Erie Laboratories, Inc. et a

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IN THE MATTER OF ERIE LABORATORIES, INC., ALSO TRADING AS MACK PHARMACAL COMPANY, ALLIED PHARMACAL CO., ALSO TRADING AS ERIE LABORATORIES, INC., AND MELVIN ROSE, DAVID F. BERLAND AND ROSE KOTENBERG COMPLAINT, FINDINGS, AND ORDER IN REGARD TO THE ALLEGED VIOLATION OF SEC. 5 OF AN ACT OF CONGRESS APPROVED SEPT. 26, 1914 Docket 4382. Complaint, Not'. 20, 19-W-Decis-Lon, Mar. '1!1, 1941 Where two co1·purations and three individuals, who directed and controlled their practices and methods of advertising, engaged in interstate sale and distribution of various medicinal preparations, including their "1\Irs. Bee Femo Caps," "Femo Caps," and "Bee Caps," and acting in conjunction and cooperntiou with each other1· In carrying on acts and practices below set forth; by advertisements of their said last-named preparations disseminated through the mails, newspaper advertisements, circulars, and other advertising literature in commerce and otherwise-- (a) Represented, uirectly and by implication, that their said preparations constituted a competent and effective treatment for delayed, unnatural, and suppressed menstruation, and were safe and harmless, facts being they were not competent and effective treatments for said condition, and were not safe and harmless in that they contained certain drugs in quantities sufficient to cause serious and irreparable injury to health if used under conditions presrribed in said advertisements or under such conditions as are customary or usual and, thus used, might result in gastro-intelltinal disturbance and excessive congt>stion and hemorrhage of thepelvic organs and, in case of pregnancy, might cause uterine infection and blood poisoning or other serious injury; and (b) Failed to reveal facts material in the light of the representations contained in said Hdvertitlemt>nts, and that use thereof under conditions prescribed therein or under such conditions as are customary or usual, might cause the dangerous conditions nott>ll above; With capacity and tendency, through use of such false, misleading, and deceptive representations, to mislead and deceive a substantial portion of the purchasing public into the erroneous and mistaken belief that their said preparations postlessed properties which they did not in fact possess, and that they were in all cases safe and harmless, and with result, because or such' mistaken bt>lief, of inducing such public to purchase substantial quantities of their said prt>parations:

Held, That such acts and practices, under the circumstances set forth, were an to the prejudice and injury of the public, and constituted unfair and deceptive acts and practices in commerce.

Mr. William L. Taggart for the Commission. Mr. A. L. Greenspun, of Cleveland, Ohio, for respondents. ERIE LABORATORIES, INC., ET AL. 1031 1030 Complaint 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 Erie Laboratories, Inc., a corporation, also trading as Mack Pharmacal Co. ; Allied Pharmacal Co., a corporation, also trading as Erie Laboratories, Inc.; and Melvin Rose, David F. Berland, and Rose Kotenberg, individually, and as officers and directors of Allied Pharmacal Co.t hereinafter referred to as respondents, have violated the provisions of 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, staHng its charges in that respect as follows: PARAGRAPH 1. Respondent, Erie Laboratories, Inc., is a corporation organized and existing under the laws of the State of Ohio, with its principal office and principal place of business in Suite 530 Film Exchange Building, 2108 Payne A venue, Cleveland, Ohio. Mack Pharmacal Co. is a trade name used by the said Erie Laboratories, Inc., in selling its products to retail dealers. Allied Pharmacal Co. is a corporation organized and existing under the laws of the State 6£ Ohio, with its principal office and principal place of business in Suite 530 Film Exchange Building, 2108 Payne A venue, Cleveland, Ohio. Respondent, Allied Pharmacal Co., also does business llnder the name of Erie Laboratories, Inc. Melvin Rose is an individual engaged in business both individually and as vice president, treasurer, and a director of the Allied Pharmacal Co., and David F. Berland and Rose Kotenberg, individuals, are likewise officers and directors of said Allied Pharmacal Co. Said individual respondents are ·also officers and directors of Erie Laboratories, Inc. Respondents, Melvin Rose, David F. Berland, and Rose Kotenberg, direct and control the practices and methods of advertising of 1·cspondents Erie Laboratories, Inc., also trading as l\Iack Pharmacal Co.,' and Allied Pharmacal Co., also trading as Erie Laboratories, Inc. The individual respondents have acted in conjunction and cooperation with each other and with the corporate respondents in carrying on the acts and practices hereinafter alleged. PAR. 2. Respondents are now and for more than 1 year last past have been engaged in the sale and distribution of various medicinal preparations. Among the various preparations sold and distributed by the respondents are drug preparations advertised and sold respectively as ".Mrs. Bee Frmo Caps," "Femo Caps," and "Bee Caps."

