Birconjel Corp., Inc

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IN THE MATTER OF BIRCONJEL CORPORATION, INC.

COMPLAINT, FINDINGS, AND ORDER IN REGARD TO THE ALLEGED VIOL.\'fTOl'> OF SEC. 6 OF AN ACT OF CONGRESS APPROVED SEPT. 26, 1914 Docket 2998. Complaint, Nov. 27, 1936-Decision, Aug. 20, 19J1 Where a corporation engaged in the manufacture of certain so-called hygienicand other products for use by women, including its so-culled "Dirconjel'' and a patented applicator for use in connection therewith, and In the sale of said "Dirconjel" and applicator, through radio and other advertising, towholesale druggists and others, and, on order, to any individual unit of the purchasing or consuming public, in substantial competition with otherssimilarly engaged In the otrer and sale, in commerce among the various States, of hygienic and other products intended and designed for use eXclusively by women, and lnc•lndlng among Its competitors those otrering medicines or preparations of various kinds for use in connection with feminine hYgiene and for aforesaid preventive errects, without stating expressly, ol' implying or Importing, in their representations that their products or any of them are invariably or uniformly effective and safe and harmless, and those offering and selling, as aforesaid, medicines, with or without applicators, nnd other preparations, truthfully represented as for use in feminine hygiene and to prevent diseases arising from Iuek thereof, and as prevent· lng contraction of diseases by women when used In accordance with direc· tlons- (a) IlPpresented, through advertising literature l'nclosPd in the carton or con· tainer of said product and dbtrllmtcd also among purchasers and prospective purcl1asers, nnd through window display advertising and other advertising matter distributed by its agents in introducing and promoting sale of said product, and also through booklets and other adverth;lng, that said ''Dirconjel" and appliance constituted a competent and effective coutrnceptive nnd could be relied upon absolutely for such preventive purpose, and that its said preparation constituted a l'ellable ren1edy, treatment and cure for ills and diseases peculiar to women, facts being preparation in question could not be relied upon as such a preventlve and !llld no beneficial theraveutlc value in the treatment of any ailments, Ul:!, or discu~es peculiar to the feminine anatomy; and (b) Represented that said preparation constituted a protection against diseases and acted both mechanically and as a germicide In the prevention of trouble, and that 1t wa:l prescribed by thousand:! ot physicians and hnd the approval of the American l\Iedlcal A~sociatlon, American Dlrth Control Lt>ngue, and physicians generally, nnd that it was not a patent ol'" prol•rl«'lary nwdlelne, but nn OJI<•n formula which might hP u~ed with StlfetY and without dl'leterlous etrects by all women, facts being It wns uot ll scientific prophylactic for frmlnine hygiene or otherwise, bad not been used or approved as ahove claimed, formula thereof was not open, but secretr and use thereof, (•ither with or without said appllcator, wns uot absolutely harmless, but In many cases was capable of causing Injuries and had dele· terlous etrect upon the user thereof;

BIRCONJEL CORP., INC. 885 Complaint With effect of confusing, misleading, and deceiving members of the public as to the properties and efficacy of said preparation and appliance in the pnrticulars above set forth, and of causing them, because of erroneous beliefs engendered by its representations and implication, to buy and use the same, and thereby unfairly divert trade in commerce to it from its aforesaid competitors who truthfully represent their products; to their substantial injury:

lleld, That such acts and practices were to the prejudice of the public and competitors and constituted unfair methods of competition. Before Mr. Robert S. ll all, trial examiner. Air. William L. Taggart for the Commission. A/r. Nathaniel[{. Altman, of Brooklyn, N. Y., for respondent. Complaint Pursuant to the provisions of an Act of Congress, approved September 2G', 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 llirconjel Corporation, Inc., hereinafter referred to as respondent, has been and is using unfair methods of competition in commerce, as "commerce" is defined in said net of Congress, and it appearing to said Commission that a proceeding by it in respect thereof would be in the public interest, hereby issues its complaint stating its charges in that respect as follows:

PARAGRAPH 1. Respondent, Birconjel Corporation, Inc., is now, and has been for several years last past, a corporation organized, existing, and doing business under and by virtue of the laws of the State of New York, with its office and principal place of business at 420 Lexington Avenue, city of New York, State of New York, and 37 East 28th Street said city and State.

