Lewyn Drug, Inc

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IN THE MATTER OF LEWYN DRUG, INC.

COMPLAINT, FINDINGS, AND ORDER IN REGARD TO THE ALLEGED VIOLATION OF' SEC. 15 OF AN ACT OF CONGRESS APPROVED SEPT. 26, 1914 Docket 2994. Complaint, Sept. SO, 1936-Decision, Not'. 6, 19:37 Where a corporation engaged In the sale and distribution of various pharmaceu· tical preparations Including, In tablet a.nd capsule form, so-called "Dr. Haller's Prescription 5000," made for it by others and sold and distrilmted by It, through wholesale and retail druggists and direct to the consuming public on mail order, to purchasers In other States, in active compeiil ion with those engaged In manufacture and sale, or sale, of various prpparatious for treatment of conditions similar to those for which it recommended Its 'aforesaid preparatlon- (a) Represented, in advertisements thereof in newspapers fill(} periodicals of general circulation, and in circular letters distributed among its customers and prospective customers, that preparation in question was a safe and dependable remedy for delayed or suppresspd menstruation, and that through the use thereof women suffering therefrom woulrl end such con· dition and obtain relief safely, quickly and dE>pPndably, and that preparation in question had been dispensed to An1crican women through ethical channels for almost half a century; and (b) Represented, 'as aforesaid, that said pre>paration was best product in the world for cases of unnaturally delayed menstruation and successfully relieved some of the longest and most stubborn cases, and that with it countless women had obtained and were obtaining most gratifying results: Facts being it would not bring about 13uch relief or end such delay safely, quickly, and dependably, and was completely ineffectual in many ca::;cs, and use thereof was always dangerous, it was not best product iu such unnaturally delayed cases, and did not successfully relieve some of the longest and most stubborn cases, and was not a depPnduhle product nor a safe or competent abortifacient, and various representations aforesaid were talse;

With effect of misleading and deceiving many mPmhers of the purchasing public and causing them erroneously to believe that said representations were true, and, because of such erroneous belief, to purchase suhstantlal quanti· ties of its said prepar'atlon, and of thereby diverting trade In such com· merce to it from its competitors who truthfully represent theil· products: to their substantial injury and to that of public: Ileld, That such acts practices were to the prejudice of the public and corn· petltors and constituted unfair methods of eompPtltlon. Defore illr. Charles P. Vicini, trial examiner. Mr. Reuben J. Martin for the Commission.

Complaint Pursuant to the provisions of an Act of Congress approved Sep· tember 26, 1914, entitled "An Act to create a Federal Trade Commis· LEWYN DRUG, INC. 1349 . I 1348 Complaint sian, to define its powers and duties, and for other purposes," the Federal Trade Commission having reason to believe that Lewyn J?r.ug Incorporated has been and is using unfair methods of compehtwn 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. The respondent, Lewyn Drug Incorporated, is a corporation organized and existing under and by virtue of the laws of the State of California with its principal office and place o£ busilless located at 1928 Taft A venue in the city of Hollywood, within the State of California. Said respondent is now and for more than one year last past has been engaged in the sale of a preparation r~commended for the treatment of unnaturally delayed menstruat~on and known and designated as "Dr. Haller's Famous Prescription 5000," and the distribution thereof in commerce between and ;nwng the various States o£ the United States. It causes said "Dr. faller's Famous Prescription 5000" when sold by it to be transported to the purchasers thereof located in the State of California and in various States o£ the United States other than the State of California. There is now and has been for a long time, to wit, for more than one year last past, a constant current of trade and commerce by respondent in said "Dr. Haller's Famous Prescription 5000" between ~nd among the various States of the United States. In the course and conduct of its said business, said respondent is row and for a long time, to wit, for more than one year last past tas been in substantial competition in commerce between and among the. Various States of the United States with sundry other corporations, partnerships, firms, and individuals engaged in the interstate sale and distribution of other preparations recommended for the treatment of unnaturally delayed menstruation. • PAR. 2. The preparation "Dr. Haller's Famous Prescription 5000" ls manufactured for said respondent by several manufacturers and is ~old and distributed by said respondent through drug stores located ln the various States of the United States and also directly to con· sumers located in the various States of the United States. b ~ AR. 3. Said respondent, in the course and conduct of its said usmess as hereinbefore set out in pararrraphs 1 and 2 has been andno · b ' w IS engaged in extensive advertisement o£ its said product as a ~e~ns of furthering and aiding in the interstate sale and distribution0 ?:· Haller's Famous Prescription 5000," and as a medium of adv~rhsmg it has been and now is using various magazines of national Clrculation and distribution.

