Justin Haynes & Co., Inc

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IN THE :MATTER OF JUSTIN HAYNES & COMPANY, INC.

Co~PLAINT, FINDINGS, AND ORDER IN REGARD TO THE ALLEGED VIOLATION OF SEC. 5 OF A:-.1 ACT OF CONGRESS APPROVED SEPT. 26, 1914 Docket 271,3. Complaint, Mar. 13, 1936-Deoision, Apr. 21, 1998 '\\'here a corporation engaged in sale and distribution of a medicated ointment ( for relief of pain and discomfort of colds, muscular aches, etc.a) Sold said preparation under name "Aspirub," and in representations on containers and cartons thereof, and in newspaper advertisements, leaflets and broadsides, and by radio broadcasts, as case might be, stressed aspirin content thereof through such statements as "The First Rnb containing aspirin for direct external use," "NEW CONVENIENT WAY TO USE ASPIRIN," "I hated to dose myself with aspirin. Now I get relief more conveniently Ivith ASPIRUB," and "You don't swallow ABPIRUB, there is no internal dosing, llo upsetting your stomach," etc., and "contains aspirin because it bas been Proven that aspirin is one of the few medicines that can be absorbed through the skin; it Is a scientific new way to use aspirin by applying it to the Rpot where the pain is; faster than ever;" facts being aspirin is not absorbable through the skin into the body in sufficient quantities to be of (b any therapeutic value;

) Uepresented, as aforesaid, that said "medicated ointment provides symptomatic relief for such common ills where home medication Is Indicated," and that it was "Soothing to muscular aches, pains, and soreness as caused by colds, sprains, and exposure. • • • Calming to coughs due to colds and minor throat irritations," "New, better cold treatment that combines 7 of the finest cold medicines with aspirin, acts lightning-quick in relieving the pain and discomfort of chest colds, head colds, sore throats," etc., "• • • the new quicker relief from this constant danger (the com- Inon cold). ASPIRUB is fortified with penetrating aspirin," etc., "* • • derived from two ingredients, Aspirin and Pine Oil ;" facts being that said last-named ingredient is obsolete in treatment of colds and no longer generally prescribed, certain other ingredients were of no benefit whatever, ~ut merely added to give a pleasant odor, preparation in question provided httie, if any, symptomatic relief, was of little value In treatment of ~euralgic symptoms, etc., does not kill colds quickly, contain seven of the nest cold medicines, had no eflect whatever on causative factors of colds (c) and similar ailments, etc., and aforesaid statements were false; and Uepresented that said preparation accomplished beneficial results attributed thereto through being absorbable, through such statements as ''you RUB it on. And ASPIRUB Is not SUPERFICIAL. ASPIRUB penetrates into that sore spot, a~ the skin absorbs its medication," etc., and that it contained aspirin, as a ove set forth, because It bad been proven that it was one of the few rned' · n lcmes that could be "absorbed through the skin ," and was a "scientific "ew way to use aspirin by applying it to the spot where the pain is," and rub this powerful yet harmless Asplrub on throat and chest and In a few ~lnutes its mighty penetrating powers start to allay the Inflammation," e c., and "penetrates the skin and reaches the nerve endings where it re- DECISIO~S1148 :FEDERAL TllADE COl\:Il\IISSION Complaint 26I<'.T,C. duces pain;" facts being only an insignificant amount of said Aspirub could be absorbed through the skin into the body and only an infinitesimal amount thereof reach the pain perceiving center of the central nervous system and not in sufficient amount for relief of pain, and that skin would not absorb said preparation to any substantial extent, so as to have any beneficial value by reason thereof, and it did not represent a new way to use aspirin nor a new method or way of taking same, or function as represented, but depended for beneficial effects, in common with many other preparations, on action as an irritant; \With effect of misleading and deceiving substantial portion of purchasing public into erroneous belief that said representations were true, and that said preparation had a substantial therapeutic value in treatment of afflictions and ailments for which recommended, as above indicated, and with result that public purchased substantial volume of said product, acting in such mistaken and erroneous belief, and trade was unfairly diverted to it from competitors engaged in manufacture, sale and distribution of like and similar products or other preparations designed and used for similar pur· poses, and which they truthfully represented as to efficacy and therapeutic and curative value:

Held, That such acts and practices were to the prejudice and injury of the public and competitors and constituted unfair methods of competition. Before Mr. W-illiam C. Reeves, trial examiner. Mr. S. Brogdyne Teu, II for the Commission. Mr. John H. Glaccum of Munn, Anderson & Liddy, of New York City, for respondent.

