J. E. Miller

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

. IN THE M.A'ITER OF J. E. MILLER, DOING BUSINESS AS KONDI COMPANY I , ' COMPLAINT, FINDINGS, AND ORDER IN REGARD TO THE ALLEGED VIOLATION OF SEC. IS OF AN ACT OF CONGRESS APPROVED SEPT. 26, 1914 Docket 3217. Complaint, .Aug. 27, 1937-Decision, Ser,t. 21, 1942 Where an individual, engaged in the competitive interstate sale arid distribution of his "Kondi Worm Specific and Conditioner" for dogs; by means of adver~ tisemeuts in newspapers and periodicals, and by circulars, pamphlets, an other advertising literature- 1 (a) Represented that his said preparation would expel or destroy all intestln~ parasites in dogs, including book, tape, and round worms, in from 5 to l· minutes; the facts being that in the treatment of worms in dogs the antbe r min tic used must be specific in action, as one drug wlll usually remove 0d destroy only one type of worm; and product in question, containing pawder\ areca nut and santonin, constituted a satisfactory anthelmintic only witt reference to the taenia and <lipylidinm type of tapeworm, was only 50 percen eflective for large roundworms, and 25 percent for hookworms, and bad no value in the removal of· whlpworms;

(b) Represented that his said product was eflective in the treatment of <listeDIP~r 0 and running and barking fits; the facts being no ingredient in product question, Including the drug salol, has ever been recognized by the veterinary profession as having any value in the treatment of distemper, caused bY a filterable virus, for treatment of which veterinary science bas thus !a~ been unable to find any effective drug or combination of drugs; and produc in question would not correct any dietary deficiency with which said pro· fession associates running and barking fits; t (c) Represented that such product was eff£>ctive in treating dogs that were 0~ of condition ns indicated by dull eyes, pale mouth membrane, rough coa ~ poor appetite, etc.; the facts being that dog's condition, which may be dU r to a large number of causes, may not be remedied by any one drug 0 combination thereof, and said product, with no ·ingredient indicating tonic effect, was not a conditioner for· dogs due to fact alone that it mig remove tapeworms or partially remove roundworms; nnd was not effectl'l'e in treating dogs out of condition as indicated by dull eyes, pnle mouth meJ])~ brane, rough coat, poor appetite, etc,, which-indicate anemia, po~sibly cause by hookworm, and for removal of which product had little value; and · t st 1• (d) Represented that product in question would anti~Pptically cleanse the in e t nal tract, nnd was as barli1less to dogs as castor oll; the facts being tb!ly ingredient salol is without value for treatment of intestinal infection; 1111 e drug or combination of <lrugs with sufficient strength to cleanse the digestl'l' tract antiseptically would kill the dog before it would accompli!>h such pu: pose; ingredient areca nut is purgative in action nnd also produces depresslO and nausea; and product in qul'~<tion was not a bnrmless preparation or one that could be indiscriminately ndministPred; . g purch11 With effect of misleading and deceiving a substantial portion of the public Into the mistaken belief that such statements were true, there81~1 KONDI CO. 499 Compluint inducing It to purchase substantial quantities of product concerned in preference to those of competitors; whereby trade was diverted unfairly to 1I him from them: · . eld, That such acts .and practices, under the circumstances set forth, were all to the prejudice and injury of the public and .competitors, and constituted Unfair methods of competition in commerce.

A. Before Mr. lV. lV. Shep~ara, Mr. Edward E. Reardon, Mr. J~hn lV. ddison and Mr. ArthwrF. Thomas, trial examiners . . Mr. S. Brogdyne Teu, II for the Commission .. Complaint b Pursuant to the provisions of an act of Congress, approved Septemer 26, 1914, entitled "An act to create a Federal Trade Commission, to define its powers and duties, and for other purposes," the Federal ~trade Commission, having reason to believe that J. E. Miller, an indi- '\>Idual, doing business as Kondi Co., hereinafter referred to as respondent, has been nnd is using unfair methods of competition in comltlerce, as "commerce" is defined in said act, and it appearing to said Oonunission that a proceeding by it in respect thereof would be in the Public interest, hereby issues its complaint and states its charges in that respect as follows :

P.Araoraph 1. Respondent, is an individual, doing business as Kondi 0 o., having his office and principal p~ace of business at Atlanta, Ga. ~respondent for more than 1 year last past has been and now is engaged !~ the sale of a certain worrri medicine for dogs designated by him t~ondi Worm Specific and Conditioner," nnd in the distribution ereof in commerce between a11<l among the various States of the lJ~ited States and the District of Columbia, and causes and has caused ~ld product when sold to be transported in interstate commerce from tis place of business in the State of Georgia or from other States of the lllted States to purchasers thereof located in States other than thes!)~ate. of Georgia or the State of origin of the .shipment and in the Istrict of' Columbia .

