Harland L. Herb

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IN THE Matrer OF HARLAND L. HERB DOING BUSINESS AS NATIONAL SCIENTIFIC PRODUCTS COMPANY COMPLAINT, FINDINGS, AND ORDER IN REGARD TO THE ALLEGED VIOLATION OF SEC. o OF AN ACT OF CONGRESS APPROVED SEPT. 26, 1914 Docket 3240. Complaint, Oct. 8, 1937-Decision, Jan. 19, 1939 Where an individual engaged in manufacture, sale, and distribution of medicinal product known as "Prostories"; in advertising same In papers and magazines circulating among various States- Represented that the same was a new medicinal principle and new medical discovery, and that it constituted a competent and effective remedy and cure for prostatitis, infection, and other disorders of the prostate gland and that it was a stimulant therefor and would restore, stimulate, or increase potency or sex power, and was a remedy or cure, or a competent and effective treatment for impotency ;

Facts being it was not a new or scientific principle of stimulation of said gland, loss of power such as due to age and various diseases and conditions, treatment of diseases of said gland requires examination for purpose of determining cause of ailment, and said product was not an effective treatment for prostatitis and would not accomplish results claimed for it as above set forth, but only effect thereof would be by reason of irritant action of Ingredients therein contained to act as an excitant and such irritant might be harmful, and it was not analgesic or pain-relieving; With tendency and capacity to mislead and deceive substantial portion of purchasing public into erroneous and mistaken belief that its said "Prostories,. was an effective cure for diseases of prostate gland and would 1·elieve pain and suffering caused thereby and increase power of user through stimulation thereof, and to induce number of purchasing public to buy said product because of aforesaid erroneous beliefs engendered by such false and misleading representations, and unfairly to divert trade to him from competitors who do not make use of such misrepresentations: Held, That such acts and practices were all to the prejudice and injury of the public and competitors and constituted unfair methods of competition. Before llfr. Arthur F. Thomas, trial examiner. llfr. Carrel F. Rhodes for the Commission. Complaint Pursuant to the provisions of an Act of Congress approved September 26, 1914, entitled "An Art 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 Harland L. Herb, hereinafter referred to as respondent, has been for more than 1 year last past, and is now, using unfair methods of competition in NATIONAL SCIENTIFIC PRODUCTS CO. 151 150 Complaint conm1erce as "commerce" is defined in said Act of Congress, and it appearing to the 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. Harland L. Herb is ··an individual operating and doing business under the trade name "National Scientific Products Company," with his principal offices and place of business located at 644 Diversey Boulevard, Chicago, Ill.

PAR. 2. Respondent Harland L. Herb, trading as N a tiona! Scientific Products Co., is now, and for more than 1 year last past has been engaged in the business of manufacturing, compounding, advertising, selling, and distributing medicaments and medicinal compounds allegedly for the relief and cure of diseases, infections, and disorders of the prostate gland; for relief from impotency, and for the restoration, stimulation, and increase of sex power in man. Among the commodities so advertised and sold by respondent is a product known and advertised as "Prostories" recommended as a treatment and cure for prostatitis and for the increase of sex desire and sex power in man.

Said respondent now causes, and for more than 1 year last past has caused, his said product, when manufactured and sold, to be transported from his principal place of business in the city of Chicago, State of Illinois, to retail stores and other purchasers thereof at their respective points of location, in the several States of the United States other than the State of origin, and in the District of Columbia. Respondent is now, and for more than 1 year last past has been, in substantial competition with other persons, firms, partnerships, and corporations engaged in the sale of medicaments and medicinal products like or similar to those sold by respondent, or in the sale of other medicaments, medicinal compounds, or other products designed, intended, sold, and used for the treatment of the same diseases, conditions, maladies, and disorders of the human body, in commerce between and among the various States of the United States and in the District of Columbia.

PAn. 3. In the course and conduct of his said business, as described in paragraphs 1 and 2 hereof, for the purpose of inducing and encouraging the sale of his said products, respondent now, and for more than 1 year last past, has made use in newspapers, magazines, pamphlets, circulars, letters, radio broadcasts, and other forms of advertising media having an interstate circulation-published and circulated under the trade name "National Scientific Products Company"-and in sales talks and on signs posted around retail stores Complaint 28F. T. C.

located in the several States of the United States and in the District of O_columbia of. statements and representations among which the following are typical :

SEXUAL POWER DOUBLED IN ONE HOUR with PROSTORIES -The Sex-Stimulating Suppositories- An Amazing New Medical Discovery These Suppositories strengthen and stimulate the Prostate Gland (which doctors consider the base of all men's sex power) by medicating the gland DIRECT-a natural and logical method. Ask your own doctor. No drugs are taken Into the system. Prostories contain no narcotics, yet are so effective that. they need to be used only an hour before the stimulation Is wanted. Originally developed to relieve the pain and sexual weakness of Prostate Sufferers, repeated tests have proved that Prostories bring greatly increased sexual power to any man-and in just one hour. Users report their power of retarding more than doubled.

