Hodges, J. R

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

IN Tile Matrer OF J. R. HODGES, TRADING UNDER THE STYLE AND FIRM:. NAl\fE OF Al\fOGEN COMPANY COMPLAINT, FINDINGS, AND ORDER IN REGARD TO lhe ALLEGED VIOLATION: OF SEC. 5 OF AN ACT OF CONGRESS APPROVED SEPT. 26, 1914 Docket 4836. Complaint, Sept. 16, 1942-Decision, July 2"1, 1943 Where an individual engaged .In the advertisement. and interstate sale and dis~ tribution of his "Amogen Table~s," through advertisements in circulars~ pamphlets, and other written or printed matter, directly and by implication- ( a) Falsely represented that said "Amogen Tablets" were a cure or remedy and constituted •a competa1t and effective treatment for biliousness, temporary constipation, malaria, common colds and fevers, poor digestion, acid or gas. on the stomach, overindulgence in foed and drink, clogged bowels, headaches, neuralgia, rheumatic pains and fever, sallow compl"xlon, pimples. sores, bolls, skin irritations, ~coated tongue, bad breath, and bad taste In the. mouth; would elimlnat'e excess bile, rid the system of poisons and enable. one to maintain good health and avoid sickness; the facts being that product in question, essentially a laxative, had no therapeutic value in the trent~ ment of said ailments in excess of affording tE:>mporary relief when such conditions were due to or caused by constipation; and (b) Failed to reveal facts material In the light ·of such representations in that continued use of the product m question, which contained the mercury de-. rlvative calomel, would be likely to result in mercury poisoning and serious Injury to health; use that~f as a laxative was potentially dangerous when . taken by one suffering from nbdomlnal pains or other symptoms of appendicitis; and frequent and continued use might result in dependence on a laxative;

\Vtth effect of deceiving a substantial number of the purchasing public into. the PJistaken belief that said representations were true and that said prepa~ ration might be used without ill effects, and to ioouce it because of such mistaken belief, to purchase its said p1·eparation: lield, That .such acts and practices, under the circumstances set forth, were all to the prejudice and Injury of the publlc, and constitute unfair and deceptive. acts and practices in commerce.

Before Mr. Lewis 0. Russell, trial examiner. Mr. Carrel F. Rhodes for the Commission.

Complaint Pursuant t9 the provisions of the Federal Trade Commission Act. nnd by virtue of the authority vested in it by said act, the Federal ~trade Commission having reason to believe that J. R. Hodges, indi, "!dually, and trading under the style and firm name of Amogen Co., hereinafter referred to as respondent, has violated the provisions of Said act, and it appearing to the Commission that a proceeding by it. Complaint 87F. T.C.

· in respect thereof would be in the public interest, hereby issues its complaint stating its charges in that respect as follows: PARAGRAPH 1. Respondent, J. R. Hodges, is an individual, trading under the style and firm name of Amogen Co., with his principal place of business located at 147 North Street, San Antonio, Tex. PAB. 2. Acting in his individual capacity and trading under the style and firm name of Amogen Co., respondent is now, and for more than 1 year last past has been, engaged in the advertising, sale and distribution of a medical preparation designated as "Amogen Tab· lets," in commerce among and between the various States of the United States. · Respondent causes said medicinal preparation designated as afore· said, when sold, to be transported from his place of business in the ~tate of Texas to purchasers thereof located in various other States of the United States.

Respondent maintains, and at all times mentioned herein has main· tained, a course of trade in said medicinal preparation in commerce between and among the various States of the United States. PAR. 3. In the course and conduct of his aforesaid business, re· spondent has disseminated and is now disseminating, and has caused and is now causing, the dissemination of false advertisements concern· ing his said preparation "Amogen Tablets," by the United States mails and by various other means in commerce, as commerce is de· fined by the Federal Trade Commission Act; and respondent has also O.disseminated and is now disseminating, and has caused and is now causing the dissemination of false advertisements concerning his said· preparation by various means for the purpose of inducing and which are likely to induce, directly or indirectly, the purchase of his said preparation in commerce, as commerce is defined by the Federal Trade Commission Act.

Among and typical of the false, misleading and deceptive stato· ments and representations contained in the aforesaid advertisements, disseminated and caused to be disseminated by the United States mails, by advertisements inserted in newspapers and periodicals and by circulars, leaflets, pamphlets and other advertising literature, are the following:

Al\fOGEN TABLETS • • • designed to always get the bile and do you Good.