.: AR. 2. The a.ctive ingredients of respondent's "Kondi ·worm Spe- ~1 c and Conditioner" are powdered areca nut, milk sugar, and antonin i P .AR. 3·•. In the course and conduct of his said business, responde~t 8 now, and has been for more than 1 year last. past, in substantial ~hlllpetition in commerce between and among the various States of e lJnited States and in the District of Columbia with corporationst ~attnerships, firms, and other individuals engaged in 'the sale of prol' Ucts used and useful for the purposes for which the respondent econunends his said product. · 500 FEDE,RAL TRADE. COl'viMISSIOX DECISIONS Complaint 35 F. T. C. ' PAR. 4. In the course and cond~ct of his business as aforesaid, ll11d in soliciting the sah~ of and selling said product in said commerce, respondent, through statements regarding the therapeutic value, eftid cacy and effecf of said product, appearing on labels, order blanks an in booklets and pamphlets, and in advertisements appearing in ne~s· papers and magazines, and through other media, makes the follovvlll~ representations regarding the product "Kondi \Vorm Specific an Conditioner":

(a) That it is doing or has done wonders as a conditioner for dogs. (b) That it will positively expel or destroy all intestinal parasites in dogs, including hook, tape, and round worms, in 5 to 30 minutes. . . (c) That it causes a dog to condition by antiseptic cleansing of 1ts digestive tract.

(d) That it is effective and safe in treating dogs for distemper. (e) That it is as harmless to dogs as castor oil. · (f) That it is effective in treating dogs for running, barking or fright fits and run-down state, which conditions respondent repre· sents are indicated by dull eyes, pale mouth membranes, rough coat,. t>tc. · In connection with the sale of its "Kondi 'Vorm Specific and C?n· ditioner" respondent has represented that 7 out of 10 dogs are m· iested with one or ·more kinds of intestiml worms. PAR. 5. In truth and in fact respondent's representations as set out in paragraph 4 hereof, and respondent's advertisements on labels, pamphlets, order blanks, newspapers, magazines and otherwise are e:s· travagimt, false, misleading, and deceptive, in that "Kondi Wornl Specific and Conditioner" when administered to dogs: (a) ·wm not operate as an effective conditioner. · . ·' (b) Will not expel or destroy all intestinal parasites, includlD~ hook, tape, or round worms in 5 to 30 minutes nor in any time appro:tl· mating such.period.

