Jean G. Sudin

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IN THE MATTER OF JEAN G. SUDIN, ISRAEL SUDIN, AND JOHN N. KINDER· MAN, INDIVIDUALLY, AND TRADING AS AMERICAN REMEDY COMPANY COMPLAINT, FINDINGS, AND ORDER IN REGARD •.ro THE ALLEGED VIOLATION OF SEC. 5 OF AN AC'.r OF' CONGRESS APPROVED SEPT. 26, 1914 Docket 3013. Complaint, Dec. 10, 1936-Decision, Apr, 28, 1931 Where three individuals engaged in the distribution and sale of the acetyl salicylic acid product known as aspirin, in substantial competition wltb others engaged in distribution and sale of such products in commerce among the various States and in the District of Columbia, and including many who do not in any manner misrepresent their said products, either as to quality or efficacy in treatment and cure of ailments and conditions of tbe body; in advertising the sam~ (a) Represented that their said product was the purest acetyl salicylic acid, commonly known as aspirin, obtainable in America, and that it was regis· tered in the Patent Office, through designation thereof as "American Purest Aspirin," nnd through statement "Registered U. S. Patent Office"; and (b) Repl·esented that it was a competent and effective treatment and cure tor colds and aches and pains of whatever nature; Facts being it was not thus registered, and had not been, as believed by many by virtue of such supposed registration, tested and approved, and was not. by reason thereof, superior to similar products offered by competitors, and was no better than or different from product of many of its competl· tors, and was not a competent and effective treatment and cure for all colds, aches, and pains, in that it had no effect on causative factors ot such conditions in the body;

With tendency and capacity to mislead and deceh·e a substantial portion of the purchasing public into the erroneous belief that said representations and Implications were true and that products of competitors were inferior to and less effective than that of said Individuals, and with result tbllt a substantial number of the purchasing and consuming public, as a result of such erroneous beliefs thus engendered, bought their said product and thereby diverted trade to them from their competitors who truthfully advertise their products; to their injury and that of the public: Held, That such acts and practices were to the prejudice of the puhllc and competitors and constituted unfair methods of competition. Defore llfr. Miles J. Furnas, trial examiner. Mr. William L. Taggart for the Commission. Mr. /Ierman Lipman Cohen, of Philadelphia, Pa., for respondents. COlli PLAINT Pursuant to the provisions of an Act of Congress approved Sep· tember 26, 1014, entitled "An Act to create a Federal Trade CoJll• AMERICAN REMEDY CO. 1129 1128 Complaint lllission, to define its powers and duties, and for other purposes,'' the Federal Trade Commission, having reason to believe that Jean G. Subin, Israel Subin, and John N. Kinderman, individually and trading as American Remedy Company, hereinafter referl'€d to as respondents, have been and now are using unfair methods of competition in commerce as "commerce" is defined in said act, and it appearing to the Commission that a proceeding by it in respect thereof would be in the public interest, hereby issues its complaint Etating its charges in that respect as follows: PARAGRAPH 1. Respondents, Jean G. Subin, Israel Subin, and John N". Kinderman, individually and trading as American Remedy Company, a fictitious trade name registered under the requirements of an act of the General Assembly of Pennsylvania, are engaged in business with their principal office and place of business located at 131 Market Street and 301 Green Street, Philadelphia, Pa. Re- ~Pondents are now, and have been for sometime in the past, engaged ltl the business of distributing and selling in commerce, as herein set out, a certain acetyl salicylic acid product designated by them as "American Purest Aspirin."

PAR. 2. Said respondents, being engaged in business as aforesaid, cause said aspirin when sold, to be transported from their principal Place of business in the State of Pennsylvania to purchasers thereof ~ocated at various points in other States of the United States and In the District of Columbia. Respondents now maintain, and have ~aintained at all times, a constant current of trade and commerce In said aspirin so distributed and sold by them, among and between the various States of the United States and in the District of Columbia.

