Barth Laboratories, Hec, Etc

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IN THE MATTER OF HEC BARTH, TRADING AS HEC BARTH LABORATORIES AND DARK-EYES LABORATORIES COllfPT.AINT, FINDINGS, AND OllDEll IN REClARD TO THE ALLEGED VJOI,ATION OF SEC. 5 OF AN ACT 0.1;' CONGRESS APPROVED SEPT. 26, 1914 Docket 2608. Complaint, Oct. 31, 1935-Dedsion, Apr. 30, 1931 Where an individual engaged in sale, under name "Dark Eyes," of a comb!· nation two-bottle eyebrow and eyelash stain containing sil1ver nitrate and pyrogallol and prepared in black and in brown, and distributed in prac· tically every State through department stores, drug stores, and beuuty shops, and, as thus engaged, in substantial competition with others simi· Iarly engaged in sale and distribution, or In manufacture, sale, and distrl· butlon, of eyebrow and eyelash stains or dyes In commerce among the several States and in the District of Columbia- ( a) Represented, in advertising his said products in newspapers and period· teals of general circulation and by radio, that the same was safe and harmless and a new discovery, and that use thereof gave permanent beauty to, or was a permanent darkener of, eyebrows and eyelashes, facts being said product wns a caustic which would destroy tissue, possibility of dan· ger through use thereof was enhanced if applied by an unskilled person or in an unskilled manner, and 1t was neither safe nor harmless nor a new discovery, new growth made new applications necessary, and it did not accordingly give permanent beauty nor permanently darken the eye· lashes and eyebrows through use thereof; and (b) Represented that he owned, operated, or controlled a laboratory in which said product was made, facts being product In question was made for biill by a company which owned the formula thereof, and in which he owned no interest and over which he ex~rcised no control; With effect of misleading a substantial portion of the purchasing public into the erroneous belief that such representations were true, and with result that such public, as a consequence of mistaken and erroneous beliefs induced by such false and misleading statements, brought a sub· stantlal volume of his products, and trade was unfairly diverted to llim from competitors likewi~e engaged in sale and distribution of sncb darkeners or stains, or In the manufacture, sale and distribution thereof, and who truthfully represent the effects of their products when applied to the eyebrows and eyelashes; to the substantial injury of competition In commerce:

Held, That such acts and practices were to the prejudice of the public and competitors and constituted unfair methods of competition. Before Jlf r. Robert S. Hall, trial examiner. !Ifr. Dew itt T. Puckett for the Commission. Mr. Sid Mogul, of Chicago, Ill., for respondent . • HEC BARTH LABORATORIES, ETC. 1155 1154 Complaint Complaint - Pursuant to 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," the Federal Trade Commission, having reason to believe that Hec Barth, doing business under the trade names of Hec Barth Laboratories and Dark Eyes Laboratories, hereinafter referred to as respondent, has been or is using unfair methods of competition in commerce, as "commerce" is defined in said act, and it appearing to said Commission that a proceeding by it in respect thereto would be in the Public interest, hereby issues its complaint, stating its charges in that respect as follows :

PARAGRAPH 1. Respondent, Hec Barth, is an individual trading as liec Barth Laboratories and Dark Eyes Laboratories, with his office and principal place of business in the city of Chicago, State of lllinois.

At and from said city and under said trade names, he is now and for several years last past, has been engaged in the sale of beautifying preparations, among which is a product sold by him for use by women ln the coloring of their eyelashes and eyebrows under the name of ''D ark Eyes."