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 Justin Haynes & Co., Inc., 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 thereto would be in the public interest, hereby issues its complaint stating its charges in that respect as follows: PARAGRAPH 1. The respondent, Justin Haynes & Co., Inc., is a corporation organized and existing under and by virtue of the la'':5 of the State of New York, with its principal office and place of bu~t­ ness located at 34 7 Fifth A. wnue, in the city of New York, withtn the State of New York. Said respondent is now and for more than 1 year last past has been engaged in the sale of a medical prepant· tion containing, among other ingredients, Aspirin, under the br:tnd name "Aspirub," and the distribution thereof between and among' the various States of the United States. It causes said medical preparation, h.11own as "Ao;;pirub," when sold by it to be transporte to the pmchasers thereof located in the State of New York and JUSTIN HAYNES & CO., INC. 1149 1147 Complaint various other States of the United States. There is now and has been for a long time, to wit, more than 1 year last past, a constant current of trade and commerce by respondent in said "Aspirub" between and among the various States of the United States. In the course and conduct of its said business, said respondent is now and for a long time, to wit, for more than 1 year last past, has been in substantial competition in commerce between and among the various States of the United States with various other corporations, partnerships, firms, and individuals engaged in the interstate sale ' and distribution of aspirin and of other medical preparations containing aspirin.

PAR. 2. The preparation sold and distributed by said respondent under the name of "Aspirub" is a salve or ointment for external ' use which contains various medicinal ingredients and is put up in jars containing one and one-half ounces of the ointment each. Each jar of said salve or ointment contains 11-h percent aspirin. PAR. 3. Said respondent, in the course and conduct of its said business, as hereinbefore set out in paragraph 1, has been and now is engaged in advertising on a national scale as a means of furthering and aiding in the interstate sale and distribution of said "Aspirub."

Said respondent in its said advertisement of the product known as "Aspirub" and sold by it, has made and is now making various false, deceptive, and misleading statements conceming said product. -A.nwng the said statements which said respondent has used and is ll.ow using in its advertisements in newspapers and on the labels pasted on the jars of "Aspirub" and on the cartons containing said Jars of "Aspirub" are statements to the effect that due to its aspirin :on.tent "Aspirub" has great therapeutic value, and that "Aspirub" Is the new way of taking aspirin, whereas in truth and in fact said '':ispirub" because of its negligible aspirin content has no therapeutic value as aspirin and in truth and in fact aspirin cannot be absorbed into the body through the skin.

Respondent in its said advertising has and is creating upon the ll~blic the impression that the use of its product "Aspirub" has and "'dl accomplish all of the beneficial therapeutic effects of aspirin and because it is applied externally will avoid the hazards of ~8Pirin used internally, whereas in truth and in fact said "Aspirub'' as no beneficial therapeutic effect because of its ne~li~ible aspirin ~hll.ten~ and bec.cause of the fa?t that aspiri~ is not absorbed through f e S~In, and m truth and m fact "Aspirub" does not have th~ Un.ctiOnal value of aspirin.

1604~lm 39--VOL.26----i~ Findings 26F.T.<J.

