Stuart Co., F. a

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IN "THE MA 'ITER OF F. A. STUART COMPANY, AND BENSON & DALL, INC. COMPLAINT, FINDINGS, AND ORDER •IN REGARD TO THE ALLEGED VIOLATION 1 OF SEC. Ci OF AN ACT OF CONGRESS APPROVED SEPT. 26, 1914 Docket 4153. Complaint, Apr. 24, 194f-Decision, Mar. 11, 1913 Where a corporation, engaged in Interstate sale and distribution of "Stuart's Laxative Compound Tablets," and an advertising agency, aiding in the preparation of Its advertising material; by means of advertisements in newspapers and magazines, circulars, and other advertising literature- (a) Represented that product in question was entirely safe and harmless and might be used without danger 'Of 111 el'fects, through such statements as "Try Stuart's Laxative Compound • • • for its li!afe • • • results," and "No bad after-effects";

When In fact It was neither safe1 nor harmless in that It contained phenolphtha1eln in quantities sufficient to -cause, In some instances, Injury to health if used under prescribed or usual conditions; and (b) Fail~ to reveal facts material with respect to consequences which might result ft·om use thereof under such cqnditions, in that said laxative was potentially dangerous when taken by one suffering from uausea, vomltlng, abdominal pains, or other symptoms of appendicitis; With tendency and capacity to mislead and deceive a substantla1 portion of the purchasing public Into the mistaken belief that use of said preparation was entirely safe and harmless, thereby inducing its purchase thereof: Held, That sucl.t nets and practices, under the circumstances set fortb, were all to the prejudice and Injury of the public and constituted unfair and deceptive acts and practices In commerce.

Before Mr. Webster Ballinger, trial examiner. Mr. William L. Taggart for the Commission.

Mr. Alfred P. ,Stuart, of Marshall, Mich., for respondents. Complaint Pursuant to the provisions of the Federal Trade Commission Act and by virtue of the authority vested in it by said act, the Federal Trade Commission, having reason to believe that F. A. Stuart Co., a corporation, and Denson & Dall, Inc., a corporation, hereinafter referred to ns respondents, have violated the provisions of the said act, and it appearing to the Commission that a proceeding by it in respect thereof would be in the public interest, hereby issues its complaint, stating its charges in that respect as follows: PARAGRAPH 1. Respondent, F. A. Stuart Co., is a corporation, existing under and by virtue of the laws of the State of Michigan, with its principal office and place of business located at 117 South Jefferson Street, :Marshall, Mich.

F. A. STUART CO., ET AL. 301 300 Complaint PAR. 2. This respondent is now, and for more than 2 years last past has been, engaged in the sal~ and distribution of a certain medicinal :Preparation designated "Stuart's Laxa~ive Compound Tablets." In the course and conduct of its business, respondent, F. A. Stuart Co.s causes said medicinal preparation, when sold, to be transported from its place of business in the State of Michigan to the purchasera 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 its said medi· cinal preparation in commerce between and among the various States of the United States and in the District of Columbia. PAR, 3. Respondent, Denson & Dall, Inc., is a corporation} existing under the laws of the State of lllinoisJ with its principal office and . place of business located at 327 South La Salle Street, Chicago, Ill. This respondent is an advertising agency and as such is engaged in formulating, editing, selling, and disseminating advertising. matter. This respondent is the advertising representative of the respondent, F. A. Stuart Co.~ a corporation and, as such, prepares and aids in the preparation of advertising material used by the respondent, F. A. Stuart Co., a corporation~ and disseminates and aids in the dissemina· tion of such advertising material, including the advertising matter· hereinafter set forth, in connection with the sale and distribution of the medicinal preparation he~inabove designated. PAR. 4. The respondents act in conjunction and cooperation with one another in the performance of the acts and practices hereinafter alleged.

PAR. 5. In furtherance of the sale and distribution of the medicinal preparation sold and distributed by respondent, F. A. Stuart Com· pany, a corporation~ the respondents have disseminated and are now disseminating, and have caused and are now causing the dissemina· tion of, false advertisements concerning said medicinal preparation by the United States mails and by various other means in comlh~rce, as "commerce" is defined in the Federal Trade Commission Act, and respondents have also disseminated and are now disseminating, and have caused and are now causing the dissemination of, false adver~ tisements concerning said products by various means for the purpose of inducing, and which are likely to induce, directly or indirectly, the purchase of said product in commerce, as "commerce" is defined in thQ Federal Trade Commission Act. Among and typical of the false, misleading, and deceptive statements and representations con· tained in said advertisements disseminated and caused to be dis· seminated, as hereinabove set forth, by United States mails, by ad- Complaint 36F.T.C.

vertisements in newspapers, magazines, and by circulars and other advertising literature, are the following:

Try Stuart's Laxative Compound • • • for its safe • • • results. No bad after-effects.

