Embalmers' Supply Co., Thel

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l:W THE :J\fA Trer OF THE EMBALMERS' SUPPLY CO~IPANY COMPLAINT, FINDINGS, AND ORDER IN REGARD TO THE ALLEGED VIOLATION OF SEC. 5 OF AN ACT OF CONGRESS APPROVED SEPT. 26, 1914 Docket 3936. Complaint, Oct. 27, 1!139-Decision, New. 2, 191,3 , \\There a corporation engaged In the manufacture and Interstate sale and distribution of embalming fluids and chemicals including Its "San-Velno Spray," for use on the remains of dect>ased personsnepresented, directly or by implication, through statements in advertising circulars, folders and circular letters and In advertisements in magazines, that the formula for the chemical preparation used In connection with the exhumation of the remains of American solUlers burled in France during the first World War, was originatt>d and de\'eloped by the United States Army or War Department; that it obtained said formula from the War Department and that its said "San-Veino Spmy" was the same a"l that Preparation; . lbe facts being that while a substitute for the more costly proprietary prepll.ration used in said exhumations was de,·eloped by the " 7ar Department, such substitute was, In fact, never used; and while, at said corporation's request, the War Department did supply It with a statement showing the Yarlous Ingredients of said substitute and the proportions thereof, its efl'orts to duplicate the preparation were unsuccessful, the War Department withholding lnfot·matlon as to the method of mixing certain ingredients, as involving a process being patented by the discoverer thereof; and Its said "San-Velno Spray," in addition, departed to some exte~t from the propot·tions. specified in the War Department's statement and Included at least one other ingredient· lth tendency' and capaclty to mislead and deceive a substantial portion of the '"' Purchasing public with respect to said preparation, and to cause It to purchase SUbstantial quantities thereof as a result of the mistaken belief so engendered · ][ l • c d, That such acts and practices, under the circumstances set forth, were all to the prejudice of the public, and constituted unfair and deceptive acts and Pt·actlces in commerce. • Before !lfr. lV. TV. Sheppard, trial examiner . .llfr, D. E. Hoopingarner and Mr. R. P. Bellinger for the Com· llllssion.

Air, Earl H. Jagoe, of Westport, Conn., and Tammany & Oonne'I"!J, Of South Norwalk, Conn., for respondent.

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 Complaint 37F. T. C.

Trade Commission having reason to believe that Embalmers' Supply Co., a corporation, hereinafter referred to as the respondent, has violated the provisions of 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. Embalmers' Supply Co., is a corporation, organized, existing, and doing business under and by virtue of the laws of the State of Connecticut, with its principal place of business located at Westport, in the State of Connecticut. · PAR. 2. Respondent is, and for a number o:f years last past has been, engaged in the business o:f manufacturing embalming fluids and chemicals, including a product designated "San-Veino Spray", a disinfectant, deodorant, and preservative, for use on the remains of bodies, and in the sale of said products in commerce between and among the various States of the United States and in the District of Columbia. It causes, and has caused, the said products, including the San-Veino Spray, when sold, to be shipped from its place of business in the State of Connecticut, to purchasers thereof located in a State or States other than Connecticut and in the District of Columbia. Respondent maintains, and at all times herein mentioned has maintained, a course of trade in said San-Veino Spray sold and distributed by it in commerce between and among the varfous States of the United States and in the District of Columbia.

PAR. 3. In the course and conduct of its business and for the purpose of inducing the purchase of said preparation, respondent has made, by means of advertising circulars, folders, and circular letters and bY means of advertisements inserted in magazines, aU of which are cir· culated generally throughout the United States, many representations concerning said product. Among said representations made b1 respondent are the following:

• San Velno Spray, (in a form adapted for convenient indoor use) Is coill' pounded solely and E>xclusively by Esco from the official formula of the U. S· Government, originally developed by the War Department for exhumat1°11 purposes on the battlefields of France.

Formula developed by the U. S. War Dept. for exhumations on the battie- .tlelds of France.

San Velno Spray is the only commercial adaptation of the official U. S. Arnl~ formula. This famous compound was originally developed by the Chemists 0 the War Department-for the dangerous task of exhumations and reburials, aftet the Great War, In France and Flanders. By great good fortune1 we rece>ived tb~ 11 historic formula, officially and direct from the Adjutant-General's Otnce Washington.

