The May Department Stores Company

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IN THE MATTER OF THE MAY DEPARTMENT STORES COMPANY, PHYSI- ClANS ELECTRIC SERVICE CORPORATION, AND_ SOLOMAN E. MENDELSOHN Co:.\IPLAINT, FINDINGS, AND. ORDER Dl REGARD TO THE ALLEGED VIOLATION' OF SEC. 5 OF AN ACT OF CONGRESS APPROVED SEPT. 26, 1914 Docket 1683. Complaint, Jan. 1!6, 19f?-Decision, Oct. fO, 1942 Where a corporation and the individual who formulated, controlled, and directed Its policies, acts, and practices, engaged In manufacture and Interstate Eale and distribution of their "Pescor Shortwavatherm" short· wave diathermic device; by means of advertisements in newspapers, circulars, leaflets, and }1amphlets- · (a) Represented that their said devlee or arparatns, when used by the un· skilled lay public in the treatment of self-diagnosed diseases and ailments by individual self-application in the home, was a scientific, safe, harmles~. and effective means for the relief, cure, or tr~atrnent of rheumatistJl, arthritis, neuritis, bursitis, lumbago, sciatica, neuralgia, sinus trouble and colds, painful menstruation, female disorders, anu many other ail· ments, and for the alleviation of pain resulting therl:'from; and that its use would have no llj effects; and Where a department store, engaged in sale and distribution of a substantial portion of sud1 devices, delivered to It on consignment by said corporation, which collaborated by preparing, editing, and approving its drafts ot advertisl:'rnents for newspaper pu\.Jlicatlons, and In supplying to It circulars and leaflets for local distribution; by means of such advertisements-- ( b) Represented that said "Pescor Shortwavatherm" device, when used In the home as· above set forth, was a scientific, safe, harmless, and effective means and method for relief, cure, or treatment of arthritis, sinus in· fection, lumbago, bronchitis, laryngitis, head colds, and rheumatism; The facts being individual self-application of device in question by tlte un-· skilled lay public In the home, under prescribed or usual conditions, would not accomplish the results claimed; it was not a scientific, safe, harmless, and effective means for use by such public for the relief, cure, or trent· ment of self-diagnosed ailments or for the alleviation of pain resultltlll" therefrom, and might cause severe electric burns or other serious injury; there are conditions and ailments In which short-wave diathermy Is contra-indicated, and In which use thereof may result in serious and Irreparable injury, including delay of pt·oper diagnosis for treatment of serious underlying difficulties, of -which such pains as neuralgia or neuritis may be merely symptomatic; In diseases and conditions in which din· tbPrmy may be indicated, efficacy thereof is dependent upon the method and duration of. use; and ·member of lay public Is unable either correctly to diagnose his ailment, or to determine method and duration of use of diathermy where Indicated; and THE MAY DEPARTMENT STORES CO. ET AL. 627 626 Complaint Where said corporation, indh·idual, and store- (c) Failed to reveal facts material in the light of said representations, and With respect to consequences which might result from use of such device under usual or prescribed conditions, including said possibility of serious and irreparable injury; and that device might be used safely only after competent medical authority had determined that diathermy was indicated and had prescribed frequency and amount of application of treatments, and user had been adequately instructed in operating the device by a trained technician;

With effect of misleading and deceiving a substantial portion of the purchasing public into the mistaken belief that such statements were true, thereby inducing its purchase of said device:

lleld, That such acts and practices, under the circumstances set forth, were all to the prejudice and injury of the public, and constituted unfair and dec~ptive acts and practices in commerce.

Before Mr. Lewis 0. Russell, trial examiner. Mr. Jesse D. [{ash for the Commission.

Lawler, Felix & I! all and Mr. Brenton L. 111 etzler, of Los Angeles, Calif., for The l\fay Department Stores Co. Air, Olijfo1'd Thoms, of Los Angeles, Calif., for Soloman E. Mendeisohn.

Colli PLAINT 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, baving reason to believe that The 1\lay Depart- :tnent Stores Co., a corporation, Physicians Electric Service Corporation, a corporation, and Soloman E. 1\Iendelsohn, individually, and as an officer of said Physicians Electric Service Corporation, herein- • after referred to as respondents, have violated the provisions of the ~aid act, and it appearing to the Commission that a proceeding by it Ill respect thereof would be in the public interest, hereby issues its complaint, stating its charges in that respect as follows: · PAllAGRArH 1. Physicians Electric Service Corporation is· a cor- Poration created, organized, and existing under and by virtue of tlle laws of the State of California, with its ofiice ·and principal place of business at the Professional Building, 1054-1056 West Sixth Street, Los Angeles, Calif. · . '- Soloman E. Mendelsohn is an individual and is also president and treasurer of Physicians Electric Service Corporation with his office and principal place of business at the .snme address as the aforesaid corporate respondent.

