ARMSTRONG, JOHN B., M.D. (doing business as Pink Ointm.ent Co.L

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

IN THE l\fATTF..lt OF JOHN D. ARMSTRONG, M.D., TRADING AS PINK OINTMENT COl\fPANY COMPLAINT, FINDINGS, AND ORDER IN REGARD TO THE ALLEGED VIOLATION OF SEC. 5 OF AN ACT OF CONGRESS APPROVED SEPT. 2G, 1014 Docket ,9622. Complaint, Oct. 31,1941-Decision, Feb. 16, 1942 Where an individual, engaged in interstate sale and uistributlon of his "Pi~k Ointment"; by advert!semf'nts uisseminated through radio continuities, in which were incluued purported testimonial statements- (a) Represented, directly and by implication, that his said preparation was a cure and remedy fot· eczema, poison i'\"y, ringworm, rash, itch, weed poisoning. cuts, burns, bruises, athlete's foot, all kinds of skin irritation, chigger bites, mosquito bites, prickly heat, sunburn, hives, dust poisoning, poison oak, and sore, tender, Itching, and burning feet, and a competent and effective treatmrnt therefor;

'When in fact it had no therapeutic value in said ailments and conditions In excess of affording temporary local relief due to its counterirritant, antipruritic and analgesic properties, and its antiseptic effect; repeated or continued usewhereof to secure such rPiief might become dangerous; and (b) Failed to reveal facts material in the light of aforesai<l representations, or with respect to consequences which might result from use of product under usual or prescribed conditions, in that it contained sufficient phenol to bedangerous to health, and use thereof might cause a necrosis of the skin and tissues, and systemtic poisoning, including irritation of the kidneys, danger of which would be inct·eased if skin to whiclt it was applied was inflamed or broken; · \With effect of rnh;lendiug and deceiving a substantial portion of t~e purchasing public into the mlstal;:en belief that such false representations were true, and with the tendency and capacity to induce such public, because of Its mistaken belief, to purchase substantial quantities of his said product: Held, T!tnt 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 practices ln commerce.

Mr. Maurice C. Pem·ce for the Commission.

lVilliam.s & Ellem.an, of Topeka, Kans., for respondent. Complaint Pursuant to the provisions of the Federal Trade Commission Act and by virtue of the authority vestf:'d in it by said act, the Federal Trade Commission, having reason to believe that John D. Armstronf'P .nf.~ D., an individual, trading as Pink Ointm£>nt Co., hereinafter~ referred to as respondent, has ·dolated the provisions of the said act and it appearing to the Commission that a proceeding by it in respect FEDERAL TRADE COl\11\fiSSION DECISIONS Complaint 3-!F.T.C.

thereof would be ln the public interest, hereby issues its complaint stating its charges in that respect as follows: PARAGRAPH 1. Respondent, John B. Armstrong, M.D., is an individual, trading under the name of Pink Ointment Co., and has his principal place of business located at 521 Kansas A venue, Topeka, Kans. He is now, and for more than 1 year last past, has been engaged in tha business of preparing and oflering for sale and selling a medicinal preparation designated as "Pink Ointment."

·Respondent causes said medicinal preparation when sold to be trans~ ported from his place of business in the State of Kansas to the purchasers thereof located in various other States of the United States and in the District of Columbia. Respondent maintains and at alj times herein mentioned has maintained a course of trade in his said medicinal preparation 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 his aforesaid business, the respondent has dissemiuated and is now disseminating and has caused and is now causing the dissemination of advertisements concerning his said product by radio continuities, in commerce as commerce is defined in the Federal Trade Commission Act, and respondent has also dissemij nated and is now disseminating and has caused and is now causing the dissemination of false advertisements concerning his said product by radio continuities 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 statei ments and representations contained in the said advertisements disseminated and caused to be disseminated by radio continuities as hereinabove set out are the following: .. About a year ago, I had a bad case of eczema on my hands and I used Pink Ointment to clear it up • • •. My son had a bad case of polson-ivy and he used the Pink Ointment and 1t cleared it up in no time at all • • • 1t is very effective, according to many reports, in the treatment of eczema, rln~orm • • • rash and itch that has been caused by some outside source.

Pink Ointment is the only thing we ever used that helped our condition of weed poisoning.

For eczema • • •. cuts, burns, or bruises use Pink Ointment first and save yourself a lot of time and money.

It sure is the best ever for athlete's foot. We have used Pink Ointment for all kinds of skin irritation. It Is by tar the best to be had on the market today.

Another danger that should be o"!"ercome fs this--children get chigger bites, mosquito bites and poison-Ivy-and prickly heat, then they scratch the skin's surface and as a: result they develop a serious infection. The way to overcome PINK OINTMENT CO. 645 G4::: Complaint this is to keep Pink Ointment in the medicine cabinet and use it as directed. Pink: Ointment is recommended ln the treatment of sunburn, itch, hives, rash, pt·lckly heat, poison-ivy, weed poisoning, dust poisoning, polson-oak, and sore, tender, itcbfng, and burning feet.