1032 FEDERAL TRADE COMMISSION DEC'I:'\10""":'\ Complaint 32 F. T. C. Respondents cause said preparations, when sold, to be transported :fr·om their places of business in the State of Ohio to purchasers thereof located in various other States of the United States and in the District of Columbia. Respondents maintain, and at all times mentioned herein have maintained, a course of trade in its said preparations 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 their aforesaid businesses, the respondents have disseminated and are now disseminating, and have caused and are now causing the dissemination of false advertisements concerning their said products by the United States mail and by various other means in commerce, as commerce is defined in the Federal Trade Commission Act; and respondents have also disseminated and are now disseminating, and have caused and are now causing the dissemination of, false advertisements concerning their said products, by various means, for the purpose o£ inducing and which are likely to induce, directly or indirectly tlle purchase of said products 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:

:IIODERN WOMEN! Be Safe! Use a guaranteed harmless prescrlptiPn. Don't be alarmed or disturbed over delayed, unnatural, suppressed periods. A new discovery, Mrs. Bee-Femo-Caps, the fast acting safe aid to women. Acts without discomfort or inconvenience. Even in obstinate cases. Be safe--ask TODAY for Mrs. Bee Femo-Caps. * * * P .AR. 4. Through the use of the foregoing statements and representations and others of similar import not specifically set out herein, the respondents represent and have represented, directly and by implication, that their preparations designated as "Mrs. Bee Femo Caps," "Femo Caps," and "Bee Caps" constitute a competent and effective treatment for delayed, unnatural and suppressed menstruation and that said preparations are safe and harmless. PAR. 5. The foregoing representations are grossly exaggerated, false, and misleading. In truth and in fact, respondents' preparations are not competent and effective treatments :for delayed, unnatural, and suppressed menstruation. Moreover, said preparations ERIE LABORATORIES:5, INC., ET AL. 1033 1030 Complaint P.re not safe and harmless in that they contain the drugs ergot, oil of savin, aloin, and hellebore, in quantities sufficient to cause serious and irreparable injury to health if used under the conditions prescribed in said adveitisements or under such conditions as are customary or usual. · Such use of said preparations may result in gastrointestinal disturbances, catharsis, nausea and vomiting, with pelvic congestion, eongestion of the uterus, leading to excessive uterine hemorrhage, and in those cases where said preparations are 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 preparations may also produce a severe circulatory condition by the congestion 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. Furthermore, the advertisements disseminated by the respondents, 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 preparations under the conditions prescribed in said advertisements or under f'nch conditions as are customary or usual, may cause gastrointestinal disturbances and excessive congestion and hemorrhage of the pelvic organs, and in case of pregnancy may cause uterine infection and blood poisoning.

P..m. 7. The use by the respondents of the aforesaid. false, misleading, and deceptive statements and representations with respect to tl1eir said preparations, disseminated as aforesaid, has had, and now has, the capacity and tendency to mi!>lead and deceiw a substantial portion of the purchasing public into the erroneous and mistaken belief that respondents' preparations possess properties which they do not in fact possess, and that said preparations are in all cases 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 respondents' 1n·eparations.

Findings 32F. T.C.