There is nothing else on the market like Prostories. Don't confuse them with, the harmful temporary drugs that must be taken constantly to get results. Trial Box of 1(}-$1.00; 24 for $2.00 Sold on Absolute MONEY-BACK GUAR- ANTEE. All orders mailed in plain wrapper, with complete directions. NATIONAL SCIENTIFIC PRODUCTS CO.

644 Diversey Boulevard, Dept. D-3 Chicago, Ill. PROSTORIES (Trade Mark) What they Are And What They Will Do For YOU PROS TORIES Prostories are prostate stimulating suppositories. The latest scientific develop· ment for the relief of sexual weakness, making use of an entirely new medical principle of stimulating the prostate gland direct . • • • • • • • HOW PROSTORIES HELP As this gland (The Prostate Gland) Is located close to the walls of the lower intestine, just inside the rectum, it is easy to understand how it can be medicated through this opening.

In use, the suppository slips past the muscles of the rectum and lodges in the lower bowel beside the prostate where it Is melted by the heat of the body. The medicine contained Is thus released to its work of stimulation." • • • • • • • NATIONAL SCIENTIFIC 'PRODUCTS CO. 153 150 Complaint Do not use more than one (suppository) at a time as they contain just the right amount of medicine for the best results. In some case another may be used after a few hours if necessary."

Sold and Guaranteed by NATIONAL SCIENTIFIC PRODUCTS CO.

The aforesaid statements and representations, together with other similar representations not herein set out in full, serve as representations on the part of respondent that said product constitutes a competent and effective remedy and cure for prostatitis and infections, diseases, and disorders of the prostate gland, and that its use will restore, stimulate, and increase potency or sex power in man. PAR. 4. In truth and fact, the respondent's said product is not a new medical discovery or scientific development of a new medical principle and does not constitute a competent and effective remedy or cure for prostatitis, or any other infections, diseases, and disorders of the prostate gland. Its use will not cure or relieve impotency or sex weakness and does not stimulate the prostate gland or increase sex power in man.

PAR. 5. The said representations of said respondent, as aforesaid, are false and misleading and have had, and do have, the tendency and capacity to mislead and deceive a substantial number of retail dealers and the purchasing public into the mistaken and erroneous belie£ that the product so marked, branded, designated, advertised as Prostories and sold, and transported by respondent, is an effective cure for infections, diseases, and impairments of the prostate gland and will relieve pain and suffering caused thereby, and that it will restore, stimulate, and increase sex appetite and sex functioning in man by stimulating the prostate gland when such is not in fact the truth. The said representations of respondent have had, and do have, the capacity and tendency to induce retail dealers and members of the purchasing public to buy respondent's said product because of the aforesaid erroneous beliefs engendered by said false and misleading representations, and to unfairly divert trade from competitors who are engaged in the sale of like products to that sold by respondent, or in the sale of other medicaments, medicinal compounds, or other products designed, intended, sold, and used for the treatment of the same diseases, conditions, maladies, and disorders of the human body, in commerce in and among the various States of the United States and in the District of Columbia, who do not use such false and misleading representations. As a result thereof substantial injury is now being done, and has been done, by the respondent to competition in commerce among and between the various States of the .United States and of the District of Columbia.

Findings 28 F. T. C. PAR. 6. The above alleged acts, practices, and representations of respondent are all 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 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."

REPORT, FINDINGS AS TO THE FACTS, AND ORDER Pursuant to the provisions of the Federal Trade Commission Act, the Federal Trade Commission, on October 8, 1937, issued and thereafter served its complaint in this proceeding upon the respondent, Harland L. Herb, an individual, trading as National Scientific Products Co., 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 said complaint were introduced by George Foulkes, attorney for the Commission, acting at that hearing for Carrel F. Rhodes, attorney for the Commission, before Arthur F. Thomas, an examiner of the Commission, duly appointed to take testimony and receive evidence in said proceeding, and in opposition to the allegation of the complaint by Harland L. Herb, appearing on behalf of himself, and said testimony and other evidence were duly recorded and filed in the office of the Commission. Thereafter, the proceedings regularly came on for final hearing before the Commission on the said complaint, the answer thereto, testimony and other evidence, and brief in support of the complaint. Respondent waived the filing of brief and oral argument; and the Commission having duly considered the same, 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.

FINDHWS AS TO THE FACTS PARAGRAPH 1. The respondent, Harland L. Herb, is an individual doing business under the trade name and style of National Scientific Products Co., with his principal office and place of business located at 64:4 Diversey Parkway, Chicago, Ill. He is engaged in the manufacture and sale and distribution of a medicinal product known as "Prostories" and has caused said merchandise, when sold, to be transported from his place of business in the State of Illinois to purchasers thereof in Illinois and in other States of the United States at their NATIONAL SCIENTIFIC PRODUCTS CO. 155 150 Findings respective points of location. In the course and conduct of said business, respondent is and has been in substantial competition with other firms and corporations engaged in the sale of medicaments and medicinal products like or similar to those sold by respondent or other products intended to be sold and used for the treatment o£ the same diseases and disorders of the human body in commerce between and among the various States of the United States and in the District of Columbia.

