David M. Lorenz

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In roe Marrer or DAVID M. LORENZ AND BERNHARD W. ALDEN TRADING AS ARBEE FOOD PRODUCTS COMPANY COMPLAINT, FINDINGS, AND ORDER IN REGARD TO THE ALLEGED VIOLATION OF SEC. 5 OF AN ACT OF CONGRESS APPROVED SEPT. 26, 1914 Docket 5430. Complaint, Apr. 10, 1946—Decision, May 24, 1949 Where an advertiser-vendor, in advertising directed to persons who are already ill, or So consider themselves, represents a product as a cure or effective treatment for certain designated symptoms or conditions, such persons usually have, or are under the impression that they have, one or more of the symptoms there referred to. And when in fact the causes thereof are numerous and probably are not due to that which would be reached and beneficially affected by said product, said advertiser-vendor suggests not only that the designated symptoms may be due to the cause for which the product is beneficial, but also that there is a likelihood that they are in fact due thereto. Such a representation, made by suggestion and unaccompanied by an appropriate disclosure of the likelihood of other causes of the symptoms or conditions, is as false and deceptive in the opinion of the Commission as one made categorically under the same circumstances, and, by reason of such falsity, is subject to the same exercise of the Commission’s corrective action as though made by affirmative statement. As respects a claim that a certain product is valuable in human nutrition by reason of its vitamin E content; use of said vitamin has not been established as essential to human nutrition.

While constipation and certain types of nervous troubles, digestive disorders, stomach and bowel trouble, neuritis, common headache, aching muscles and joints and such vague and indefinite conditions or symptoms as a tired, exhausted feeling and lack of pep, energy, and vitality may be due to a lack of vitamins, these usually arise because of diseases which bear no relationship to vitamin deficiencies, and will not be corrected or relieved by the administration of a vitamin product; nor, should they be the result of such deficiencies, will they be relieved or cured by the use of such product as that of vendor-advertiser in the quantities recommended—that is, two heaping tablespoonsful daily in the adult diet—except that, where due solely to a very minor deficiency of vitamin Bi long and continued consumption of the product in the amount recommended may tend to overcome such conditions, for the relief of which when due solely to a vitamin B, deficiency, far larger quantities—usually ten to fifty times the amount recommended—are required as a therapeutic dose.

Where two partners engaged in the offer and interstate sale and distribution of a wheat-germ food product, which they designated “Spark-O-Life” prior to 1943 and subsequently as “Spark-O-Lite”; in advertising through radio broadcasts, newspapers, circulars, leaflets, order blanks and otherwise— ARBEE FOOD PRODUCTS COMPANY 613 612 Complaint (a) Falsely represented that said product, because of its vitamin and mineral content, was a cure or remedy for constipation, nervous trouble, digestive disorders, or stomach and bowel trouble, and common headaches, and that use thereof would relieve, remedy or correct such conditions as tired, exhausted, half-alive, worn-out, older-than-you-really-are feeling, lack of pep, energy, or vitality, and aching muscles or joints, and would result in greater health, energy, and vitality, and, consumed as directed, would correct vitamin deficiencies;

(b) Falsely represented that its use would have therapeutic effect in the treatment of rheumatism, arthritis, neuritis, and migraine headache, when in fact said conditions are not caused by lack of vitamins ; (c) Falsely represented that said product was the richest vitamin food containing vitamin G; that it was rich in phosphorus, magnesium, ealecium, and iron; and that persons consuming it, would possess greater health, energy r and vitality;

(ad) Represented that its consumption as directed would correct vitamin deficiencies; when in fact such use would not correct vitamin deficiency except that where a deficiency was very slight and confined solely to a lack of vitamin Bi, long and continued consumption of said product as a food supplement might tend to overcome it; and (e) Represented that vitamin E in said product was valuable in human nutrition; notwithstanding the fact use of said vitamin had not been established as essential to nutrition;

With effect of deceiving a substantial portion of the purchasing public into the mistaken belief that such representations were true, and with tendency and capacity so to do, and thereby induce purchase of said product : Held, That such acts and practices, under the circumstances set forth, were all to the prejudices and injury of the public and constituted unfair and deceptive acts and practices in commerce.