PAn. 2. This said product, described in paragraph 1 hereof, is sold by respondent to wholesalers and jobbers of beautifying products, to -drug stores, beauty parlors, barbershops, and to ultimate consumers thereof, the latter being supplied through the United States mails. Said drug stores sell the same to the consuming public. Said beauty Parlors and barber shops use the same in the coloring of the eyelashes and eyebrows of women. · Respondent, when said product is so sold by him, causes the same. to he shipped from the said city of Chicago, State of Illinois, into 1\nd through other states of the United States, to his said purchasers at their respective places of business or residence. PAn. 3. In the sale of the said "Dark Eyes," respondent is in substantial competition with corporations, copartnerships and individ- Uals engaged in selling and offering for sale in interstate commerce. of compounds, chemicals or materials for use and used in the coloring -or dyeing of eyelashes and eyebrows of women. l>Att. 4. Respondent, in aid of the sale of said "Dark Eyes," has ~vertised and is now advertising the same in newspapers, magatines and periodicals of general circulation in the United States an~ in pamphlets, booklets, letters, printed testimonials, and other Printed matter and by and through the use of photographs and other 1156 FEDERAL TRADE UOMMISSION DECISIONS Complaint 24F. T. C.

pictures, caused by the respondent to be circulated among said customers and prospective customers, and on labels attached to the con· tainers thereof and in and through radio broadcasts which reach said customers and prospective customers residing in several of the States of the United States. In and through said advertising media, respondent makes the following among other false and misleading representations as to his said product:

1. That respondent owns, operates, or controls a laboratory or laboratories where said product is manufactured by him. 2. "Give your eyes this permanent beauty with Dark Eyes"-"The new permanent darkener"-"Permanent color and beauty with Dark Eyes"-"The new permanent eyelash and eyebrow darkener"-"Lasts from four to five weeks."

3. "Dark Eyes", when used as directed, is safe and harmless. 4. "Dark Eyes" is a new discovery.

5. The use of "Dark Eyes" gives your eyelashes aud eyebrows la:;;ting youth or lasting beauty.

6. Thousands of smart women prefer this modern beauty way to possess attractive eyes.

7. "Dark Eyes" is perfectly harmless to use and absolutely safe. PAR. 5. The representations set forth in the paragraph last abo-ve are false and misleading in that:

1. Respondent owns and maintains no laboratory, and the said product "Dark Eyes", is manufactured for him;

2. The use of "Dark Eyes" does not give permanent beauty; it is not 11 permanent darkener. It dol's not assure permanent color and beauty; if it iS "permanent", 1t will last longer than four or five weeks, and if it lasts only four or five weeks, it is not permanent. The name "Dark Eyes" is a misnomer i it is the eyebrows and eyelashes and not the eyes that are colored by it; 3. "Dark Eyes" is not safe or harmless, and its use may result in hariJI to the user thereof; the use of "Dark Eyes" as directed may result in injury to the eye or the skin or flesh about the eye, or elsewhere; 4. "Dark Eyes" is not a new discovery. The Ingredients contained in 1t have been used for many years in the coloring or dyeing of eyebrows .and eyelashes;

5. The use of "Dark Eyes" does not give eyela~hes and eyebrows lasting youth or lasting beauty.

6. The use of "Dark Eyes" docs not constitute. a modern or better way tO possess attractive eyes.

7. "Dark Eyes" is not perfectly harmless to use or absolutely safe; PAR. 6. Each and all of the said representations described in Para· graph Four hereof, have and have had the capacity and tendency to mislead and deceive the purchasing public into the erroneous belief that they are true, and each and all of the said repre· sentations have and have had the tendency and capacity to induce the purchase of said respondent's product and have and ha-ve had HEC BARTH LABORATORIES, ETC. 1157 1154 Findings the tendency and capacity to divert trade from and otherwise injure respondent's said competitors.

PAR. 7. The above alleged acts and practices are all to the prejudice of the public and to respondent's said competitors and constitute unfair methods of competition within the intent and meaning of Section 5 of an Act of Congress, entitled, "An Act to create. a Federal Trade Commission, to define its J?OWers and duties, and for other Purposes," approved September 26, 1914.

