Bates, Carl D

Text (OCR of the scan at left; may contain errors)

IN THE Matrer OF CARL D. BATES, TRADING AS SIMMON'S CUT RATE DRUG STORE COMPLAINT, FINDINGS, AND ORDER IN REGARD TO THE ALLEGED VIOLATION OF SEC. 5 OF AN ACT OF CO:-IGRESS APP:kOVED SEPT. 26, 19U Docket 4366. Complaint, Oct. 29, 1940-Decision, Feb. 10, 1941 Where an individual engaged in sale and distrlbution ot various medicinal preparations, Including drug preparation known as '':Mrs. Bee Femo Caps" and also as "Femo Caps" and "Bee Caps," to purchasers in various other States and in the District of Columbia; in advertisements of said preparation which he disseminated and caused to be disseminated through the mails and by various other means in commerce-- (a) Represented, directly and by implication, that his said preparation constituted a competent and pffective treatment for delayed, unnatural, and suppressed menstruation and that it was safe and harmless, facts being said preparation was not a competent or effective treatment for such conditions and was not safe or harmless, In that it contained drugs ergot, oil of savin, aloin, and oil ot tansy in quantities sufficient to cause serious and irreparable injury to health if used under conditions prescribed in said advertisements or under such conditions as are customary or usual, and such use of said preparation might cause gastro-intestinal disturbances and excessive congestion and hemorrhage ot the pelvic organs, and in case ot pregnancy might cause uterine Infection and blood poisoning, and such use of said preparation might also produce severe circulatory conditions, often with poisonous effect upon human system and tending to cause abortion in some Instances, 11nd might result in severe toxic conditions, in some instances producing gangrenous condition of lower limbs, resulting either in possible loss of limbs or In other serious and irreparable injury to health; and (b) tailed to reveal, in said advertisements, facts material in the light of repre· sentations contained therein, and that use of said preparation under conditions prescribed In such advertisements or under such conditions as are customary or usual, might cause gastro-intestinal disturbances and excessive congestion and hemorrhage of the pelvic organs and, in case ot pregnancy, might cau!'le uterine infection and bloou poisoning; With effect of misleading and deceiving substantial portion of purchasing public into erroneous and mistaken belief that his preparation possessed properties which it did not in fact possess, and that it was safe and harmless when such was not the fact, and with result, as consequence of finch erroneous and mistaken belief, of inducing such public to purchase substantial quantities of his said prpparation:

Held, That such acts and practices, under the circumstances set forth, were all to the prejudl<'e and Injury of the public, and con~tltuted unfair and d~>ceptive acts and practices in commerce.

Mr. lVilUam L. Taggart for the Commission.

llfr. Samuel R. Rely· of Canundaigua, N.Y., for re!-'pondent. SIMMON'S CUT RATE DRUG STORE 721 720 Complaint Complaint J:lursuant 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 Carl D. BatPs, an individual, trading as Simmon's Cut Rate Drug Store, hereinuftpr 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, herf.'by issues its complaint, stating its charges in that rf.'spect as follows: PARAGRAPH 1. Respondent Carl D. Bates, an indiYidnal trading as Simmon's Cut Rate Drug Store, with his principal place of business :J.t 84 Main Street, Canandiagua, Ontario County, N. Y., is now and for more than 1 year last past has been engaged in the sale and distribution of various medicinal preparations. Among the various preparations sold and distributed by the respondent is a drug preparation known as "Mrs. Bee Femo Caps," and also as "Femo Caps" and as ''Bee Caps."

