Melvin V. Eisenberg

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IN THE MATTER OF l\fELVIN V. EISENBERG, IRWIN GOLDBERG, HARRY KROHNER, AND SEYMOUR EISENBERG, TRADING AS BENTLEY COThiP ANY, MAIL ORDER DIVISION CO;\!PLAINT, FINDINGS, AND ORDER IN REGARD TO Tile ALLEGED VIOLATIO~ OF SEC. 5 Ol~ AN ACT OF CONGRESS APrROVED SEPT. 26, 1914 Docket 4S52. Complaint, July 31, 1941-Decision, Dec. 16, 1941 Where four individuals engaged in interstate sale and distribution of their "Fat- 0-No" me<licilw.l preparation; hy means ·of advertisements disseminated through the mails and otjlerwise-- ' (a) Represented, directly and by implication, that their said product was a safe, simple, easy and effective treatment for obesity and an amazing fat-reducing remedy, purity and safety of which were guaranteed by a leading insurance company, and that it was recommended by many physicians; the facts being it was not such a treatment or remedy, or so guaranteed or recommended, but contained the drugs pilocarpine hydrochloride, apocynin, pbytolaccin, desiccated thyroid and phenolphthalein in quantities sufficient to be. harmful to tbe user;

(b) Failed to reveal facts material in the light of said representations in that use . of the product in question under usual or prescribed conditions, might cause diarrll('a and a dependence upon a laxative for evacuation of the bowels, and its use by one suffering from nausea, vomiting, ab<lominal pains or other symptoms of appendicitis, was dangerous; and (c) Failed to reveal further material facts in that use of said prepflration as afore· said might result in edema of the lungs, and might also accelerate metabolic processes, resulting in nervousness and irritability, and dangerously increase bouy temperature and heart action;

With the effect of misleading and deceiving a substantial portion of the purchasing public into the erroneous belief that such representations were true, and of inducing it because of such belief, to purchase their said preparation: Held, That such acts and practices, under the circumstances set forth, were all to the prpjudice and injury of the public and constituted unfair and deceptive acts and practices in commerce.

Mr. R. P. Bellinger for the Commission.

Jlfr. Robert II. Rudniclc, of Chicago, Ill., for respondents. 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 l\felvin V. Eisenberg, Irwin Goldberg, Harry Krohner, and Seymour Eisenberg, individuals trading as Bentley Company, :Mail Order Division, hereinafter referred to as respondents, have violated the provisions of the said act, and it appearing to the Commission that a proceeding by it in respect thereof BENTLEY CO., MAIL ORDER DIVISION 411 410 Complaint would be in the public interest, hereby issues its complaint, stating its charges in that respect as follows:

PARAGRAPH 1. Respondents, Melvin V. Eisenberg, Irwin Goldberg, Harry Krohner, and Seymour Eisenberg are individuals trading as Bentley Company, l\Iail Order Division, with their principal place of business located at 900 N. Francisco Avenue, Chicago, Ill. The indi. vidual addresses of each of the four respondents are respectively as fol· lows: l\Ielvin V. Eisenberg, 2829 Augusta Boulevard, Chicago, Ill.; Irwin Goldberg, 4811 North Harding A venue, Chicago, Ill.; Harry Krohner, 4708 North St. Louis Avenue, Chicago, Ill.; Seymour Eisenberg, 2729 East Chestnut Street, Chicago, Ill. PAR. 2. The respondents are now, and since October 1940, have been, engaged in the sale and distribution of a medicinal preparation designated as "Fat-0-No."

In the course and conduct of their said business respondents caused sa~d preparation, when sold, to be transported from their place of business in the State oi Illinois to purchasers thereof located in various other States of the United S.states and in the District of Columbia.