1350 FEDERAL TRADE COM:IIIISSION DECISIONS Complaint 25F.T.O.

Said respondent in its said advertisements of the preparation known as "Dr. Haller's Famous Prescription 5000," sold and distributed by it, has made and is now making various false, deceptive and misleading statements concerning said preparation. Among the said statements which said respondent has used and is now using in its advertise· ments in magazines and in its circulars distributed with its said preparation are the following:

In Europe women are not distressed about unnatural delay-when the cal· endar passes the danger mark. They use Dr. Haller's Famous Prescription 5000, and end delay safely, quickly, dependably. For almost half a century Prescription 5000 has also been dispensed to Aweri· can women through ethical channels.

Dr. Haller's Prescription 5000 Is the best product in the world for cases of unnaturally delayed menstruation.

·whereas in truth and in fact "Dr. Haller's Famous Prescription 5000" does not end delay safely, quickly, dependably, has not been dis· pensed to American women through ethical channels for almost a half a century, and is not the best product in the world for cases of unnaturally delayed menstruation.

Respondent in its said advertising has created and is now creating upon the public the impression and the belief that "Dr. Haller's Famous Prescription 5000" is a safe and dependable preparation for use in ending cases of unnaturally delayed menstruation, whereas in truth and in fact said "Dr. Haller's Famous Prescription 5000" is not safe and dependable and its use may produce serious results, and it will not end cases of unaturally delayed menstruation. PAn. 4. The use by said respondent, Lewyn Drug Incorporated, of the foregoing false, deceptive, and misleading representations has had and does now have the capacity and tendency to and does mis· lead and deceive the public into the erroneous and untrue belief that "Dr. Haller's Famous Prescription 5000" is in truth and in fact a safe and harmless preparation which will end unnaturally delayed menstruation. Acting in such erroneous belief, the consuming pub· lie and especially women suffering from delayed menstruation, have been induced and are now induced to purchase "Dr. Haller's Fan1ous Prescription 5000" in preference to other preparations <lesigned t.o end delayed menstruation offered for sale by manufacturers, retail dealers, and distributors. As a result of such false, deceptive, an.d misleading representations on the part of said respon<lent, trade lS unfairly <liverte<l to respondent from such manufacturers, retail deal· ers, or distributors of other preparations for ending delaye<l Jllen~· truation who <lo not misrepresent the character and quality of their respective products or the results obtained from the use thereof. LEWYN DRUG, INC. 1351 1348 Findings PAn. 5. Said false, deceptive, and misleading representations of ~aid respondent contained in its advertisements have resulted in in- J~ry to respondent's competitors and to retail dealers and in prejudice•• to the buying'0 public and constitute unfair methods of compehtwn in commerce within the intent and meaning of Section 5 of an Act of Congress approved September 26, 1914, and 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 Septe~~er 2G, 1914, entitled "An Act to create a Federal Trade Comlllission, to define its powers and duties, and for other purposes," the ~ederal Trade Commission, on September 30, 1036, issued and served Its complaint in this proceeding upon respondent Lewyn Drug, Inc., charging it with the use of unfair methods of competition in com- ~erce in violation of the provisions of said act. After the issuance of said complaint and the filing of respondent's answer thereto, testirno~1Y and other evidence in support of the allegations of said compl~n~t were introduced by Reuben j. l\!artin, attorney for the Comlnission, before Charles P. Vicini, an examiner of the Commission ~h~ret~fore duly designated by it (no testimony or other evidence cmg Introduced by the respondent in opposition to the allegations of the complaint); and said testimony and other evidence were duly recorded and filed in the office of the Commission. Thereafter the ~roceeding regularly came on for final hearing before the Commis- S}(~n on the said complaint, the answer thereto, testimony and other evidence and brief in support of the complaint (no brief having been filed on behalf of respondent and respondent not having requested oral argument) ; and the Commission having duly considered the same ~nd .be~ng now fully advised in the premises, finds that this proceed- ~~g lS In the interest of the public and makes this its findings as to · e facts and its conclusion drawn therefrom. FINDINGS AS TO THE FACTS PA~AGRAl'U 1. nespomlent, Lewyn Drug, Iuc., is a corporation, o~galllzed under the laws of the State of California with its principal ~ace of business at 655 North Arden Dlvd., in the city of Hollywood, s~ate of ~alifornia, and with a Lrancll oflice or place of busini'SS at f euhenvllle, Ohio. Respondent, in 1034:, succeeded to the business ~ a partnership conducted under the name and style of Lewyn Drug company. Respondent is engaged. in the sale and distribution of Findings 25F. T. C.