The May Department Stores Co. is a corporation duly organized and existing under the laws of the State of New York. The said re- 628 FEDERAL TRADE COl\1M:ISS'ION DECISIONS Complaint 35 F. T. C. spondent's California office and principal place of business within said State is located at Eighth Street and Broadway, Los Angeles, Calif. Respondent, Soloman E. Mendelsohn, as an officer o£ said Physicians Electric Service Corporation, formulates, controls, and directs tl.1e policies, acts, and practices o£ said corporate respondent. The s~ld respondents act and have acted in conjunction and in cooperation w.lth each other and with The May Department Stores Co. in. per£orrnwg the acts and practices hereinafter alleged. · . PAR. 2. The respondents are now, and for more than 1 year last past have been, engaged in the sale and distribution o£ a certain short· wave diathermic device advertised as PEscon SHORTWAVATHERl\1:. The said device is composed principally of· a high-frequency g~n­ erator encased in an all-steel cabinet. The circuit is a regenerutnre feed-back circuit, incorporating two type T-55 oscillator tubes, pow· ered by two transformers. Plate voltage supply through a specially constructed £our-position switch. This switch controls p}ate supply through separate primary voltage stages on the power transformer, the secondary voltage being varied from 1,250, 1,500 or 1,709 volts. The-filament supply transformer is also controlled through the above· mentioned special switch, with 125-volt primary and 7% volt sec· ondary. The patient's circuit is through a helix coil and variable con· uenser with two conventional sponge rubber encased diathermy pads, approximating 6 by 8 inches. The device is designed and operated ut approximately 12 to 16 meters with a power output o£ 200 to 250 watts. The application to the patient is made usually by placing the co?denser pads in such position that the pO\ver may pass between s~ld condenser .pads through the affected area o£ the body at stated 1n· • tervals for varying periods of time.· The said device is manufactured by the Physicians Electric Servi.ce Corporation and a substantial portion of the aforesaid sale and dis· tribution has been effected by respondent, The l\fay Departinent Stores Co., tlirough deliveries of said device to said respondent on consign· ment by said Physii)ians Electric Service Corporation. The aforesaid sale and distribution o£ said device has· been further accomplished by respondent, The May Department Stores Co., throu~h the collaboration of said Physicians Electric Service Corporation Ill preparing, editing and approving said respondent's drafts of adver· tisements for newspaper publication. and in ,printing £or and supply· ing to said respondent, The l\fay Department Stores .Co., circula.rs, leaflets, or pamphlets useu in local distribution and in answering m· quiri~s by mail. · In the course and conuuct of their business, the respondents cause said device, when sold, to be transported from their places of business THE MAY DEPARTMENT STORES CO. ET AL. 629 626 Complaint in the State of California 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 said device, 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 product by the United States mails and by various other means in commerce, as commerce is defined in the Federal Trade Commission Act; and respondents have also disscmjnated and are now disseminating, and have caused and are now causing the dissemination of, false advertisements concerning their said product, by Various means, for the purpose of inducing, and which are likely to induce, directly or indirectly, the purchase of their 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 advertisements, disseminated and caused to be disseminated, as hereinabove set forth, by the United States mails, by newspapers and by circulars, leaflets, or Pamphlets are the following:

l'esror Engineers, after years of diligent research, now present the PEscoR S:am!TWAVATliERM ~ • • hJCorporuting safety features. i Applications may be made by any one following simple instructions. Outstanding results-Exceptional results.

Physirians prescribe and recommend Short ·wave Diathermy in many ailments, such as the following:

Addi~on's Disease Fractures Adhesions Gangrene .A.tnenorrhea Gastric Ailments Ankylosis Goltt!r (Selected) Arthritis Hay Fe.ver Arteriosclerosis Head Colds Cardiac Ailments (Selected) Hodgkin's Disease Chilblains Impetigo Chorea Insomnia Colitis ~ Intestinal Neurosis Constipation Kidney Diseases Cystitis Laryngitis Dysmenorrhea Leucorrhea Bn:q1yema Liver Diseases Bnuresis' Lumbago Brysipelas Lymphadenitis l?'olJiculitis Marasmus Complaint 35F. T.C.

