Bernard M. Wolf, trading as Kodicon Products Company

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IN THE MATTER OF BERNARD 1\f. WOLF, TRADING AS KODICON PRODUCTS . COMPANY (:COMPLAINT, FINDINGS, AND ORDER IN REGARD TO THE ALLEGED VIOLATION OF SEC. li OF AN ACT OF CONGRESS APPROVED SEPT. 26, 1914 Docket 2910. Oomplain.t, Aug. 26, 1936-Decision, Sept. 14, 1931 Where an individual engaged in distribution and sale, in interstate commerce, of "Kodicon" medicinal preparation for relief, or asserted relief, of arthritic and rheumatic pains, etc., in substantial competition with those likewise similarly engaged ln distribution and sale of medicinal preparations and treatments similar to it for same ailments for which said individual represented it as an etrectlve remedy, ln advertising his said "Kodicon'' ln newspapers and pamphlets of general circulation through the United States, and through various circulars, advertising folders, and liter'llture distributed to customers and prospectiye customers, and through testimonial reproduction of purported purchaser thereof, and through leaflets, as case might be- Represented that said "Kodicon" constituted an etrective 'and reliable remedy or treatment for arthritis, neuritis, neuralgia, and gout, and for rheumatism, rheumatic fever, and other rheumatic ailments, and was a competent treatment for prevention of head colds and would stop pain, facts being product in question, principle ingredient of which was aspirin, recognized analgesic for temporary relief of minor forms of pain, was not a remedy or competent or etrective treatment for said various ailments, and woulu not prevent head colds nor stop pain, and representations m'llde by said Individual with respect thereto wem grossly exaggerated, false, misleading and untrue;

Wtth tendency and capacity to mislead and deceive a substantial portion of purchasing public into the erroneous bellef that all of said representations were true, and with result tbut a number of the consuming public, by reason of such mistaken 'and erroneous beliet thus engendered, purchased substantial volume of his said product, and trade was unfairly diverted to him from those likewise engaged in sale of similar preparations and treatments for same 'ailments for which said individual represented said "Kodicon" as. im effective remedy, and who truthfully advertise their' products; 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. Defore Air. Edward AI. Arerill and 11/r. Robert S. llall, trial examiners.

Mr. George Foulkes for the Commission.

Mr. Harold Singer of Jacobs & Jacobs, of Boston, Mass., for respondent.

Complaint 25 F. T. C. Complaint Pursuant to the provisions of an Act of Congress approved Sep· tember 2G, 1914, entitled, "An Act to create a Federal Trade Com· mission, to define its powers and duties, and for other purposes," the Federal Trade Commission, having reason to believe that Bernard l\f. ·wolf, trading as Kodicon Products Company, hereinafter referred to as respondent, has been, and 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 thereof would be in the public interest, hereby issues its complaint stating its charges in that respect as follows: PARAGRAPH 1. Respondent, Bernard M. Wolf, is an individual trading as Kodicon Products Company, with his principal office and place of business located at 5 Bromfield Street, Boston, 1\fass. Respondent is now and has been for sometime engaged in the business of distributing and selling in commerce, as herein set out, a medicinal preparation which respondent designates as "Kodicon." PAR. 2. Said respondent being engaged in business as aforesaid caused said preparation, when sold, to be transported from his office and place of business in the State of Massachusetts to purchasers thereof located at various points in States of the United States other than the State from which such shipments were made. Respondent now maintains a constant current of trade in commerce in said prep· aration, distributed and sold by him between and among the various States of the United States and in the District of Columbia. PAR. 3. In the course and conduct of his said business, respondent is now and has been in substantial competition with other individ· uals, firms, and corporations likewise engaged in the business of· distributing, and selling medicinal preparations and treatments similar to that of "Kodicon," and preparations· and treatments for the same ailments for which respondent represents "Kodicon" to be an "llfrective remedy, in commerce among and between the various States of the United States and in the District of Columbia. In the course and operation of his business and for the purpose of inducing individuals to purchase "Kodicon" respondent has caused advertisements to be inserted in newspapers and magazines of general circulation throughout the United States, and has caused to be prepared and printed circulars, advertising folders, and literature which are circulated and distributed to customers and prospective customers located in the various States of the United States. KODICON PRODUCTS COMPANY 1039· 1037 Complaint Certain advertising matter used by respondent is herein set out as illustrative of the claims respondent makes concerning the curativeand remedial qualities of "Kodicon," but is not all inclusive. Such advertisements are as follows:

KODICON-For relief of pains incident to Arthritis, Rheumatism, Neuritis, Neuralgia, Gout, Nervousness, loss of sleep. The relief of pain and discomfort in simple headaches; relief for muscular aches and pains. RHEUMATISM-KODICON for safe internal remedy. For relief of pain in arthi·itis, rheumatism, neuralgia, neuritis, loss of sleep, and nervousness. Stops. the pains, radiates relief-makes life worth living. • • • Kodicon your Pains away. • • • Rheumatic Fever • "' • Subacute Rheumatism • "' "' Chronic Rheumatism • • • Muscular Rheumatism • • • Rheumatoid Arthritis • • • Arthritis • "' • Gout • • • Kodicon has brought great relief to sufferers from these ills.