PAR, 3. Through the use of the statements and representations hereinabove set forth and others of similar import not specifically set out herein, all of which purport to be descriptive of the reme~ial, curative and therapeutic properties of respondent's preparation, respondent has represented and does now represent directly and by implication that his preparation is a cure and remedy for eczema, poison-ivy, ringworm, rash, itch, weed poisoning, cuts, burns, bruises, athlete's foot, all kinds of skin irritation, chigger bites, mosquito bites, prickly heat, sunburn, hives, dust poisoning, poison-oak, and sore, tender, itching, and burning feet, and that it is a competent and effective treatment therefor.

PAR. 4. The foregoing statements and representations disseminated as aforesaid are grossly exaggerated, false, and misleading. In truth and in fact, respondent's preparation is not a cure or remedy for eczema, poison-ivy, ringworm, rash, itch, weed poisoning, cuts, burns, bruises, athlete's foot, all kinds of skin irritation, chigger bites, mosquito bites, prickly heat, sunburn, hives, dust poisoning, poison-oak, and sore, tender, itching, and burning feet, nor is it a competent or effective treatment therefor. Furthermore, said preparation has no therapeutic value in excess of its antiseptic effect, and its effect in affording temporary, local relief due to its counter-irritant, antipruritic, and analgesic properties. Its use in order to secure such relief may be dangerous, and its repeated or continued use will increase such danger. . . 'P.aR. 5. The respondent's advertisements disseminated as aforesaid coi1stitute false advertisements for the further reason that they fail to' reveal facts material in the light of such representations, or mat<>rial with respect to consequences which may result from the use of the pre.'paration to which the advertisements relate under the conditions prescribed in said advertisements, or under such conditions as are ~ustdmary or usual. · In truth and in fact, said preparation contains phenol in sufficient quantities to be dangerous to the health of the user. Its use may cause necrosis of the skin und tissues, and systemic poisoning, includ- !ng initation of the kidneys. The danger of such injury will be Increased if the skin to which it is applied is inflamed or broken. l)AR. 6. The uE>e by the respondent of the foregoing false, deceptive and misleading statements, representations, and advertisements disseminated as aforesaid with r£>spect to the pr£>paration "Pink Oint- 646 FEDERAL TRADE COM1HS;3ION DECISIONS Findlngs 3-!F.T.C.

ment" has had and now has the capacity of 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 has the tendency and capacity to induce a substantial portion of the purchasing public, because of such erroneous and mistaken belief to purchase substan~ tial quantities of respondent's said preparation. PAn. 7. The aforesaid acts and practices of the respondent are all to the prejudice and injury of the public and constitute unfair and deceptive acts and practices in commerce within the intent and mean~ ing 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 October 31, 1941, issued and sub· sequently served its complaint in this proceeding upon respondent, John B. Armstrong, l\I. D., an individual, trading as Pink Ointment Company, 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 of said complaint and the filing of respondent's answer, the Commission by order entered herein granted respond· ent's motion for permission to withdraw said answer and to substi· tute 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 proceed· ing regularly came on for final hearing before the Commission on the said complaint and substitute answer, and the Commission hav~ ing 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 its conclusion drawn therefrom:

FINDINGS AS TO THE FACTS PARAGRAPH 1. Respondent, John B. Armstrong, l\I. D., is an indi· vidual, trading under the name of Pink Ointment Co., and has his principal place of business located at 521 Kansas Avenue, Topeka, Kans. He is now, and for more than one year last past, has been engaged in tho business of preparing and offering for sale and sell· ing a medicinal preparation designated as "Pink Ointment." Responuent causes saiu medicinal preparation when solu to be transported from his place of business in the State of Kansas to the PINK OINTMENT CO. 647 (}43 Findings purchasers thereof located in various other States of the United 'States and in the District of Columbia. Respondent maintains and at all times herein mentioned has maintained a course of trade in his medicinal preparation in commerce between and among the vari- ·ous·States of the United States and in the District of Columbia. PAR. 2. In the course and conduct of his business, the respondent has disseminated and is now disseminating and has caused and is 'now causing the dissemination of advertisements concerning his product by radio continuities, 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 caus- 1ng the dissemination of false advertisements concerning his product by radio continuities for the purpose of inducing and which are likely to induce, directly or indirectly, the purchase of his 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 the advertisements -disseminated and caused to be disseminated by radio continuities as hereinabove set out are the following:

About a year ago, 1 had a bad case of eczema on my hands and I used Pink Ointment to clear 1t up. • • • lily son had a bad case of polson-ivy and he used the Pink Ointment and it cleared it up in no time at all. • • • it is very effective, according to many reports, in the treatment of eczema, ringworm • • • rush and itch that has been caused by some outside source.

