Voss Co., Inc

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IN THE MATTER OF VOSS CO., INC.

COMPLAINT, FINDINGS, AND ORDER IN REGARD TO THE ALLEGED VIOLATION OF SEC. II OF AN ACT OF CONGRESS APPROVED Selll. 26, 1914 Docket 8490. Complaint, July 18, 1988-Dccision, Mar. 16, 1939 Where a corporation engaged in sale and distribution of pharmaceutical tablets, composed of acetyl salicylic acltl or aspirin, and magne.:;ium oxide, to purchasers including, principally, wholes:.lle druggists, in the various States and in District of Columbia, in substantial competition with others engaged in sale 8lld distribution of similar pharmaceutical products or other products designed and intended for similar usage, and including those who do not misrepresent the therapeutic qualitte~ of their products or otherwise misrepresent the same; in advertising its said product in various newspapers and magazines of Interstate circulation, and In various other ways- ( a) Represented that said preparation was a new product or new discovery, which was superior to and would give more effective and quicker relief than ordinary aspirin, and counteracted toxic effects and would stop all pain, and that it was unqualifiedly safe for use; Facts being it had been on the market since Hl29, was not superior to and more effective than ordinary aspirin and would not give quicker relief, though it would perform substantially the same analgesic functions as said substance, would not counteract toxic effects or stop all pain, and was not one which could be Indiscriminately used with safety by reason of aspirin ingredient of product, and fact that there are many people who are allergic to such substance and for whom said preparation would not be safe, and others cannot e:afely take such product into their systems beyond prescribed or usual dosage; and (b) Represented, as aforesaid, that said product was a remedy, cure, or effective treatment for acid condition of the stomach, which would have beneficial alkalizing effect, and that it was also such a cure or remedy for headaches, neumlgia, neuritis, muscular and rheumatic pains, sleeplessness, period pains, nervousness and colds, and possessed therapeutic properties in excess of or different from ordinnry aspirin; Facts being it was not an effective cure or remedy for headaches and various other ailments and conditions above set forth, many of which are caused by systemic or organic disturbances in which its said product would not be a proper or effective treatment, and some of which are, in many cases, symptoms of organic disturbance, in treatment of which its said product would not be indicated or effective, and it would not be a cure o1· remedy for coltls;

With effect of misleading and deceiving substantial portion of purchasing public into erroneous and mistaken belief that such false statements, representations, nnd advertisements were true, and that said prepruatiou possessed the properties claimed and represented, and would accomplis!! results indicated, and of causing substantial portion of such public, because of such erroneous and mistaken belief, to purchase substantial quantities 1162 FEDERAL TRADE COl\IlVIISSION DECISIONS Complaint 28 F. T. C. of said product, and of thereby diverting unfairly trade to it from competitors who truthfully advertise the effectiveness of their respective preparations:

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 11/r. lV. lV. Sheppard, trial examiner. 31 r. De lV itt 1'. Puekett for the Commission. Jonas dJ Neuberger, of New York City, for respondent. Complaint Pursuant to the provisions of the Federal Trade Commission Act, and by virtue of the authority vested in it by said act, the Federal Trade Commission, having reason to believe that Voss Co., Inc., a corporation, hereinafter referred to as respondent, has violated the provisions of the said act, 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. Respondent, Voss Co., Inc., is a corporation doing business under the laws of the State of New Jersey. Its principal office and place of business are at 505 Court Street, Brooklyn, N. Y. It is engaged in the sale and distribution of a pharmaceutical product, in tablet form, marketed under the name "Magnespirin." Each 6%-grain tablet consists of 3% grains of aspirin and 3% grains of magnesium oxide.