(c) Will not antiseptically clean the digestive tract and thereby condition the dog. · · (d) Will not be effective and safe in the treatment for distemper. (e) Is not as harmless as castor oil. · . t • (f) Is not effective in the treatment for running, barking or fr1gb fits, nor are dull eyes,. pale mouth membranes, rough coat, etc., .true symptoms of such conditions, . . r''. nor will the administration of "Kondi Worm Specific and Conditwne t produce any results similar to those claimed for it by the respond~n as hereinabove set forth. It is not true that 7 out of 10 dogs are 1n· fested with one or more kinds of intesti11a 1 worms. KONDI CO. 501 498 Findings · 'PAR. 6..Respondeufs advertising and representations hereinabove described have had and still have the tendency and capacity to and do mislead and deceive the purchasing public regarding th~ thera- Peutic value, efficacy and effect of "Kondi Worm Specific and Conditioner," and further, as a direct consequence of the deceptive actions and representations of the respondent and the erroneous and mistaken beliefs induced by said acts as herein set out, the purchasing P??lic has purchased respondent's "Kondi Worm Specific and ConditiOner" with the result that trade has been unfairly diverted to the t~spondent from competitors likewise engaged in the business of distributing or selling products designed for similar usage, who truthfully advertise and represent the properties of their respective prodltcts and the results that may be expected to be obtained from. the use th~reof. ·As a result thereof, substantial injury has been and is now _being done by respondent to substantial competition in commerce among and between the various States of the United States and in the District of Columbia. · . 1 . PAR. 1. The acts, practices, and representations of respondent here- Inabove set forth are all to the injury and prejudice of the public and !0 the competitors of respondent in interstate commerce within the Intent and meaning of section 5 of an act of Congress approved Sept~mber 26, 1914, entitled "An act to create a Federal Trade Commisenon, to define its powers and duties, and for other purposes." REPOR'l', FINDINGS AS TO THE FACTS, AND ORDER · · Pursuant to the provisions of the Federal Trade Commission Act, the Federal Trade Commission, on August 27, 1937, issued and subsequently served its complaint in this proceeding on the respondent, J. E. Miller, an individual, doing business as Kondi Co., charging him with the use of unfair methods of competition 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· evi- .dence in support of, and in opposition to, the allegations of said com- Plaint were introduced before trial examiners of the Commission th~tofore duly designated by it, and said testimony and other · 6"Idence 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 examiners upon the evidence, and briefs in support of the complaint a,nd in opposition: thereto (oral argument not having been requested); and the Commission, having duly considered the matter and being now fully advised in the 502 FEDERAL TRADE COMMISSION DECISION'S Findings 35F.T.C· 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, J. E. Miller, is an individual, doing business as Kondi Co., having his office and principal place of business at Atlanta, Ga. Respondent, for several years last past, has been, and now is, engaged in the sale and distribution in commerce between and among the various States of the United States of a certain worJDmedicine for dogs designated~ "Kondi 'Vorm Specific and Conditioner, " and causes said product when sold, to be transported from his pla~e of business in the State of Georgia to purchasers thereof located 1n various other States of the United States. Respondent maintains, and at all times mentioned herein has maintained, a course of trade in said product in commerce among and between the various States of the United States .

. PAR. 2. In the course and conduct of his said business, re~pondent is now, and for several years last past has been, in substantial coJlld petition .with other individuals and with corporations, firms, an partnerships engaged in the sale and distribution of medicinal prepara· tions for dogs, in commerce between and among the various States of the United States.

P .AR. 3. In the course and conduct of his aforesaid business, for the purpose of inducing the purchase of his product "Kondi 'Vorm Specific and Conditioner," respondent has disseminated false, deceptive, and misleading statements and representations with reference to said pro~· uct, by means of advertisements inserted in newspapers and periodl· cals, and by circulars, pamphlets, and other advertising literature. Among and typical of such false, deceptive, and misleading state· ments and representations are the following: . 1. That respondent's preparation will expel or destroy all ~­ testinal parasites in dogs, including hook, tape, and roundwonns, J1l 5 to 30·minutes.

2. That respondent's preparation constitutes a conditioner fdf dogs and will antiseptically cleanse the intestinal tract of dogs. { 3. That respondent's preparation is effective in the treatment 0 distemper and running and barking .fits. . 4. That respondent's preparation is as harmless to dogs as cas~or oil and is effective in treating dogs that are out of condition as 1n· dicated by ·dull eyes, pale mouth membrane, rough coat, poor appetite, etc.

KONDI CO. 503 498 'Findings PAn. 4. There are various types of worms which occur in the intestinal tract of dogs, the most common of whi<'h are hookworms, round- "'orms, whipworms, and tapeworms.

The hookworm ( a:ncylostoma canium) sucks the blood and causes anemia. These worms are difficult to detect and cause a dog to be slow and sluggish and the membranes of the mouth to be pale, due to loss Of blood.

The ascarids, or roundworms (toxocara cani8), live on the contents ~f the intestinal tract, and feed, to some extent, on the epithelial cells. he harmful effect of these worms is thought to be due to the excretion ~hey give off. They migrate in the intestine and may at~ack the' bile Uct, or group in the small intestine, leading to obstruction. · ~he whipworm (t,ricli!Uris vulpia) usually occurs in the caecum, "'hich is the blind duct where the small intestine unites with the colon.