PAR. 4. The use by the said respondent, Justin Haynes & Company, Inc., of the foregoing false, deceptive and misleading representations alleged to be used by the said respondent in paragraph 3 hereof, have had and do now have the capacity and tendency to mislead and deceive the public into the erroneous and untrue belief that "Aspirub" is in truth and in fact the safest, newest, most beneficial and most effective way to use aspirin, and has thereby induced and does now induce the consuming public and especially the users of aspirin, acting in said erroneous belief, to purchase "Aspirub" in preference to aspirin offered for sale in tablet or pow· der form for internal consumption, which is the generally accepted way for talring aspirin, by manufacturers, retail dealers, and dis· tributors. As a result of such false, deceptive, and misleading rep· resentations on the part of said respondent, trade is diverted to respondent from such manufacturers, retail dealers, and distributors of aspirin in tablet or powder form for internal consumption an<i thereby injury has been done and is being done by the respondent. PAR. 5 Said false, deceptive, and misleading representations of said respondent contained in its advertising have resulted in injury to respondent's competitors and to retail dealers and in prejudice to the buying public 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, 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 FAars, AND ORDER Pursuant to the provisions of the Federal Trade Commission Act, the Federal Trade Commission on :March 13, 1936, issued, and on March 14, 1936, served, its complaint in this proceeding upon t~e respondent, Jus tin Haynes & Co., Inc., a corporation, charging 1t with the use of unfair methods of competition in commerce in viola· tion of the provisions of said act. After the issuance of said coJll• plaint and the filing of respondent's answer thereto, testimony and other evidence in support of the allegations of said complaint wer; introduced by S. Brogdyne Teu, II, attorney for the Commission an in opposition to the allegations of the complaint by John H. GlaccuJllf attorney for respondent, before William C. Reeves, an examiner 0 the Commission theretofore duly designated by it, and said testimony' and other evidence were duly recorded and filed in the office of th~ Commission. Thereafter the proceedings regularly came on for fina hearing before the Commission on the said complaint, the answer thereto, testimony and other evidence, briefs in support of the coJll· JUSTIN HAYNES & CO., INC. 1151 1147 Findings plaint and in opposition thereto, and the oral arguments of counsel for the Commission and counsel for the respondent, and the Commission having duly considered the same and being now fully advised in the premises, finds that this proceeding 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. The respondent, Justin Haynes & Co., Inc., is a corporation organized and doing business under the laws of the State of New York. Its principal office and place of business is located at 347 Fifth Avenue, city of New York, State of New York. It is engaged in the sale and distribution of a medication sold and distributed under the trade name of Aspirub.

PAR. 2. Respondent's preparation is distributed from its place of business to retailers located throughout the United States. 'Vhen orders are received for respondent's said preparation, it causes such preparation to be shipped from its place of business located in the city of New York, State of New York, to the purchasers thereof located at various points in the various States of the United States other than the State of New York, and in the District of Columbia. Since the date of its incorporation, the respondent has maintained a course of trade in said preparati~n in commerce between and among the various States of the United States and in the District of Columbia.

PAR. 3. At all times since respondent entered into said business, it has been in substantial competition with other corporations and with Partnerships and individuals engaged in the sale and distribution or manufacture, sale and distribution, of like and similar preparations 0r other preparations designed, intended and used for similar pur- Poses in commerce among and between the various States of the 'Onited States and in the District of Columbia. PAR. 4. The respondent has advertised, and now advertises, its llroduct by means of statements appearing on the containers and cartons in which respondent's preparation is packaged and sold, and by newspaper advertisements, leaflets, broadsides, by radio broadcasts. ~he following are representative of the statements and representations made on the containers and cartons of respondent's preparation: 'this medicated ointment provides symptomatic relief for such common llls "here home medication is indicated.

In 'lends to relieve pain and discomfort of colds. Rub on chest and throat and Bert small quantity in nostrils.

llor muscular aches, pains and soreness, rub freely on the aflected parts. 'lhe First Rub containing aspirin for direct external use. Findings 26 F.T. C. Soothing to muscular aches, pains and soreness as caused by colds, sprains, and exposure. Comforting for neuralgic symptoms. Calming to coughs due to colds and minor throat irritations.

