Frank M. Conklin

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In toe Marrer or FRANK M. CONKLIN, TRADING AS BEAU PEEP PRODUCTS COMPLAINT, FINDINGS, AND ORDER IN REGARD TO THE ALLEGED VIOLATION OF SEC. 5 OF AN ACT OF CONGRESS APPROVED SEPT, 26, 1914 Docket 5435. Complaint, Apr. 22, 1946—Decision, Oct. 8, 1946 Where an individual engaged in the interstate sale and distribution of a product designed for the cleaning of babies’ white shoes; through advertisements in periodicals or newspapers and in other advertising, media, directly and by implication— Represented that his said product would not rub off and was safe; that no dust particles or powder would rub off or result from shoes treated with the product, so as to create an allergic reaction or condition affecting human beings; that it had been subjected to heat treatment sufficient to destroy all bacteria, and that even were a baby to chew or put into its mouth shoes treated with its said cleaner there would be no danger of infection; and that such sterility or freedom from bacteria remained unchanged in the product even after it had been subjected to use in the customary manner ; The facts being that said product, when applied to baby shoes, would absorb any harmful bacteria present on the dauber, cloth or leather of the shoe; it was not nonallergic, in that it was not a substance to which no individuals would or could exhibit allergy; it would rub off after having been applied to leather or cloth and subjected to a rubbing action; and it was not pasteurized in the sense that it was completely sterile, or free from harmful bacteria since it lost any condition of sterility after it had been subjected to customary use; With capacity and tendency to mislead and deceive a substantial portion of the purchasing public into the erroneous belief that such representations were true, and thereby to induce purchase of substantial quantities of said product : Held, That such acts and practices, under the circumstances set forth, were all to the prejudice and injury of the public, and constituted unfair and deceptive acts and practices in commerce.

Mr. Morton Nesmith for the Commission.

O'Hara, Junge & Lehman, of Chicago, Ill., 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 Trade Commission, having reason to believe that Frank M. Conklin, individnally and trading as Beau Peep Products, hereinafter referred to as respondent, has violated the provisions of the Federal Trade Commission Act, and it appearing to the Commission that a proceeding by it would be in the interest of the public, hereby issues its complaint, stating its charges in that respect as follows: 734584—49— vol. 48316 Complaint 43 F. T. C. Paracraru 1. The office and principal place of business of the respondent, Frank M. Conklin, individually and trading as Beau Peep Products, is located at 5642 Lake Park Avenue in the city of Chicago, State of Illinois. The respondent is now and has for several years last past been engaged in the sale and distribution of a. product designated for the cleaning of babies’ white shoes. Respondent causes said product when sold to be shipped from his place of business in Illinois to dealers located in various other States of the United States and the District of Columbia. Said dealers in turn sell said product to the general public.

Respondent maintains, and at all times mentioned herein has maintained a course of trade in said product in commerce between and among the various States of the United States and the District of Columbia.

Par. 2. In the course and conduct of the aforesaid business and for the purpose of inducing the purchase of his products, respondent has published and circulated, or caused to be published and circulated among purchasers or prospective purchasers in other States of the United States and in the District of Columbia many false and deceptive statements and representations with respect to his product. Such statements and representations have been and are being published and circulated by means of advertisements in magazines or newspapers and in other advertising media, all of general circulation, by the United States mails, and by various other means in commerce, as commerce is defined in the Federal Trade Commission Act. Among and typical of the aforesaid false, misleading and deceptive statements and representations are the following:

Now Mommy does not worry when I chew my little shoes! It’s Pasteurized For Your Child’s Safety (Picture of baby reaching for shoes) Beau-Peep Pure White Baby Shoe Cleaner is scientifically prepared and pasteurized for your child’s safety . . . and you needn’t worry when your toddling tot begins to chew his little shoes * * ¥%, Will not rub off * * ¥*, Non-allergic type.

Safe.

Contains no harmful ingredients.

Par. 3. Through the use of the aforesaid statements and representations and others similar thereto but not specifically set out herein, respondent has represented and represents, directly and by implication, that his said product will not rub off; that it is safe; that no dust BEAU PEEP PRODUCTS 197 195 Findings particles or powder will rub off or result from shoes treated with the product so as to create an allergic reaction or condition affecting human beings; that said product has been subjected to heat treatment sufficient to destroy all bacteria that might have been present therein, . and that even were a baby to chew or put into its mouth shoes that have been treated with respondent’s said cleaner there would be no danger of infection, all bacteria having been killed in the scientific preparation of the cleaner, and that the condition and quality of sterility or freedom from bacteria remain unchanged in the product even after it has been subjected to use in the customary manner. Par. 4. The aforesaid statements and representations are false, misleading and deceptive. In truth and in fact respondent’s said product is not absolutely safe and when applied to baby shoes it will absorb any harmful bacteria present on the dauber, cloth or leather of the shoe. Said product is not nonallergic, that is, the product is not a substance to which no individuals would or could exhibit allergy. The product will rub off after having been applied to leather and subjected to a rubbing action. Respondent’s product is not pasteurized in the sense that it is completely sterile, that is, free from unsafe and harmful bacteria, for the product loses any condition of sterility after it has been subjected to use in the customary manner. Par. 5. The use by the respondent of the aforesaid false, misleading and deceptive statements and representations with respect to said product, published and distributed as aforesaid has had and now has the capacity and tendency to 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 thereby induces the purchase by the public of substantial quantities of respondent’s said product.