PAR. 2. Respondent causes said preparation, when sold, to be transportl:•d from his place of business in the State of New York to purchasers thereof located in various other States of the United States and in the District of Columbia. Respondent maintains, and at all times mentioned herein has maintained, a course of trade in his said preparation in commerce between and among the Yarious States of the United States and in the District of Columbia. P.<tR. 3. In the course and conduct of his aforesaid business, the respondent has disseminated and is now disseminating, and has caused and is now causing the dissemination of false advertisements concerning his said product by the United States mails and by various other means in commerce, as commerce is defined in the Federal Trade Commission Act; and 1:respondent has also disseminated and is now disseminating, and has caused and is now causing the dissemination of, false advertisements concerning his said product, by various means, for the purpose of inducing and which are likely to induce, directly or indirectly, the purchase of said product in commerce, as commerce is defined in the Federal Trade Commission Act. Among and typical of the false, misleading, and deceptive statements and representations contained in said false advertisements, disseminated and caused to be disseminated as hereinabove set forth, by the United States mails, by advertisements in newspapers, and by circulars and other advertising literature are the following:

722 FEDERAL 'trade COMMISSION DECISIONS Complaint 32F.T.C.

1\IODERN WOl\IEN (Facsimile package of Mrs. Bee Femo Caps) HARMLESS PRESCRIPTION Dont BE Discouraged. Don't be alarmed over delayed unnatural snpprPssed menstruation. New discovery, 1\frs. Bre Femo Caps, the fast acting, safe aid to women. Acts without discomfort or inconvenience. Ask today for Mrs. Bee Femo Caps.

PAR. 4. Through the use of the foregoing representations and others of similar import not specifically set out herein, the respondent represents and has represented, directly and by implication, that his said preparation constitutes a competent and effective treatment for delayed, unnatural, and suppressed menstruation and that said preparation is safe and harmless.

PAR. 5. The foregoing representations are grossly exaggerated, false, and misleading. In truth and in fact, respondent's preparation is not a competent or effective treatment for delayed, unnatural, or suppressed menstruation. :Moreover, said preparation is not safe or harmless, as it contains the drugs ergot, oil of savin, aloin, and oil of tansy in quantities sufficient to cause serious and irreparable injury to health if used under the conditions prescribed in said advertisements or under such conditions as are customary or usual. Such use of said preparation may result in gastro-intestinal disturbances, catharsis, nausea and vomiting, with pelvic congestion, congestion of the uterus, leading to excessive uterine hemorrhage; and in those cases where said preparation is used to interfere with the normal course of pregnancy, such use may result in uterine infection, with extension to other pelvic and abdominal structures and even to the blood stream, causing the condition known as s('pticemia or blood poisoning.

Such use of said preparation may also produce a severe circulatory condition by the congestion of the blood vessels and contraction of the involuntary muscles, of~en with poisonous effect upon the human sys· tern, and tending to cause abortion in some instances, and may result in severe toxic conditions such as hemorrhagic diarrhea and in some instances producing a gangrenous condition of the lower limbs, resulting either in possible loss of limbs or in other serious and irreparable injury to health.

PAR. 6. The advertisements disseminated by the respondent constitute false advertisem('n~s for the further r('ason that they fail to reveal f~cts material in the light of the representations contained therein, and fail to reveal that the use of said pr('paration under the conditions SIMMON'S CUT RATE DRUG STORE 723 720 Findings prescribed in said advertisements, or under such conditions as are customary or usual, may cause gastro-intestinal disturbances and excessive congestion and hemorrhage of the pelvic organs, and in the case of pregnancy may cause uterine infection and blood poisoning. PAR. 7. The use by the respondent of the aforesaid false advertisements with respect to his said preparation, disseminated as aforesaid, 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 respondent's preparation possesses properties whi.ch it does not in fact possess, and that said preparation is safe and harmless, when such is not the fact. As a result of such erroneous and mistaken belief, the purchasing public has been induced to purchase and has purchased substantial quantities of respondent's preparations.