Respondent has been and is engaged in the manufacture of certain So-culled hygienic and other products for use by women, and in their sa]e and di:;tribution in commerce between the State of New York nnd the various other Statps of the United States and in the District of Columbia. It causes these products, when sold, to be transported from its aforesaid place of business to purchasers thereof in the Various States of the United States other than the State of New 'fork an<l in the District of Columbia.

In the course and conduct of said business, respondent has been ~nd is in substantial competition with other corporations, and with Individuals and partnerships similarly engaged in offering for sale and selling, in commerce among and between the various States 0.f the United States, hygienic and other products intended and de- SJgned for use by women exclusively.

886 FEDERAL TRADE COl\Il\IlSSION DECISIONS Complaint 25 F. T.C. PAR. 2. In the course and conduct of its business, it has been and is the practice of respondent to offer for sale nnd sell a product known and described as Dirconjel. In connection with the sale of its product "Dirconjel" respondent also sells a patented applicator intended and designed for use in applying said "Birconjel" said applicator supposedly measuring and applying the correct amount of Dirconjel to satisfactorily accomplish the results claimed by respondent. Sales are made through radio and other advertising to wholesale druggists and others, although when an order is received by respondent from any individual unit of the purchasing or consuming public, it is filled by respondent. In the carton or container in which the said product is marketed, there is enclosed certain advertising literature in which the product is represented and described. Such advertising matter is also distributed by respondent among purchasers and prospective purchasers who inquire about the said product. It also employs and uses agents for the introduction of said product and promotion of its sale. They call upon druggists and install advertising window display and distribute other advertising matter, including circulars, a booklet called "A Straightforward Talk About Feminine Hygiene Sometimes Called Marriage Hygiene," and covered matches, the latter of which contain on their cover certain legends. Such legends as "Why Do Modern 'Vomen Practice Feminine II ygiene? ," "The Dirconjel Patented Applicator," "Some Scientific and Legal Aspects of Birconj<'l," "Measured Never Too Little and Never Too Much," ''Approved Dirconjel in Measured Applications Never Too Little, Never Too Much, Gloriously Simple, Feminine Hygiene, Truly Positive," appear on matches, blotters, and other advertising which is distributed in int~rstate commerce and otherwise. In its newspaper advertising it represents that "llirconjel enjoys medical and clinical approval"; that "Most chemicals powerful enough in solution to kill germs can be dangerous to delicate membranes (burns)"; that "The practice of feminine hygiene can have an aesthetic as well as practical side," and makes other similar representations through similar statements.

As induc£'ments to the purchase of Dirconjel and its applicator contrivance, respondent represents and infers that the use of such product will prevent conception; and that it is a protection against diseases; throu~h such statements as "Ke£'ps feminine secr£'ts, com· plete safety anll peace of mind is yoms wh£'n you use Dirconjel':; "Acts two ways in preventing trouble mechanically and is a gennlcide," and through other similar fraudulent statements. As a further inducement for the purchase of its product, Dirconjel, and its appli· BIRCONJEL CORP., INC. 887 Complaint cator contrivance, respondent has rt>presented its cooperation with the American Birth Control League, using such language as signifies and implies a close connection between respondent and such league. It also represents that it has received approval of said product by physicians generally and that it is generally likewise dispensed and prescribed by thousands of such physicians. It further represents that it is well known to the medical profession for its high class pharmaceutical product. Respondent further represents that the product, Birconjel, is not a patent or proprietary medicine, but, rather an open formula which is given to physicians whenever they request it.