Respondents maintain, and at all times mentioned herein have maintained, a course of trade in 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 their aforesaid business, the respondents have disseminated and are now disseminating, and have caused and are now causing the dissemination of, false advertisements concerning their said preparation by the United States mails and by various other means in commerce, as commerce is defined in the Federal Trade Commission Act, for the purpose of inducing, and which are likely to induce, directly or indirectly, the purchase of said preparation; and 'respondents have also disseminated and are now disseminating, and have caused and are now causing the dissemination of, false advertisements concerning their said preparation by various means for the purpose of inducing and which are likely to induce, directly or indirectly, the purchase of their said preparation 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 advertis~ments, disseminated and caused to be disseminated as aforesaid, are the following: LOSE EXESS FAT Try the simpiP Pasy method recommended by so many thousands of people during the last 20 years. This amazing reducing remedy is known as FAT-0-NO. Complaint 34F.T.C.

Reduce quickly and safely without strenuous exercise or starvation diets: Purity and safety guaranteed under a $10,000.00 bond posted with a leading insurance company. The complete formula printed on every package. Recommended by many doctors.

FAT-0-NO tablets the Bonded and Guaranteed Safe, Easy and Pleasant way :for fiesb reducing.

PAR. 4. By the use of the representations hereinabove set forth and others similar thereto not specifically set out herein, respondents represent, directly and by implication, that their said preparation designated as "Fat-0-No" is a safe, simple, easy, and effective treatment for obesity, or :for the reduction of excess fat; that said preparation is an amazing fat reducing remedy; that its purity and safety is guaranteed by a leading insurance company and that said preparation is recommended by many physicians.

PAR. 5. The aforesaid representations and advertisements used and disseminated by the respondents as hereinabove described, are grossly exaggerated, false, and misleading.

In truth and in fact, respondents' said preparation is not a safe, simple, easy and effective treatment for obesity or for the reduction of excess fat. Said preparation is not an amazing fat reducing remedy. The purity and safety of said preparation is not guaranteed by a leading insurance company and said preparation is not recommended by many physicians.

PAR. 6. The respondents' advertisements, disseminated as aforesaid,. constitute false advertisements for the further reason that they fail to reveal facts material in the light of such representations, or material with respect to consequences which may result :from the use of the preparation to which the advertisements relate under the conditions prescribed in said advertisements, or under such conditions as are customary or usual.

In truth and in fact, respondents' said' preparatio11 contains the drugs pilocarpine hydrochloride, apocynin, phytolaccin, desiccated thyroid, and phenolphthalein in quantities sufficient to be harmful to the user. The use of said preparation may cause diarrhea and a dependence upon a laxative :for the evacuation of the bowels. Its use by one suffering from nausea, vomiting, abdominal pains, or other symptoms of appendicitis, is dangerous. Further, the use of said prepa:r;ation may result in a dangerous condition known as edema of the lungs. Furthermore, the use of said preparation may accelerate the metabolism processes of the body resulting in nervousness, and irritability. Its use may also increase the body temperature and the heart action to an extent that is dangerous to health. PAR. 7. The use by respondents of the foregoing false, deceptive and misleading statements and advertisements with respect to their said BENTLEY CO., MAIL ORDER DIVISION 413 410 Findings 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 such statements, representations and adveriisements are true, and induces a portion of the purchasing public, because of said erroneous and mistaken belief, to purchase respondents' said preparation. 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 nets and practices in commerce within the intent and meaning'., of the Federal.Trade Commission Act . REPORT, FINDINGS AS TO THE FACTs, AND Onder Pursuant to the provisions of the Federal Trade Commission Act, the Federal Trade Commission on July 31, 1941, issued and thereafter served its complaint in this proceeding upon said respondents, Melvin V. Eisenberg, Irwin Goldberg, Harry Krohner, and Seymour Eisenberg, individuals trading as Bentley Co., l\Iail Order Division, charging them with the use of unfair and deceptive acts and practices in commer·ce in violation of the provisions of said act. The time within "·which respondents should have filed answer in this proceeding expired on ..August 21, 1941, and no answer was filed. Thereafter, a stipulation was entered into whereby it was stipulated and agreed that a Matement of facts signed and executed by the respondents and their counsel, Robert H. Rudnick, Esq., and Richard P. Whiteley, assistant chief counsel for the Federal Trade Commission, subject to the appro~:al of the Commission, may be taken as the facts in this proceeding and in lieu of testimony in support of the charges stated in the complaint, or in opposition thereto, and that the said Commission may proceed 'upon said statement of facts to make its report, stating its findings as to the facts and its conclusion based thereon and enter its order disposing of the proceeding without the presentation of argument or the filing of ?riefs. Thereafter, this proceeding regularly came on for final hearmg before the Commission on said complaint and stipulation, said stipulation having been approved, accepted and filed, and the Commission having duly considered the same and being now fully ad vised in the premises finds that this proceeding is in the interest of the public and makes its findin(l's as to the facts and its conclusion drawn therefrom: "' FINDINGS AS TO THE FACTS PAR..-\GRAPH 1. Respondents Melvin V. Eisenberg, Irwin Goldberg, Harry Krohner, and Seymour Eisenberg, are individuals, trading us Findings 34 F. T.C. Bentley Company, Mail Order Division, with their principal place of business located at 900 N. Francisco Avenue, Chicago, Ill. The individual addresses of each of the four respondents are, respectively, as follows: Melvin V. Eisenberg, 2849 North Augusta Boulevard, Chicago, Ill.; Irwin Goldberg, 4811 North Harding A venue, Chicago, Ill.; Harry Krohner, 4708 North St. Louis Avenue, Chicago, Ill.; Seymour Eisenberg, 2729 East Chestnut Street, Chicago, Ill. PAR, 2. From October 1940 to March 1941 the respondents were engaged in the sale and distribution of a medicinal preparation designated as "Fat-0-No."