The name ASPIRUB is derived from two ingredients Aspirin and Pine Oil. • • • The following are representative of the statements and representations made in the newspaper advertisements which the respondent inserts in newspapers:

New Rub containing Aspirin kills colds quicker. Just rub it on! No dosing- No sagging. Checks colds like magic! Asplrub, the new, better cold treatment that combines 7 of the finest cold medidnes with aspirin, acts lighting-quick in relieving the pain and discom· fort of chest colds, head colds, sore throats, muscular aches, neuralgia pains. Within a few hours-or overnight-the cold is checked, tightness is gone, breath· ing more normal, coughing eased up--and you feel your old healthy self again! ASPIRUB is pleasant to us~olorless and stainless. Eliminates internal dosing ! Loosens congestion by forcing blood to the surface and increasing circulation.

Get a jar of ASPIRUB today I Snuff it through your nostrils! Inhale its vapors when dissolved in hot water I Rub It on your chest overnight! • • • And see if ASPIRUB isn't the nicest, quickest-acting cold treatment you've ever used. Get a jar from your druggist today ! I hated to dose myself with aspirin. Now I get relief more conveniently with ASPIRUB.

ASPIRUB your cold away.

NEW CONVENIENT WAY TO USE A~PIRIN.

The following is representative of the statements and representa· tions made by the respondent in its radio broadcasts: The headlines of today's papers scream with war! Diplomats are redoubling their efforts to localize it or prevent it entirely. Meanwhile, another war, one In which we all are involved, is being fought with success. This is the war against the common cold. 1\Iedical science now has produced ASPIRUB ...... A-S-P-1-R-U-B-the new quicker relief from this constant danger. ASPIRUB IS fortified with penetrating aspirin, combined with seven other well-known iugre· dlents for colds. You don't swallow ASPIRUB, there is no internal dosing, no upsetting your stomach-you RUB it on. And ASPIRUB Is not SUPERFICit\.L· ASPIRUB penetrates into that sore spot, as the skin absorbs Its medication. ASPIRUB is antiseptic, inflammation-reducing. At the first sign of a head cold snuff a little ASPIRUB into your nostrils. The vapors last. Your bead ciearil almost Instantly, you breathe easier. Rub ASPIRUB on a congested chest or sore throat-it will help to loosen tightness and bring relief. Fine for museu· lar aches, too.

The respondent has made other claims and representations regard· ing the merits of its compound, among them being the following: "Rheumatic pains, neuritis, neuralgia, simple colds, sore throat, and nasal congestion are amor1g the ailments whose symptoms have be~n. successfully treated by Aspirub; the rieh volatile medicines 1n JUSTIN HAYNES & CO., INC. 1153 1147 Findings Aspirub carry the aspmn in permanent solution and increase its powers to penetrate quickly to the source of pain or irritation; Aspirub is antiseptic and healing; Aspirub contains aspirin because it has been proven that aspirin is one of the few medicines that can be absorbed through the skin; it is a scientific new way to use aspirin by applying it to the spot where the pain is; faster than ever tough old colds are killed with Aspirub; rub this powerful yet harmless Aspirub on throat and chest and in a few minutes its mighty penetrating powers start to allay the inflammation-start to break up the congest:Rin; just rub it on, no dosing, no gagging, checks colds like magic, and Aspirub penetrates the skin and reaches the nerve endings where it reduces pain and lessens congestion. PAR. 5. The qualitative and quantitative composition of the respondent's preparation is as follows:

Aspuin------------------------------------------------- 1.5% Plne Oil----------------------------------------------- 13.0% Methyl Salicylate------------------------------------ 2.0% Camphor---------------------------------------------- 3.0% ~Ienthol------------------------------------------------ 2.0% Oil of Eucalyptus-------------------------------------- .5% 011 of Lavender----------------------------------------- 1.0% 011 of Spearmint--------------------------------------- 1.0% White Petrolatum (Petroleum Jelly)--------------------- 76.0% Total-------------------------------------------- 100.0% PAR. 6. Aspirin has been prescribed by the medical profession for several years for the alleviation of pain incident to certain ailments and afflictions of the human body, particularly in reducing the threshold of pain in the treatment of rheumatic fever. The normal dosage of aspirin for a normal person is five grains, however, as high as 120 grains may be given a person within a comparatively short time in the treatment of rheumatic fever.