Before Mr. Randolph Preston, trial examiner.

Mr. D. C. Daniel and Mr. Charles &. Cow for the Commission. Mr. Joe E. Burris, of Kansas City, Mo., 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 David M. Lorenz and Bernhard W. Alden, individually and as copartners trading under the name of Arbee Food Products Company, hereinafter referred to as respondents, have 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:

Paracrary 1. Respondents, David M. Lorenz and Bernhard W. Alden are individuals, doing business as copartners under the trade Complaint 45 F. T.C. name of Arbee Food Products Company, with their principal office and place of business located in Kansas City, Kansas. Par. 2. Respondents are now, and for more than four years last past, have been engaged in the business of offering for sale and selling in commerce, a food product designated “Spark-O-Life.” Respondents have caused and now cause said product, when sold, to be transported from their aforesaid place of business to purchasers thereof located at points in various other States in the United States and in the District of Columbia. Respondents have, at all times mentioned herein, maintained and do maintain a course of trade in said product in commerce between and among 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 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 purposes of inducing, and which are likely to induce, directly or indirectly, the purchase of said product i commerce, as “commerce” is defined in the Federal Trade Commission Act.

Among and typical, but not all-inclusive, of the false, misleading and deceptive statements and representations contained in said advertisements disseminated and caused to be disseminated, as hereinabove set out, by and through the United States mails, by radio broadcasts and by various other means, are the following : Those miracle-working, natural vitamins help bring blessed relief from many types of nervous and digestive disorders. Now, friends, if you’ve bothered with troubles like these, don’t let this condition go on. “Have been sick with stomach and bowel trouble for a long time.” Friends, how would you like to wake up in the morning with real pep and energy? Imagine yourself being relieved of that tired, exhausted feeling—relieved of the feeling that you're older than you really are. When you don’t get enough of the SPARK-O-LIFE vitamins, you get tired and worn out easily. You may feel only “half alive’—rise in the morning without feeling fully refreshed, and wind up the day exhausted. SPARK-O-LIFE is the vitamin food, richest in those health and energy vitamins * * * G. These are the “hard-to-get” minerals—Phosphorus, Magnesium, Calcium, and Iron.

ARBEE FOOD PRODUCTS COMPANY 615 612 Complaint Now, friends, if you have trouble keeping regular, get lasting relief by eating SPARK-O-LIFE every day. If you’ve bothered with nervous troubles or digestive disorders—see for yourself what SPARK-O-LIFE can do for you. Let me tell you something else—the vital health-giving elements found in SPARK-O- LIFE have been recommended by the medical profession in the treatment of rheumatism, arthritis, neuritis, and migraine headaches. That’s why we urge so strongly that you give SPARK-O-LIFE a chance to help you. “x * * but has ended my frequent headaches.” * * * if you’ve bothered with aching muscles and joints—start eating two tablespoonfuls of SPARK-O-LIFE regularly every day * * *, Decide right now to let the miracle-working vitamins in SPARK-O-LIFE go to work for you—have greater health and energy and vitality by correcting that vitamin deficiency.

All you need normally each day of B and E vitamins. Par. 4. By and through the use of the statements hereinabove set out, and others similar thereto not specifically, set out herein, all of which purport to be descriptive of the therapeutic and curative properties of said product, respondents have represented and now represent, directly and by implication, that their product Spark-O-Life, because of its vitamin and mineral content, is a cure or remedy for constipation, nervous troubles, digestive disorders, stomach and bowel trouble; that the use of Spark-O-Life will relieve, remedy, or correct such conditions as tired, exhausted, half-alive, worn-out, older-than-you-reallyare feeling, lack of pep, energy or vitality; that Spark-O-Life is the richest vitamin food containing vitamin G; that Spark-O-Life is rich in phosphorus, magnesium, calcium, and iron; that the use of Spark-O- Life will have therapeutic effect in the treatment of rheumatism, arthritis, neuralgia, and migraine or common headaches; that Spark-O- Life is effective in the treatment of aching muscles and joints; that persons consuming Spark-O-Life will possess greater health, energy, and vitality ;that the consumption of said product as directed will correct vitamin deficiencies; and that the Vitamin E in said product is valuable in human nutrition.

