Penis Pills in Courtrooms

David Houston
According to several studies, the average erect penis is just over 5 inches long and less than 5 inches in circumference. But, like the crappie pulled out of the lake on a weekend fishing trip, things seem to get bigger with the telling.

As a result, men don't know where they stand in the size department. Most think they are too small and that the average man's penis draws near 10 inches. Centuries of hucksters, shysters and downright sadists have peddled wares to appeal to men's feelings of inadequacy. Nowadays, all manner of pills, pumps and creams promise to give men what Mother Nature did not.

Some probably work, others definitely do not, and if the nation's class-action dockets are any indicator, American men are becoming deeply suspicious of herbal substances that promise to add size to their penises.

At least three different class-action lawsuits have been lodged in the United States in the past two years against the marketers of penis enlargement pills and other herbal substances that promise to enhance men's (and women's) sexual performance.

First Amendment lawyers say magazines, websites and broadcast outlets that run advertisements for those products shouldn't fear being drawn into the legal fray.

The First Amendment
"Advertisers are protected by the First Amendment, and unless they have specific knowledge that this product is harmful, such as the [U.S. Food and Drug Administration] comes out with a warning, there's little chance that they could be found responsible for any wrongdoing," Beverly Hills trial lawyer Paul R. Kiesel said. Kiesel is one of the lawyers suing Merck & Co. over its painkiller Vioxx, which studies show increases the chances of heart attacks and strokes.

In 1984, a California woman sued Seventeen after she went into toxic shock from the use of Playtex tampons advertised in the magazine. The plaintiff claimed the magazine bore some responsibility because the editors allowed the tampon company to place ads among articles on puberty, gynecology and menstruation in a way that misled young readers into believing Seventeen endorsed the product.

A California Court of Appeal sided with the magazine, finding that Seventeen had no duty to investigate the products advertised in its pages, even though government researchers already had identified some other brands of tampons as the culprit of toxic shock.

Such lawsuits "would require publications to maintain huge staffs scrutinizing and testing each product offered," the Court of Appeal decided. "The enormous cost of such groups, along with skyrocketing insurance rates, would deter many magazines from accepting advertising, hastening their demise from lack of revenue. Others would comply, but raise their prices beyond the reach of the average reader."

But legal experts warn publishing companies against getting into the business of endorsing products.

In 1966, another California woman sued the publishers of Good Housekeeping over a pair of shoes that bore the magazine's "Seal of Approval." The woman slipped and fell in her kitchen hours after buying the shoes the magazine said were designed to prevent such falls.

A Court of Appeal found Good Housekeeping parent company, Hearst Corp., "had a duty to exercise ordinary care in issuing its seal."

Nutritional supplements, unlike pharmaceuticals, do not have to be proven safe and effective before they are sold, experts say. They are legal as long as they do not cause harm, contain whatever ingredients are listed on the label and the manufacturer doesn't make claims that aren't backed up by scientific evidence.

The increasing popularity of "nutraceuticals," as herbal remedies are sometimes called, poses a nettlesome problem for consumer advocates.

Scientific Evidence
Doctors and researchers say there is no evidence most of the remedies actually do what they promise to do. Some consumers swear by them — a phenomenon doctors usually chalk up to the placebo effect.

Other consumers find out too late that the remedies don't work because they didn't read the fine print on the product and, more often, because the marketers engaged in deceptive, or false, advertising. There are "nutraceuticals" that promise to lower cholesterol, prevent heart disease, prostate cancer and even blindness. There are pills that promise female sexual enhancement by "balancing the hormones."

As anyone who looks at the spam in their email box can attest, the most popular herbal remedies, by far, are the ones that promise bigger penises or to enhance male sexual performance.

Steven Warshak, the target of the Ohio lawsuit, said he is raking in more than $200 million a year selling his penis pill Enzyte, its female equivalent Avlimil and other "nutraceuticals." But, as lawsuits in Colorado, Ohio and Florida attest many men are finding that herbal remedies don't always perform in the bedroom.

New Jersey businessman Michael Coluzzi claims in a class action against Boca Raton, Fla.-based Alzare LLC that he experienced no increase in penis size despite the company's promise of three inches within a week.

A 30-day supply of Alzare, mainly consisting of ginseng and yohimbe bark, retails for $60. Coluzzi claims he consumed 32 pounds of the stuff, but none of it went to his penis. He was persuaded to buy Alzare after watching a 30-minute infomercial that featured doctors and female porn stars.

His lawyer, Stephen DeNittis of Marlton, N.J., did not return telephone calls seeking comment. But in an interview with the Boca Raton News, DeNittis seemed to suggest that it was more than the promise of a bigger penis that persuaded his client to buy Alzare.

"I won't lie. The two women they used were smoking hot," he said of the porn stars hired as spokeswomen for the product.

That has led some to wonder if spokespersons might find themselves named in lawsuits when the products they pitch are alleged to be faulty. Lawyers say the people theoretically could face legal exposure if they make broad claims about the product their pitching.

"There is precedent where spokespeople get sued but depends on what they are saying and how they are saying," Michael Brown, a product liability defense lawyer in Los Angeles, said. "Are they saying they know it works, or are they saying it works for them?"

Most spokespeople limit their claims to personal testimonials about the products, Brown said.

"When they are sued, it's usually for headline grabbing, and they rarely bear any [financial] responsibility," Brown said.

In 2003, prosecutors brought civil charges against retired pro baseball player Steve Garvey and the marketers of diet supplements that promised to "prevent your body from absorbing the fat you eat."

But Garvey and noted nutritionist Lark Kendall, who also was sued, were more than spokespeople. They owned a part of Pacoima-based Enforma Natural Products Inc. Garvey, Kendall and the company eventually settled the case for $700,000.

Garvey's lawyer, Bruce A. Miroglio, said the company paid the fine and Garvey bore no personal financial responsibility. But he added, "The law is pretty vague when you're endorsing something."

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