1\IIgrane Rheumatism .Mumps Reynaud's Disease-e Muscle Ailments Sciatica · Nephritis Septicemia Neurasthenia Sinus Infection Neuritis Spinal Cord AlimentsOnychia SpleenOrchitis SynovitisOvaritis Pancrea Ailments Tonsllitls Paralysis Urinary Ailments Phlebitis· Vaginitis Save time • • • money! Powerful short-wave diathermy treatments taken at home • • •.

PESCOR SIIORTWAVATIIERM • • • Snme power as physicians'. Extremely simple, safe In operation. New! • • • a short wave diathermy available for home use! Simple to operate and rrgulate.

Short wave diathermy treatments at home! Right when you need it most. PAR. 4. By the use of the representations hereinabove set forth and other representations similar thereto not specifically set out herein, respondents represent that their device· or apparatus, advertised as PEsconSnonTWAVATIIERM:, when used by the unskilled lay public in the treatment of self-diagnosed diseases and ailments of the human body by individual self-application in the home, is a scientific, safe, harmless, and effective means and method for the relief, cure, or treatment of rheumatism, arthdtis, neuritis, bursitis, lumbago, sciatica, neuralgia, sinus trouble and colds, painful menstruation, female disorders, and many other ailments, and for the alleviation of pain resulting therefrom; and that its use will have no ill effects upon the human body. PAR. 5. The foregoing advertisements and representations are grossly exaggerated, false, and misleading.. . . In truth ahd in fact, the individ.ual self-application of said device by the unskilled lay public in the home, under the conditions prescribed in said advertisements or under such conditions as are customary or usual, will not accomplish the results claimed by the respondents, and is not a scientific, safe, harmless, and effective means and method to be used by the unskilled lay public for the relief, cure, or treatment of self-di"agnosed diseases aD:d ailments of t~-e human body, or for the alleviation of pain resulting therefrom, and may cause severe electric burns or other serious and irreparable injury to health. The said device does not constitute a competent treatment for conditions of acute inflammation of the nerves, such as neuritis, neuralgia, and sciatica; actute inflammation of the muscles, such as lumbago and. myositis; acute i1_1flammation of the bursae, such as bursitis; acute THE MAY DEPARTMENT STORES CO. ET AL. 031 626 Complaint inflammation of the joints, such as acute inflammatory arthritis; and rheumatic pains associated with acute inflammatory conditions of the joints, bursae, nerves, and muscles. Such treatment as aforesaid ~ay result in further swelling of the inflamed tissue, thereby increaslng the congestion of the inflamed part and in spreading the inflam- Ination to adjacent tissue and allowing the absorption of toxins, when Present. · . Short-wave diathermy is contra-indicated in all cases of menstruabon, pregnancy, gastric ulcers, acute appendicitis, in areas where t~ere is a probable malignancy, and where there is a hemorrhagic d1athesis.

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 Inaterial with respect to consequences which may result from the use of the device to which the advertisements relate under the conditions Prescribed in said advertisements, or under such conditions as are customary or usual, and fail to reveal that the use of said device may result in serious and irreparable injury to health. In truth and in fact, the use of this de\·ic.e for the relief of pain due to neuralgia or neuritis, which may often be symptomatic of some deeper, underlying disease or cause (such as pains due to tuberculosis of the joints, syphilis, and other infectiops processes, or to tumor or c~ncer) may cause serious injury to health and also delay proper diagnosis arid treatment. . 1'he application of PEscon SriORTWAVATIIER:!\r in treating conditions . of acute sinus trouble may result in further increasing congestion of the mucous membranes of the sinuses, nose, and throat, and facili. tate extension of the infections and increased absorption of bacterial toxins.

In. those areas of the skin where the sense of heat has been lost, due to injury or impairment of the peripheral nerves, the application of Slid device mny result in severe tissue destruction and severe burns. ~ancer or tuberculosis of the spine may evidence itself by severe rains in the knees and the application of diathermy by the untrained ayman may delay proper diagnosis and treatment. The application of this device for the treatment of pain in the· ~}.;tremities in the presence of advanced blood vessel changes of the egs or arms, when given in excess dosage, will cause serious injuries an<J. n~ay len.d to gangrene and necessitate amputation of the legs or arins. . d' There ar~ many diseases and conditions in the treatment of which Iathermy would be contraindicated. There are other conditions in 632 FEDERAL TRADE COl\IMISSION DECISIONS Findings 35F. T. C.