various pharmaceutical preparations, including a preparation in tablet and capsule form designated "Dr. Haller's Prescription 5000.'' Said preparation is manufactured for respondent by others and is sold and distributed by the respondent through wholesale and retail druggists and direct to the consuming public on mail orders. Respondent causes the preparation, "Dr. Haller's Prescription 5000," when sold by it, to be transported from its principal place of business or its branch office through and into various other States of the United States to the respective purchasers thereof, located at various points in such States of the United States other than the States of California and Ohio. In the course and conduct of its said business, respondent has been, and is now1 in active competition with various persons, partnerships, and corporations, engaged in the manufacture and sale, or the sale, of various preparations for the treatment of conditions similar to those for which respondent recommends the use of its said preparation, "Dr. Haller's Prescription 5000." PAR. 2. Respondent, in the course and conduct of its business, represents and recommends its preparation, "Dr. Haller's Prescription 5000," as a safe, dependable remedy for delayed or suppressed menstruation, and claims that, by its use, women suffering from delayed or suppressed menstruation will obtain relief safely, quickly, and dependably.

PAR. 3. In the course and conduct of its business, respondent has caused and is causing advertisements in aid of the sale of its said preparation, "Dr. Haller's Prescription 5000," to be published in newspapers and magazines of general circulation in various States of the United States and has also used and is using advertising in the form of circular letters which it causes to be distributed among its customers and prospective customers. In its said advertisements, respondent has made and is making numerous claims and represen· tations concerning the therapeutic qualities of and the benefits accru· ing to the users of said preparation, "Dr. Haller's Prescription 5000,'' and the uses for which said preparation is recommended by the respondent. Among said representations so made by said respondent nre representations to the effect:

That in Europe women are not disturbed about unnatural delay, for in such cases they use said prescription and end the delay safely, quickly, and dependably;

That for almost half a century the prescription has been dispensed to American women through ethical channels; That said preparation, "Dr. Haller's Prescription 5000," is the best product in the world for cases of unnaturally delayed menstruation; LEWYN DRUG, INC. 1353 1348 Findings That ''Dr. Haller's Prescription 5000" successfully relieves some of the longest and most stubborn cases; and That with this dependable product countless women have obtained most gratifying results.

PAn. 4. The claims made by the respondent for its preparation "Dr. Haller's Prescription 5000" are false, deceptive, and misleading. Said preparation does not have a wide distribution through the usual wholesale and retail drug channels and it has not been dispensed to American women through ethical channels for almost half a century.

Respondent's said preparation, "Dr. Haller's Prescription 5000" consists of tablets, capsules and ampules, whose respective contents are as follows:

Each white tablet contains:

Ext. Cotton Root Bark------------------------------ 1 Grain Ext. Black IIellebore_________________________________ % u Ergotin ( Bonjean) ----------------------------------- 1 " Aloes (Curacao)------------------------------------- 21h ,. Iron Sulphate dried---------------------------------· 1 " Oil PennyroyaL------------------------------------- 1,4 1\!lnlm Oil Savin ___________________________________________ . lA " Each red tablet contains:

Quinine SnlphatP-------------------------------------- 5 Grains Each capsule contains:

Ergot in ( Donjean) ----------------------------------· 1 Grain Oil Savin____________________________________________ '1:! 1.1lnlm Aloin-----------------------------------------------· 1J1l Grain Apiol Green q. s. tO---------------------------------- 5 Minims Each ampule contains:

Pituitary Extract-------------------------------------- '1:! cc T?e ingredients composing said preparation are known to the medical profession and to pharmacists as "emmenegogues." Delayed menstruation may be functional due to a misbalance of the endocrine glands. Delayed menstruation may be due to or caused by any of the severe major diseases, such as tuberculosis, cancer, pneumonia, or hyperthyroidism, or it may be due to Pregnancy .