Par. 6. 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 the intent and meaning of the Federal Trade Commission Act. Reprort, Frnprnes as to THE Facrs, and Orprr Pursuant to the provisions of the Federal Trade Commission Act, the Federal Trade Commission on April 22, 1946, issued and subsequently served its complaint in this proceeding upon the respondent, Frank M. Conklin, individually and trading as Beau Peep Products, charging him with the use of unfair and deceptive acts and practices in commerce in violation of the provisions of said act. After the issuance of said complaint and the filing of respondent’s answer, the ‘Commission, by order entered herein, granted respondent’s request Findings 43 F. T. C. 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 the 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 its findings as to the facts and its conclusion drawn therefrom : FINDINGS AS TO THE FACTS Paracrapu 1. The office and principal place of business of the respondent, Frank M. Conklin, individually and trading as Beau Peep Products, is located at 5642 Lake Park Avenue in the city of Chicago, State of Illinois. The respondent is now and has for several years last past been engaged in the sale and distribution of a product designed. for the cleaning of babies’ white shoes. Respondent causes said product when sold to be shipped from his place of business in Illinois to dealers located in various other states of the United States and the District of Columbia. Said dealers in turn sell said product to the general public.

Respondent maintains, and at all times mentioned herein has maintained, a course of trade in said product in commerce between and among the various states of the United States and the District of Columbia.

Par. 2. Inthe course and conduct of the aforesaid business and for the purpose of inducing the purchase of his product, respondent has published and circulated, or caused to be published and circulated among purchasers or prospective purchasers in other states of the United States and in the District of Columbia, many statements and representations with respect to his product. Such statements and representations have been and are being published and circulated by means of advertisements in magazines or newspapers and in other advertising media, all of general circulation, by the United States mails, and by various other means in commerce, as “commerce” is defined in the Federal Trade Commission Act. Among and typical of the aforesaid statements and representations are the following: Now Mommy does not worry when I chew my little shoes: [ It’s Pasteurized For Your Child’s Safety (Picture of baby reaching for shoes) BEAU PEEP PRODUCTS 3199 195 Findings Beau-Peep Pure White Baby Shoe Cleaner is Scientifically prepared and pasteurized for your child’s safety * * * and you needn’t worry when your toddling tot begins to chew his little shoe * * *, Will not- rub ‘om! * =*" = Non-allergie type.

Safe.

Contains no harmful ingredients.

Par. 3. Through the use of the aforesaid statementsand representations and others similar thereto but not specifically set out herein, respondent has represented and represents, directly and by implication, that his said product will not rub off; that it is safe; that no dust particles or powder will rub off or result from shoes treated with the product so as to create an allergic reaction or condition affecting human beings; that said product has been subjected to heat treatment sufficient to destroy all bacteria that might have been present therein, and that even were a baby to chew or put into its mouth shoes that -have been treated with respondent’s said cleaner there would be no danger of infection, all bacteria having been killed in the scientific preparation of the cleaner, and that the condition and quality of ster- . ility or freedom from bacteria remain unchanged in the product even after it has been subjected to use in the customary manner. Par. 4. The aforesaid statements and representations are false, misleading, and deceptive. In truth and in fact respondent’s said product is not absolutely safe and when applied to baby shoes it will absorb any harmful bacteria present on the dauber, cloth, or leather of the shoe. Said product is not nonallergic, that is, the product is not a substance to which no individuals would or could exhibit allergy. The product will rub off after having been applied to leather or cloth and subjected to a rubbing action. Respondent’s product will rub off after having been applied to leather or cloth and subjected to a rubbing action. Respondent’s product is not pasteurized in the sense that it is completely sterile, that is, free from unsafe and harmful bacteria, for the product losses any condition of sterility after it has been subjected to use in the customary manner.

Par. 5. The use by the respondent of the aforesaid false, misleading and deceptive statements and representations with respect to said product, published and distributed as aforesaid, has had and now has the capacity and tendency to 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 thereby induces and has induced the purchase by the public of substantial quantities of respondent’s said product. Order 43 F. T. C. 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 and 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 Commission upon the complaint of the Commission and the substitute answer of the respondent, in which substitute answer respondent admits all the material allegations of fact set forth in said complaint, and states that he waives all intervening procedure and further hearing as to said facts, and the Commission having made its findings as. to the facts and conclusion that said respondent has violated the provisions of the Federal Trade Commission Act: It is ordered, That the respondent, Frank M. Conkhn, individually - and trading as Beau Peep Products or trading under any other name, and his representatives, agents, and employees, directly or through any corporate or other device, in connection with the offering for sale, sale, and distribution of his Beau Peep Baby Shoe Cleaner or any other preparation of substantially similar composition in commerce as “commerce” is defined in the Federal Trade Commission Act, whether sold under the same or any other name, do forthwith cease and desist from:

1. The use of the term “Non-allergic,” either alone or in connection with the word “type,” or the use of any other word or term of similar import or meaning to designate or describe respondent’s preparation Beau Peep Baby Shoe Cleaner or any other preparation of substantially similar composition, or representing in any other manner, either directly or by implication, that said preparation is a substance to which no individuals exhibit allergy.

2. Representing, directly or by implication, that respondent’s preparation Beau Peep Baby Shoe Cleaner or any other preparation of substantially similar composition will not rub off when applied to leather or cloth or that it will not give off a white powder when subpated to a rubbing action.

3. Representing, directly or by implication, either through the use of the word “Pastonrized? or any other word of similar import or meaning to designate or describe ‘said preparation, or in any other manner, that respondent’s preparation Beau Peep Baby Shoe Cleaner or any hee preparation of substantially similar composition is sterile and free from unsafe and harmful bacteria under conditions of use BEAU PEEP PRODUCTS 201 Order or that it will retain a sterile condition when subjected to use in the usual and customary manner or will afford protection from germs or bacteria with which it may come in contact. ' It is further ordered, That the respondent shall, within 60 days 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.

Complaint 43 F. T.C.