which the efficacy of diathermy is dependent upon the method a~d duration of its use. In both of these classes of cases, the use of d1a· thermy may aggravate rather than relieve such conditions. Many con· ditions, including some of those for which respondents recomm~nd this device, are sometimes symptomatic or indicative of underlylD_g systemic disorders for which diathermy would have no therapeutic value and may even be injurious. It would be impossible for a n1em· ber of the lay public to correctly diagnose his ailment or condition or to determine the underlying cause of such disorder. It would also be impossible for such person to correctly determine the method and duration of the use. of diathermy. Consequently, the use of din.· thermy requires the diagnosis of the ailment or condition by a com· petent medical authority to determine if diathermy is indicated and the method and duration of treatment which should be prescribed .. Furthermore, said advertisements are false, as aforesaid, in that said advertisements also fail to conspicuously reveal that the device may be safely used only after a competent medical authority has determined, as a result of diagnosis) that diathermy is indicated and has prescribed the frequency and amount of application of such diathermy treat· ments and the user has been adequately instructed in the method of operating such device by a trained technician. PAR. 7. The use by the respondents of the foregoing false, deceptive, aml misleading statements and representations with respect to their device, 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 advertisements are true and induce a portion of the purchasing public, because of such erro· neous and mistaken belie£, to purchase the respondents' said devices. PAR. 8. The foregoing acts and practices of the respondents, ns herein alleged, are all to the prejudice and injury of t~1e public n~d constitute unfair and deceptive acts and practices in commerce with111 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 the 2Gt h day of January 1942 issued and thereafter served its complaint in this proceeding upon tl~e respondents, The :May Department Stores Co., a corporation, Physi· cians Electric Service Corporation, a. corporation, and Soloman :g. 1\fendelsohn, individually, and as an officer of Physicians Electric Service Corporation, charging them with the use of unfair and Tile MAY DEPARTMENT STORES CO. ET AL. 633 626 Findings deceptive acts and practices in commerce in violation of the provisions of said act. · On February 18, 194:2, the respondents, Physicians Electric Service Corporation, a corporation, and Soloman E. Mendelsohn, individually, and as an officer, of Physicians Electric Service Corporation, filed their answer in this proceeding admitting all the material allegations o£ fact set forth in said complaint and waiving all intervening procedure and further hearing as to said facts. On .February 14, 1942, the respondent, The May Department Stores Co., a corporation, filed its answer in this proceeding denying the allegations of the complaint.

A hearing was held in this matter on July 30, 1942, at which time a stipulation as to the facts entered into by and behreen counsel for the Commission and counsel for the respondent, The May Department Stores Co., a corporation, was read into the record in lieu of testimony in support of the charges stated in the complaint or in opposition thereto, and which stipulation further provided that the Commission may proceed upon said statement of facts without oral argument or the filing of briefs to make its report, stating its findings ns to the facts and its conclusion based thereon, and enter its order disposing of the proceeding. · Said respondent, The May Department St<;>res Co., a corporation, expressly waived the filing of a Trial Examiner's report upon the evidence.

Thereafter, this proceeding regularly came on for final hearing before the Commission upon said complaint, answer and stipulation lead into the record, said stipulation having been approved and accepted, and the Commission having duly considered the same and ~eing now fully advised in the premises, finds that this pro~eeding ls in the interest of the public and makes its findings as to the facts nnd its conclusion drawn therefrom. · FINDINGS AS TO TJIE FACTS PARAGRAPH 1. Physicians Electric Service Corporation, is a cor- Poration created, organized and existing under and by virtue of the laws of the State of California with its office and principal place of business at the Professional Building, 1054-1056 West Sixth Street;· Los Angeles, Calif.

Soloman E. Mendelsohn, is an individual, and is also president and treasurer, of Physicians Electric Service Corporation, with his office nnd principal place of business at the same address as the aforrsaid <:corporate respondent.

The May Department Stores Co., is a corporation, duly organized ~nd existing under the laws of the State of New York. The said Findings 35F. T.C.

respondent's California 9ffice and princi,ral place of business within said State is located at Eighth Street and Broadway, Los Angeles, Calif. · Respondent, Soloman E. Mendelsohn, as an officer, of said Physi· cians Electric Service Corporation, formulates, controls and directs the policies, acts and practices of said corporate respondent. The said respondents .act and have acted in conjunction and in cooperati~n with each other and with The May Department Stores Co. lD performing the acts and practices hereinafter alleged. PAR. 2. The respondents, Physicians Electric Service Corporation, a corporation, and Soloman E. 1\Iendrlsohn, are now and for more than one year last past have been, engaged in the sale .and distribu· tion of a certain short-wave diathermic device advertised as PEscoR SnonTWAVATIIER!\I, The respondent, The 1\Iay Department Stores Co., a corporation, prior to January 4, 1941, was engaged in the sale and distribution of said device.