Aspirin is a common name for acetyl salicylic acid. This particular acid, along with a large group of other organic salicylates, is not a?sorbable through the skin into the human body in sufficient quantihes to be of any therapeutic or curative value. Further, this group of compounds are centrally acting, as contrasred with peripherally acting analgesics. ~ntrally acting analgesics are medicines that lllust first be taken into the blood stream and by it transmitted to the brain or central nervous system. 'Vhen they ren.ch the brain ~nd act, a nervous impulse is transmitted to the area of pain or Injury.

The purpose, if any, which the respondent's compound serves in the .treatment of the various afflictions and conditions of the human body Findings 26F.T.C.

for which it is recommended, is that of an irritant. There are many irritants upon the market today. They are not, per se, of therapeutic or curative value. Almost without exception their application is accompanied by rubbing. The counter irritation set up by the rubbing primarily accomplishes the therapeutic effect or curative action. The respondent's product, Aspirub, contains in a 1¥2-ounce jar, 10.4 grains of aspirin. Based on the testimony it .is found that if a whole jar of respondent's preparation were applied as directed by respond· ent, there would be absorbed into the human body not over 10 peroent of the total aspirin content of the jar, or 1.04 grains of aspirin. If 10.4 grains of aspirin were taken internally there would be an absorp· tion of at least 90 percent of the aspirin content, or 9.36 grains of aspirin.

From the directions contained in leaflets enclosed in the containers in which respondent's preparation is packed and sold, it is found that the dosage of Aspirub varies from a small quantity applied every few hours in the treatment of nasal congestion, to small quantities "about the size of a pea" in the treatment of coughs due to colds. One witness testified that in using the respondent's compound he applied to the painful area just enough to cover the end of a finger tip. The constituent of respondent's compound that is stressed most in the advertisements of same, is the aspirin. On the basis of the abo-ve calculations of the absorption of aspirin by external and internal application, it is found that the insignificant amount of the aspirin in respondent's compound which is absorbed into the human body when applied dermally is not sufficient to warrant a legitimate use by the respondent of the trade name Aspirub.

Upon entering the human body the small amount of aspirin which can be absorbed by dermal application, begins to break down first into the various salicylates and later, organic ions. The aspirin absorbed into the human body thus immediately changes into other organic sub· stances before it reaches the blood stream. The infinitesimal amount of aspirin absorbed by dermal application is further diluted upon be· ing taken into the blood stream.

From the testimony of expert pharmacologists, it is found w~ell aspirin is taken internally it passes through the stomach into the lDtestines before breaking down into its component parts. Upon reach· ing the intestines and breaking down into the various constituents, it is then taken into the blood stream and transmitted to the pain pe;· ceiving center of the brain or central nervous system. The P11!n perceiving center then sends an impulse toward the injured or d~s­ eased part of the human body, resulting in relief of pa.in or dis· comfort.