IleadllnE'S of War • • • We here recall the technical risks of handli 11g those trngtc, putrefiE>d remains of gallant men. The risks were extreme!~ high-and ·the "discomforts" of the work so overwhelming-that the taslt 0 THE EMBALMERS' SUPPLY CO. 541 Complaint exhumation was, for a time, almost impossible. Nor could the work have been properly completed • • • except at enormous cost of infection and disease • • • h11d it not been for an extremely effective disinfecting E!Jlray-specially developed by the Chemists of the U. S. Army, at Washington. 'I'he formula of that Spray was received by Esco, directly and officially, from the War Department. And it is thig same Spray, now adapted for indoor llse, which Is today compounded under our trade-name of San-Veino Spray. Through the aforesaid statements and representations herein set 0Ut appearing 'in all of its advertising literature and through other statements of similar import and effect,_ and through other means, respondent directly and by inference represents that the United States 'Var Departm\~nt or the United States Army or their respective chemists developed, originate:! and perfected the formula used for elhumation purposes on the battlefields of France; that the formula from which respondent now produces its San-Veino Spray made llossible the work of exhumation of bodies of the United States soldiers buried in France without the spread of infection and diseases and that the United States Government has given the respondent the official and exclu!>ive right to said formula. PAR. 4. The representations thus made by respondent are grossly ~laggerated, false, misleading and untrue. In truth and in fact, formula used for exhumation purposes on the battlefields of ,· ;e ~ranee was not developed, originated or perfected by the United 'rtates 'Var Department or th(' United States Army or their chemists. She formula from which respondent n-:>w produces its San-Veino fray did not make possible the work of the exhumation of bodies the United States soldiers buried in F;-ance during the W'orld \v S ar Without the spread of infection and disea~. ·Neither the United t~ate Government nor any agency thereof has given to respondent S e exclusive use of said formula. The true facts are that the United h states 'Var Department used the fluid made from the formula now ~~ld by respondent only for experim~ntnJ purpose3 in connection ~th the work of the exhumation of the bodies of United States ~,0 1diers buried in France. This formula was not originated or de- 0 e oped by the United States 'Var Department, United States Army, r their chemists.

l P~n. 5. The use by the respondent of the foregoing false and misheachnger · statements and ret)resentations in describing its product ns h einabove set out was and is calculated to, and has had and now )) as ~he tendency and capacity to, mislead and deceiye a substantial s 0.rhon of the purchasin...,. public into the erroneous belief that all of \'a;d representations are true and into the purchase of a substantial t okunle of respondent's product because of said erroneous and misa en belief.

Findings 37F.T.C.

PAR. 6. The aforesaid acts and practices of the respondent as herein alleged are all to the prejudice of the public and constitute unfair and deceptive acts and practices in commerce(} within the intent.and meaning of the Federal Trade Commission Act. ' REPORT, FINDINGS AS TO THE FACTs, AND OnnEn Pursuant to the provisions of the Federal Trade Commission Act, the Federal Trade Commission, on October 27, 1939, issued and subsequently served its complaint in this proceeding upon the respondent, The Embalmers' Supply Co., a corporation~ charging it with the use of unfair and deceptive acts and practices in commerce in violation of the provisions of that act. After the filing of respondent's answer, testimony and other evidence in support of and in opposition to the allegations of the complaint were introduced before a trial examiner of the Commission theretofore duly designated by it, and such testimony and other evidence were duly recorded and filed in the office of the Commission. Thereafter, the. proceeding regularly came on for final hearing before the Commission on the complaint, answer, testimony and other evidence, report of the·trial examiner upon the evi- .. dence and the exceptions to such report, and briefs in support of and in opposition to the complaint (oral argument not having been requested); 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 THE FACTS PAnAon.{PH 1. The respondent, The Embalmers' Supply Co., is B corporation, organized, existing, and doing business under and by virtue of the laws of the State of Connecticut, with its principal place of business located at 'Vestport, Conn. Respondent is now, and for a number of years last past has been, engaged in the manufacture, sale, and distribution of embalming fluids and chemicals, including a prod· uct designated by it as "San-Veino Spray," a disinfectant, dendorant, and preservative, for use on the remains· of deceased persons. PAR. 2. Respondent causes and has caused its products, including San-Veino Spray, when sold, to be shipped from its place of business in the State of Connecticut to pmchasers thereof located in various other States of the United States and in the District of Columbi:l· Respondrnt maintains and has maintained a course of trade in its San-Veino Spray and otlwr products in commerce among and betwecJl the various States of the United States and in the District of Columbitl· THE EMBALMERS' SUPPLY CO • 543 539. Flndln~s PAR. 3. In the course and conduct of its business and for the purpose of inducing the purchase of its preparation San-Veino Spray, respondent has made various representations concerning such preparation, such representations having been made by means of advertising 'circulars, folders, and circular letters and also by means of advertisements inserted in magazines, all of which advertising has been circulated generally throughout the United States. Among the representations so made by respondent are the following:

Formula developed by the,U. S. War Dept. for exhumations on the battlefields ot France. · Headlines of War • • • We here recall the technical rL.,ks of handling those tragic, putrefied remains of gallant men. The risks were extremely highand the "discomforts" of the work so over-whelming-that the task of exhml'la· tion was, for a time, ah;nost Impossible. Nor could the work have been properly completed • • • except at enormous cost of Infection and disease • • • had It not been for an extrelllely effective disinfecting spray-specially developed by the Chemists of the U. S. Army, at Washington. The formula of that Spray Was received by Esco, directly and officially, from the War Department. And It Is this same Spray, now adapted for Indoor use, which Is today compounded Under our trade-name of San-Veino Spray.