The said device is composed principally of a high frequency gen· uator encased in an all steel cabinet. The circuit is a regenerative feed back circuit,' incorporating two type T-55 oscillator tubes, powered by two transformers. Plate voltage supply through a specially constructed four position switch. This switch controls plate supply through separate primary voltage stages on the power trans· former, the secondary voltage being varied from 1250, 1500 or ~700 volts. The filament supply transformer is also controlled through ' the above-mentioned special switch, with 125-volt primary and 71;-2· volt seconuary. The patient's circuit is through a helix coil and variable condenser with two· conventional sponge rubber ('ncased diathermy paus, approximating 6 by 8 inches. The device is de· ~·signed and operated at approximately 12 to 16 meters with a power output of 200 to 250 watts. The application to the patient is made · usually by placing the condenser pads in such position that the power may pass between said. condenser pads through the aff~cted area of the body, at stated intervals for varying periods of time. The said device is manufactured by the Physicians Electric Service Corporation, and a substantial portion of the aforesaid. sale und ·distribution has been effected by respondent, The l\fay Department · Stores Co., through deliveries of said device to said respondent on , consignment by said Physicians Electric Service Corporation. The aforesaid sale and distribution of said device has been further accomplished by respondent, The May Department Stores Co., through the collaboration of said Physicians Electric Service Cor· poration in preparing, editing and approving said respondent's drafts THE 1\fay DEPARTMENT STORES CO. ET AL. 635 626 Findings of advertisements for newspaper publication and in printing for and supplying to said respondent, The May Department Stores Co., circulars, leaflets1 or pamphlets used in local distribution. In the course and conduct of their business, the respondents cause said device, when sold, to be transported from their places of business in the State of California 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 said device i'n commerce between and among the various States of the United States and in the District of Columbia.

PAn. 3. In the course and conduct' of their aforesaid business, the respondents, Physicians. Electric Service. Corporation and Soloman E. Mendelsohn, have disseminated, and have caused the dissemination of, false advertisements concerning their said product by United States mails and by various other means in commerce as "commerce" is defined in the Federal Trade Commission Act; and said respondents have also disseminated, and have caused the dissemination of, false advertisements concerning their said product by various means for the purpose of inducing, and which are likely to induce, directly or indirectly, the purchase of their said 'product ·in commerce as '·'commerce" is defined in the Federal Trade Commission Act. Among and typical of. the false, misleading, and deceptive statelnents and representations contained in said false advertisements, disseminated and caused to be disseminated, as hereinabove set forth, by the United States mails, by newspapers and by circulars, leaflets or pamphlets, are the following:

Pescor Engineers, after years of diligent research, now present the PEscoB SHoRTWAVATHERM • • • incorporating safety features. Applications may be made by any one following simple instructions. O:.ttstanding results-Exceptional results.

Physicians prescribe and recommend Short Wave Diathermy In many ailments, such as the following :

Addison's Disease Dysmenorrl1ea Adhesions Empyema Amenorrhea Enuresis Ankylosis Erysipelas Arthritis Folliculitis Arteriosclerosis Fractures Cardiac Ailments (Selected) Gangrene Chilblains Gastric Ailments Chorea Goiter (Selected) Colitis Hay Fever Constipation Head Coltls Cystitis Hodgkin's Dis~'lse 636 FEDERAL TRADE COMMISS'ION DECISIONS Findings 35F.T.C· Impetigo Orchitis Insomnia Ovaritis Intestinal Neurosis Pancrea Ailments Kidney Diseases Paralysis Laryngitis Phlebitis .Leucorrhea Rheumatism Liver Diseases Reynaud's Disease Lumbago Sciatica Lymphadenitis Marasmus Septicemia l\Iigrane Sinus Infection Mumps Spinal Cord Ailments Muscle Aliments Spleen Nephritis Synovitis Neurasthenia Tonsilitis Neuritis Urinary Ailments Onychia Vaginitis Save time • • • money! Power·ful short-wave diathermy treatments taken at home • * * PESCOR SHORTWA VATHERM "' * · "' Same power as physicians'. Extremely simple, sale in operation. New! "' • • a short wave diathermy available for home use! Simple to operate and regulate. • Short ·wave diathermy treatments at home! Right when you need It most. PAR. 4. By the use of the representations hereinabove set forth, and other representations similar thereto not specifically set out herein, respondents, Physicians Electric Service Corporation and Soloman E. Mendelsohn, represent that their device or apparatus, advertised as PESCOR SHORTWAVATHERM, when used by the unskilled lay public in the treatment of self-diagnosed diseases and ailments of the human body by individual self-application in the home, is a scientific, safe, harmless, and effective means and method for the relief, cure, or treatment o£ rheumatism, arthritis, neuritis, bursitis, lumbago, sciatica1 neuralgia, sinus trouble, and colds, painful menstruation, female disorders, and many. other ailments, and for the •' alleviation of pain resulting therefrom; and that its use will have no ill effects upon the human body.