PAR. 8. The aforesaid acts and practices of the respondent as herein alleged are all to the prejudice and injury of the public, and constitute unfair and deceptive acts and practices in commerce within the intent and meaning of the Fed(;ral Trade Commission Act. REPORT, FINDINGS AS TO THE FACTS, A'KD ORDER Pursuant to the provisions of the Federal Trade Commission Act, the Federal Trade Commission on October 29, 194:0, issued, and on October 30, 1940, served, its complaint in this proceeding upon respondent, Carl D. Bates, individually and trading as Simmon's Cut Rate Drug Store, charging him with the use of unfair and deceptive acts and practices in commerce in violation of the provisions of said act. After the issuance and service of said complaint and filing of respondent's answer, the Commission, by order entered herein, granted respondent's motion for permission to withdraw said answer and to substitute therefor an answer admitting all the material allegations of fact set forth in said complaint, and waiving all intervening procedure and further hearing as to said facts, which substitute answer was duly filed in the office of the Commission. Th~reafter, this proceeding regularly came on for final hearing before the Commission on the said complaint and substitute answer, and the Commission, having duly considered the matter, 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 conclusion drawn therefrom. FINDINGS AS TO THE FACTS PARAGRAPH 1. Respondent, Carl D. Bates, an individual trading as Simmon's Cut Rate Drug Store, with his principal place of business at Findings 32 F. T. C 84: Main Street, Canandaigua, Ontario County, N. Y., is now and for more than 1 year last past has been engaged in the sale and distribution of various medicinal preparations. Among the various preparations sold and distributed by the respondent is a drug preparation known as "Mrs. Bee Femo Caps," and also as ~'Femo Caps" and as "Bee Caps." PAR. 2. Respondent causes said preparation, when sold, to be transported from his place of business in the State of New York to purchasers thereof located in various other States of the United States and in the District of Columbia. Respondent maintains, and at all times mentioned herein has maintained, a course of trade in his said preparation in commerce 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 aforesaid business, the respondent has disseminated and is now disseminating, and has caused and is now causing the dissemination of false advertisements concerning his said product by the United States mails and by various other means in commerce, as commerce is defined in the Federal Trade Commission Act; and respondent has also disseminated and is now disseminating, and has caused and is now causing the dissemination of, false advertisements concerning his said product, by various means, for the purpose of inducing and which are likely to induce, directly or indirectly, the purchase of said product in commerce, as commerce is defined in the Federal Trade Commission Act. Among and typical of the false, misleading, and deceptive statements and representations contained in said false advertisements, disseminated and caused to be disseminated as hereinabove set forth, by the United States mails, by advertisements in newspapers, and by circulars and other advertising literature are the following:

MODERN WOMEN (Facsimile package HARMLESS of Mrs. Bee Femo PRESCRIPTION Caps) Dont lie DISCOURAGED. D~;m't be alarmed over delayed unnatural suppressed menstruation. New' discovery, Mrs. Bee Femo Caps, the fast acting, safe aid to women. Acts without discomfort or inconvenience. Ask today for Mrs. Bee Femo Caps.

PAR. 4. Through the use of the foregoing representations and others of similar import not specifically set out herein, the respondent represents and has represented, directly and by implication, that his said preparation constitutes a competent and effective treatment for delayed, unnatural, and suppressed menstruation and that said preparation is safe and harmless.

SIMMON'S CUT RATE DRUG STORE 725 720 Findings PAR. 5. The foregoing representations are grossly exaggerated, false, and misleading. In truth and in :fact, respondent's preparation is not a competent or effective treatment for delayed, unnatural, or suppressed menstruation. Moreover, said preparation is not safe or harmless, as it contains the drugs ergot, oil of savin, aloin, and oil of tansy in quantities sufficient to cause serious and irreparable injury to health if used under the conditions prescribed in said advertisements or under such conditions as are customary or usual. Such use of said preparation may result in gastro-intestinal disturbances, catharsis, nausea and vomiting, with pelvic congestion, congestion of the uterus, leading to excessive uterine hemorrhage, and in those cases where said preparation is used to interfere with the normal course of pregnancy, such use may result in uterine infection, with extension to other pelvic and abdominal structures and even to the blood stream, causing the condition known as septicemia or blood poisoning.