"' • • the prevention and relief of head colds. In all of its advertising literature, respondent represents, through. statements and representations as herein set out, and through statements of similar import and effect, that, 1. Kodicon is a competent treatment for the prevention of head colds.

2. Kodicon is an effective treatment for rheumatism, arthritis, neuritis, neuralgia, loss of sleep, rheumatic fever, ncrvousnPss, ancl gout.

3. Kodicon will "stop" pain.

PAR. 4. The representations made by respondl.'nt with respect to the effect of his product when used are grossly exaggerateil, false, misleading, and untrue. In truth and in fact "Kodicon" is not a competent treatment for the prevention of head colds, nor will said h·eatment preveut head colds. Kodicon is not an effective treatment for rheumatism arthritis, neuralgia, neuritis, loss of sleep, rheumatic fever, nervousness, and gout, and in such cases will do no more than afford temporary relief froin pain. Koclicon will not "stop" pain. PAR. 5. Each and all of the false and misleading statements and I'epresentations made by respondent, as hereinabove set forth, in his advertising in newspapers, magazines, pamphlets, and other advertising literature in offering for sale, and selling his product, had, and now have, a tendency and capacity to mislead and deceive a substantial portion of the purchasing public into the erroneous belief that all of said representations are true. Further, as a direct consrquence of this mistaken and erroneous belief, induced by advertisements and misrepresentations of respondent, as hereinabove f'numerated, a number of the consuming public purchased a substanl5812tm--a0----68 Findings 25F.T.C.

tial volume of respondent's product with the result that trade has been unfairly diverted to respondent from individuals, firms, and corporations likewise engaged in the business of selling medicinal preparations similar to "Kodicon," and preparations and treatments for the same ailments for which respondent represents "Kodicon" to be an effective remedy, and who truthfully advertise their products. As a result thereof, substantial injury has been done, and is now being done by respondent to competition in commerce among and between the various States of the United States and in the District of Columbia.

PAR. 6. The above and foregoing acts, practices, and representations of the respondent have been, and are, all to the prejudice of the public and respondent's 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 St:>ptember 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 THE FACTs, AND Onder Pursuant to the provisions of an Act of Congress approved September 26, 1014, entitled "An Act to create a Federal Trade Commission, to define its powers and duties, and for other purposes," the Federal Trade Commission on August 26, 1036, issued and served its complaint in this proceeding upon respondent, Bernard lf. 1Volf, trading as Kodicon Products Company, charging him 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 thereto, testimony and other evidence in support of the allegations of saiu complaint were introduceu by George Foulkes, attorney for the Commission before Edward M. Averill and Robert S. Hall, Examiners of the Commission, theretofore duly designateu by it, and in opposition to the allegations of the complaint by Harold Singer, attorney for the respondent; and saiu testimony and other evidence 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 and answer thereto, testimony and other evidence, and brief in support of the allegations of the complaint, respondent having filed no brief and having not requested oral argument; and the Commission having duly considered the same, and being now fully advised in the premises, finds that this proceeding IWDICON PRODUCTS COMPANY 1041 1037 Findings is in the interest of the public and makes this its findings as to the facts and its conclusion drawn therefrom:

FINDINGS AS TO THE FACTS PARAGRAPH 1. Respondent, Bernard M. Wolf, is an individual trading as Kodicon Products Company, with his principal office and place of business located at 5 Bromfield Street, Boston, Mass. The respondent, Bernard M. ·wolf, doing business as aforesaid, is now, and has been since the month of September 1934, engaged in the business of distributing and selling in interstate commerce a medicinal preparation which respondent designates us "Kodicon." PAn. 2. The respondent being engaged in business as aforesaid, ~aused the medicinal preparation "Kodicon," when sold to be transported from his office and place of business in the State of Massachusetts to purchasers thereof located at various points in States of the United States other than the State from which such shipments were made.

Uespondent has since the month of September 1934, maintained, and now maintains, a constant current of trade and commerce in said product "Kodicon" distributed and sold by him between and among the various States of the United States. PAn. 3. During the conduct of his business, respondent has been, and is now, in substantial competition with other individuals, firms, and corporations likewise engaged in the business of distributing and selling medicinal preparations and treatments similar to that of "Kodicon," and preparations and treatments for the same ailments for \which respondent represents "Kodicon" to be an effective remedy, in commerce among and between the various States of the United States.

Respondent, in an effort to create a market for his product and to cause the purchasing public to buy "Kodicon," caused advertisements to be inserted in newspapers and pamphlets of general circulation throughout the United States.

Respondent also caused to be prepared and printed various circulars, advertising folders and literature concerning his product "Kodicon" and circulated and distributed, and now circulates and distributes to customers and prospective customers said circulars and folders.

In said advertisements refer·ed to above, respondent made the following representations cencerning the product "Kodicon," Kodlcon for relief of pains incident to arthritis, rheumatism, neuritis, neuralgia, gout, nervousness and loss of sleep • • • Findings 2;)F.T.C.