PAR. 5. In the course and conduct o£ its aforesaid business the • respondent, The l\Iay Department Stores Co., has disseminated, and has caused the dissemination of, false advertisements concerning its said product by United.States mails, and by various other means in commerce, as "commerce" is defined in the Federal Trade Commis· sion Act; and said respondent has also disseminated, and has caused the dissemination of, false advertisemevts concerning its said product by various means, for' the purpose of inducing, and which are likely THE MAY DEPARTMENT STORES CO. ET AL. 637 626 .. Findings to induce, directly or indirectly, the purchase of its said product in Commerce, as "commerce" is defined in the Federal Trade Commission Act. . Among and typical of the false, mfsleading, and deceptive statelllents and representations contained in said false advertisements disseminated, and caused to be disseminated, as heteinabove set forth, by the United States mails, and by newspapers, are the .following: ' Save time-money l Powerful short wave diathermy treatments taken at home.

PESCOR SHORTWAVATHERM used to treat arthritis, sinus infection, lumbago, bronchitis. Same power as physicians.

Extremely simple, safe in operation.

Laryngitis or bronchitis treated through cuff electrode. Head colds or sinus infection treated through the sinus mask. :New I *: * * a phort wave diathermy available for home u"se. Short wave diathermy treatments at home! Right where you need it most. Used by physicians in treating rheumatism, lumbago, arthritis * * • P.m. 6. By the use of the representations hereinabove set forth, n:n~ other representations similar thereto, but not specifically set out herein, respondent, The May Department Stores Co., represented that said device or apparatus advertised as PEscon SIIORTWAVATIIERl'tt when U~ed by the unskilled lay public in the treatment of self-diagnosed ~lseases and ailments of the human body by individual self-application in the home is a scientific, safe, harmlesa, and effective means and l'nethod for relief, cure, or treatment of arthritis, sinus Infection, lumbago, bronchitis, laryngitis, head colds, and rheumatism. - PAn. 7. The foregoing advertisements and representations are g1·ossly exaggerated, false, and misleading. · b In truth and 'in fact, the individual self-application of said device . Y the unskilled lay public in the home, under the conditions prescribed in said advertisements, or under such conditions as are custo:tnary or usual, will not accomplish the results claimed by the respondents, and is not a scientific, safe, harmless, and effective means a:nd method to be used by the unskilled lay public for the relief, cure, or treatment or self-diagnosed diseases and "ailments of the . . human body, or for the alleviation of pain resulting therefrom, .and ~ay cause severe electric burns, or other serious and irreparable Injury to health .

. The said device does not constitute a competent treatment for (!onditions of acute inflammation of the nerves, such as neuritis, neuralgia, and sciatica; acute inflammation of the muscles, such as 509749m--43--vol.35----43 638 FEDERAL TRADE COMMISS'ION DEClSIONS Findings 35Jr.T.c; lumbago · and myo~i.tis; acute inflammation of the bursae, such· as bursitis; acute inflammation of the joints, such as acute inflamma· tory arthritis; and rheumatic .Pains associated with acute inflarnrna· tory conditions of the joints, bursae, nerves, and muscles. Such treatment as aforesaid may result in further swelling of the inflame~ tissue, thereby increasing the congestion of the inflamed part, an in ·spreading the inflammation to adjacent tissue, and allowing the absorption of toxins, when present.

Short wave diathermy is contraindicated in all cases of men·· struation, pregnancy, gastric ulcers, acute appendicitis, in areas whe~e there is a probable malignancy, and where there is a hemorrhagic diathesis.