Par. 5. The aforesaid statements and representations are false, misleading and deceptive. In truth and in fact, while constipation and certain types of nervous trouble, digestive disorders, stomach and bowel trouble, neuritis, common headache, aching muscles and joints and such vague and indefinite conditions or smyptoms (sic) as a tired, exhausted feeling and lack of pep, energy and vitality, may be due to a lack of vitamins, they usually arise because of diseases which bear no relationship to vitamin deficiency and would not be prevented, corrected, relieved or cured by the administration of a vitamin product such as respondents’. Moreover, in case such symptons or con- Findings 45 EDC:

ditions are the result of vitamin deficiencies, they would not be relieved, corrected or cured by the use of respondents’ product as directed, that is, two heaping tablespoonfuls daily. Far larger quantities are required than those provided by said product. Rheumatism, arthritis, neuralgia and migraine headache are not caused by lack of vitamins and respondents’ product would have no value in either the prevention or treatment thereof. Spark-O-Life is not the richest vitamin G food and is not rich in phosphorus, magnesium, calcium or iron. Said product does not provide sufficient vitamins, minerals or nutrients, so that persons consuming it will enjoy greater health, energy or vitality. Its use, as directed, will not correct vitamin deficiencies. It has not been conclusively established that Vitamin E is essential in human nutrition.

Par. 6. The use by the respondents of the foregoing false, deceptive and misleading advertisements, 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 advertisements, statements and representations are true, and to induce a substantial portion of the public, because of such erroneous and mistaken belief, to purchase substantial quantities of respondents’ said product. Par. 7. The aforesaid acts and practices of the respondents, 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. Rerort, Frxprnes as TO THE Facts, AND ORDER Pursuant to the provisions of the Federal Trade Commission Act, the Federal Trade Commission, on April 10, 1946, issued and subsequently served its complaint in this proceeding upon the respondents, David M. Lorenz and Bernhard W. Alden, individually and as copartners trading as Arbee Food Products Company, charging them with the use of unfair and deceptive acts and practices in commerce in violation of the provisions of said Act. After respondents filed their 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, this proceeding regularly came on for final hearing by the Commission upon the complaint, the answer thereto, testimony and other evidence, recommended decision of the ARBEE FOOD PRODUCTS COMPANY 617 612 Findings trial examiner, exceptions thereto, and brief in support of the complaint (no brief having been filed by the respondents and no oral argument 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 interests of the public and makes this its findings as to the facts and its conclusion drawn therefrom: FINDINGS AS TO THE FACTS Paracrapn 1. Respondents, David M. Lorenz and Bernhard W. Alden, are individuals and copartners trading and doing business as Arbee Food Products Company, with their principal place of business located at Greater Kansas City Food Terminal, Kansas City, Kansas. From February 1941 to April 1943 they operated under the name “Spark-O-Life Company” and subsequent thereto, under their present trade name. They are now, and for more than seven years last past have been, engaged in the offering for sale, sale, and distribution of a wheat-germ food product, designated “Spark-O-Life” prior to 1948, and subsequent thereto as “Spark-O-Lite.”

Par. 2. In the course and conduct of their aforesaid business, respondents cause and have caused their said product, when sold, to be I shipped from their place of business in the State of Kansas to purchasers thereof at their respective points of location in various other States of the United States and in the District of Columbia; and maintain, and at all times mentioned herein have maintained, a course of trade in said product in commerce among and between 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 disseminated 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 by the Federal Trade Commission Act.