Many ailments are caused or made worse by biliousness, temporary const!Pil" · tion, l\1alarla, common Colds and fevers, poor Digestion, acid or gas on tbe stomarh, eating and drinking too much, clogged Bowels, etc. Often these things cause Headaches, Neuralgia, Rheumatic or other pains and fevers, sallow com· plexlon, Pimples, Sores, Boils, skin Irritations, a coated tongue, bad brelltb AMOGEN CO. 313 311 Complaint or taste In the mouth and all such. Get the polson out of the system. Take one Amogen Tablet at bedtime and get a good cleansing. A dime makes you a member of the Good Health Club. Don't get sick when so little may be the biggest Investment you ever made. - Amogen Company, ]47 North St., San Antonio, Texas.

PAR. 4. Through the use of the aforesaid statements and others of similar import not specifically set out herein respondent represents, directly and by implication, that his said medicinal preparation is a cure or remedy of and constitutes a competent and effective treatment for biliousness, temporary constipation, malaria, common colds and fevers, poor digestion, acid or gas on the stomach, overindulgence in food and drink, clogged bowels, headaches, neuralgia, rheumatic pains and f~vers, sallow complexion, pimples, sores, boils, skin ir7 ritations, coated tongue, bad breath, and bad taste in the mouth; that ' it will eliminate excess bile; will rid the system of poisons and will enable one to maintain good health and avoid sickness. PAR. 5. The aforesaid statements and representations are grossly exaggerated, false, and misleading. In truth and in fact respondent's said preparation is not a cure or remedy of nor does it con- ~<titute a competent and effective treatment for biliousness, malaria, common colds and fevers, poor digestion, -acid or gas on the stomach, overindulgence in food and drink, clogged bowels, neuralgia, rheurnatic pains and fevers, sallow complexion, pimples, sores, boils, or ~kin irritations. Said preparation is essentially a laxative and has no therapeutic value in the treatment of the above-enumerated ailtnents and conditions. It has no therapeutic value in the treatment of headaches, coated tongue, bad breath, and bad taste in the mouth in excess of such temporary relief as may be afforded by a laxative \Vhen such conditions are due to or caused by constipation, and has no therapeutic value in ridding the system of excess bile in excess (\f affording temporary relief by reason of its laxative qualities. Its llse will not rid the system of poisons nor enable one to maintain good health and avoid sickness.

PAn. 6. The respondent's advertisements, disseminated as afore- S~tid, constitute false advertisements for the further reason that they fail to reveal facts material in the light of such representations, or tnaterial with respect to consequences which may result from the usa 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 respondent's preparation contains calomel, a :mercury derivative, and the continued use of said preparation over a long period of time will likely result in mercury poisoning and serious 1169637-44--23 Findings 87F.T.G.

injury to the health of the user. Moreover, said preparation is a laxative and is potentially dangerous when taken by one suffering from abdominal pains, stomach ache, colic, cramps, nausea, vomiting or other symptoms of appendicitis. Its frequent or continued use may result in dependen<;e on laxatives.

PAR. 7. The use by the respondent of the foregoing false, decepti-veand misleading statements and representations, has had and now has the tendency and capacity to, and does, mislead and deceive a sub· stantial portion of the purchasing public into the erroneous and mistaken belief that such false statements, representations and advertisements are true, and. to induce a substantial portion of the purchasing public because of such erro!leous and mistaken belief to purchase re· spondent's said preparation.

PAR. 8. The aforesaid acts and practices of the respondent as herein alleged are all to the prejudice and- injury of the public. and constitute unfair and deceptive acts and practices in commerce, within theintent and meaning of the Fede:al Trade Commission Act. REPOnT, FINDINGs AS TO THE FACTS, AND ORDER Pursuant to the provisions of the Federal Trade Commission Act, the }federal Trade Commission on September 16, 1942, issued and sub· sequently served its complaint in this proceeding upon the respondent, J. R. Hodges, trading under the style and firm name of Amogetl Co., charging him with the use of unfair and deceptive acts or prac· tices in commerce in violation of the provisions of said act. The respondent failed to file an answer.

Thereafter at a hearing held in-the matter on April16, 1943, a stipulation as to the facts agreed to by counsel for the Comnlission and respondent, subject to the approval of the Commission, was read into the record in lieu of testimony in support of the charges stated in the complaint or in opposition thereto, which stipulation provided that the Commission may proceed upon said statement of facts to make its report stating its findings as to the facts and its conclusion based thereon and enter its order disposing of the proceeding with· out the presentation of'argument or the filing of briefs. Respondent expressly waived the filing of a trial examiner's report upon the· evidence.