JUSTIN HAYNES & CO., INC. 1155 1147 Findings Pharmacologists further testified that pine oil is obsolete in the treatment of colds and no longer is generally prescribed by the medical profession, and that oil of lavender and oil of spearmint in the respondent's preparation were of no benefit whatsoever and were merely present for the purpose of giving the preparation a pleasant odor. The evidence clearly establishes the fact that the aforesaid representations made by respondent are false and deceptive. The respondent's compound will provide little, if any, symptomatic relief from ills where home medication is indicated. It does not tend to relieve pain and discomfort of colds. It is of little or no therapeutic value for muscular aches, pains and soreness, and it is of little value in the treatment of neuralgic symptoms common to coughs, colds and minor throat irritations. It does not kill colds quickly, and it will not check .colds like magic. It does not contain seven of the finest cold medicines and will not act lightning-quick in relieving the pain and discomfort <lf head colds, chest colds and sore throat. It will not check tightness in the chest or make breathing more normal, and it is not the quickest acting of cold medicines. Respondent's preparation has no effect whatever on the causative factors of colds and similar ailments. The respondent's preparation is for external use. Only an insignificant amount of Aspirub can be absorbed through the skin into the body. Upon reaching the blood stream Aspirub is broken down into its various constituent elements and greatly diluted by the blood. As a result, only an infinitesimal amount of the Aspirub originally absorbed reaches the pain perceiving center of the central nervous system. The amount reaching that center is so minute that no impulse sufficient for the relief of pain is sent out from the center. Pharmacologists further testified that recent scientific tests have not established that the respondent's compound is one of a few medicines which can penetrate the skin; that the aspirin in respondent's preparation is not held in permanent solution; that the oils claimed to be in respondent's preparation do not, under the circumstances in which the preparation is used, volatilize and increase its power to penetrate quickly to the source of pain or irritation; that the skin will not absorb respondent's preparation to any substantial extent so as to have any beneficial value by reason thereof; and that said preparation is not antiseptic or curative. Aspirub when applied by dermal application 'Will not reach the nerve endings and reduce pain. Aspirub is not a new way to use aspirin, nor is it a new method or way of taking aspirin. PAR. 7. The use by respondent of the representations set forth above and appearing in its advertising literature, newspaper advertisements und radio broadcasts, has had and now has the capacity and tendency to and does mislead and deceive a substantial portion of the purchas- Order 2SF.T.O.

ing public into the erroneous and mistaken beliefs that the said representations are true and that respondent's preparation has a substantial therapeutic and curative value in the treatment of the afllictions and ailments of the human body for which it is recommended. Acting under the mistaken and erroneous beliefs induced by the false and misleading statements and representations herein referred to, the public has purchased a substantial volume of the respondent's products with the result that trade has been unfairly diverted to respondent from its competitors likewise engaged in the manufacture, sale and distribution or in the sale and distribution of like and similar products, or other preparations designed, intended and used for similar purposes, who truthfully represent the efficacy, therapeutic and curative value of their respective products. CONCLUSION The aforesaid acts and practices of the respondent, Jus tin Haynes Company, Inc., are to the prejudice and injury of the public and of respondent's competitors and constitute unfair methods of competition in commerce within the intent and meaning of the Federal Trade Commission Act.

ORDER TO OEASE AND DESIST This proceeding having been heard by the Federal Trade Corn· mission upon the complaint of the Commission, the answer thereto, testimony and other evidence taken before 'Villiam C. Reeves, an examiner of the Commission theretofore duly designated by it, in support of the allegations of said complaint and in oppositi?ll thereto, briefs filed herein, and oral argument before the Coal11ll15" sion, and the Commission having made its findin!!'S as to the facts and its conclusion that said respondent has violated the provisions of the Federal Trade Commission Act.

It iB ordered, That the respondent, Justin Haynes & Company, Inc., a corporation, its officers, representatives, agents, and employees in connection with the offerin!! for sale sale, and distribution of a . . ~ ' 'o!lpreparatiOn now designated as "Aspirub," or any other preparatl containing substantially the same ingredients, or possessing the same . 'l . . b" oror Simi ar properties whether sold under the name "Aspiru { u,nder a?y other nam~, in interstate commerce or in the District :bColumbia, do forthwith cease and desist from directly or throu, implication: ' 1. Representing! ~through the use of the word "Aspirub" or a;Js other word contammg the letters "Aspir" or any word or wo . I . ' . forsunu atmg the word "Aspirin'' as a trade name or designa1.1on JUSTIN HAYNES & CO., INC. 1157 1147 Order its preparation, or through any other means, or in any other manner, that the said preparation is Aspirin.

2. Representing that said preparation has any of the merits of, or accomplishes to any substantial extent the beneficial therapeutic effects of Aspirin.

3. Representing that said preparation has any substantial therapeutic or curative value other than as an irritant. 4. Representing that said preparation is absorbable into the human body through the skin in an amount sufficient to produce any beneficial therapeutic effect by reason thereof. It w 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.

Syllabus 26F.T. C.