REPORT, FINDINGS AS TO THE FACTS, AND ORDER Pursuant to the provisions of an Act of Congress approved Sept~mber 26, 1914, entitled, "An Act to create a Federal Trflde Commis- Sion, to define its powers and duties, and for other purposes," the ~ederal Trade Commission, on October 31, 1935, issued and served Its complaint in this proceeding upon respondent, Hec Barth, an individual, doing business under the trade names of Hec Barth Laboratories and Dark-Eyes Laboratories, charging him with the use of U~fair methods of competition in commerce in violation of the pro- 'VIsions of said act. After the issuance of said complaint, and the ~ling of respondent's answer thereto, testimony and other evidence 111 support of the allegations of said complaint were introduced by De Witt T. Puckett, attorney for the Commission, before Robert S. llall, an examiner of the Commission, theretofore duly designated by it, and in opposition to the allegations of the complaint by Sid l~Iogul, attorney for the respondent; and said testimony and other e-vidence were duly recorded and filed in the office of the Commission. 'thereafter, the proceeding regularly came on for final hearing before the Commission on the said complaint, the answer thereto, testimony nnd other evidence, and briefs in support of the complaint and in opposition thereto, no request for oral argument having been made, and the Commission having duly considered the same, and being now ~ully advised in the premises finds that this proceeding is in the ~nterest of the public, and makes this its findings as to the facts and Its conclusion drawn therefrom:

FINDINGS AT TO THE FACTS • PARAGnAPn 1. The respondent, Hec Darth, is an individual trad- Ing as Dark-Eyes Company. Until about a year ago he employed the trade names Ilec Barth Laboratories and Dark-Eyes Labom- ~ori:s. The business is located at 412 Orleans Street, Chicago, Ill. Ie Is now, and since April 1934, has been, engaged in the sale and 1158 FEDERAL TRADE COMl\fiSSION DECISIONS Findings 24F.T.O.

distribution of a product by the name of "Dark-Eyes," an eyebrow and eyelash stain. The product is put up and prepared for the market in small bottles, each containing approximately 1.3 drams 0f the preparation. Each package contains two bottles. Bottle number one contains primarily silver nitrate, and bottle number two con· tains primarily pyrogallol. It is prepared in two colors, namely, black and brown.

The formula for the black product is:

Bottle No. 1:

Silver Nitrate U. S. P ------------------------------------- 4.75 parts Ammonium Hydroxide C. P ------------------------------- 1.30 parts The above are dissolved in a pectic vehicle in sufficient quantity to make the whole measure 100 parts. Bottle No. 2:

Pyrogallol (Resublimed U. S. P.)--------------------------- 8.25 parts Solvent (Distilled Water)--------------------------------- 96.25 parts The formula for the brown product is:

Bottle No. 1:

Silver Nitrate U. S. P ---------------------------------- 8.25 parts Ammonium Hydroxide C. P ------------------------------ .80 pat·ts Both are dissolved in a pectic vehicle in sufficient quantity to make the whole measure 100 parts.

Bottle No. 2:

Pyrogallol (Resubllmed U. S. P.>--------------------------- 2.00 parts Solvent (Distilled Water)---------------------------------- 97.50 parts The main difference between the formula for the brown product and the black product is that the brown product contains less silver nitrate and pyrogallol per unit measure.

The product is applied by first applying the liquid in bottle nu:rnber one to the eyelashes or eyebrows with a camel's hair brush. When the first application is dry the liquid in bottle number two is then applied with another small camel's hair brush. Contact between the two liquids causes an immediate precipitation of color. 'Vhen orders are received for respondent's product, he causes it to be shipped and transported from Chicago, Ill., to the purchasers thereof located at various points in States of the United States other than the State of Illinois. The product is distributed in practically every State of the United States through department stores, drug stores, and beauty shops. An introductory or trial size package is sent through the mails direct to the purchasers thereof. The re· spondent has, since 1934, maintained a constant current of trade in said product, in commerce, among and between the various States of the United States.

HEC BARTH LABORATORIES, ETC. 1159 1154 Findings At all times since the respondent entered into business, he has been in substantial competition with other individuals, and with partnerships and corporations engaged in the sale and distribution, or in the manufacture, sale and distribution, of eyebrow and eyelash stains or dyes, in commerce, among and between the several States of the United States and in the District of Columbia. PAn. 2. The respondent has advertised, and is now advertising, Said product, in newspapers, periodicals, and magazines of general circulation in the United States. The product was advertised by radio during 1934. Representative of said advertising claims are the following statements :

"Give your eyes this permanent beauty with 'Dark-Eyes' "-"The new permanent darkener"-"Permanent color and beauty with 'Dark-Eyes' "-"The new Permanent eyelash and eyebrow darkener"-"Lasts from four to five weeks". "Dark-Eyes", when used as directed, is safe and harmless. "Dark-Eyes" is a new discovery.