In truth and in fact, the usc of respondent's said product will not accomplish such benefits as ar«:> claimed for said product in its advertising as set forth above, and it is not a scientific prophylactic for feminine hygien«:>, or otherwise. Its use is not absolutely harmless and its use with its patented applicator is not absolutely harmless, as is claimed in said representations made through its advertising. The product, Dirconjel, has not received the approval of the American llledical profession, nor physicians generally. It has not bt>en dis- Pensed and prescribed by thousands of physicians, and it is not recommended by the American Birth Control League. The product of respondent is a patented or proprietary medicine. Its formula is not open, as the word is understood, since the ingredients of the product are not declared or disclosed but held in secret by its manufacturers. PAn. 3. There are now, and for several years last past have been, individuals, partnerships, and corporations who have been offering for sale and selling, in commerce among and brtw«:>en the various States of the United States, medicines or preparations of various kinds for use by women in feminine hygiene and for the prevention ?f conception, without stating expressly or implying or importing 11\ their representations that their products or any of them are in- Variably or uniformly effectual and safe and harmless. They are now, and for several years last past have been, individuals, partnerships, and corporations offering for sale and selling, in commerce as herein set out1 medicines with and without applicators and other Pr<'parations which they truthfully represent are for use in feminine ~ 1Ygiene and likely to prevent diseases arising from lack of fem- 11line hygi«:>ne and will prevent the contraction of diseases by women When used in accordance with directions.

PAR. 4. The aforesaid practices of respondent have had and have the capacity and tendency to mislead and deceive wholesale dealers, retail dealers and their customers, the consuming or purchasing PUblic, into the erroneous and mistaken beliefs that Dirconjel is in- FEDERAL TRADE COMMISSION DECISIONSsss Findings 25 F. T. C. variably and uniformly effective in preventing conception and is likewise a preventive of diseases caused by lack of feminine hygiene, and that all other representations of the respondent hereinbefore stated in paragraph 2 are true, and into the purchase of such product in reliance upon such erroneous beliefs or one or more of them. The aforesaid practices have also had and have the capacity and tendency to unfairly divert trade to respondent from the competitors mentioned in paragraph 3 hereof. As a result thereof substantial injury bas been, and is now being, done to such competitors by respondent in the course of such competition. PAR. 5. The aforementioned methods, acts, and practices of respondent are all to the prejudice of the public and respondent's competitors as hereinabove alle>ged. Said methods, acts, and practices constitute unfair methods of competition in commerce 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 powers and duties, and for other purposes," approved September 26, 1914. REPORT, FINDINGs AS TO THE FACTs, AND Former 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 on November 27, 1936, issued, and on DPcE>mber 30, 1936, served its complaint in this proce>eding upon the respondent, Birconjel Cocpora6on, Inc., charging it with the use of unfair methods of competition in commerce in violation of the provisions of said act. After the issuance of said complaint and the filing of respondent's answer, the Commission, by order entered herein, granted respondent's motion for permission to withdraw s:tid ~ all the ma-answer and to. substitute therefor an answer admittinO'teriaJ allegatwns of the complaint to be true and waivi1w the taking ~ . 'of further evidence and all other intervening' l>rocedure which substitute answer was duly filed in the office of that'> Commission.' Thereafter, this proceeding regularly came on for final hearing before the Commission on the said complaint and the substitute answer, no briefs having l1een filed or oral argumE>nt made and the Commission having duly considered the same, and being no\~ fully advised in the premises, finds that this procreding is in the interest of the public, and makl's this its findings as to the facts and its conclusion drawn therefrom:

BIRCONJEL CORP.,. INC. 889 884 Findings FINDINGS AS TO Tile FACTS PARAGRAPH 1. Respondent, Dirconjel Corporation, Inc., is now, and has bt>en for several years last past, a corporation organized, existing, and doing business under and by virtue of the laws of the State of New York, with its office and principal place of business at 420 Lexington Avenue, city of New York, State of New York, and 37 East 28th Street said city and State.

Respondent has been and is engaged in the manufacture of certain so-called hygienic and other products for use by women, and in their sale and distribution in commerce between the State of New York and the various other States of the United States and in the District of Columbia. It causes these products, when sold, to be transported from its aforesaid place of business to purchasers thereof in the Various States of the United States other than the State of New York and in the District of Columbia.