Thereafter, this proceeding regularly came oh for final hearing be~ · · fore the Commission upon said complaint, and stipulation, said stipulation having been approved and accepted and the Commission hav'· ing duly considered the same and being now fully advised in the premises finds that this proceeding is in the interest of the publk and .AMOGEN CO. 315 au Findings Jnakes this its findings as to the facts and its conclusion drawn therefrom.

FINDINGS AS TO THE F.AOTS PARAGRAPH 1. Respondent, J. R. Hodges, is an individual, trading Under the style and firm name of Amogen Co., with his principal Place of business located at 147 North Street, San Antonio, Tex. PAR. 2. Respondent is now, and for more than 1 year last past has been, engaged in advertising, selling, and distributing a medicinal Preparation designated "Amogen Tablets" in commerce among and between the various States of the United States . . Respondent causes said medicinal preparation, so designated, when: Sold, to be shipped and transported from his place of business in the State of Texas to purchasers thereof located in various other Statesvf 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. 3. In the course and conduct of his afoi·esaid business, respondent has disseminated and is now disseminating, and has caused and is: llow causing the dissemination of, advertisements concerning his said Preparation "Amogen Tablets" by the United States mails, by circulars,. })amphlet.s in commerce, and respondent has also disseminated and isllow disseminating, and has caused and is now causing the dissemination of, advertisements concerning his "Said preparation by various llleans for the purpose of inducing, and which are likely to inducer directly or indirectly, the purchase of his said preparation in commerce;. 1\s commerce is defined by the Federal Trade Commission Act.. Among llnd typical of the false, misleading, and deceptive statements and rep-. l·esentations contained in said advertisements disseminated and caused to be disseminated as hereinabove set forth by the United States mails~ and by means, of circulars, pamphlets and other written or printed a.d- \>ertising matter disseminated in commerce, are the following: .UIQGEN TABLETS • • • designed to always get the blle and do you. 0%~ . Many ailments are caused or made worse by biliousness, temporary, constipation, 1\Ialarla, common Colds and fevers, poor Digestion, acid or gas on the stow. lleb, eating and drluklng too much, clogged Bowels, etc. Often these things: enuse IIeadaches, Neuralgia, Rheumatic _or other pains and fevers, sallow Complexion, Pimples, Sores, Bolls, skin Irritations, a coated tongue; bad breatlil {)t· taste In the mouth and all such. Get the polson out of the system. Takeone Amogen Tablet at bedtime and get a good cleanslrig. .A. dime l!nakes you a member of the Good Health Club. Don't get sick. when ~0 little may be the biggest investment you ever made. .Anwgen Company, 14'Z · orth Street, San .Antonio, Texas.

. I Findings 87F.T.C.

·p.AR. 4. By the use of the representations hereinabove set forth, and 'Others similar thereto not specifically set out herein, respondent repre· sents directly and by implication, that his said medicinal preparation, Amogen Tablets, is a cure or remedy of and constitutes a competent and effective treatment for biliousness, temporary constipation, rna· laria, common colds and fevers, poor digestion, acid or gas on the stom· :ach, overindulgence in food and drink, clogged bowels, headaches, neu· ralgia, rheumatic pains and fever, sallow complexion, pimples, sores, boils, skin irritations, coated tongue, bad breath and bad taste in the mouth; that it will eliminate excess bile, will rid the system of poisons and will enable one to maintain good health and avoid sickness. PAR. 5. The aforesaid statements and representations are grossly exaggerated, false and misleading.

In tn1th and in fact, respondent's said preparation, Amogen Tablets, is not a cure or remedy of nor does it constitute a competent and effec· tive treatment for biliousness, malaria, common colds and fevers, poor digestion, acid or gas on the stomach, overindulgence in food and drink, clogged bowels, neuralgia, rheumatic pains and fever, sallow complexion, pimples, sores, boils, or skin irritations. Said prepara· tion is essentially a laxative and has no therapeutic value in the treat· ment of the above enumerated ailments and conditions. Jt has 11°· therapeutic value in the treatment of headaches, coated tongue, bad breath and bad taste in tlw mouth in excess of such temporary relief as may be afforded by a laxative when such conditions are due to or caused by constipation, and has no therapeutic value in ridding the system of excess bile in excess of affording temporary relief by reason of its la:Ka· tive qualities. Its use will not rid the system of poisons nor enable one to maintain good health and avoid sickness. PAR. 6. The respondent's advertisements disseminated as aforesaid constitute false advertisements for the further reason that they f~il to reveal facts material in the light of such representations, or material with respect to consequences which may result from the use o:f the prep· aration to which;h the advertisements relate, under the conditions pre· scribed in said advertisements, or under such conditions as are cus· tomary or usual.