Respondent now causes, and for approximately 1 year last past has caused, its said product, when sold by it, to be shipped from its said place of business in Brooklyn, N. Y., to the purchasers thereof~ principally wholesale druggists, located in the various States of the United States, other than the State of New York, and in the District of Columbia. There is now, and has been at all times mentioned herein, a course of trade in said pharmaceutical product so sold and distributed by the respondent in commerce between and among the various States of the United States and in the District of Columbia. Respondent is, and for approximately 1 year last past has been, in substantial competition with other corporations, and with individuals and partnerships, engaged. in the sale and distribution of similar pharmaceutical products, or other products designed and intended for similar usage, 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 its business as aforesaid, respondent has advertised and now advertises its said product in various newspapers and magazines having an interstate circulation, and in VOSS CO., INC. 1163 11tH Complaint various other ways. RE'presentative of the respondent's advertising claims with respect to its said product are the following: 1\Iagnespirin is a new, different kind of aspirin. Aspirin improved 100%.

Acts twice us fast us ordinary aspit·in.

It is more effective than ordinary aspirin. It is safe.

In fact it actually toues "' "' • the stomach. Sweetens the breath.

Stops all pains.

Doctors advise it.

Millions praise it.

Counteracts toxic effects.

l\Iagnespirin is aspirin plus magnesium which alkulizes like milk of magnesia-neutralizes the acid.

Fastest relief ever known for headaches, neuralgia, neuritis, muscular and rheumatic pains, colds, sleeplessness, period pains, nervousness. The aforesaid advertising claims for magnespirin serve as representations on· the part of respondent that said product is a new discovery and is an adequate remedy or cure for the various ailments, disorders, and diseases mentioned in said advertising matter; that said product is superior to ordinary aspirin in that it is safer, more effective, gives quicker relief, and that it will stop all pains; that its use is advised by doctors, and that millions use it; that it counteracts toxic effects, and that its alkalizing qualities neutralize acidic comlitions of the stomach.

PAR. 3. In truth and in fact, magnespirin is not a new discovery, but has been on the market for several years. It is not superior to ordinary aspirin. It is no more effective and does not relieve pain any quicker than ordinary aspirin. It will not stop all pains. Its use is not advised by doctors, nor is in praised by millions of users. It will not counteract toxic effects and has no appreciable systemic alkalizing effect. Its unsupervised use by persons generally is not safe. There are persons who are allergic to aspirin, consequently, it it not safe for such persons to take said tablets at all. There is also another class of persons who may not safely tak~ into the system amounts of aspirin in excess of the prescribed or usual dose. Their·e are many pN·sons to whom the use of such tablets in excessive amounts is highly dangerous and may prove fatal. Respondent's said product is not an adequate remedy or cure for the various ailments and disorders mentioned in respondent's said advertising matter. Some of the disorders and ailments listed in said advertising mater arise from many causes, and there is no specific remedy or treatment that is effective in all cases and under all conditions. Such ailments and disorders are, in many instances, caused 200310'"-40--~ol. 2S-'i6 1164 FEDERAL TRADE COMMISSION DECISIO::SS Findings 28F. T. C.

by or associated with a systemic or organic derangement and, in order to treat such cases effectively, it is necessary to ascertain the cause or causes thereof. Nervousness and sleeplessness are, in many instances, merely symptoms or an organic disturbance which may necessitate expert medical treatment. Likewise, there is a wide variety of causes of menstrual pains, some of which may he serious and may require a surgical operation. The common cold and so-called !'l1C'umatic aches and pains are condiHons for which respondent's product is in no sense adequate. In all disorders and ailments of the human body arising from or associated with systemic or organic disturbance or derangement a thorough diagnosis by an expert is necessary in order to ascertain the cause or causes of the disorder and the proper treatment therefor.

PAR. 4. There are among the competitors of respondent, as mentioned in paragraph 1 hereof, individuals, partnerships, and corporations, engaged in the sale and distribution of pharmaeeutical products advertised and sold as remedies for various ailments and disorders of the human body, that do not misrepresent the therapeutic qualities or otherwise misrepresent their products which they offer for sale and sell.

PAR. 5. The use by respondent of the representations set forth herein has had, and now has, the capacity and tendency to mislead and deceive, and has misled and deceived, a substantial portion of the purchasing public into the erroneous belief that such representations are true and into the purchase of substantial quantities o£ respondent's Magnespirin tablets as a result of such erroneous belief. By the representations aforesaid trade is diverted unfairly to respondent from its aforesaid competitors and as a result thereof injury is being, and has been, done by respondent to competition in commerce among and between the various States of the United States and in the District o£ Columbia.