The tapeworm attaches itself to the wall of the intestine by means of ~ckers and probably derives some nutriment from the intestinal wall. ~ here are a number of types of these worms, but the ones most commonly found in dogs are taenia pisiformis and dipylidium canium. Another type sometimes found in dogs is the· dipylibothrium, the seglllents of which are not passed by the animal as in the case with the ?ther types. This latter type is rare and occurs only in limited areas ln this country. , th T~ere are other types of worms or parasites which sometimes inhabit e Intestinal tract of dogs, but they are so rare as not to require consideration in the treatment of dogs. · . PAn. 5. In the treatment of worms in dogs, it is necessary that the afthelmintic used be specific in its action, as only one drug will usua ly remove or destroy only one type of worm, and there is no known :Preparation which is effective in the treatment of all types of worms . . b A. test of respondent's preparation was conducted. by the Food and .rug Administration at the Agricultural Research Center at Beltsl>l]le, Md. In the course of this test, 13 dogs of various sizes and ages "'ere Used, and respondent's' product administered to them in accord- ~llce With the directions. Observation was made for a period of four ays to determine the number and variety of worms passed. At the end of this 4-day peri_od an autopsy was performed and a count made ?f the worm content of the intestinal tract. As a result of this test, ~·Was determined that the preparation is effective against the dipyli- 1?m an'd taenia type of tapeworms, but is not a satisfactory anthelllllntic for large roundworms, as its efficacy was limited to approxilllately 50 percent. As to whipworms, the test indicated no value what- COl\IMISSIO~ DE.C:lSIOXS504 FEDERAL TRADE Findings' 35F. T. C.

soever. This test further indicated that this preparation was oilly 20 to 25 percent effective for hookworms and consequently did not constitute a satisfactory anthelmintic for this type of worm. PAR. 6. A microscopic examination was made of respondent's product, from which it was determined that respondent's preparation con· sisted of powdered areca nut, crystalline santonin, and crystalline co~ sugar or milk sugar. Neither milk sugar nor corn sugar is an anthemintic and consequently the active ingredients-of this preparation are powdered areca nut and santonin. Areca nut has been used from ear~Y time£? to remove tapeworms. and is particularly effective in the taenHl type of tapeworm and also reasonable effective in the dipylidium typ~ but has little or no effect in the removal of the dipylibothriuni type 0 tapeworm. Santonin is also a very old anthelmintic. It has no effect on tapeworms or hookworms. It was at one time -considered to be valuable 1for the roundworm type of parasite commonly called the ascarid but is now considered to be only approximately 50 percent effective as to this particular type of worm. . . PAR. 7. The respondent, in the course of the hearing, refused to d\ vulge the ingredients co:ntained in his preparation but did state thll1this preparation contained at least 1 grain of salol. At one time sulof was thought to be of some value as an intestinal antiseptic because 0 1the break-down of the drug in the intestinal tract, liberating phe1•10 ' but it is now known that this drug has never accomplished anything worth while in treating .nnv infection of the intestinal tract and that the small amount of phenol .liberated in the intestinal tract would be without any therapeutic effect. The intestinal tract of a dog II1~1 harbor various species of germs, protozoan organisms,,various specie; . of bacteria, molds, and other organisms. ·Any drug or combination ° drugs which has sufficient strength to antiseptically cleanse the diges· tive tract would kill the dog before it could accomplish such purpose· PAR. 8. Distemper is caused by what is known a.s a filterable virus or .ultramicroscopic virus. Up to the present time veterinary science has been. unable to find any drug or combination of drugs that ha9 any effect upon the course of that specific disease. There is no ingre· dient in respondent's preparation that has ever been recognized ~J the veterinary profession as having any value in the treatment of ~IS• temper, including the drug salol. Areca nut· is a purgative in acttoil and also produces depression and nausea. The use of any preparation containing areca nut may have harmful effects and is not a harm· less preparation or one that can be indiscriminately administered. The use of such preparation in· the treatment of distemper might be attended with harmful results.