PAR. 6. Through the use of the statements and representations hereinabove set forth, and others of similar import not specifically set out herein, respondents represent that said preparation is entirely safe and harmless and may be used without danger of ill effects upon the health of the user.

PAR. 7. The foregoing representations .are grossly exaggerated, false, and misleading. In truth and in fact, said preparation is not safe or harmless, as it contains the dr.ug phenolphthalein in a quantity sufficient to cause, in some instances, injury to health if said preparation is used under the conditions prescribed in said advertisements or under such conditions as are customary or usual. PAR. 8. The 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 the consequences which may result from the use of the .. preparation to which the advertisements relate under the conditions prescribed in said advertisements or under such conditions as are customary or usual. In truth and in fact, said preparation is a laxative and is potentially dangerous when taken by one suffering from abdominal pains, stomach ache, cramps, colic, nausea, vomiting or other symptoms of appendicitis. In some instances, its use may cause a skin rash, and such use should be discontinued when a rash occurs. The frequent or continued use of said preparation may result in dependence on laxatives.

PAR. 9. The use by the respondents of the foregoing false, misleading, anc~ deceptive statements and representations has had, and now has, the tendency and capacity to, and does, mislead and deceive a substantial portion of the purchasing public into the erroneous and mistaken belief that said statements and representations are true and that the use of the preparation designated "Stuart's Laxative Compound Tablets" is entirely safe and harmless, and induces a substantial portion of the purchasing public, because. of such erroneous and mistaken belief, to purchase substantial quantities of said medicinal preparation.

PAR. 10. The aforesaid acts and practices of respondents, as herein alleged, are all to the prejudice and injury of the public and constitute unfair nnd deceptive acts and practices in commerce within the intent and meaning of the Federal Trade Commission Act. iI F. A. STUART CO., El' AL. 303 '' I 300 Findings REPORT, FINDINGS AS TO THE FACTS, AND ORDER Pursuant to the provisions of the Federal Trade Commission Act, the Federal Trade Commission, on April 24, 1942, issued and on April 27, 1942, served its compl::tint in this proceeding upon the respondents, F. A. Stuart Co., a corporation, and Denson & Dall, Inc., ·a corporation, charging them with the use of unfair and deceptive acts and practices in commerce in violation of the provisions of said act. After the issuance and service of said complaint and the filing of respondents' answer, the Commission, by order entered herein, granted respondents' motion for permission to withdraw said answer and to substitute 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 proceeding regularly came.on for final hearing before the Commission on the said complaint and substitute answer, and the Commission, having 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 TIIE FACfS PARAGRAPH 1.· Respondent, F. A. Stuart Co., is a corporation, existing under and by virtue of the laws of the State of Michigan, with its principal office and place of business located at 117 South Jefferson Street, Marshall, Mich.

PAR. 2. This respondent is now, and for more than two years last past has been, engaged in the sale and distribution of a certain medicinal preparation designated "Stuart's Laxative Compound Tablets." In the course and conduct of its business, respondent, F. A. Stuart Co., causes said medicinal preparation, when sold, to be transported from its place of business in the State of Michigan to the 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 its said medicinal preparation in commerce between and among the various States of the United States and in the District of Columbia. PAR. 3. Respondent, Denson & Dall, Inc., is a corporation, existing under the laws of the State of Illinois with its principal office and place of business located at 327 South Ln Salle Street, Chicago, Ill. This respondent is an advertising agency and as such is engaged in formulating, editing, selling, and disseminating advertising matter. 86F.T.a This respondent is the advertising representative of the respondent, F. A. Stuart Co., a corporation, and as such prepares and aids in the preparation o~ ~~vertising material used ~Y. the. respondent, F. A. Stuart Co., a corporation; and dissemihkt'es and aids in the dissemina· tion of such advertising material, including the advertising matter hereinafter set forth, in connection with the sale and distribution of the medicinal preparation hereinabove designated. PAR. 4. The respondents act in conjunction and cooperation with one another in th& performance of the acts and practices hereinafter alleged.