PAR. 6. The aforesaid acts and practices of the respondm1t as herein alleged are all 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 the Federal Trade Commission Act.

REPORT, FINDINGS AS TO THE FACTS, AND ORDER Pursuant to the provisions of the Federal Trade Commission Act, the Federal Trade Commission, on July 13, 1938, issued and served its complaint in this proceeding upon the respondent, Voss Co., Inc., a corporation, charging it with the use of unfair methods of com- VOSS CO., I:XC. 1165 1161 Findings petition in commerce in violation of the provisions of said act. On August 23, 1938, the respondent filed its answer in this proceeding. Thereafter, at a regularly scheduled hearing the facts were stipulated ·On the record and it was agreed that said stipulation of facts may be taken as the facts in this proceeding. Thereafter, this proceeding regularly came on for final hearing before the Commission on said complaint, answer, stipulation as to the facts, and brief in support Df the allegations of the complaint (respondent not having filed brief and oral argument not having been requested); and the Commission, having duly considered the matter, and being now fully advised in the premises, finds that this proceeding is in the interest Df the public and makes this its findings as to the facts and its conclusion drawn therefrom.

FINDINGS AS TO THE FAC"rS PARAGRAPH 1. Respondent, Voss Co., Inc.,· is a corporation doing business under the laws of the State of Delaware. Its principal office and place of business are at 505 Court Street, Brooklyn, N. Y. It is engaged in the sale and distribution of a pharmaceutical product, in tablet form, marketed under the name "Magnespirin." Each 6%grain tablet consists of 3% grains of aspirin and 3% grains of magnesium oxide.

Respondent now causes, and for approximately 1 year last past has caused, its said product, when sold by it, to be shipped from its said place of business in Brooklyn, N.Y., to the purchasers thereof, principally wholesale druggists, located in the various States of the United States, other than the State of New York, and in the District Df Columbia. There is now, and has been at all times mentioned herein, a course of trade in said pharmaceutical product so sold and distributed by the respondent in commerce between and among the various States of the United States and in the District of Columbia. Respondent is, and for approximately 1 year last past has been, in substantial competition with other corporations, and with individuals and partnerships, engaged in the sale and distribution of similar pharmaceutical products, or other products designed and intended for similar usage, in commerce between and among the various Stutes of the United Stutes and in the District of Columbia. PAR. 2. In the course and conduct of its business as aforesaid, respondent has advertised and now advertises its said product in various newspapers and magazines having an interstate circulation, and in various other ways. Representative of the respondent's advertising claims with respect to its said product are the following: COJ\Il\IISSIO~ DEC1SIOXS1166 FEDERAL TRADE Findings !!SF. 1'. !~. 1\Iagnespirin is a new, different kind of aspit·in. Aspirin improved 100%.

Acts twice as fast as ordinary aspirin.

It is more effective than ordinary aspirin. It is safe.

In fact it actually tones • • • the stomach. Sweetens the breath.

Stops all pains.

Doctors advise it.

Millions praise it.

Counteracts Toxic effects.

Magnespirin is aspirin plus magnesium which alkalizes like milk of mag· nesia-neutralizes the acid.

Fastest relief erer known for headaches, neuralgia, neuritis, muscular and rl1eumatlc pains, colds, sleeplessness, period pains, nervousness. Through the use of the statements hereinabove set forth, all of which purport to be descriptive of the remedial, curative, or therapeutic properties of respondent's product, respondent has represented, and does now represent, that its preparation "1\fagnespirin" is a new discovery, the use of which is advised and prescribed by doctors, and which is superior to, and will give more effective and quicker relief than, ordinary aspirin; that it is a safe remedy which will stop all pain and counteract toxic effects. Respondent by this means further represents that said preparation is an adequate or effective cure or remedy for headaches, neuralgia, neuritis, muscular and rheumatic pains, colds, sleeplessness, period pains, and nervousness; that is neutralizes acidic conditions of the stomach by reason of its alkalizing qualities.