In the course and conduct of their said business respondents caused said preparation, when sold, to be transported from their place of business in the State of Illinois to purchasers thereof located ' in various other States of the United States and in the District of Columbia.

Respondents maintained, during said period of time, a course of trade in 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 their aforesaid business, the respondents disseminated and caused the "dissemination of false advertisements concerning their said preparation by the United States mails and by various other means, in commerce, as commerce is defined in the Federal Trade Commission Act, for the purpose of inducing, and which were likely to induce, directly or indirectly, the purchase of said preparation; and respondents also disseminated and caused the dissemination of false advertisements concerning their said preparation by various means, for 'the purpose of inducing and which were likely to induce, directly or indirectly the purchase of their said preparation 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 aforesaid, were the following:

LOSE EXCESS FAT ·Try the simple easy method recommended by so many thousands ot people during the last 20 years. This amazing reducing remedy Is known as FAT-0-NO. Reduce quickly and safely without strenuous exercise or starvation diets. Purity and !;afety guaranteed under a $10,000.00 bond posted with a leading insurance company. The complete formula printf'd on .every parkng('. nerommendrd by many doctor!'!. FAT-0-NO tablets the Donded and Guarantf'ed Safe, E~sy anc! Pleasant way tor flesh reducing.

BENTLEY CO., MAIL ORDER DIVISION 415 410 Findings PAR. 4. By the use of the representations hereinabove set forth and others similar thereto not specifically set out herein, respondents represented, directly and by implication, that their said preparation designated as "Fat-0-No" was a safe, simple, easy, and effective treatment for obesity, or for the reduction of .excess fat; that said preparation 'Was an amazing fat-reducing remedy; that its purity and safety were ~uaranteed by a leading insurance company, and that said preparation was recommended by many physicians.

PAR. 5. The aforesaid representations and advertisements used and disseminated by the respondents as hereinabove described, were grossly e:s:aggerated, false, and misleading .

. In truth and in fact respondents' said preparation is not a safe, 81U1ple, easy and effective treatment for obesity or for the reduction of excess fat. Said preparation is not an a.mazing fat-reducing remedy. !he purity and safety of said preparation is not guaranteed by a leadlng insurance company, and said preparation is not recommended by lh.any physicians.

PAR. 6. The respondents' advertisements, disseminated as aforesaid, constitute false advertisements for the further reason that they fail t? reveal facts material in the light of such representations, or matetial with respect to consequences which may result from the use of the preparation to which the advertisements relate under the conditions prescribed in said advertisements or under such conditions as are customary or usual.