Among and typical of the statements and representations contained in said advertisements disseminated and caused to be disseminated as hereinbefore set forth, by United States mails, by radio 618 FEDERAL TRADE COMMISSION: DECISIONS Findings 45 FF. I. C broadcasts, by advertisements inserted in newspapers, and by circulars, leaflets, order blanks, and other advertising, are the following: Those miracle-working, natural vitamins help pring blessed relief from many types of nervous and digestive disorders. Now, friends, if you’re bothered with troubles like these, don’t let this condition go on. “Have been sick with stomach and bowel trouble for a long time.” Friends, how would you like to wake up in the morning with real pep and energy? Imagine yourself being relieved of that tired, exhausted feeling—relieved of the feeling that you’re older than you really are. When you don’t get enough of the SPARK-O-LIFE vitamins, you get tired and worn out easily. You may feel only “half alive’—rise in the morning without feeling fully refreshed, and wind up the day exhausted. SPARK-O-LIFE is the vitamin food, richest in those health and energy vitamins * * * G. These are the “hard-to-get” minerals—Phosphorus, Magnesium, Calciuny and Iron.

Now, friends, if you have trouble keeping regular, get lasting relief by eating SPARK-O-LIFE every day. If you’re bothered with nervous troubles or digestive disorders—see for yourself what SPARK-O-LIFE can do for you. Let me tell you something else—the vital health-giving elements found in SPARK-O- LIFE have been recommended by the medical profession in the treatment of rheumatism, arthritis, neuritis, and migraine headaches. That’s why we urge so strongly that you give SPARK-O-LIFE a chance to help you. “« x * * but has ended my frequent headaches.” * * * if you’re bothered with aching muscles and joints—start eating two tablespoonfuls of SPARK-O-LIFE regularly ever day * * *. Decide right now to let the miracle-working vitamins in SPARK-O-LIFE go to work for you—have greater health and energy and vitality by correcting that vitamin deficiency.

All you need normally each day of B and E vitamins. Par. 4. Through the use of the foregoing statements and representations, and others similar thereto not specifically set out herein, all of which purport to be descriptive of the therapeutic and curative properties of their wheat-germ product designated “Spark-O-Life” or “Spark-O-Lite,” respondents represent and have represented (a) that said product, because of its vitamin and mineral content, is a cure or remedy for constipation, nervous troubles, digestive disorders, or stomach and bowel troubles; (b) that the use of said product will relieve, remedy, or correct such conditions as tired, exhausted, halfalive, worn-out, older than you really-are feeling, lack of pep, energy, or vitality; (c) that said product is the richest vitamin food containing vitamin G; (d) that it is rich in phosphorus, magnesium, calcium, and iron; (e) that its use will have therapeutic effect in treatment of rheumatism, arthritis, neuritis, and migraine or common headaches; (f) that it is effective in the treatment of aching muscles and joints; (g)° that persons consuming said product will ARBEER FOOD PRODUCTS COMPANY 619 612 Findings possess greater health, energy, and vitality; (h) that its consumption as directed will correct vitamin deficiencies; and (i) that the vitamin E in said product is valuable in human nutrition. Par. 5. The vitamin and mineral content of two heaping tablespoonfuls, or twenty-five grams, of respondents’ product, recommended by them for adult daily consumption, and the percentage of the minimum daily adult requirement for the human diet which they constitute, are as follows:

Amount in Percent of Minimum 25 Grams Daily Requirement Wheat Embryo - (Adult) BIVEneer LTV ana eya) ereee .9meg. (3001. U2 esaee 90 Riboflavin: (Bor G) =------ DN ee ag ee ee 10 SN een eeee 1 ah eS Pe ee 2 ES cnt 15 Phosphorus —~-------------- 962.5 Mg. ..2s=--- = == 35 {halite ee oe ee ee Delo sire eee Sees aeraSeen see 21.5 Qonpens.- 2. 2s) See NBO Trig) ey et Sh 9.3 _ Pee a eee ses 21.3 @ailoriesvs:? i334 see 95 Par. 6. (a) The statements and representations set forth in Paragraphs Three and Four above are grossly exaggerated, false, misleading, and deceptive in the following particulars: (6) While constipation and certain types of nervous trouble, digestive disorders, stomach and bowel trouble, neuritis, common headache, aching muscles and joints, and such vague and indefinite conditions or symptoms as a tired, exhausted feeling and lack of pep, energy, and vitality may be due to a lack of vitamins, these usually arise because of diseases which bear no relationship to vitamin deficiency, and will not be corrected, relieved, or cured by the administration of a vitamin product such as respondents’.