PAR. 3. In fact magnespirin is a product which consists of the combination of acetyl salicylic acid or aspirin and magnesium oxide. It is not a new discovery as it has been on the market since 1929. This preparation is not superior to ordinary aspirin and is not more effective, and will not give quicker relief than aspirin, though it will perform substantially the same analgesic functions as aspirin. It will not stop all pain, and its use is not generally advised or prescribed by doctors. This preparation will not counteract toxic effects and has no appreciable effect in neutralizing acid conditions of the stomach. This preparation is not one which can be indiscriminately used with safety by reason of the existence of aspirin as an ingredient of this product. There are many persons who are allergic to aspirin and it would not be safe for such persons to take respondent's prepa~ ration. There are other persons who cannot safely take aspirin into their systems beyond the prescribed or usual dosage with safety. VOSS CO., INC. 1167 1161 Conclusion Respondent's preparation, magnespirin, is not an adequate or effective cure or remedy for headaches, sleeplessness, period pains, and llervousness. l\Iany of these disorders or ailments are caused by systemic or organic disturbances in which respondent's preparation would not be a proper or effective treatment. Furthermore, nervous- 11ess and sleeplessness are in many cases symptoms of an organic disturbance, in the treatment of which respondent's product would not be indicated or effective. Menstrual pains, likewise, have a variety ·of causes, some of which might be serious and require surgical operation. Respondent's preparation would not be a cure or remedy for any diseases of which the above-mentioned conditions or ailments might be symptomatic. This preparation would not be a cure or remedy for colds.

PAR. 4. There are among the competitors of respondent, as mentioned in paragraph 1 hereof, individuals, partnerships, and corporations, engaged in the sale and distribution in commerce among and between the various States of the United States of pharmaceutical products advertised and sold as remedies for various ailments and disorders of the human body, who do not misrepresent the therapeutic qualities or otherwise misrepresent their products which they offer for sale and sell.

PAR. 5. The use by the respondent of the foregoing false and misleading statements, representations, and advertisements, disseminated -as aforesaid, with respect to said preparation, has had, and now has, the capacity and tendency to, and does, mislead and deceive a substantial portion of the purchasing public into the erroneous and mistaken belief that such false statements, representations, and ad- -vertisements are true, and that respondent's said preparation possesses the properties claimed and represented and will accomplish the results indicated, and causes a substantial portion of the purchasing public, because of such erroneous and mistaken belief, to purchase substantial quantities of respondent's said preparation. As a result trade has been diverted unfairly to the respondent from its competitors in said commerce who truthfully advertise the effectiveness in use of their respective preparations.

CONCLUSION The aforesaid acts and practices of respondent, as herein found, 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 the Federal Trade Commission Act.

1168 FEDERAL TRADE COML\IISSION DECISIONS Or<ler 28F. T. C.

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, a stipulation as to the facts entered upon the record, and a brief in support of the allegations of the complaint (no brief having been filed by respondent and oral argument not having been requested); 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 is ordered, That the respondent, Voss Co., Inc., a corporation, its officers, representatives, agents, and employees, directly or through any corporate or other device, in connection with the offering for sale, sale, and distribution of a medicinal preparation now designated ":Magnespirin," or of any other medicinal preparation containing substantially the same ingredients or possessing the same properties whether sold under that name or any other name, in commerce, as commerce is defined in the Federal Trade Commission Act, do forthwith cease and desist from representing:

1. That said preparation is a new product or a new discovery. 2. That said preparation is superior to or will give more effective or quicker relief than ordinary aspirin.

3. That said preparation is unqualifiedly safe for use. 4. That said preparation counte-racts toxic effects or that it will stop all pain.

5. That said preparation is a remedy, cure, or effective treatment for acid conditions of the stomach, or that it will have any beneficial alkalizing effect.

6. That said preparation is a cure or remedy for headaches, neuralgia, neuritis, muscular and rheumatic pains, sleeplessness, period pains, nervousness, or colds, or that it possess therapeutic properties in excess of, or different from, ordinary aspirin. 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.

BURN, POLLAK & BEER 1169 Syllabus