PAR. 2. In the course and conduct of his said business as described in paragraph 1 hereof, respondent, in soliciting the sale of and selling his said merchandise, has advertised in pai)ers and magazines having a circulation between and among various States of the United States, said product "Prostories" and in said advertisements he has represented that this product is a new medicinal principle and a new medical discovery; in his advertisements he has further represented that the said product constitutes a competent and effective remedy and cure for prostatitis, infection, and other disorders of the prostate gland; and as (1) a stimulant of the prostate gland; (2) a relief to prostrate sufferers from pain and sex weakness; (3) a relief from impotency; ( 4) a prostate stimulator doubling sexual power in from 1 to 2 hours.

PAn. 3. All of these representations are false. Loss of sexual power is due to age, diseases of the nervous system, functional and organic; Various forms of psychosis, psychoneurosis, degenerate and tonic neurosis; diabetes; local diseases of the genital tracts. Treatment of diseases of the prostate gland requires an examination of the individual affected, for the purpose of determining the cause of the ailment. There is no one effective treatment for all ailments o£ this gland. The suppository of respondent is not an effectual treatment for prostatitis and would not relieve sex weakness. The ingredients of the suppository known as "Prostories," as disclosed by respondent's formula for the compound, would not effect a cure, or relief, such as the advertisements claim for it. It is not a new or scientific principle of stimulation of the prostate gland. These ingredients would not stimulate the prostate gland, and, if it should be conceded that the ingredients contained such value, under respondent's plan or method of medication the medicament could not reach the prostate gland. The only eflect this suppository has is that the ingredients act as irritants to certain parts of the body, as the mouth of the bladder, etc., and any suppository composed of any ingredients might act with the same rffcct. This irritant merely acts as an excitement of sexual appetite, but has no effect on sexual power, and it may be harmful. The compound is not analgesic or pain-relieving. _::oo:J46"'-40-vol. 28-13 156 FEDERAL TRADE COMl\IISSION DECISIONS Order 28 F. T.C. PAR. 4. The said false and misleading representations of said respondent have had and do have the tendency and capacity to mislead and deceive a substantial number of the purchasing public into the mistaken and erroneous belief that the product so marked and f!dvertised as "Prostories" and sold and transported, in interstate commerce, by him is an effective cure for diseases of the prostate gland, and will relieve pain and suffering caused thereby, and that it will increase sex power in man by stimulating the prostate gland, when such is not in fact the truth. Said representations of respondent have had the capacity and tendency to induce members of the purchasing public to buy respondent's product because of the aforesaid erroneous beliefs engendered by said false and misleading representations, and unfairly to divert trade from competitors who are engaged in the sale of other medicinal compounds sold and used for the treatment of like diseases or disorders of the human body, in commerce in and among the various States of the United States and in the District of Columbia, who do not use such false and misleading representations.

CONCLUSION The practices of the respondent, as set forth in the aforesaid Findings of Facts, are to the prejudice of the public ar{cl of respondent's competitors and constitute unfair methods of competition in commerce in violation of Section 5 of an Act of Congress approved September 26, .1914, entitled, "An Act to create a Federal Trade Commission, to _define its powers and duties, and for other purposes." ORDER TO CEASE AND DESIST This proceeding having been heard by the Federal Trade Commission upon the complaint of the Commission, the answer of respondent, testimony and other evidence taken before Arthur F. Thomas, an examiner of the Commission theretofore duly designated by it, in support of the allegations of said complaint and in opposition thereto, brief filed herein by Carrel F. Rhodes, counsel for the Commission (respondent having waived the filing of brief and not having re- (]Uested oral argument), and the Commission having made its findings as to the facts and its conclusion that said respondent has violated the provisions of the Federal Trade Commission Act. It i8 ordered, That the respondent, Harland L. Herb, individually, nnd trading as National Scientific Products Co., or trading under nny other name, his agents, representatives, and employees, directly or through any device, in connection with the offering for sale, sale, nnd distribution in interstate commerce or in the District of Columbia NATIONAL SCIENTIFIC PRODUCTS CO. 157 150 Order of a medicinal preparation now known as '~Prostories" or any other preparation containing substantially similar ingredients or possessing similar therapeutic properties, whether sold under that name or any other name, do forthwith cease· and desist from: Representing directly, or in any manner, that said preparation 1. Is a remedy or cure, or a competent and effective treatment, for prostatitis or any other infections, diseases, or disorders of the prostate gland.

2. Is a stimulant for the prostate gland.

3. 'Vill restore, stimulate, or increase potency or sex power. 4. Is a remedy or cure, or a competent and effective treatment for impotency.

It is fu:rther ordered, That the respondent shall, within 60 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.

158 FEDERAL TRADE COJI.IJI.IISSION DECISIONS Syllabus 28F. T. C.