PAR. 3. In the course and conduct of their said business, respondents are now, and have been, in substantial competition with other corporations, firms, and individuals likewise engaged in the business of distributing and selling acetyl salicylic acid products such as aspirin, in commerce among and between the various States of the United States and in the District of Columbia. PAR. 4. In the course and operation of said business, and for th~ Purpose of inducing individuals, firms, and corporations to purchase said "American Purest Aspirin," respondents have caused the said Product to be advertised in various ways and by various means through which representations as to said product are circulated throughout the various States of the United States. In all of said lltlvertisements, respondents have caused the name of said product, 1130 FEDERAL TRADE COJ.V:MISSION DECISIONS Complaint 24 F. T. C. to wit, "American Purest Aspirin" to be prominently and conspicuously displayed, together with the following statements: o Grain Tablets American Purest Aspirin Registered U. S. Patent Office For Colds, Aches and Pains Guaranteed Genuine American Purest Aspirin, American Remedy Co.

Philadelphia, Pa.

For Relief of distress and discomfort due to simple headaches. head colds, ~imple neuralgia, muscular aches and pains. For a gargle 2 tablets to % glass of warm water-gargle every two or three hours. Directions: 1 or 2 tablets with a glass of water.

AMERICAN REMEDY CO.

Phila., Pa.

Distributors.

The use of the word "Registered" in large and conspicuous lettering 11directly underneath the word "Aspirin" on the container in which the product is sold and in other advertising, has a capacity and tendency to lead the public into the erroneous belief that the product of the respondents has been registered in some way with the United States Patent office, and into the erroneous belief that by virtue of such registration the product itself is a superior brand of aspirin, Likewise the use of the word "Purest" is a conspicuous lettering directly underneath the word "American" and preceding the Word "Aspirin" has a tendency to lead the public into the erroneous belief that the product of the respondents is the purest aspirin obtainable in America. The statement "For colds, aches and pains" used in said advertising and labeling as aforesaid, has a tendency to mislead and deceive the public into the erroneous belief that the product is a. remedy and cure for all aches and pains when in truth and in fact, there are aches and pains not resulting from colds, from which no benefit would be derived by an individual through the taking of the respondent's product.

PAR. 5. The representations made by respondents with respect to the nature and effect of their aspirin when used as above set forth are grossly exaggerated, false, misleading and untrue. Said product AMERICAN REMEDY CO. 1131 1128 Complaint is not fully effective for the treatment of pains and cold and it has no effect on the causative factors of such conditions of the human body. Its use does not always bring prompt relief to those suffering from the conditions named, viz, colds, aches and pains. The representation of the respondents with reference to the word "Registered'' is false, misleading, and untrue, as the product has never been registered in the U. S. Patent Office, and the further representations that the product is America's Purest Aspirin is likewise false and misleading and untrue, as the product is not the purest aspirin obtainable in .America.

PAR. 6. There are among respondents' competitors many who manufacture, distribute and sell aspirin who, in no way, misrepresent that their aspirin is the purest aspirin obtainable on the American market When it is not; that their product has been registered in the United States Patent Office, when it has not or that their respective aspirin has a quality and character or an effectiveness in use for the treatment of various conditions of the human body which it does not have. They do not make unlimited claims for the administering of their Product for the relief of all types of colds, aches, and pains in the human body and do not falsely. disparage the aspirin products of their respective competitors.

PAR. 7. Each and all of the false and misleading statements and ~·epresentations made by the respondents in designating and describlng their product and the effectiveness of their product, as hereinabove set out, in offering for sale and selling "American Purest As- Pirin" as a registered product, and as "America's Purest Aspirin" Was, and is, calculated to, and had, and now has, the tendency and ~apacity to mislead and deceive a substantial portion of the purchaslng public into the erroneous belief that all of said representations are true, and into the further erroneous belief that aspirin products of its competitors are inferior to, and less effective than "American Purest Aspirin." Further, as a direct consequence of the mistaken and erroneous beliefs, induced by the acts and misrepresentations of the respondent, as hereinabove detailed, a substantial number of the consuming public has purchased a substantial volume of respondents' "American Purest Aspirin" with the result that trade has been Unfairly diverted to the respondents from competitors likewise engaged in the business of distributing and selling aspirin who truthfully advertise and represent their products and the effective- ~less of said products in use. As a result thereof, injury has been, and ls now being done by respondents to competition in commerce among ~tnd between the various States of the United States and in the bistrict of Columbia.