The following testimonial of a reputed purchaser of "Kodicon" appeared in the Boston Daily Record, a newspaper with general interstate circulation, April 9, 1936:

"Had suffered for over 12 years. Had X-rays of my limhs. Have taken other medicines with no avail. Took KODICON. That was the answer to my prayers. I took it faithfully and my pains ore gone." Take KODICON-The ama7.ing remedy for arthritis, rheumatism, neurltiil, neuralgia, gout. Price $1.00.

On a leaflet or small advertising circular, which respondent uses in advertising "Kodicon," the following heading appears: WHY KODICON IS SO EFFECTIVE.

Immediately under the foregoing heading, respondent enumerates the following ailments and gives a definition of each ailment: Rheumatism; rheumatic fever; sub-acute rheumatism; chronic rheumatism; muscular rheumatism; rheumatoid arthritis; arthritis; gout; neuralgia; and neuritis.

Following the foregoing list of ailments and their definitions, the responuent sets forth the following statement: Kodicon has brought gn•nt relief to sufferers from these ills. In all of his advertising literature, respondent represents through statements and representations as herein set out, and through statements of similar import and effect, that 1. "Kodicon" is a competent treatment for the prevention of head colds;

2. "Kodicon" is an effective treatment for rheumatism, arthritis, neuritis, neuralgia, loss of sleep, rheumatic fever, nervousness and gout;

3. "Koclicon" will Stop pain.

PAR. 4. Respondent's product "Kodicon" consists of acetyl salicylate, 5 grains, and colchicin lj250ths of a grain. Acetyl salicylate is commonly known as aspirin and is recognized by the medical profession as an analgesic for the temporary relief of minor forms of pain.

Colchicin is also an analgesic, and is prescribed by many of the medical profession for the relief of pains associated with some ailments. The amount of colchicin in "Kodicon", however, is so negligible as to render it impotent as an analgesic for the various ailments set forth in respondent's advertising statements. :Medical testimony was given to the effect that in some instances "Kodicon" might act as an analgesic in relieving mild or superficial pains. KODICON PRODUCTS COMPANY 1043 1037 Order The representations made by respondent with respect to the effect of his product, when used, are grossly exaggerated, false, misleading, and untrue.

In truth and in fact, "Kodicon" is not a remedy, or a competent or effective treatment for arthritis, rheumatism, neuritis, neuralgia, gout, rheumatic fever, sub-acute rheumatism, chronic rheumatism, muscular rheumatism, or rheumatoid .arthritis. In truth and in fact "Kodicon" will not prevent head colds, nor will it "stop" pain. PAR. 5. Each and all of the false and misleading statements and representations made by respondent, as hereinabove set forth in his advertising in newspapers, pamphlets, and other advertising literature in offering for sale, and selling his product, had, and now have, the tendency and capacity to mislead and deceive a substantial portion of the purchasing public into the erroneous belief that all of said representations are true.

As a direct result of this mistaken and erroneous belief induced by advertisements and misrepresentations of respondent, as herein-· above enumerated a number of the consuming public purchased a substantial volume of respondent's product with a result that trade has been unfairly <liverted to respondent from individuals, firms, and corporations likewise engaged in the business of selling medicinal preparations similar to "Kodicon," and preparations and treatments for the same ailments for which respondent represents "Kodicon" to be an effective remedy, and who truthfully advertise their products.

As a result thereof, substantial injury has been done, and is now being done by respondent to competition in commerce among and between the various States of the United States, and in the District of Columbia.

CONCLUSION The aforesaid acts and practices of respondent, Bernard :M. ·wolf, trading as Kodicon Products Company, are to the prejudice of the public and of respondent's competitors, 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."

ORDER TO CEASE AND DESIST This proceeding having been heard by the Federal Trade Commission upon the complaint of the Commission, the answer of respond- Order 25F. T. G.

ent, testimony and other evidence taken before Edward M. Averill and Robert S. Hall, examiners of the Commission theretofore duly designated by it in support of the allegations of the complaint and in opposition thereto, and brief in support of the complaint, respondent having filed no brief and having not requested oral argument~ 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, Bernard M. 'Volf, individually, and trading as Kodicon Products Company or under any other trade name, his representatives, agents, and employees in connection with the offering for sale, sale and distribution of a medicinal product now known as "Kodicon," or any product containing the same, or substantially the same, ingredients sold under that name or under any ·name, in interstate commerce, or in the District of Columbia, do forthwith cease and desist from representing that said product: 1. Is an effective and reliable remedy or treatment for arthritis, neuritis, neuralgia, or gout;

2. Is a competent treatment for the prevention of head colds; 3. Will "stop" pain;

4. Is an effective and reliable remedy or treatment for rheumatism, rheumatic fever, sub-acute rheumatism, chronic rheumatism, or muscular rheumatism, or any other rheumatic ailment. It is further ordered, That the respondent shall within 30 days after service upon him of this order, file with the Commission a report in writing setting forth in detail the manner and form in which he has complied with this order.

BERGO LABORATORIES 1045 Syllabus