PAn. 5. In furtherance of the sale and distribution of the medicinal preparation sold and distributed by respondent, F. A. Stuart Co., a corporation, the respondents have disseminated and are now dissemi· nating, and have caused and are now causing the dissemination of, false advertisements concerning said medicinal preparation by the United States mails and by various other means in c'oinmerce, ns'"com· merce" is defined in the Federal Trade Commission Act, and respond· ents have also disseminated and are now disseminating, and have caused and are now causing the dissemination of, false advertisements concerning said product by various means for the purpose of inducing, and which are likely to induce, directly or indirectly, the purchase of 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 adver· tisements disseminated and caused to bo disseminated, as hereinabove set forth, by United States mails, by advertisements in newspapers, magazines, and by circulars· and other advertising literature; ·are· the following:

Try Stuart's Laxative Compound • • • for its safe • • • results. No bad after-etrects.

PAn. 6. Through the use of the statements and representations here· inabove set forth, and others of similar import not specifically set out herein, respondents represent that said preparation is entirely safe and harmless and may be used without danger of ill effects upon the health of the user.

PAR. 7. The foregoing representations nre grossly exaggerated, false, and misleading. In truth and in fact, said preparation is not safe or harmless, as it contains the drug phenolphthalein in a quantity·suffi· cient to cause, in some instances, injury to health if said preparation is used under the conditions prescribed in said advertisements or under such conditions as nre customary or usual.

PAR. 8. The advertisements disseminated as aforesaid constitute false advertisements for the further reason that they fail to reveal facts I I F. A. STUART CO., ET AL. 305 Mo: . Order material in the light of such representations or material with respect to the consequences which may result from the use of the preparation to which the advertisements relate under the conditions prescribed in said advertisements or under such conditions are are customary or ·usual. In truth and in fact, said preparation is a laxative and is potentially dangerous when taken by one suffering from nausea, vomiting, abdominal pains, or other symptoms of appendicitis. · PAn. 9. The use by the respondents of the foregoing false, misleading, and deceptive statements and representations has had, and now has, the tendency and capacity to, and does, mislead and deceive a substantial portion of the purchasing public into the erroneous and mistaken belief that said statements and representations are true and that the use of the preparation designated "Stuart's Laxative Compound Tablets" is entirely safe and harmless, and induces a substantial portion of the purchasing public, because of such erroneous and mistaken belief, to purchase substantial quantities of said medicinal preparation.

CONCLUSION The aforesaid acts and practices of respondents, as herein found, are nJi to the prejudice and injury of the public and constitute unfair and deceptive nets and practices in commer~e within the intent and meaning of the Federal Trade Commission Act.

' ORl>ER TO CEASE AND DESIST This proceeding having been heard by the Federal Trad~ Commi~­ sion upon the complaint of the Commission and the answer of the resp~nd~t~, in which answer. respondents admit all the material allegations of fact set forth in said complaint and state that they waive 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 respondents have violated the provisions of the Federal Trade Commission Act;

It is ordered, That the respondents, F. A. Stuart Co., a corporation, and Benson & Dall, Inc., a corporation, their officers, representntiv~s, agents, and employees, directly or through any corporate or other device, in connection with the offering for sale, sale, or distribution of a certain medicinal preparation designated "Stuart's Laxative Compound Tablets/' or any other preparation of substantially similar composition o~ possessing substantially similar properties, whether sold under the same name or under any other name, do forthwith cease and desist from directly or indirectly:

Order SBF.T.O.

1. Disseminating, or causing to be disseminated, any advertisement by means of the United States mails, or·by any means in commerce, as "commerce'' is defined in the. Federal Trade Com:tnission A{:t, which advertisement- (a) Represents, directly or by implication, that said preparation is safe or harmless and may be used without danger of ill effects upon the health of the user; or (b) Fails to reveal that said preparation should not be used in cases of nausea, vomiting, abdominal pains, or other symptoms of appendicitis; Provided, however, That such advertisement need contain only the statement, "CAUTION: Use Only as Directed,'' if and when 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 to the ubove effect.

2.- Disseminating, or causing to be· disseminated~ any.adver~isement 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 said preparation, which advertisement contains any representation prohibited in paragraph 1 (a) hereof, or which fails to comply with the affirmative requirements set forth in paragraph 1 (b) hereof. It is further ordered, That the respondents shall, within 60 days after service upon them of this order, file with the Commission a report in writing, setting forth·in detail the manner and form in which they have complied with this order.

JOSTEN MAN'UFACTURlNG po, 307 Syllabus