Such use of said preparation may also produce a severe circulatory condition by the conge~tion of the blood vessels and contraction of the involuntary muscles, often with poisonous effect upon the human system, and tending to cause abortion in some instances, and may result in severe toxic conditions such as hemorrhagic diarrhea and in some instances producing a gangrenous condition of the lower limbs, resulting either in possible loss of limbs or in other serious and irreparable injury to health.

PAR. 6. The advertisements disseminated by the respondent constitute false advertisements for the further reason that they fail to reveal facts material in the light of the representations contained therein, and fail to reveal that the use of said preparation under the conditions prescribed in said advertisements, or under such conditions as are customary or usual, may cause gastro-intestinal disturbances and excessive congestion and hemorrhage of the pelvic organs, and in the case of pregnancy may cause uterine infection and blood poisoning.

PAR. 7. The use by the respondent of the aforesaid false advertisements with respect to his said preparation, disseminated as aforesaid, 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 respondent's preparation possesses properties which it does not in fact possess, and that said preparation is safe and harmless, when such is not the fact. As a result of such erroneous and mistaken belief, the purchasing public has been induced 726 FEDERAL TRADE COMlHISSION DECISIONS Order 82F. T. C.

to purchase, and has purchased, substantial quantities of respondent's preparation.

CONCLUSION The aforesaid acts an<l practices of the respondent as herein found are all to the prejudice and injury of the public, and constitute unfair and deceptive acts and practices in commerce within the intent and meaning of the Federal Trade Commission Act. ORDER TO CEASE AND DESIST This proceeding having been heard by the Federal Trade Commission upon the complaint of the Commission and the answer of the respondent, in which answer respondent admits all the material allegations of fact set forth in said complaint, and states that he waives all intervening procrdure and further hearing as to said facts, 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, Carl D. Bates, individually and trading as Simmon's Cut Rate Drug Store, or trading under any other name, his representatives, agents, and employees, directly or through any corporate or other device, in connection with the offering for sale, sale, or distribution of his medicinal preparation known as "l\frs. Boo Femo Caps," and as "Femo Caps," and "Bee Caps," or any preparation of substantially similar composition or possessing sulstantially similar properties, whether sold under the same names or under any other name, do forthwith cease and desist from directly or indirectly:

1. Disseminating or causing to be disseminated any advertisement (a) by means of the United States mails or (b) by any means in commerce, as commerce is defined in the Federal Trade Commission Act, which advertisement represents, directly or through inference, that said preparation constitutes a competent or effective treatment for delayed, unnatural, or suppressed menstruation; that said preparation is safe or harmless; or which advertisement fails to reveal that the use of said preparation may cause gastro-intestinal disturbances and excessive congestion and hemorrhage of the pelvio organs, and in the case of pregnancy may cause uterine infection and blood poisoning.

2. Disseminating or causing to be disseminated any advertisement by any means for the purpose of inducing, or which is likely to induce, directly or indirectly, the purchase in commerce, as com- SIMMON'S CUT RATE DRUG STORE 727 720 Order merce is defined in the Federal Trade Commission Act, of said preparation, which advertisement contains any of the representations prohibited in paragraph 1 hereof, or which fails to reveal that the use of said preparation may cause gastro-intestinal disturbances and excessive congestion and hemorrhage of the pelvic organs, and in the case of pregnancy may cause uterine infection and blood poisoning.

It i8 further ordered, That the respondent shall, within 10 days after service upon him of this order, file with the Commission an interim report in writing, stating whether he intends to co!nply with this order and, if so, the manner and form in which he intends to comply; and that within 60 days after service upon him of this order, said respondent shall file with the Commission a report in writing, setting forth in detail the manner and form in which he. has complied with this order. Syllabus 32F.T. C.