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Greetings from Orange County, where the globe has warmed to hitherto unimaginable temperatures, and I have barricaded myself in my air-conditioned chambers and refused to come out until the palm trees stop morphing into torches. The big news in these parts is the settlement of the ExtenZe penile enhancement case. [ 1] Tennessee had its Scopestrial, Kansas had Brown v. Board, and now Orange County has People of the State of California v. Sleazy Befuddlers of The Lesser Gender.God bless America. According to the Los Angeles Times, newspaper of record for those of us down here whose intellect is not strong enough to slog through the consummate soporific that is the New York Times[ 2], “A company marketing penile enhancement pills has agreed to pay the Orange County district attorney’s office $300,000 in civil penalties for false advertising and unfair business practices. …” The false advertising was saying the pills worked. The unfair business practice was saying it to men. Apparently, if you tell men that pills will make their penises grow “27 percent” they will run through minefields to get to the checkbook. Repeatedly. I mean, Dish Direct, the company that marketed this stuff, was willing to disgorge $300,000 without admitting guilt, fault, liability, bad grammar, poor taste, inferior penmanship or halitosis. So I’m betting my gender ponied up trash trucks full of cash for that hoped-for extra 27%. You tell me: How much do you have to make on a product to walk away from 300K even though you “did nothing wrong?” But 300,000 is only the second-most-interesting number in this story. Twenty-seven percent is the one I love. That was the number they picked � I assume out of a hat � for their claims for this product.[ 3] And a terrific number it was. Sounded like the product of months, maybe years, of painstaking research by lots of people with long white lab coats and pocket protectors � people who could translate Fahrenheit into Celsius without needing to call a Canadian. The Timesdoesn’t say how many men survived the minefields and actually reached their checkbooks, so we don’t know just how successful the advertising for the 27 percent enlargement was, but we do know how successful the science for it was: Not very. We know this because, according to the district attorney’s spokesperson, Susan Kang Schroeder[ 4], “the company couldn’t back up its claim that the pills caused users’ penises to grow 27%.” And, of course, we know it because the company wrote a check for $300,000. You don’t do that if C. Everett Koop is ready to go to bat for you. See, this is where the whole research-by-nerdy-scientific-guys-in-white-lab-coats picture breaks down. Because the only way to “back up” a claim of 27 percent penile enlargement is to … well … get out a ruler. And some dirty pictures. And do it over and over again.[ 5] That’s not how science works. Science works with Erlenmeyer flasks and Soxhlet chambers and rotovaps and like that. Not with rulers and dirty pictures. Granted, there is something called the penile plethysmograph. Anyone who entered their chosen profession carelessly enough to find themselves years later having to read about sexual predators has heard of the penile plethysmograph, and it certainly sounds very scientific. I mean, you slap a five-syllable word on anything, it sounds like it belongs right up there with mass spectrum gas chromatography and flame ionization detectors and supercritical fluid injectors and such like.[ 6] But, according to People v. Grassini,113 Cal.App.4th 765, 770 fn. 2, a penile plethysmograph is nothing more than “a physiological measure of sexual arousal which measures penile engorgement to assess sexual arousal in response to sexually explicit images, depicting males and females of different ages.” In other words, a ruler and some dirty pictures.[ 7] So there just isn’t much science available on this issue. I mean, you work on a cure for cancer, there are thousands of people you can call as witnesses. You work to provide better cosmetics, there are hundreds. You sell pills to increase male … endowment … your pool of reputable witnesses is too shallow to support a school of snail darters. Apparently, Dish Direct not only didn’t have Dr. Spock in their corner, they didn’t even have Dr. Evil. It’s sad really. We need legislation to take better care of the lesser gender. We are, after all, tons more gullible than women. Hell, to judge by stories like this one, we’re tons more gullible than gulls. Not only were we men throwing money at these people to get bigger … to get bigger … oh, what the heck, let’s just leave it at “to get bigger.” Not only were we buying into an ad campaign that featured “well-known figures in the adult entertainment industry” � a campaign frighteningly indistinguishable from having Kobe Bryant endorse pills to make you taller � we were literally swallowing this poppycock[ 8] hook, line, and sinker … and the sinker, as they usually are, was made of LEAD! We were SWALLOWING LEAD. That’s right. Apparently Dish Direct took the phrase “lead in your pencil” literally: The pills contained lead! In fact, they contained lead at a level higher than is legally permitted. This is heinous. Not only are you taking advantage of the gender with the shortage of gray matter, you’re making sure that every time they take the product, they have even LESS! According to