E. R. Davis Prescription Co

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IN THE MATTER OF E. R DAVIS, TRADING UNDER THE NA~IE OF E. R. DAVIS }~PRESCRIPTION COMPANY COJIIPLAI:-JT, FI:-JDI:'\"GS, AXD ORDER IN REGARD TO Tile ALLEGED VIOLATION Ok' SEC. 5 OF AN ACT OF COXGRESS Al'PROVED SEI'T. 26, 1914 Docket 1289. Complaint, Aug. 2.1!, 19W-Dcci.~ion, Jan. '1, 19.}2 \Ylwre an individual engaged in Interstate sale antl distt·ibution of his ''Davii! I<'formula No. 7895" nwdidnal pt·pparation; In advertispments disseminated through the mails and by mdio continuities, cireulars, leaflets, pamphlets, -and other advertising literature, In which he inelutletl quotations or purported quotations from testimonials; tlirectly and by implication- Represented that his saitl formula was n cm·e or renwtly for asthma or hay fever and a competent au<l effective treatment therefot•, use of which would prevent attarks ann recurren!'e of attacks tht>reof and rt>lieve the suffering incident thereto;

Facts being said formula or preparation-in the packngt> of which he Included a 4-ounce bottle of <'OncPntr!ltetl Vitnmin A- containing 30,000 International units per gram, and in which preparation were included potassium iodide .tllld lobe-lia, sometime-s u~ed to relieve temporarily the symptomatic spasms -of asthma-was not a <'llle or remedy for any of the many different types <Jf asthma, which do not all lit->ld to ~<nme treatment, and had no thentpentic value in treatment thereof in excess of furnishing temporat·y relief ft·om its symptomn tic pat·oxysms, nor value in pr·eventing recurrence of n.ttacks of ailments referred to; and, ns re><pects hay fe,·t>r, did not constitute a cure or remedy therefor or ltave any substantial tlternpeutic value in the treatment thereof;

With effect of misleading and deceiving a substantial portion of the purchasing public into the mistaken be-lief that such false representations were true, and of thereby inducing it to purchase his said preparation: Held, That such acts and practices, under the circumstances set forth, were all to the prejudice and injury of the public, and constituted unfair and deceptive acts and practlrt>s In commerce.

Before Mr. ll"illiam 0. Ree1Je8, trial examiner. Mr. Carrel F. Rhf)des and llfr. William L. Pcncke for the Commis~ion.

Jfr. E. R. Dm•i8, pro ~l'.

Compl.\INT Pursuant to the provisions of the Fe<leral Trade Commis~ion Act, and by virtue of the authority vester in it by ~aid act, the Federal Trade Commission, having reason to believe that E. R. Davis, an individual, trading under the name of E. R. Davis Prescription Co., hereinafter referred to as respondent, has viobted the provisions of the said act, and it appearing to the Commission that a proceeding E. R. DAVIS PRESCRIPTION CO. 487 486 Complaint by it in respec.t thereof would be in the public interest, hereby issues its complaint, stating its charges in that respect as follows: PARAGRAPH 1. Respondent, E. R. Davis, is an individual trading under the name, E. R. Davis Prescription Company, with his principal office and place of business in Bellingham, State of ·washington. Respondent is now and for more than 1 year last past has b{'en engaged in the sale and distribution of a m('.dicinal preparation designated as Asthma and Hay Fever Remedy No. 7895, in commerce among and between the various States of the United States. Respondent causes said preparation, when sold, to be transported from his place of business in the State of 'Vashington to purchasers thereof located in various other States of the United States. At all times mentioned herein respondent has maintained n. course of trade in said medicinal preparation in commerce among and between the various States of the United States. PAn. 2. 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 aclYertisements concerning his said product, by various means, for the purpose of inducing, and which are likely to induce, directly or indirectly, the purchase of his 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 advertisehlents, disseminated and caused to be disseminated, as hereinabove set forth, by the United States mails, by advertisements in new~papers, by radio continuities, and by circulars, leaflets, pamphlets, and other advertising literature, are the following:

Don't suffer needle~sly with asthma and Hay F!>Yer. T~1e Dn>is A~tlnna nn•1 Iray Fever Remedy #780:> really works. lluudretls of users tht·oughout Canada llnd here In 'Vhatcom C'o. are it~ bf'st boo~t(>rs. 1\lany ha,·e written 8incerf' Jatt!'r8 of thanks for t"!'lief aftf'r ull other trPatnwnt8 had fa iiPtl C'OmpletP!y. But It Is n ~ 1 llndred thues ea~ier to pr!'wnt llay Fe,·er thun to cure it. • • • It is tak<>n Internally and works through thl.' blood, the nen·{'~, the membranes of the nos". 1'he vitamin A containt>d In tile rf'm!'dy builds up the mucous mt>mbrnne of the nose lio that It does not ht>e0111e so !'llSily Irritated. Dut If you wish to free your- 11' ft·om the agony of hay fe,·er this sununet·, remt•mb!'r that you ~>honld begin touay.

llave you given up all hOlle of e\·er finding any l"<'lief for asthma? Aftf'r tt·ying dozens of so-calletl r~:>medies, m11ny pPrsous lun·e gin•n np hope • • • but the Complaint 34F.T.C.

fact stands out that Davis Asthma Remedy #789:5 bas brought real relief t~ many who have suffered for 15, 20, and even 30 years. Thousands of people, after trying hit-and-miss remedies, have come to the conclusion that there is no real cure for asthma or hay fever. That is neither true nor fair I Science is each year making tremendous strides towards the cure and prevention of every disease. One of the greatest steps toward the relief of asthma and hay fever is the discovery of a Canadian druggist * * * the Davis .Asthma and ,Hay fever remedy #7805. Mr. Davis, a graduate of the Ontario college of Pharmacy and Torpnto University, compounded this remedy when all known treatments failed to help him. Three days after taking his treatment he was improved, and within three weeks be was entirely cured of asthma. Adt·enalin and Ephedrin users and powder smokers should cut out the use of such rapidly as possible under the use of this medicine. They only relieve. TASTELESS CONCENTRATE VITAMIN "A"

100 Times the Strength of Cod Liver Oil .Adults: 2 or 3 drops; children: 1 or 2 drops at meals 3 times a day, on food. As your cost is only about half of most other remedies, and as asthma, all forms of hay fever, eczema and also sick headaches are now considered members of one family and are in the blood stream, you should continue the remedy for a good while in smaller doses to thoroughly protect yourself. The average case gets relief from the severe spasms aft~r a couple of days. ASTHMA Do you really know of a person who got permanent results by injections, inhalations, or smokes? How could they when asthma ls the evidence of a constitutional trouble? "DAVIS' ~RMULA NO. 789~"

with a separate supply of "Vitamin .A" ls for Internal use entirely nnd afl'acts the blood, nerves and mucous membranes. Safe and etfective-3 weeks' treatment only. · PAR. 3. Through the use of the statements hereinabove set forth and others similar thereto not specifically set out herein, all of which purport to be descriptive of the remedial, curative and therapeutic properties of the preparation sold and distributed by him, the respondent has represented and does now represent, directly and by inference, that the preparation Asthma and Hay Fever Remedy No. 7895 is a cure or remedy for asthma, hay fever and bronchial asthma and that it con· stitutes a competent and effective treatment therefor, that the use of said preparation will prevent attacks of asthma and hay fever or the recurrence thereof and will relieve the suffering incident thereto. PAR. 4. The aforesaid representations and claims, used and dissemi· nated by the respondent as hereinabove described, are grossly exag· gerated, misleading and untrue. In truth and in fact, the medicinal E. R. DAVIS PRESCRIPTION CO. 489 486 Findings preparation sold and distributed by the respondent is not a cure or remedy for asthma, hay fever and bronchial asthma and does not -constitute a competent and effective treatment therefor in excess of furnishing temporary symtomatic relief from the paroxysms of asthma and attacks of hay fever. Said product is of no value in the prevention or treatment of hay fever, respiratory infections or in increasing the resistance of nasal mucous membranes.