In truth and in fact, respondents' said preparation contains the (h·ugs pilocarpine hydrochloride, ap~eynin, phytolaccin, desiccated thyroid, and phenolphthalein in quantities sufficient to be harmful to the user. The use of said preparation may cause diarrhea and a dependence upon a laxative for the evacuation of the bowels. Its use by one suffering from nausea, vomiting, abdominal pains, or other 8Ympto.ms of appendicitis, is dangerous. Further, the use of said Preparation may result in a dangerous condition known as edema of the lungs. Furthermore, the use of said preparu.tion may accelerate the metabolic processes of the body, resulting in nervousness and irritability. Its use may also increase the body temperature and the heart action to· an extent that is dangerous to health .. PAR. 7. The use by respondents of the foregoing :false, deceptive, nnd misleading' statements and advertisements with respect to their said preparati~n, disseminated as aforesaid, has had the capacity and tendency to and did mislead and deceive a substantial portion of the Purchasing public into the erroneous. and mistaken belie£ that such statements, representutions and advertisements were true, and induced Order 34F. T. 0.

a portion of the purchasing public, because of said erroneous and mis· taken belief, to purchase respondents' said preparation. 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 nnd 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 Corn· mission upon the complitint of the Commission and a stipulation as to the facts entered into between the respondents,herein and Richard P. Whiteley, assistant chief counsel for the Commission, which pro· vides, among other things, that without further evidence or other intervening procedure, the Commission may issue. and serve upon the respondents herein findings as to the facts and, conclusion based thereon, and an order disposing of the proceeding, ·and the Commission having made its findings as to the facts and conclusion that said respondents have violated the provisions of the Federal Trade Commission Act.

It is ordered, That the respondents, Melvin V. Eisenberg, Irwin Goldberg, Harry Krohner, and Seymour Eisenberg, individuals trad· ing as Dentley Co., 1\Iail Order Division, or trading under any other name or names, their representatives, agents, servants, and employees, directly or through any corporate or other device, in connection with the offering for sale, sale or distribution of their medicinal prepara· tion designated as "Fat.-0-No," or any preparation of substantially similar composition or possessing substantially similar properties, whether sold under the same name or under any other name, do forth· with cease and desist from directly or indirectly: 1. Disseminating or causing to be disseminated any advertisement by means of the United States mails or by any means in commerce, as "commerce" is defined in the Federal Trade Commission Act, which advertisement re1)resents, directly or by implication, that said preparation is a safe, simple, easy or effective treatment for obesity or for the reduction of excess fat; that said preparation constitutes a competent fat-reducing remedy; that the purity and safety of said preparation are guaranteed by an insurance company; or that many physicians have recommended said preparation. 2. Disseminating or causing to be disseminated any advertisement by means o£ the United States mails or by any means in commerce, BENTLEY CO., MAIL ORDER DIVISION 417 410 . Order as "commerce" is defined in the Fede"t·al Trade Commission Act, "·which advertisement fails to reveal that the use of said preparation 111ay result in edema of the lungs, may cause nervousness and irritab~lity because of acceleration of the metabolic processes of the body, and may increase the body temperature and the heart action to a dangerous extent.

3, Disseminating or causing to be disseminated any advertisement by means of the United States mails or my any means in commerce, as "commerce" is defined in the Federal Trade Commission Act, Which advertisement fails to reveal that said preparation should not be used in cases of nausea, vomiting, abdominal pains, or other symptoms of appendicitis: Provided, ltowever, That such advertisement need contain only the statement, "Caution, use only as directed," if nnd when the directions for use, wherever they appear on the label, in the labeling, or in both label and labeling, contain a Warning to the above effect.

4. 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 "comnlerce" is defined in the Federal Trade Commission Act, of said preparation, which advertisement contains any of the representations Pr9hibited in paragraph 1 hereof or which fails to comply with the requirements set forth in paragraphs 2 and 3 hereof. It i8 furtlter ordered, That the respondents shall, within 10 days after service upon them of their order, file with the Commission an interim report in writing stating whether they intend to comply witli this order, and, if so, the manner and form in which they intend to comply; and that within 60 days after the service upon them of this oruer, said respondents shall file with the Commission a report in Writing, setting forth in detail the manner and form in which they hn ve complied with this order.

466506m-42-vol. 8"-27 418 FEDERAL TRADE COMMISSION DECISIO:NS Syllabus 34F. T. C.