PAR. 8. The respondents' ad~eitisements, disseminated as afore· · said, 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 device to which the advertisements relate under the conditions prescribed in such advertisements, or under .such conditions as are . customary or usual, and fail to reveal that the use of said device may result in serious and irrepa!able injury to health. · . In truth and in f~ct, the use of this device for the relief of pal~ due to neuralgia or nel.\ritis, which may ofteri. be symptomatic 0 some deeper, underlying disease or cause (such as pains due to tuberculosis of the joints, syphilis, and other infectious processes, or to tumor or cancer) may cause serious injury to health, and also delay proper diagnosis and treatment. · · The application of PEscon SHORTWAVATHERM in treating conditions of acute sinus trouble may result in further increasing congestion. ~f the mucous membranes of the sinuses, nose, and throat, and £ac1h~ tate extension of the infections and increased absorption of bacterial toxins. · · In those areas of the .skin where the sense of heat has been lost, due to injury or impairment of the peripheral nerves, the applica· tion of said device may result in severe tissue destruction and severe ~~ . . . · Ca11cer or tub~rculosis of the spine may evidence itself by severe pains in the knees, and the application of diathenny by the untrained layman may delay proper diagnosis and treatment. . ' The application of this device for the treatment of pain in the es·. tremities in the presence of advanced blood-vessel changes of the legs or arms, when given in excess dosage, will cause serious injuries and may lead to gangrene and necessitate amputation of the legs or arms· / THE MAY DEPARTMENT STORES CO. ET AL. 639 626 ·:' . Conclusion · · There are many diseases and conditions in the· treatment of which diathermy would be contraindicated. There are other conditions in 'Which the efficacy of diathermy is dependent upon the method and duration of its use. In both of these classes of cases, the use of diathermy may aggravate rather than relieve such conditions. ~:lany conditions, including some of those for which respondents recommend this device, are sometimes symptomatic or indicative of underlying systemic disorders for which diathermy would have no therapeutic l'value and may even be injurious. It would be impossible for a member of the lay public to correctly diagnose his ailment or condition or to ~etermine the underlying cause of such disorder. It would also be · 1lllpossible for such person to correctly determine the method and duration of the use of diathermy. Consequently, the use of diathermy requires the diagnosis of the ailment or condition by a competent llledical authority to determine if diathermy is indicated and the lllethod and duration of treatment which should be prescribed. · :Furthermore, said advertisements are false, as aforesaid, in that said · advertisements also fail to conspicuously reveal that the device may' be. safely used only after a competent medical authority has deter• lllined, as a result of diagnosis, that diathermy is indicated and has Prescribed the frequency and amount of application of such diathenny treatments and the user has been adequately instructed in the methoq of operating such device. by a trained technician. PAR. 9. The Commission further finds that the respondent, The May ~department Stores Co., has not advertised said device ill any manner Since April 28, 1940, has not sold any of said devices since January 4, 1941, and has not offered any for sale since January 31, 1941. PAR. 10. The use by the respondents, The May Department Stores Co., a corporation, and Physicians. Electric Service Corporation, a corporation, and Soloman E. Mendelsohn, individually, and as an officer, of Physicians Electric Service Corporation, of the foregoing false, deceptive, and misleading statements and representations re- Rf>ectively disseminated by them as aforesaid, with respect to their de.vice, has had and now has the capacity and tendency to, and does, ~lslead and deceive a substantial portion of the purchasing public lnto the erroneous and mistaken belief ·that such statements, representations, and advertisements are true, and to induce such portion of· the purchasing public because of such erroneous and mistaken belief to purchase the respondents' device.

CONCLUSION The aforesaid acts and practices of respondents as herein found are all to the prejudice and injury of the public and constitute unfair and Order 35F.T.C· 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 and the answer of respond· ents, Physicians Electric Service Corporation, a corporation, and Soloman E. Mendelsohn, individually, and as an officer of Physicia~s Electric Service Corporation, in which answer these respondents adlll 1~ all of the material allegations of fact set forth in said complaint an state that they waive all intervening procedure and further hearing' as to the facts; and a stipulation as to the facts entered into upon the record between counsel for the Commission and counsel for respondent, The May Department Stores Co., a corporation; which provides, among other things, that without further evidence or other intervening' procedure the Commission may issue and serve upon said respondent findings as to the facts and conclusions based thereon and an or~er 'disposing of the proceeding; and the Commission having made Its findings as to the facts and conclusion that said repsondents ha"V"e violated the provisions of the Federal Trade Commission Act. . It is ordered, That the respondents, Physicians Electric Service Corporation, a corporation, its officers, and Soloman E. Mendelsohn, individually, and as an officer of said corporation, and said respond· ents' representatives, agents, and employees, directly or ~through any corporate or other device, in connection with the offering for sale, sale, or distribution of their short-wave diathermic' device known as PESCOR SnoRTWAVATHERM, or any other device or apparatus of sub·stantially similar character, whether sold under the same name or under any other name, do forthwith cease and desist from direct!~ or indirectly disseminating or causing to be disseminated any advertise· ment by means of the United States mails or by any means in coJll· merce, as "commerce" is defined in the Federal Trade Commission .A.ct, concerning the device or apparatus designated PEscoR SnonTWA"V'A· THERl\J:," and from disseminating or causing to be disseminated an.Y advertisement by any means f()r the purpose of irfducing or which IS likely to induce, directly or indirectly, the purchase in commerce, 119 "commerce" is defined in the Federal Trade Commission Act, of the device or apparatus designated PEscoR SnoRTWAVATHERM, which advertisement: .