PAR. 5. The use by the respondent of the fon'going false, deceptive and misleading statements and representatioas 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 false. statements, representations, and advertisements are true, and to induce a substantial portion of the purchasing public, because of such erroneous and mistaken belief, to purchase respondent's medicinal preparation. PAR. 6. The aforesaid acts and practices of the respondent as herein alleged are all to the prejudice and injury of the public and constitut~ unfair and deceptive acts and practices in commerce within the intent and meaning of the Federal Trade Commission Act. REPORT, FINDINGS AS TO Tile FACTS, AND ORDER Pursuant to the provisions of the Federal Trade Commission Act, the Federal Trade Commission, on August 29 A. D. 1940, issued and subsequently served its complaint on the respondent, E. R. Davis, an individual trading under the name of E. R. Davis Prescription Co., charging him with the use of unfair and deceptive nets and practices 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 said complaint were introduced by Carrel F. Rhodes, attorney for the Commission, and in opposition to the allegations of the complaint by E. R. Davis, respondent, pro se, before 'William C. Reeves, a trial examiner of the Commission theretofore duly designated by it, and said testimony and other evidence were duly recorded and filed in the office of the Commission. Thereafter, this proceeding regularly came on for final hearing before the Commission upon said complaint, answer thereto, testimony and other evidence, report of the trial examiner upon the evidence, and brief in support of the complaint (no brief having been filed by the respondent or oral argument requested); and the Commission having Q.uly 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 its conclusion drawn therefrom: Findings 34 F.T.C.

FINDINGS AS TO Tile FAC"l'S PARAGRAPH 1. Respondent, E. R. Davis. is an individual trading under the name of E. R. Davis Prescription Co., with his principal · office and place of business in the city of Bellingham, State of Washington. Respondent is now, and for more than three years last past has been, engaged in the sale and distribution of a medicinal preparation designated Davis' Formula No. 7895, in commerce among and between the various States of the United States. Respondent causes said preparation, when sold, to be transported from his place of business in the State of "\Vashington to purchasers thereof located in various other States of the United States. Respondent maintains, and at all times mentioned herein has maintained, a course of trade in said medicinal preparation in commerce among and between the various States of the United States.

. PAR. 2. 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 preparation, 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 diss€minated and is now disseminating, and has caused and is now causing the dissemination of, false advertisements concerning his said preparation by various means for the purpose of inducing, and which are likely to induce, directly or indirectly, the purchase of his 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 mid false advertisements disseminated and caused to be disseminate<.! as hereinabove set forth, by United States mails, by rarlio continuities, and by circulars, leaflets, pamphlets, and other advertising literature, are the following: .ASTIU!A .AND IL\Y FEVER Davis' Formula No. 7895 Davis' Formula No. 78!J5 was worked out by E. R. Davi~. Pbm. B., of New "'estminster, D. C., Canada.

l\Ir. Davis Is a graduate of the Ontario Coll('ge of Pharmacy and Toronto Unin•rsity, 18rl8, and holds diplomas from New York City, Saskatchewan, Alberti! and Gold l\Iedalbt in B. C. Examinations, l!.lls. l\Ir. Davis says: "In 1917 I contracted a wry heavy cold which took about three months to shake o:tl', leaving me with a bronchitis which soon developed Into Bronchial Asthma and Spasmodic Asthma. For 16 yf'ars I fought this bathing <'onditlon, trying every ready made remedy I could find, new chemicals, chiropractors, specialists, herl.Jali~>ts, dieticians, -:>tc., without any worthwhile benefit. E. R. DAVIS PRESCRIPTION CO. 491 486 Flndlngs In July, 1933, I> got so w~e~k I cuuld rwith!'r talk nor work properly, or walk even a couple of blocks for want of breath and wondered whether I could carry on business anothet· day. In desr)air I decided to test out my conclusions of what an asthma remedy should contain and aftet· curl."fully working out the proportions of the various ingrediPuts I lwgan its use. "To my surprise and dl."light I was mneh bt>tter lu three days and in three Weeks I seemed completely fref! from Asthma." Vancouver nurse says: "6 years ago I con traded bronchial pneumonia aud for 4 years spent as much us 3 months In b~ed continually with asthmatic attacks. 2 years ago I took 3 bottles of "Davis' Formula 78ll5'' and have not had an attack since. I feel fine and am telling others." Here is a statement from a letter written by Mrs. Nellie La Fave-1225 E. Base Line-San Bernardino, Calif.: "Your Davis formula #7895 has in ten days done wonders for me-l am sixty four years old and thanks to your remedy Davis Formula #7895. I am rapidly regaining my normal good health. I shall keep on telling ot~rs of this formula."