The use of "Dark-Eyes" gives your eyelashes and eyebrows lasting youth or lasting beauty.

Thousands of smart women prefer this modern beauty way to possess attractive eyes. · "Dark-Eyes" is perfectly l1harmless to use and absolutely safe. Each package of the product contains a direction sheet, which bears the expressions, among others, "Permanent," "Harmless," and "Harmless to Eyes, Hair and Skin." On the outside of the package itself appears the word "Permanent."

Respondent represented until about a year ago that he owned and operated a laboratory where the product "Dark-Eyes" was manu· :factured. However, respondent has never at any time actually owned or operated, or directly and absolutely controlled, a ,labora· ~ory in which the product was manufactured. In fact, the product Is manufactured for the respondent by thew. "\V. Baldwin Company of 412 Orleans Street, Chicago, Ill., owners of the formula for the Product. Respondent has never owned any interest in, or exercised any control over, the said 1V. W. Baldwin Company. Respondent's said product does not give permanent beauty, nor are the eyelashes and eyebrows permanently darkened by use of the product. When new lashes appear, or as the hair grows new applications of the product are necessary to darken the new growth. Said product Is not a new discovery. Its active ingredients, silver nitrate and pyrogallol, have been used in stains or eyebrow darkeners for Inany years.

. The respondent's product is not harmless or absolutely safe, but Is injurious to the eyes of some users. ·women users of the product testified at the hearings. Mrs. Ethyl Weinberg Astrachan of Chi· Findings 24F.T. C.

cago, Ill., purchased a package o£ respondent's product at Field's store in Chicago and used the product in accordance with the direc· tions supplied with it. Immediately after the application, her eyes began to pain her considerably and a severe headache set in. She suffered with her eyes for a period of three months. Dr. John William Wall, an eye specialist of Chicago, Ill., who attended Mrs. Astrachan during her said illness, concluded that Mrs. Astrachan's trouble with her eyes was caused by the application of the respond· ent's product to her eyelashes and eyebrows. Mrs. 1\fary W. Buettner of Cleveland, Ohio, purchased a package of respondent's products from a department store in Cleveland, Ohio, and applied the product in accordance with the instructions enclosed in the package. When she a woke the following morning, her eyes were inflamed, swollen and discolored. About four weeks elapsed before her eyes become normal. 1\frs. Buettner had applied other eyelash stains and dyes to her eyelashes on previous occasions with no ill effect. Dr. Norman McGay of Cleveland, Ohio, who attended Mrs. Buettner during her aforesaid illness, found Mrs. Buettner suffering from a very bauly swollen eczematous condition around the left eye, over the bridge of the nose and a little over the right eye. The left eye was almost swollen shut. The forehead over the eyebrows and across the briuge of the nose was badly discolored with some chemical. He found Mrs. Buettner to be suffering from a localized condition caused by some local application, which he concluded to be the product she applied on that occasion . . Mrs. Margaret S. "\Verntz of Shaker Heights, Ohio, went to a beauty shop in Cleveland, Ohio, about eleven o'clock on the morning 9f December 14, 1935, and had her eyelashes stained with the re· spondent's said product. About six o'clock that night her eyes began watering and smarting, followed by pains in and near the eyeballs. The following morning her eyes were swollen and completely closed, and she remained totally blind for one week. Mrs. Werntz could not read for three months. Dr. James Roder Bell of Cleveland, Ohio, Mrs. Werntz' attending physician during her said illness, conduded, after having treated Mrs. Werntz' eyes for three weeks, that her injury resulted from the application of respondent's product to her eyelashes and eyebrows.