In truth and in fact, respondent's preparation ·contains calomel, 6 mercury derivative, and the continued use of such preparation over a.. long period of time will likely result in mercury poisoning and serious injury to the health o:f the user. Moreover, said preparation is a la:sa• tive and is potentially dangerous when taken by one suffering frolll abdominal pains, stomach ache, colic, cramps, nausea, vomiting, ol' other symptoms of appendicitis. Its frequent and continued use Jll:lY result in dependence on laxatives.

\ A.MOGEN CO. 317 au Order PAR. 7. The use by the respondent of the foregoing false, deceptiveand misleading representations with respect to the preparation Amogen Tablets, disseminated as aforesaid, has had the capacity and tendency to, and did, mislead and. deceive a· substantial nwnber of the· PUrchasing public into the erroneous and mistaken belief that said statements and representations were true, and that said prepamtion Inay be used without harm or ill effects, and to induce a substantial number of the purchasing public because of such erroneous and mis~ taken belief to purchase respondent's said preparation. CONCLUSION The aforesaid acts and practices of the respondent as herein found are all to the prejudice and injury of the public and constitute unfair nnd deceptive acts and practices in commerce within the intent and lneaning of the Federal Trade Commission Act. ORDER TO CEASE AND DESIST This proceeding having been heard by the Federal Trade Comltlission upon the complaint of the Commission, and the stipulation as to the facts entered into by and between counsel for the Commission and the respondent upon the. record, which· provides, among other things, that without further evidence or other intervening procedure, the Commission may issue and serve upon the respondent herein findings as to. the facts and conclusion based thereof and an order ~isposing of the proceeding, and the Commission having made its findings as to the facts and its conclusion that said respondent has "iolated the provision.s of the Federal Trade Commission Act. It is ordered, That the respondent, J. R. Hodges, trading under thellnme Amogen Co., or under any other name or names, his agents,. representatives, or employees, directly or through any corporate or Other device, in connection with the offering for sale, sale, and distribution of his medicinal preparation designated "Amogen Tablets" 01' any other preparation of substantially similar composition or pos- Sessing substantially similar properties, whether:r; sold under the same· llama or any other name, do forthwith cease and desist from directly or indirectly:

1. Disseminating or causing to be disseminated, by means of the· tinited States mails or by any means in commerce, as "commerce" is. defined in the Federal Trade Commission Act, any advertisement A. 'Which represents, directly or through inference, that said ~reparation , . (a) Is a cure or remedy for or has any therapeutic value· in the treatment of malaria, common colds and fevers, poor digestion,. acid 318' FEDERAL TRADE COMMISSION DECISIONS Order 37F. T.C.

<>r gas on the stomach, overindulgence in food and drink, clogged bowels, neuralgia, rheumatic pains and fever, sallow complexion, pimples, sores, boils, or skin irritations; (b) Has any therapeutic value in the treatment of biliousness ot" :excess bile in the system, headaches, coated tongue, bad breath, or bad taste in the mouth, in excess of such temporary relief as may be afforded by a laxative when such conditions are due to or are caused by constipation;

(a) Will rid the system of poisons or enable the user to avoid sickness or maintain good health.

B. Which fails to reveal that the continued use of said preparation over a long period of time may result in mercury poisoning, and that .said preparation should not be used in cases of ·abdominal pains, nausea, vomiting, or other symptoms of appendicitis; Provided, how· .ever, 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· warnings to the above effect. ·2. Disseminating or causing to be disseminated; by any means, any -advertisement for the purpose of inducing, or which is likely to induce, directly or indirectly, the purchase of said preparation in com· merce, as "commerce" is· defined in the Federal Trade Commission Act, which advertisement contains any of the representations prohibited in paragraph 1 hereof, or which advertisement fails to reveal the ·dangerous consequences which may result from the use of the said preparation as required in said paragraph 1. It is further ordered, That the respondent shall, within 60 ditYS 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.

GREENING NURSERY CO. 319 Complaint