. Medical testimony is that where the del::tyed menstruation is functional due to a misbalance of the endocrine glands or where it is due ~ 0 such diseases as tuberculosis, cancer, pneumonia ·or hyperthyroid- Ism, the use of "Dr. Haller's Prescription 5000'' would in no way correct the situation, end the delay and bring about menstruation, and 1354 FEDERAL TRADE COl\IMISSION DECISIONS Findings 23 F.T. C. its use would be definitely dangerous. If the user is suffering from high blood pressure, its use would be dangerous due to the adverse effect on the pressure caused by some of the ingredients, notably pituitary extract, contained in the preparation. In cases where pregnancy exists it \vould be definitely dangerous because the drugs contained in said preparation are entirely too potent to be administered without the attendance of a physician, and when given without the attendance of a physician and in an overdose it will possibly produce excessive uterine hemorrhage or rupture of the uterus with the invariable danger of puerperal sepsis or secondary infection of the uterine contents with resulting high mortality rate. In many cases said preparation will not expel the uterine contents. The use of "Dr. Haller's Prescription 5000" will not Lring about relief in cases of delayed or suppressed menstruation. It will not end delay safely, quickly and dependably, but is completely ineffectual in many cases and its use is always dangerous. It is not tho best product in cases of unnaturally delayed menstruation and it does not successfully relieve some of the longest and most stubborn cases of delayed menstruation. It is not a dependabie product and it is not a safe or competent abortifacient.

PAR. 5. Uespondent, in its newspaper and magazine advertisements, has made use of various letters of the alphaLet preceding its corporate name so that the corporate name would appear to be V. D. Lewyn Drug, Inc., U. S. Lewyn Drug, Inc., etc. Different letters or combinations of letters of the alphabet are used in each advertisement and a number of different combinations were used and are so being used. This was done and is being done for identification purposes in order that respondent might be able to tell which of its advertisements were producing the most results, but each of said advertisements so used were and are published on the authority of the respondent.

PAR. G. The representations and implications used by the respondent, as above set out, in connection with the offering for sale and sale of the preparation herein described in said commerce, are false, misleading and deceptive and have had, and now have, the tendency and capacity to, and do, mislead and deceive many members of the purchasing public and cause them erroneously to believe that said representations are true and cause them, because of said erroneous belief, to purchase substantial quantities of respondent's said preparation, thereby unfairly diverting trade in said commerce to the respondent from its competitors who truthfully represent their product, to the substantial injury of said competitors in said commerce and to the injury of the public.

LEWYN DRUG, INC. 1355 1348 Order CONCLUSION The aforesaid acts and practices of the respondent, Lewyn Drug, Inc., are to the prejudice of the public and competitors of the respondent, 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 Com·nuss1on, to define its powers and duties, and for other purposes." ORDER TO CEASE AND DESIST . This proceeding having been heard by the Federal Trade Commis- Sion upon the complaint of the Commission, the answer of respondent, testimony and other evidence taken before Charles P. Vicini, an examiner of the Commission theretofore duly designated by it in su~port of the allegations of said complaint (no testimony or other evidence having been introduced by the respondent), and the brief filed herein (respondent having filed no brief and not having reques_ted an oral argument), and the Commission having made its findmgs as to the facts and its conclusion that said respondent, Lewyn Drug, Inc., has violated the provisions of an Act of Congress, approved SeptemlJer 2G 1914 entitled "An Act to create a Federal Trade Commission, to ~lefine' its powers and duties, and for other Purposes."

It i~ ordered, That the respondent, Lewyn Drug, Inc., its officers, agents, employees, respresentatives, or successors, whether acting ~nder said name of Lewyn Drug, Inc., or under any other name or In any other manner, in connection with the offering for sale, sale and distribution of the preparation now known and sold under the name "Dr. Haller's !->prescription 5000," or any other preparation, Under whatever name sold, composed of the same or similar ingredi- ~nts, and possessing similar properties, in interstate commerce, or Jn the District of Columbia, do forthwith cease and desist from: 1. Representing that said preparation is a safe, dependable remedy for delayell or suppressed menstruation; f ~· Representing that by the use of said preparation women sufermg from delayed or suppressed menstruation will end such delay or suppression and will obtain relief safely, quickly and dependably; . 3· Hepresenting that said preparation has been dispensed to Amer- Ican Women through ethical channels for almost a half century; 4· Representing that said preparation is the best product in the world for cases of unnaturally delayed menstruation; f 5· Representing that said preparation successfully relieves some0 the longest and most stullLorn cases of delayed menstruation, and Order 25F.T.C.

that with this said preparation countless women have obtained and are obtaining most gratifying results;

6. And from making any other similar representations of like import or effect as to the therapeutic or medicinal value of said preparation or the benefits accruing from the use thereof. It is ordered, That the respondent, Lewyn Drug, Inc., 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 the order hereinabove set forth. AL HARTMAN, INC. 1357 Complaint