Pink Ointment is the only thing we ever used that helped our condition of weed Poisoning.

For eczema • • •. cuts, burns, or bruises use Pink Ointment first and save .Yourself a lot of time and money.

It sure is the best ever for athlete's foot. We have used Pink Ointment for all kinds of skin irritation. It is by far the best to be had on the market today.

Another danger that should be overcome Is this-children get chigger bites, mosquito bites and polson-iry-and prickly heat, then they scratch the skin's surface and as a result they develop a serious Infection. The way to o'l'ercome this is to keep Pink Ointment in the medicine cabinet and use it us directed. Pink Ointment is recommended in the treatment of sunburn, itch, hires, rush, Prickly heat, poison-ivy, weed poisoning, dust poisoning, poison-oak and sore, tender, Itching and burning feet.

PAR. 3. Through the use of the statements and representations hereinabo-ve set forth and others of similar import not specifically 8et out herein, all of which purport to be descriptive of the remedial 'CUrative and therapeutic properties of respondent's preparation, re~ spondent has represented and does now n·present directly and by implication that his preparation is a cure and remedv for eczema.. Findings 34F.T.C.

poison-ivy, ringworm, rash, itch, weed poisoning, cuts, burns, bruises, athlete's foot, all kinds of skin irritation, chigger bites, mosquito bites, prickly heat, sunburn, hives, dust poisoning, poison-oak, and sore, tender, itching, and burning feet, and that it is a competent and effective treatment therefor.

PAR. 4. The foregoing statements and representations disseminated as aforesaid are grossly exaggerated, false, and misleading. In truth and in fact, respondent's preparation is not a cure or remedy for eczema, poison-ivy, ringworm, rash, itch, weed poisoning, cuts, burns, bruises, athlete's foot, all kinds of skin irritation, chigger bites, mos· quito bites, prickly heat, sunburn, hives, dust poisoning, poison-oak, and sore, tender, itching, and burning feet, nor is it a competent or effective treatment therefor. Furthermore, his preparation has no therapeutic value in excess of its antiseptic effect, and its effect in affording temporary, local relief due to its counterirritant, antipruri· tic and analgesic properties. Its use in order to secure such relief may be dangerous, and its repeated or continued use will increase such danger. . PAR. 5. The respondent's 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 such advertisements, or under such conditions as are customary or usual.

In truth and in fact, respondent's preparation contains phenol in sufficient quantities to be dangerous to the health of the user. Its use may cause necrosis of the skin and tissues, and systematic poisoning, including irritation of the kidneys. The danger of such injury 1vill be increased if the skin to which it is applied is inflamed or broken. . PAR. 6. The use by the respondent of the foregoing false, deceptive, and misleading statements, representations and advertisements disseminated as aforesaid with re!"pect to the preparation "Pink Ointment" 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 has the tendency imd capacity to induce a substantial portion of the purchasing public, because of such erroneous and mistaken belief to purchase substantial quantities of respondent's preparation. PINK OINTMENT CO. 649 643 Order CONCLUSION The aforesaid acts and practices of the respondent as herein found are all to the prejudice and injury o.f 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 respondent, in which answer respondent admits all the material allegations of fact set forth in said complaint, and states that he waives 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 respondent has violated the provisions of the Federal Trade Commission Act.

It is ordel·ed, That John B. Armstrong, M. D., an individual, trading as Pink Ointment Co., or 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 product, Pink Ointment, or any other product containing the same or similar ingredients, whether sold under the same name or any other name, do forthwith cease and desist from: 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 his preparation "Pink Ointment" is a cure or remedy for eczema, poison-ivy, ringworm, rash, itch, weed-poisoning, cuts, burns, bruises, athlete's foot, all kinds of skin irritations, chigger bites, mosquito bites, prickly heat, sunburn, hives, dust-poisoning, poison-oak, or sore, tender, itching, br burning feet, or that said preparation is a competent or effective treatment for such diseases and conditions or that it has any. therapeutic value in excess of its antiseptic effect and its effect in affording temporary, local relief due to its counter-irritant, anti-pruritic, and analgesic properties; or which advertisement fails to reveal that the use of said preparation ~ay cause necrosis of the skin and tissues and systemic poisoning, mrluding irritation of the kidneys, and that the danger of such injury will be increased if the skin to which it is applied is inflamed Order 3-!F. T. C. or broken, provided, however, that i£ the directions for use, wherever they appear on the label, in the labeling, or both on the label and in the labeling, contain a warning of the potential dangers in the use of said preparation as hereinabove set forth, such advertisement need contain only the cautionary statement: CAUTION, Use ONLY AS DIRECTED.

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 saiu preparation, which advertisement contains any of the representations prohibited in paragraph 1 hereof, or which :fails to reveal the affirmative cautionary statement required in paragraph 1 hereof. lt is further ordered, That 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.

BATTLE CREEK DRUGS, INC., ET AL. 651 Complaint