Tracy Hughes, the deputy district attorney who handled this case, “It’s important for people to know what they are putting in their bodies.” While it is unclear whether Ms. Hughes[ 9] was speaking for the men who bought the pills or the women who love them, the point is indisputable. And it’s a point that somehow keeps eluding our Legislature. We keep sending men up to Sacramento and they keep lengthening the trout season and declaring March 15 to be Roberto Clemente Day, but they do nothing to protect us from ourselves. At the risk of sounding like a statist, the Legislature has to take action to protect men from themselves. I mean, we passed legislation requiring motorcycle helmets; nobody pretends that was anything but paternalism. And certainly no one pretends it protects men and women equally. That would only prove Anatole France was right.[ 10] So now, it turns out, we need similar legislation to keep men from ingesting whatever is put before them with the promise of better sex. It’s time for our brothers in the Legislature[ 11] to regulate the penis enhancement industry. I realize I’m treading a little on the separation of powers thing, here. Ordinarily it’s considered bad form for members of the judiciary to tell the Legislature what to do. But this is critical. Somebody has to do something, and � judging from the unfortunate experience of Oklahoma judge David Thompson, convicted of indecent exposure for operating a “penis pump” during testimony � the judiciary may not be the right people to take the point on this one. I think the Legislature’s up to it. They do this sort of thing all the time. Some years back when I shanked my attempt to divine their intent in People v. Antonio F.(2002) 98 Cal.App.4th 1227, they amended the statute faster than I could eat my lunch. And when they decided I got jury selection right in People v. Garcia(2000) 77 Cal.App.4th 1269, they engraved it in statutory stone and sent me a nice note.[ 12] So I know they can do this. All they have to do is take their cue from the executive branch this time. It wouldn’t take much, really. I think a simple resolution would be enough. You know how they’re always passing resolutions recognizing that, “Whereas Emil J. ‘Snotch’ Shovagolinski has been repairing transmissions in Hercules for 37 years without once going on a bender that required closing the shop for more than eight days, and whereas his three convictions for receiving stolen property have recently been expunged upon completion of his probation, the Legislature hereby declares him to be “California Mechanic of the Year for East Bay Cities Having Fewer than Five Mechanics and A Mayor Born in Jamaica.” Something like that would do nicely. “The Legislature hereby declares all men in California to be studly gods, so hugely endowed as to be almost unable to reproduce.” That oughta do it. Then we can get back to trying to shore up the education system that keeps turning out customers for ExtenZe. Contributing writer William W. Bedsworth is an associate justice at the Fourth District Court of Appeal in Santa Ana. He writes this column to get it out of his system. He can be reached at [email protected]. You can read more columns like this in “A Criminal Waste of Time,” a book fromThe Recorder featuring more than 30 of the best columns from Justice Bedsworth. Order by calling (800) 587-9288 or visiting www.lawcatalog.com/bedsworth.
Footnotes [ 1] If you’re a woman, you can stop reading now. Everything that follows will serve only to upset and disappoint you. Just move on to the Fictitious Business Name Statements (which are always funnier than I am anyway) and thank whatever higher power you believe in that you weren’t born into my gender. [ 2] When I was a trial judge, I used the NYT as a sentencing aid. If the offender possessed an amount of meth that would have been large enough to get me through the first section of the Times, it was a state prison offense; otherwise, county time. [ 3] Actually, my assumption is that the number they picked out of the hat was 6 7/8, but, divining that when your product is penis enlargement, bigger numbers are better, they multiplied it by four. It’s a well-known advertising tenet that if you have scientific results, you multiply them by four in your ads. Hence, 27%. [ 4] They had originally assigned a male deputy to the case, but he came back from the first settlement conference with three bottles of ExtenZe and seven magic beans. [ 5] The measuring, that is. [ 6] Come to think of it, this whole brouhaha involves ‘supercritical fluid injectors,’ doesn’t it? [ 7] According to United States v. Weber (9th Cir. 2006) 451 F.3d 552, 554, fn. 1, “In addition to penile plethysmography testing, there is a corresponding procedure for women, known as ‘vaginal plethysmography.’” I hope the people doing the vaginal plethysmography have a day job, because I’m betting there’s not a lot of call for vaginal plethysmography. [ 8] It’s now official: Nothing is beneath me. [ 9] That’s right, another woman. I’m telling you, the DA didn’t allow a man near this case. [ 10] “The law, in its majestic equality, prohibits both the rich and the poor from sleeping under bridges. …” [ 11] Not the sisters. We need them to keep working on global warming and education and immigration and stuff. [ 12] Code of Civil Procedure � 231.5. See Historical and Statutory Note (b).

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