testified that unsaturated fatty acid preparations are used in the treatment and prevention of various heart conditions, including angina pectoris, but under the care of a physician. There is also indicated, in such cases, a diet modification to provide the requisite quantity of essential unsaturated fatty acids for combination with the cholesterol in the blood stream, whereby the cholesterol is kept in such form that it is not deposited on the lumen or lining of the blood vessels. Dr. Campbell adds, however, that such treatment is generally employed as last resort because it has not yet been established as a uniformly reliable specific. He then concludes that the employment of unsaturated fatty acids is of no prophylactic or therapeutic value in atherosclerosis or heart conditions according to 'a universality of medical opinion.' The witness admitted, however, that a daily dosage of more than six grams of unsaturated fatty acids might be efficacious as a preventive of, although not as a cure for, arteriosclerosis.
In American School of Magnetic Healing v. McAnnulty, 1902, 187 U.S. 94, at page 104, 23 S. Ct. 33, at page 37, 47 L. Ed. 90, the Supreme Court used the following language in passing upon the sufficiency of a complaint for injunctive relief against a post office fraud order:
'Because the complainants might or did claim to be able to effect cures by reason of working upon and affecting the mental powers of the individual, and directing them towards the accomplishment of a cure of the disease under which he might be suffering, who can say that it is a fraud, or a false pretense or promise within the meaning of these statutes? * * * As the effectiveness of almost any particular treatment of disease is, to a more or less extent, a fruitful source of difference of opinion, even though the great majority may be of one way of thinking, the efficacy of any special method is certainly not a matter for the decision of the Postmaster General within these statutes relative to fraud. Unless the question may be reduced to one of fact as distinguished from mere opinion, we think these statutes cannot be invoked for the purpose of stopping the delivery of mail matter.'
The views expressed in the foregoing quoted language of Mr. Justice Peckham were referred to with approval by the same Court as recently as 1949, in Reilly v. Pinkus, 338 U.S. 269, 70 S. Ct. 110, 94 L. Ed. 63. At page 273, of 338 U.S. at page 113 of 70 S. Ct. the evidence in McAnnulty was characterized as being 'no more than 'opinion' in a field where imperfect knowledge made proof 'as of an ordinary fact' impossible.' In Reilly, despite the finding of conflicting medical opinion as to whether kelp or iodine is valueless as a weight reducer, the Supreme Court held that 'the efficacy of the 'Reducing Plan' as § whole was misrepresented in respondent's advertising.' Nevertheless, the Court refused to direct the enforcement of the fraud order under review because of the restrictions upon cross-examination imposed by the agency.
We pass now to the final question, whether upon the evidence before the Hearing Examiner there was a reasonable basis for inference that the respondent intended to deceive by the representations which it made because of the absence of support for those representations in the 'universality of scientific belief.' While Dr. Campbell did testify that the efficacy of certain components of plaintiff's products for the purposes for which they were advertised was the subject of continuing experimentation, without conclusive results, it was his opinion that the use of the products in the dosage quantities prescribed by the advertising was without value, either prophylactic or therapeutic, in achieving the results held out for the products in the accompanying advertising. He based this opinion upon what he stated to be the consensus of informed medical opinion, and the universality of accepted scientific opinion. While I believe that the weight of the witness' opinions as expressed orally under oath was in some degree diluted by the substance of his previous written report, I am not permitted on this review to weigh the evidence before the Judicial Officer, but I must determine only whether his conclusions find support in substantial evidence before him. In United States Nature Products Corp. v. Schaffer, D.C.S.D.N.Y.1954, 125 F.Supp. 374, 379, the product under scrutiny was known as Numal, was composed of certain vitamins and other substances, and was advertised as an effective human-weight builder. The Court enjoined the enforcement of a post office fraud order upon the ground that the evidence presented administratively was insufficient to establish fraud and intent to deceive. The evidence there disclosed, at best from the administrative standpoint, a conflict of opinion respecting the efficacy of the product. The opinion distinguished Shaw v. Duncan, 10 Cir., 1952, 194 F.2d 779, where a fraud order was sustained because 'the unqualified testimony of the government's medical witnesses was that the product was valueless from both a practical and scientific viewpoint.' The product involved in the Shaw case was known as 'Bloom Pills', advertised as a cure for acne and containing calcium, sulphur and charcoal. The Government's medical testimony in that case was uncontradicted that the ingredients of which the pills were composed had no curative value and their use had been discarded by the medical profession. Reilly v. Pinkus, 338 U.S. 269, 70 S. Ct. 110, 94 L. Ed. 63, originated in this Court as Pinkus v. Reilly, in 1947. In his opinion reported in D.C., 71 F.Supp. 993, Judge Meaney denied the Government's motion for summary judgment because he found that the fraud order resulted from a finding based on opinion evidence instead of evidence arising in fact, and cited McAnnulty, supra, and Jarvis v. Shackelton Inhaler Co., 6 Cir., 1943, 136 F.2d 116. The Jarvis case distinguished 'substantial evidence in fact' from 'opinion'. At page 119, of 136 F.2d in Jarvis, Judge Hicks, speaking for the Court, pointed out that the power of a court of equity to review a post office fraud order is limited and that 'it extents no further than to determine whether there is substantial evidence in fact, as distinguished from opinion, to support the order. If there is, the case is foreclosed against appellee (producer). If there is not, it follows that appellee has suffered irreparable injury to its property rights.' Citing McAnnulty, supra, and Public Clearing House v. Coyne, 1904, 194 U.S. 497, 24 S. Ct. 789, 48 L. Ed. 1092. Substantial evidence has been defined as 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' Consolidated Edison Co. of New York v. National Labor Relations Board, 1938, 305 U.S. 197, 229, 59 S. Ct. 206, 217, 83 L. Ed. 126. Substantial evidence 'must be enough to justify, if the trial were to a jury, a refusal to direct a verdict.' Capitol Wine & Spirit Corp. v. Berkshire, 2 Cir., 1945, 150 F.2d 619, 620, certiorari denied 1945, 327 U.S. 783, 66 S. Ct. 681, 90 L. Ed. 1010, citing National Labor Relations Board v. Columbian Enameling & Stamping Co., 1939, 306 U.S. 292, 59 S. Ct. 501, 83 L. Ed. 660.
Because the only evidence before the Judicial Officer was the opinion of Dr. Campbell that plaintiff's product was valueless for the purpose recommended in the dosages prescribed, I find that the fraud order issued by the Judicial Officer lacks the support of substantial evidence. Its enforcement must, therefore, be permanently enjoined. Plaintiff's motion is granted, and defendant's cross-motion is denied. Let an appropriate order be entered.