KONDI ·CO. 505 498 .. ·Findings' · PAR~ 9'. A dog may be off of condition due to a large number of causes and it is impossible for any one drug or combination of drugs to bring a dog back to normal condition. There is nothing in re· spond.ent's preparation which indicates that it has any tonic effect "'whatsoever and consequently does not constitute. a conditioner· for dogs. Running and barking fits are considered by the veterinary l).rofession to be diseases or conditionil associated with dietary defi· Clency. _The fact that respondent's preparation may remove tape- \Vo rrns or partially remove roundworms from a dog does not warrant ~he representation that said preparation constitutes a conditioner for 1'0~s or that it is effective in the treatment of running or barking fits. h1s preparation will not correct any dietary deficiency. PAR. 10. Based upon tests made with respondent's preparation and ~l)on the testimony of the various e·expert witnesses, the Commission fnds that respondent's preparation will not destroy or expel all inteslnal :parasites in dogs and constitutes a satisfactory anthelmintic only with reference to the taenia .and dipylidium type o£ tapeworm and does not .constitute a satisfactory anthelmintic for large rounrl- ~~orms or hookworms and has no value in the removel o£ whipworms; dlat respondentrs preparation does not constitute a conditioner; for . 0.gs and will not antiseptically cleanse a dog's intestinal tract; that s~d preparation has no value in the treatment of distemper and is not e e,ctive in the treatment of running and barking fits; that respond- ~~t s preparation is not as harmless as castor oil, but, instead, that i s Use may be definitely harmf,ul; that said preparation is not effective 'fin 1treating dogs that are out of condition as indicated by dull eyes, s ~ e rnouth membran,e, rough. coat, poor appetite, etc., since these ~ll1ptoms, particularly pale mouth membrane, indicate aneinia, which 'fJaay ?e caused by the hookworm, for the removal of which this preration has little value ..

a ~an .. 11. The use by the resi;ondent ~£ the foregoing false, deceptive, hnd nusleading representations with respect to his preparation, has aa '.and now hasr the capacity and tendency to mislead and deceive ln~llbstantial portion of the purchasing public into the erroneous and t lstaken belief that such false statements nnd representations are bl'lle, and to induce a substantial portion of the purchasing publi<;l', qecause o£ such erroneous and mistaken belie£, to purchase substantial ellantities of respondent's preparation in preference to that of his l'~lnpetitors. As a result, trade has been diverted. u~fairly to the d.sr>~nd.ent from !lis competitors who are engaged in the sale and · 18 tr 1httt~~m of va.'r~ous medicinal preparati011s for dogs, in commerce 35F. T.C. Order · among and between the various States of the United States and in the District of Columbia.

CONCLUSION The acts and practices of the r~spondent as herein found, are all ~o· the prejudice and injury of the public and of respondent's compe~I­ tors and constitute unfair methods of competition in commerce withlll the intent and meaning of the Federal Trade Commission Ac~. 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 in support of, and in opposition to~ the allegations of the complaint, taken before trial examiners of t?r Commission theretofore duly designated by it, report of the trl!t examiners upon the evidence and briefs filed by counsel for the Co~· mission and by the respondent; and the Commission having made Its · findings as to the facts and its conclusion that said respon~ent bas violated the provisions of the Federal Trade Commission Act. . It is ordered, That respondent, J. E. Miller, an individual doin.g business as Kondi Company, or trading under any other name, his representatives, agents, or employees, directly or through any corpod rate or other device, in connection with the offering for sale, sale nn 1 distribution in commerce as "commerce" is defined in the :F;ede7a.d Trade Commission Act, of his product "Kondi Worm Specific an Conditioner," or any other preparation of substantially similar cond - ~position or possessing substantially similar properties, whether sol under the same name or under any other name, do forthwith cease and desist from :

1. Representing, directly or by implication, that respondent's prepa· ration will expel or destroy all intestinal parasites or worms in dogs· 2. Representing, directly or by implication, that respondent's prePd: ration constitutes an effective anthelmintic for hookworms or roun worms in dogs.

3. Representing, directly or by implication, that respondent's prep!l; ration has any therapeutic valuej in the removal of whipworms 0 dipylibothrium type of tapeworm from dogs. • 4. Representing, directly or by implication, that respondent's prepa ration has any value in the treatment of distemper in dogs. . 5. Representing, directly or by implication, that respondent's prepllr ration constitutes a competent or effective treatment for running 0 · barking fits in dogs.

KONDI CO. 507 4118 Order 6. Representing in any manner, either directly or byimplication, that respondent's preparation constitutes a conditioner for dogs. 'T: Representing, directly Qr by implication, that respondent's preparation is a harmless anthelmintic or that it can be safely used in the treatment of any condition associated with worms in dogs. It i8 fwrther ordered, That the respondent shall,. within 60 days ~after service upon him of this order, file with the Commission a report ~ Writing, setting forth in detail the manner and form in which he as complied with this order.

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508 FEDE·RAL TRADE COMl\ITSSION DE.CISIONS C!~mplaint s;:;F.T.C·