PAR. 2 In the course and conduct of said business, respondent has b~en and is in substantial competition with other corporations, and With individuals and partnerships similarly engaged in offering for sale and selling, in commerce among and between the v11rious States of tho United States, hygienic and other products intended and designed for use by women exclusively.

• PAn. 3. In the course and conduct of its business, it has been and Is the practice of respondent to offer for sale and sell a product ~nown and described as Dirconjel. In connection with the sale of · ~ts product "Dirconjel" respondent also sells a patented applicator Intended and designed for use in applying said "Dirconjel," said applicator supposedly measuring and applying the correct amount of Dirconjel to satisfactorily accomplish the results claimed by respondent. Sales are made through radio and other advertising to Wholesale druggists and others, although when an order is received by respondent from any individual unit of the purchasing or consnming public, it is filled by respondent. By means and in the ~anner set out in paragraphs 4 and 5, the respondent represents and ~lhplies that the preparation Birconjel and its applicator appliance ~s a competent and effective preventive of conception, and that it ls an absolute protection against pregnancy and can be depended ?Pon for such purpose without limitation; and that the preparation Is a reliable remedy, treatment, and cure for ills and diseases peculiar to women.

PAn. 4. In the carton or container in which the said product is lllarketed, there is enclosed certain advertising literature in which the product is represented and described. Such advertising matter 890 FEDERAL TRADE COl\Il\USSION DECISIONS Findings 25F. T. C.

is also distributed by respondent among purchasers and prospective purchasers who inquire about the said product. It also employs and uses agents for the introduction of said product and promotion of its sale. They call upon druggists and install advertising window display and distribute other advertising matter, including circulars, a booklet called "A Straightforward Talk About Feminine Hygiene Sometimes Called Marriage Hygiene," and covered matches, the latter of which contain on their cover certain legends. Such legends as "Why Do Modern 'V"women Practice Feminine Hygiene ~" "The Dirconjel Patented Applicator," "Some Scientific and Legal Aspects of Dirconjel," "Measured Never Too Little and Never Too Much," "Approved Dirconjel in Measured Applications Never Too Little, Never Too Much, Gloriously Simple, Feminine Hygiene, Truly Positive," appear on matches, blotters, and other advertising which is distributed in interstate commerce and otherwise. In its ne,Ys· paper advertising it represents that "Dirconjel enjoys medical and clinical approval"; that "Most chemicals powerful enough in solution to kill germs can be dangerous to delicate membranes (burns)"; that "The practice of feminine hygiene can have an aesthetic as well as practical side," and makes other similar representations t hroup:h similar statements.

PAn. 5. As inducements to the purchase of Dirconjel and its ap· plicator contrivance, respondent represents and implies that the use of r-uch product will prevent conception; and that it is a protection against diseases; through such statements as "Keeps feminine srcrets, complete safety and peace of mind is yours when you use· Birconjel"; "Acts two ways in preventing trouble mechanically and is a germicide," and through other similar statements. As a fur· ther inducement for the purchase of its product, Birconjel, and its applicator contrivance, respondent has represented its cooperation with the American Birth Control Leacrue,b usincr0 such lancrnacre0 0 11s signifies and implies a close connection between respondent and such league. It also represe.nts that jt has received approval of said product by physicians generally and that it is generally likewise dis· pensed aud prescribed by thousands of such physicians. It further represents that it is well known to the medical profession for its high class pharmaceutical product. Respondent further represents that the prodwt, Birconjel, is not n patt'nt or proprit'tnry medicine, hut ruther an open formula which is gi,·en to physicians whenerer they r<'qut'st it.