PAR. 8. The aforesaid acts and practices of the respondents 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 Federal Trade Commission Act. Report, FINDINGs As TO THE FAars, AND Orner Pursuant to the provisions o£ the Federal Trade Commission Act, the Federal Trade Commission on November 20, 1940, issued, and on November 22, 1940, served, its complaint in this proceeding upon the respondents, Erie Laboratories, Inc., also trading as Mack Pharmacal Co., Allied Pharmacal Co., also trading as Erie Laboratories, Inc., and :Melvin Rose, David F. Berland, and Rose Kotenberg, charging them 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 respondents' answers, the Commission, by order entered herein, granted respondents' motion for permission to withdraw said answers 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. Thereafter, this proceeding regularly came on for final hearing before the Commission on 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 p~blic and makes this its findings as to the facts and its conclusion drawn therefrom. FINDINGS AS TO THE FACTS PARAGRAPH 1. Respondent, Erie Laboratories, Inc., is a corporation organized and existing under the laws of the State of Ohio, with its principal office and principal place of business in Suite 530, Film Exchange Building, 2108 Payne Avenue, Cleveland, Ohio. Mack Pharmacal Co. is a trade name used by the said Erie Laboratories, Inc., in selling its products to retail dealers. Allied Pharmacal Co. is a corporation organized and existing under the laws of the State of Ohio, with its principal office and principal place of business in Suite 530, Film Exchange Building, 2108 Payne Avenue, Cleveland, Ohio. Respondent, Allied Pharmacal Co., also does business under the name of Erie Laboratories, Inc. :Melvin Rose is an individual engaged in business both individually and as vice president, treasurer, and a director of the Allied Phannacal Co., and ERIE LABORATORIES, INC., ET AL. 1035 1030 Findings • David F. Berland and Rose Kotenberg, individuals, are likewise officers and directors of said Allied Pharmacal Co. Said individual respondents are also officers and directors of Erie Laboratories, Inc. Respondents, Melvin Rose, David F. Berland, and Rose Kotenberg, direct and control the practices and methods of advertising of respondents, Erie Laboratories, Inc., also trading as Mack Pharmacal Co., and Allied Pharmacal Co., also trading as Erie Laboratories, Inc. The individual respondents have acted in conjunction and cooperation with each other and with the corporate respondents in carrying on the acts and practices hereinafter found. P AB. 2. Respondents are now and for more than 1 year last past have been engaged in the sale and distribution of various medicinal preparations. Among the various preparations sold and distributed by the respondents are drug preparations advertised and sold respectively as "Mrs. Bee Femo Caps," "Femo Caps," and "Bee Caps." Respondents cause said preparations, wlwn !:iold, to be transported from their places of business in the State of Ohio to purchasers thereof located in various other States of the United States and in the District of Columbia. Respondents maintain, and at all times mentioned herein have maintained, a course of trade in its said preparations in commerce between and among the various States of the United States and in the District of Columbia. P AB. 3. In the course and conduct of their aforesaid businesses, the respondents have disseminated and are now disseminating, and have caused and are now causing the dissemination of false advertisetnents concerning their said products by the United States mail and by various other means in commerce, as commerce is defined in the Federal Trade Commission Act; and respondents have also disseminated and are nqw disseminating, and have caused and are now causing the dissemination of, false advertisements concerning their said products, by various means, for the purpose of inducing and which are likely to induce, directly or indirectly, the purchase of said products 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:

MODER:-! WOMEN ! De Safe! Use a guaranteed harmless presct·iption. Don't be alarmed or (~isturbed over deiHyed, unnatural, snppressed period;;. A new discovery, 1\lrt!. 1036 FEDERAL TRADE COMMISSION DECISIOKS Findings 32 F. T. C. Bee-Femo-Caps, the fast acting safe nid to women. Acts without discomfort or inconvenience. Even in obstinate cases. Be snfe--a,;k TODAY for Mrs. BPe Femo-Caps. • • • PAR. 4. Through the use of the foregoing statements and representations and others of similar import not specifically set out herein, the respondents represent and have represented, directly and by implication, that their preparations designated as "Mrs. Bee Femo Caps," "Femo Caps," and "Bee Caps" constitute a competent and effective treatment for delayed, unnatural and suppressed menstruation that said preparations are safe and harmless. PAR. 5. The foregoing represm1tations are grossly exaggerated, f:tlse and misleading. In truth and in fact, respondents' preparations are not competent and effective treatments for delayed, unnatural and suppressed menstruation. Moreover, said preparations are not safe and harmless in that they contain the drugs ergot, oil of savin, aloin, and hellebore, 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 preparations may result in gastrointestinal disturbances, catharsis, nausea and vomiting, with pelvic congestion, congestion of the uterus, leading to excessive uterine hemorrhage, und in those cases where said preparations are used to interfere with the normal course of pregnancy, such use may result in uterine infection with extension to other pelvic and abdominal structures ~nd even to the blood stream, causing the co:Qdition known as ~epticemia or blood poisoning.

Such use of said preparations may also produce a severe circulal"ory condition by the congestion of the blood vessels, and contraction of the involuntary muscles, often with poisonous effect upon the human sy~tem, 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 respondents con- ~titute 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 preparations under the conditions prescribed in said advertisements, or under such conditions as are customary or usual, may cause gastrointestinal disturbances and excessive congestion and hemorrhage of the pelvic organs, ERIE LABORATORIES, INC., ET AL. 1037 1030 Order and in case of pregnancy may cause uterine infection and blood p01somng.

PAn. 7. The use by the respondents of the aforesaid false, misleading, and deceptive statements and representations with respect to their said preparations, disseminated as aforesaid, has had, and now has, the capacity and tendency to mislead and deceive a substantial portion of the purchasing public into the erroneous and mistaken belief that respondents' preparations possess properties which they do not in fact possess, and that said preparations are in all cases f;afe and harmless, when such is not the fact. A a result of such erroneous and mistaken belief the purchasing public has been induced 1o purchase and has purchased substantial quantities of respondents' preparations.

CONCLUSION The aforesaid acts and practices of the respondents 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 Commis- Eion upon the complaint of the Commission and the answer of respondents, in which answer respondents admit all the material allegations of fact set forth in said complaint and state that they waive all intervening procedure and further hearing as to said facts, and the Commission having made its findings as to the facts and its conclusion that said respondents have violated the provisions of the Federal Trade Commission Act.

It is 01'dered, That the respondents, Erie Laboratories, Inc., also trading as 1\Iack Pharmacal Co.; .Allied Pharmacal Co., 11 corporation, also trading as Erie Laboratories, Inc., and 1\Ielvin Rose, David F. Berland, and Rose Kotenberg, individually and as officers and directors of Allied Pharmacal Co., their representatives, agents, and employees, directly or through any corporate or other device, in connection with the offering for sale, sale, or distribution of their medicinal preparation known as "1\Irs. Bee Femo Caps," and as "Femo Caps," and "Bee Caps," or any preparation of substantially similar composition or possessing substantially similar properties, v.·whether sold under the same names or under any othl'l' name, do forthwith cease and desist from, directly or indirectly: 322695m--41--VOL.32----66 1038 FEDERAL TRADE COl\fMISSION DECISIONS Order 32F.T.C.

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 infer· ence, 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 gastrointestinal disturbances and excessive congestion and hemorrhage of the pelvic organs and in the case of pregnancy may cause uterine infection and blood poisoning.

2. Disseminating or causing to be disseminated any advertisement hy any means for the purpose of inducing, or '"which is likely to induce, directly or indirectly, the purchase in commerce, as "commerce" is defined in the Federal Trade Commission Act, of said prep- Eiration, 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 gastrointestinal disturbances and excessive congestioh 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 respondents shall, within 10 days ufter service upon them of this order, file with the Commission an interim report in writing, stating whether they intend to comply with this order and, if so, the manner and form in which they intend to comply, and that within 60 days after service upon them of this order, said respondents shall file with the Commission a report in writing, setting forth in detail the manner and form in which they have complied with this order.

THUDEAU CANDIES, INC. 1039 Complaint