1132 FEDERAL TRADE COMl\HSSION DECISIONS l!'indings 24 F. T. C. PAR. 8. The above and foregoing acts, practices, and representations of the respondents have been, and are, all to the prejudice of the public and respondents' competitors as aforesaid, and have been, and are, unfair methods of competition within the meaning and intent of Section 5 of an Act of Congress approved September 26, 1914, entitled "An Act to create a Federal Trade Commission, to define its powers and duties, and for other purposes." REPORT, FINDINGS AS TO Tile FACTS, AND ORDER Pursuant to the provisions of an Act of Congress approved Srptember 26, 1914, entitled "An Act to create a Federal Trade Commission, to define its powers and duties, and for other pnrposcs," the Federal Trade Commission, on the loth day of December 193G, issued and subsequently served its comphint in this proceeding upon the respondents, Jean G. Subin, Israel Subin, and Jchn N. Kinderman, individually and trading as American Remedy Company, charging them with the use of unfair methods of competition in commerce in violation of the provisions of said act. After the issuance of sn-id complaint and the filing of respondents' answer, the Commission, by order entered herein, granted respondents' motion for permission to withdraw said answer and to substitute therefor an answer admitting all the material alleg<ttions of the complaint to be true and waiving the taking of further evidence and all other intervening procedure, which substitute answer was duly filed in the cffice of the Conunission. Thereafter, this proceeding regularly came on for final hearing before the Commission on the said complaint and substitute answer, and the Commission having llnly considered the same and being now fully advised in the premises, finds that this prcceeding is in the interest of the public and makes this its findings as to the facts and its conclusion drawn therefrom.

FINDINGS AS TO Tile FACTS PARAGRAPH 1. That respondents, Jeail G. Subin, Israel Subin, and John N. Kinderman, are individuals trading as American Remedy Company. Respondents have their office and principal place of business at 301 Grepn Street, Philadelphia. Respondents are now, and for more than one year last past have been, engaged. in the business of distributing and selling in commerce, a certain acetyl salicylic acid product, commonly known as aspirin, designated by them as ".American Purest Aspirin."

. PAR. 2. Said respondents cause said product, when sold, to be transported from their place of business in the State of Pennsylvania to purchasers thereof located at various points m other States of the AMERICAN REMEDY CO. 1133 1128 Findings Dnited States and in the District of Columbia. Respondents now maintain, and have maintained at. all times mentioned herein, a conbtant current of trade and commerce in said product so distributed and sold by them, among and between the various States of the United States and in the District of Columbia. PAR. 3. In the course and conduct of their said business, respondents are now, and have been, in substantial competition with corporations, firms, and individuals likewise engaged in the business of distributing and selling acetyl salicylic rrcid products such as aspirin, in commerce among and between the various States of the United States and in the District of Columbia.

There are, among the competitors of respondents, many who sell and distribute acetyl salicylic acid, commonly kno,vn as aspirin, in said commerce, 'vho do not in any manner misrepresent their said Products either as to the quality thereof or as to the efficacy thereof 111 the treatment and cure of ailments and conditions that exist in the hnman body.

P .li.R. 4. In the course and conduct of their business in said commerce, and for the purpose of inducing the purchase of their products, ~he respondents cause advertisements containing reprrsentations and Implications in regard to said product and its efficrtcy in the treattnent and cure of certain ailments and conditions to be circnlatP<l in !he various States of the United States and in the District of Columbia. In all such advertisements the respondents make the followillg statements:

5 Grain Tablets American Purest Aspirin Registered U. S. Patent Oflice For Colds, Aches and Pains Guaranteed Genuine American Purest Aspirin, American Remedy Co.