6. In tru~h and in fact, the use of respondent's said produ~t ,ran. will not accomplish such benefits as are claimed for said product Jil its advertising as set forth abon, and it is not a scientific pro' lliRCONJEL CORP., INC. 891 Findings phylactic for feminine hygiene, or otherwise. Its use is not absolutely harmless and its use with its patented applicator is not absolutely harmless, as is claimed in said representations made through its advertising. The product, Birconjel, has not received the approval of the American medical profession, nor physicians generally. In many cases the use of the said preparation and appliance is capable of causing injuries and has a deleterious effect upon those using them. Said preparation has no beneficial therapeutic -value in the treatment of any ailments, ills, and diseases peculiar to the felllale anatomy, and its use cannot be relied upon to prevent conception. It has not been dispensed and prescribed by thousands of Physicians, and it is not recommended by the American Birth Control League. The product of respondent is a patented or proprietary medicine. Its formula is not open, as the word is understood, since the ingredients of the product are not declared or disclosed, Lut held in secret by its manufacturers .

. PAn. 7. There are now, and for several years last past have been, Individuals, partnerships, and corpm:ations who have been offering for sale and selling, in commerce among and between the various States of the United. States, meuicines or preparations of various kinus for use by women in connection with feminine hygiene and fol' the prevention of conception, without stating expressly or implying or importing in their representations that their products or any of them are invariably or uniformly effectual and safe and ~!harmless. There are now, and for several years last past have been, Individuals, partnerships, and corporations offering for sale and l;elliug, in commerce as herein set out, medicines with and without applicators and other preparations which they truthfully represent Ute for use in feminine hygiene and are designed to prevent diseases arising from lack of feminine hygiene and will prevent the <:olltraction of diseases by women when used in accordance with directions.

PAn. 8. The representations and implications of the responuent in -connection with the sale and distribution of said preparation and appliance, in said commerce, as stated, have the tendency and ca- Pacity to, and do, confuse, mislead, and deceive members of the t>ublic as to the properties and efficacy of said preparation and appliance in the particulars herein set forth, and cause them, because ?f the erroneous beliefs enge11dered by said representations ,nnd 1hlplieations, to buy and use said preparation and appliance, thereby ~nfuirly tliverting trade in said commerce to the respondent from lts afon•said competitors who truthfully represent their prouucts. As n result that·cof substantial injury has been done, and is now 892 FEDERAL TRADE CO:'.Il\IISSION DECISIONS Order 25 F. T. C. being done, by respondent to such competitors in commerce between and among"e> the various States of the United States. CONCLUSION The aforesaid acts and practices of the respondent, Birconjel Corporation, Inc., are to the prejudice of the public and of respondent's competitor~, and constitute unfair methods of competition in commerce, within the 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."

ORDEU TO CEASE AND DESIST This proceeding having been heard by the Federal Trade Commission upon the complaint of the Commission and the answer filed herein on July 9, 1937, by respondent, 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 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, Dirconjel Corporation, Inc., its officers, representatives, agents and employees in connection with the offering for sale, sale nnd distribution of its medicinal or pharmaceutical preparation and appliance which are designed, intended and used in the treatment of various female ailments and conditions, and for female hygiene purposes, now designated as Dirconjel and patented applicator, or any other preparations of substantially the same ingredients and therapeutic effect, or appliances of substantially the same design, whether designated by the aforemention~d names or by any other names, in interstate commerce or in the D1s· trict of Columbia, do forthwith cease and desist from representing: 1. That the use of said preparation alone or in conjunction with the aforPsnid appliance will prevent conception. 1. That the use of said preparation alone or in conjunction with hygiene or otherwise, and is a protection against disease. 3. That said preparation acts two ways in preventing trouble, mechanically and as n. germicide.

4. That the preparation is prescribed by thousands of physicians and that it has the approval of the American Medical Association, Amcl'icnn Birth Control Lrague, and physicians generally. .· BIRCONJEL CORP., INC. 893 884 Order 5. That the preparation is not a patent or proprietary medicine, but an open formula.

G. That the said preparation and appliance may be used with safety and without deleterious effects by all women, and 7. From making other representations of similar import and of like character to those made as above set forth. It is further ordered, That the respondent shall, within 60 days after service upon it 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.

894 FEDERAL TRAf\E COMMISSION DECISIONS Syllabus 25 F. T. C.