight reducer and that whatever efficacy there was in the remedy lay in the diet recommendations. He also found that the diet was neither uniformly safe nor harmless and might be particularly dangerous for persons afflicted with heart and kidney troubles; that the diet could not, as represented, be pursued in ease and comfort, without hunger, while eating the things respondent had led people to believe they could. On these findings the fraud order was entered.

The District Court granted an injunction against enforcement of the fraud order on the ground that the order was unsupported by factual evidence.³ Asserting that there was 'no exact standard of absolute truth' against which respondent's advertisements could be measured, the court held that the testimony of the two doctors on whch the Government's case rested was reduced by the conflicting testimony of respondent's witness to the status of mere opinion. As such, the evidence was held insufficient under the rule laid down by this Court in American School of Magnetic Healing v. McAnnulty, 187 U.S. 94, 23 S.Ct. 33, 47 L.Ed. 90. The Court of Appeals affirmed on substantially the same ground.⁴ Both courts distinguished Leach v. Carlile, 258 U.S. 138, 42 S.Ct. 227, 66 L.Ed. 511, where we held that a difference of opinion as to whether a product had any value at all did not bar a fraud order based on claims of far greater curative powers than the product could actually have. Important questions concerning the scope of the McAnnulty case and the sufficiency of evidence to support postoffice fraud orders prompted us to grant certiorari.

First. It is contended here, as both courts below held, that the findings of the Postmaster General must be set aside under the rule of the McAnnulty case. There the Postmaster General had forbidden use of the mails upon finding as a fact that petitioner was guilty of falsehood and fraud in obtaining money by representations based on claims that the 'mind of the human race is largely responsible for its ills, * * * and that the human race does possess the innate power, through proper exercise of the faculty of the brain and mind, to largely control and remedy the ills that humanity is heir to * * *.' (187 U.S. 94, 23 S.Ct. 37) This Court set aside the fraud order, pointing out that there were two widely held schools of opinion as to whether the mind could affect bodily diseases, and that scientific knowledge had not advanced to the point where an actual intent to deceive could be attributed to one who asserted either opinion. Thus there was 'no exact standard of absolute truth by which to prove the assertions false and a fraud.' At best, testimony either way was held to be no more than 'opinion' in a field where imperfect knowledge made proof 'as of an ordinary fact' impossible.

Respondent appears to argue that the McAnnulty case bars a finding of fraud whenever there is the least conflict of opinion as to curative effects of a remedy. The contention seems to be that even the testimony of the most experienced medical experts can never rise above a mere 'opinion' unless the expert has made actual tests of the drug to determine its effects in relation to the particular representations alleged to be false. The McAnnulty holding did not go so far. We do not understand or accept it as prescribing an inexorable rule that automatically bars reliance of the fact-finding tribunal upon informed medical judgment every time medical witnesses can be produced who blindly adhere to a curative technique thoroughly discredited by reliable scientific experiences. But we do accept the McAnnulty decision as a wholesome limitation upon findings of fraud under the mail statutes when the charges concern medical practices in fields where knowledge has not yet been crystallized in the crucible of experience. For in the science of medicine, as in other sciences, experimentation is the spur of progress. It would amount to condemnation of new ideas without a trial to give the...