One percent silver nitrate solutions are used by the medical profession as an antiseptic. It is applied to the eyes of new born babes to prevent gonorrheal infection. 'Vhen something stronger than a. one percent silver nitrate solution is required, in treating certain conditions of the eyes, some drug other than silver nitrate is used. Silver HEC BARTH LABORATORIES, ETC. 1161 1154 Conclusion nitrate solutions containing as much as 2.5% silver nitrate are ·used as a disinfectant when applied to parts of the body other than the eyes. The solution in bottle number one of the respondent's said black Product contains 4:75o/o of sih·er nitrate U. S. P. The solution in bottle number one of respondent's said brown product contains 3.25% of silver nitrate U. S. P. The silver nitrate solution is applied to the eyelashes or eyebrows ancl permitted to remain there a few moments before the solution contained in bottle number two is applied. · It is established by the testimony of medical authorities and chemical experts that respondent's product is a caustic, and will destroy tissue. Silver nitrate and pyrogallol, if not mixed in the exact molec: ular proportions, will give off an excess of the silver nitrate or freo pyrogallol, and the uncombinecl silver nitrate hns the same effect that it Would have if used separately, and the uncombined silver nitrate can produce injury. The possibility of danger through use of the respondent's product is enhanced of course, if applied by an unskilled person or in an unskillful manner.

PAR. 3. :Many of respondent's competitors who sell and distribute, or manufacture, sell and distribute, eyebrow and eyelash darkeners or dyes, in interstate commerce, do not in any way misrepresent the effects of their protluds '"hen applied to the eyebrows and eyelashes. PAR. 4. The use by respondent of the representations set forth above, in his advertising literature, has had. and now has the capacity and tendency to mislead. and deceiw and has misled a substantial portion of the purchasing public into the erroneous belief that said representations are true. As a consequence of the mistaken and erroneous beliefs induced. by the false and misleading statements and representations above referred to, the purchasing public has purchased a substantial volume of respondent's products with the result that trade l~as been unfairly diverted to the respondent from his competitors hkewise engaged. in the business of selling and distributing eyebrow and eyelash darkeners or stains, or in the manufacture, sale, and distribution of eyelash darkeners or stains, who truthfully represent the effects of their products when applied to the eyebrows and eyelashes of persons. As a result thereof, substantial injury has been and is llow being clone by respondent to competition, in commerce, among and between the various States of the United States and the Distt·iet of Columbia.

CONCLUSION The aforesaid. acts and. practices of the respondent, Hec Barth, are to the prejudice of the public and. of respomh,nt's competitors, and constitute unfair methods of competition in commerce, within the Order 24F.T.C.

intent and meaning 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." ORDER TO CEASE AND DESIST This proceeding having been heard by the Federal Trade Commission upon the complaint of the Commission, the answer of respondent, the testimony and other evidence taken before Robert S. Hall, an examiner of the Commission theretofore duly designated by it, in support of the allegations of said complaint and in opposition thereto, and briefs filed herein, no request for oral argument having been made, and the Commission having made its findings as to the facts and its conclusion that said respondent has 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 respondent, Hec Barth, individually and trading as Hec Barth Laboratories and Dark-Eyes Laboratories, or under any other trade name, his agents, representatives and employees, in connection with the sale and distribution of an eyelash darkener now known as "Dark Eyes," or any other product containing the same or substantially the same ingredients, sold under that name or under any other trade name, in interstate commerce or in the District of Columbia, do forthwith cease and desist from representing: 1. That said product is safe and harmless. 2. That said product is a new discovery.

3. That the use of said product gives permanent beauty to or is a permanent darkener of the eyebrows and eyelashes. 4. That respondent owns, operates or controls a laboratory or laboratories until and unless he does in fact actually own and operate, or directly and absolutely control a laboratory or laboratories wherein said product is compounded.

It is further ordered, That the respondent shall, within 60 clays after service upon him of this order, file with the Commission o. report in writing setting forth in detail the manner and form in which he has complied with this order.

PERFECT MANUFACTURING CO. 1163 Syllabus