1. Represents, directly or through infere~ce, that said device or apparatus is safe or harmless.

2. Represents, directly or through inference, that said device is a.· scientific, safe,· and harmless means and method to be used by the THE MAY DEPARTMENT STORES CO, ET AL. 641 626 Order U?skilled lay public for the treatm.ent, relief, or cure of self-diagnosed diseases and ailments of the human body or ,for the alleviation of Pain resulting therefrom .

.3. Represents, directly or through inference, that said device constitutes a competent' or effective treatment for rheumatism, arthritis, ' neuritis, bursitis, lumbago, sciatica., neuralgia, sinus trouble, head colds, painful menstruation of female troubles, or for the alleviation of pain resulting therefrom, or for any other ailment or condition ' of the human body, unless such advertisement is specifically limited to those cases which do not involve acute inflammatory processes, ~· Fails to reveal clearly, conspicuously and unequivocally that said device or apparatus is not safe to use unless and until a competent medical authority has determined as a result of diagnosis that the use of diathermy is indicated and has_prescribed the frequency and rate of application of such diathermy treatments, and the user ~as been thoroughly and adequately instructed by a trained technician In the use of such diathermy device or apparatus. It is further ordered, That respondent, The May Department Stores C.o., a corporation, its officers, representatives, agents and employees; directly or through any corporate or other device, in connection with the offering for sale, sale or distribution of said device or apparatus designated as PEscon SnonTWAVATHEn:u, or any other device or apparatus of substantially similar character, whether sold under the same name or any other name, do forthwith cease and desist from directly or indirectly disseminating or causing to be disseminated by means Of the United States mails or by any means in commerce, as "com- ~erce" i& defined in the Federal Trade Commission A~t, any adverbsement concerning the !fevice or apparatus designated PEScon SrronTwAVATHERMj and from disseminating or causing to be dis-· ~eminated any advertisement by any means for the purpose of induc- ~ng or which is likely to induce, directly or indirectly, the purchase In commerce, as "commerce" is defined in the Federal Trade Commission Act, of the device or apparatus designated PEscon SllonTWAVATHEnM, which advertisement:

1. Represents, directly or through inference, that such device or apparatus is safe or harmless:

2. Represents, directly or through inferenc~, that said device is a scientific, safe, and harmless means and method to. be used by the ~?skilled lay public for the treatment, relief or cure of self-diagnosed • lseases and ailments of the human body or for the alleviation of Pain resulting therefrom. . 642 .. FEDERAL TRADE. COMMISStoN DECISIONa .. ' Order 35F.T.C· 3. Represents, directly or· throug.h inference, that said device con· stitutes a competent or effective treatment for arthritis, sinus infec· tion, lumbago, bronchitis, laryngitis, head colds or rheumatism, or for the alleviation of pain resulting therefrom, or for· any· other aihne?t or condition ~of the.human body, unless·such advertisement is specif· ically limited to those cases which do not involve acute inflammatory ' processes. . 4. Fails to reveal clearly, conspicuously and unequivocally that sald device or apparatus is not safe to use unless and until a compe· tent medical authority has determined as a result of diagnosis that the use of diathermy is indicated and has prescribed the frequency and rate of application of such diathermy treatments, and the. user has been thoroughly and adequately instructed by a trained technician; ·in the use of such diathermy device or apparatus. · It is fu:rther ordered, That the respondent shall within 10 days after service upon them of this order, file with the Commission an interim report in writing stating .whether they intend. to com pi~ with this order, and, if so, the manner and form in which they inten. to comply; and that within 60 days after service upon them of th.lS order said respondents sha.ll file with the Commission a report 1n writing ,setting forth in detail the manner and form in ·which they have complied with this order.

.. .,"J., ' UNITED· DRUG CO • 643 Syllabus