par. 4. Through the use of these representations and others of similar import, respondent has represented, directly or by .implication, that the formula for the chemical preparation used in cormection with the exhumation of the remains of American soldiers who had been buried in France during the first World War was originated and de- '\reloped by the United States Army or the War Department of the Dnited States Government; that this formula was obtained by re- S~)ondent from the 'Var Department; and that respondent's prepara- .~~01: San-Veino Spray is the same as the preparation used by the united States Government in such exhumations. PAR. 5. The evidence establishes, and the Commission finds, that t~lease representations were erroneous and misleading. The preparation actually used· in the exhumation work in. question was not one which had been originated or developed by the War Department or an! other agency of the United States Government, but was u progrletary preparation called "N' ecrosan," which was obtained by ~he nOVermnent from a private business concern in the United States. ' ecause of the costliness of Necrosan, efforts were made by the chemists of the w·ar Department to develop a substitute preparation, and such ; Preparation was in fact developed. This substitute preparation, d~equ:ntly referred to in the record as "Necrosan Substitute," while bfl'ermg substan~ially f.rom Necrosan, was considered by. the '\Var department as fairly satisfactory for the purpose, although It appears to have bel.'n somewhat less effective than the original preparation in some respects.

544 FEDERAL TRADE COMMISSION DECISIONS . Conclusion 37F.T.C. It further appears from the record that the actual use of Necrosan Substitute did not extend beyond the experimental stage. While the authorities in France who were in charge of the exhumation work wer~ authorized by the War Department to use the substitute preparation, the record discloses that there was on hand at all times a suffi.cient quantity of the original preparation to perform the work and that this, rather than the substitute preparation, was used. Upon respondent's request the ·war Department supplied it with a statement showing the various ingredients used: in Necrosan Substitute and the proportion of each ingredient. This statement, however, did not include the directions for mixing or combining the several ingredients, and in consequence respondent's efforts to duplicate the preparation were unsuccessful. Respondent sought this additional information but was unable to obtain it, the ·war· Department stating that the method of mixing certain of the ingredients was in process of being patented by the discoverer thereof and therefore could not be supplied. 1\Ioreover, in the preparation of its San-Veino Spray respondent has departed to some extent from the proportions specified in the 'Var Department's statement, and at least one ingredient has been added which was not included in the statement. The Commission therefore finds that the respondent did not obtain from the United States Government or any agency thereof the formula for the chemical preparation used in connection with the exhumation of the remains of American soldiers who had been buried in France during the first World War, and that San-Veino Spray is not the same as that preparation.

PAR. 6. The Commission finds further that the use by respondent of these erroneous and misleading representations has the tendency and capacity to mislead and deceive a substantial portion of the purchasing public with respect to the identity, origin, and composition of respondent's preparation, and the tendency and capacity to cause such portions of the public to purchase substantial quantities of respondent's preparation as a result of the erroneous and mistaken belief so en· gendered.

CONCLUSION The acts and practices of the respondent as herein found are all to the prejudice of the public and constitute unfair and deceptive acts and practices in commerce within the intent and meaning of the Fed· eral Trade Commission Act.

THE EMBALMERS' SUPPLY CO, 545 539 Order ORDER ·TO CEASE AND DESIST This proceeding having been heard by the Federal Trade Commission upon the complaint of the Commission, the answer of respondent, testimony, and other evidence taken before 'a trial examiner of the Commission theretofore duly designated by it, report of the trial examiner upon the evidence and tlie exceptions to such report, and briefs in support of and in opposition to the complaint (oral argument not having been requested); and the Commission having made its findings as to the facts and its conclusion that the respondent has ~iolated the provisions of the Federal Trade Commission Act. It is 01Ylered, That the respondent, The Embalmers' Supply Co., a corporation, and its officers, agents, representatives~ and employees, directly or through any corporate or other device, in connection with ~he offering for sale, sale, and distribution in commerce as "commerce" Is defined in the Federal Trade Commission Act, of respondent's -Preparation designated "San-Veino Spray," or any other preparation of substantially similar composition whether sold under the same llame or under any other name, do forthwith cease and desist from representing, directly or by implication:

1. That formula for the preparation used by the United States Government in the exhumation of the remains of American soldiers who died in France during the first 1Vorld War was originated or de- ~eloped by the United States Army or any agency or department of the United States Government.

2. That the formula for the preparation used in said exhumations "'as obtained by respondent from the United States Government or any agency thereof.

3. That respondent's preparation is the same as the preparation Used in said exhumations.

It is further ordered, That the respondent shall, within GO days after ser\'ice upon it of this order, file with the Commission a report in '\\>writing, setting forth in detail the matter and form in which it has complied with this order.

Complaint 37 F. T. C ..