Mrs. F. of Steilacoom, Wash., w1·items: "I have been a very bad case for 21 years. I appear to be entirely free with 2 bottles of your medicine." P .AR. 3. Through the use of the statements hereinabove set :forth and others similar thereto, not specifically set out herein, respondent has represented, directly and by inference, that his preparation Davis' Formula No. 7895 is a cure or remedy :for asthma and hay :fever; that it constitutes a competent and effective treatment therefor; and that the· use of said preparation will prevent attacks of asthma and hay fever and the recurrence thereof and will relieve the suffering incident thereto.

PAR. 4. The formula for respondent's preparation, Davis' Formula No. 7895, is as follows:

Aqua chloroformi D. P ----------------------------------oz__ 2 Potassiuln iodi!le _______________________________________ drs__ 10 Elixir aromatic U. S. P ----------------------------------oz __ 4% Tincture lobelia U. S. P --------------------------------min __ 25li Liquor strychnine IIcL ________________________________ min__ 32 Liquor arsenic Hd ____________________________________ mln__ 48 • In 8-ounce bottle, 64 doses In the package in which the Davis' Formula No. 7895 is supplied to purchasers the respondent also includes a 1_4 -ounce bottle of concentrated vitamin A containing 30,000 International units per gram. PAR.' 5. Asthma is n paroxysmal disease. There are two ingredients in respondent's preparation which are sometimes used in the treatment of asthma for the purpose of loosening the mucous, and temporarily relieving the ~>asms which are symptomatic of this condition. These ingredients are potassium iodide and lobelia. Ilowevl:'r, thero az·e many different typl:'s of asthma, and all will not yil:'ld to the same trl:'atment but require a different type of treatment. Respondent's Prl:'parntion is not a cure or rl:'medy for any type of a~thma and has 492 FEDERAL TRADE COMMISSION .DEQISIONS Order 34 F. T. 0.

no therapeutic value in the treatment of asthma in excess of furnishing temporary relief from the paroxysms which are symptomatic of this condition. While this preparation might, under certain conditions, build up the bodily resistance to some diseases, it has no value in pre· venting the recurrence of attacks of asthma, and so far as hay fever is concerned, the value of this preparation in the treatment of hay fever is so slight as to be immaterial, and this preparation does not constitute a cure or remedy for hay fever or have any substantial therapeutic value in the treatment thereof. PAR. 6. The use by the respondent of the foregoing false, deceptive, and misleading statements and representations, disseminated as afore· said, 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, repre· sentations, and advertisements are true, and to induce a substantial portion of the purchasing public, because of such erroneous and mis· taken belief, to purchase respondent's medicinal preparation. CONCLUSION The aforesaid acts and 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 Commis· sion upon the complaint of the Commission, answer of the respondent, testimony and other evidence taken before 'Villiam C. Reeves, a trial examiner of the Commission theretofore duly designated by it, in support of the allegations of said complaint and in opposition thereto, report of the trial examiner upon the evidence, and brief in. support of the complaint filed hereini 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 ia ordered, That the respondent, E. R. Davis, an individual trading under the name of E. R. Davis Prescription Co., or trading under any other name, his representatives, agents, nnd employees, directly or through any corporate or other dev~ce, in connection with the offering for sale, sale, or distribution of his medicinal preparation known as Davis' Formula No. 78!:>5, or any other preparation of sub· stantially similar composition or possessing substantially similar E. R. DAVIS PRESCRIPTION CO. 493 486 Order properties, whether sold under the same name or under any other name, do forthwith cease imd desist from, directly or indirectly: 1. Disseminating, or causing to be disseminated, any advertisement by means of United States mails, or by any means in commerce as "commerce" is defined in the Federal Trade Commission Act, which advertisement represents, directly or through inference, (a) That respondent's preparation is a cure or remedy for asthma or has any therapeutic value in the treatmeilt thereof, il). excess of furnishing temporary relief from th~ paroxysms of asthma. (b) That respondent's preparation is a cure or 'remedy for hay fever, or that it has any substantial therapeutic value in the treatment of such disorder.

(c) That the use of respondent's prepar;tion will prevent attacks of asthma or hay fe,ver, or prevent any recurrence of such attacks. 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 "commerce" is defined in the Federal Trade Commission Act, of re.spondent's preparation, which advertisement contains any of the representations prohibited in paragraph 1 hereof and respective subdivisions thereofw It is further 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.

Syllabus 34F. T.C.