Philadelphia, Pa.

For Relief of distress and discomfo1·t due to simple headaches, head colds, simple neuralgia, muscular aches ami pains. For a gargle 2 tablets to % glass of Warm water-gargle every two or three hours. Directions: 1 or 2 tablets with n glass of water.

AliiEniCAN llElllEDY CO.

Phila., Pa.

Dh>tribntors.

14Gi5Gm-3!l-vol. 2-t-74 1134 FEDERAL TRADE COMMIS~ION DECISIONS Conclusion 24F. T.C.

By the means and in the manner above stated, the respondents represent and imply that their said. product has been and is registered with the United States Patent Office; that it is the purest acetyl salicylic acid, commonly known as aspirin, obtainable in America; and that it is a competent and effective treatment and cure for colds, and aches and pains of whatever nature.

PAR. 5. Respondents' said product is not registered in the United States Patent Office; it is not the purest acetyl salicylic acid obtainable in America, and is no better than or different from the product of many of its competitors; it is not a competent and effective treat· ment and cure for all colds, aches and pains, in that it has no effect on the causative factors of such conditions in the human body. Many prospective purchasers of respondents' product believe that the registration of such a product with the United States Patent Office indicates that such a product has been tested and approved and is superior to similar products offered for sale and sold by competitors, and many prospective purchasers believe that the product of the respondents is the purest type of that product sold on the American market, and that such product is a competent and effective treatment and cure for all colds, aches, an<l pains. PAR. 6. The above and foregoing representations and implications, so made and used by the respondents in connection with the sale and distribution of their said product in such commerce, as hereinabove set out, have had and do have the tendency and capacity to mislead and deceive a substantial portion of the purchasing public into the erroneous belief that said representations and implications are true, and into the erroneous belief that the products of the competitors of the respondent are inferior to and are less effective than the product of the respondents. As a result of such erroneous beliefs, so engen· dered, a substantial number of the purchasing and consuming public purchase the respondents' said product, thereby diverting trade to the respondents from their said competitors, who truthfully advertise their products, to the injury of such competitors and to the injury of the public.

CONCLUSION The aforesaid acts and practices of the respondents, Jean G. Subin, Israel Subin, and John N. Kinderman, individually and trading as American Remedy Company, are to the prejudice of the public and of respondent's competitors, and constitute unfair methods of compe· tition in commerce, within the intent and meaning of Section 5 of the Act of Congress, approved September 26, 1914, entitled "An Act to AMERICAN REMEDY CO. 1135 1128 Order create a Federal Trade Commission, to define its powers and duties, and for other purposes."

ORDER TO CEASE AND DESIST This proceeding having been heard by the Federal Trade Com- :rnission upon the complaint of the Commission and the answer filed herein on the 26th day of April 1937, by the respondents admitting all the material allegations of the complaint to be true and waiving the taking of further evidence and all other intervening procedure, and the Commission having made its findings as to the facts and its conclusion that said respondents have violated the provisions of an Act of Congress approved September 26, 1914, entitled "An .Act to create a Federal Trade Commission, to define its powers and duties, and for other purposes."

It is ordered, That the respondents, Jean G. Subin, Israel Subin, ~nd John N. Kinderman, their representatives, agents, and employees, In connection with the offering for sale, sale, and distribution of that ~certain acetyl salicylic acid product, commonly known as aspirin, in Interstate commerce or in the District of Columbia, do forthwith cease and desist from re,presenting, directly or by implication: 1. That said product is registered in the Patent Office of the United States of America.

2. That said product is the purest aspirin in America and superior to other products composed of similar ingredients. 3. That said product is a cure for colds.

4. That said product is a competent and effective treatment or Palliative for all aches and pains.

It is further ordered! That the respondents shall, within 60 days after service upon them of this order, file with the Commission a report in writing setting forth in detail the manner and form in which it has complied with this order.

1136 FEDERAL , TRADE COMMISSION DECISIONS Syllabus 24F.T.C.