(c) In case said symptoms or conditions are the result of vitamin deficiencies, they will not be relieved, corrected, or cured by the use of respondents’ product in the quantities recommended—that is, two heaping tablespoonfuls daily in the adult diet—except that where such symptoms or conditions are due solely to a very minor deficiency of vitamin B,, long and continued consumption of respondents’ product as a food supplement in the amount recommended may tend to overcome these conditions. Far larger quantities, usually ten to fifty times the amount recommended, are required as a therapeutic dose to relieve these conditions or symptoms resulting solely from a vitamin B, deficiency.

(d) Rheumatism, arthritis, and migraine headache are not caused by lack of vitamins, and the consumption of respondents’ product, would have no value either in the treatment or cure thereof. Findings 45 F. T. C. (c) Respondents’ product is not the richest vitamin G food and is not rich in either phosphorus, magnesium, calcium, or iron. In fact, its consumption as a food supplement in the quantities recommended will supply only a small portion of the minimum adult daily requirements of such vitamins and minerals. Said product does not provide sufficient vitamins, minerals, or nutrients so that persons consuming it will possess or enjoygreater health, energy, or vitality. (7) Its use as directed will not correct vitamin deficiency except that where a deficiency is very slight and confined solely to a lack of vitamin B,, its long and continued cegauiianeron as a food Ad eee may tend to overcome it.

(g) The use of vitamin E has not been established as essential to human nutrition.

Par. 7. The Commission finds that certain of respondents’ advertisements with respect to its product are misleading in a material respect and therefore false and deceptive by reason of the innuendos and suggestions contained therein. They are directed to persons who are already ill, or so consider themselves, and such persons usually have, or are under the impression that they have, one or more of the symptoms referred to therein. In these advertisements, the product is represented as a cure or an effective treatment for certain designated symptoms or conditions when in fact the causes of such symptoms or * conditions are numerous, and the probability is that said symptoms or conditions are due to causes other than the cause which would be reached and beneficially affected by respondents’ product. In representing the product as a cure or an effective treatment for certain designated symptoms or conditions, respondents suggest not only that such symptoms or conditions may be due to the cause for which the product is beneficial, but also that there is a likelihood that they are in fact due to such cause. If such a representation is made in a categorical statement and if, in the majority of cases, the symptoms or conditions are due to causes in the treatment of which the product advertised will have no benefit whatsoever, the representation is false and obviously deceptive. A representation to the same effect, made under the same circumstances except by suggestion instead of categorically, and unaccompanied, as in the present case, by an appropriate disclosure of the likelihood of other causes of the symptoms or conditions, is equally false and deceptive in the opinion of the Commission and, by reason of such falsity, is subject to the exercise of the Commission’s corrective action in the same manner and to the same extent as though the representations were made by affirmative statement.

ARBEE FOOD PRODUCTS COMPANY 621 612 Order Par. 8.’The use by the respondents of the foregoing false, deceptive, and misleading statements and representations with respect to their wheat-germ product, 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 to induce a portion of the purchasing public, because of such erroneous and mistaken belief, to purchase respondents’ said product.

. CONCLUSION _ The acts and practices of respondents 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.

Commissioner Mason, in accordance with the views he expressed in Docket 5070, American Dietaids Company, Inc., et al.,! concurs in all of the foregoing except that portion of paragraph (a) of the order requiring affirmative disclosure.

ORDER TO CEASE AND DESIST This proceeding having been heard by the Federal Trade Commission upon the complaint of the Commission, the answer of the respondents, testimony and other evidence introduced before a trial examiner of the Commission theretofore duly designated by it, recommended decision of the trial examiner, exceptions thereto, and brief in support of the complaint (no brief having been filed by respondents and oral argument not having been requested) ; and the Commission having made its findings as to the facts and conclusion that the respondents have violated the Federal Trade Commission Act : It is ordered, That the respondents, David M. Lorenz and Bernhard W. Alden, individually and as copartners trading as Arbee Food Products Company or under any other name or names, their agents, representatives, and employees, directly or through any corporate or other device in connection with the offering for sale, sale, and distribution of their wheat-germ product designated “Spark-O-Life” or “Spark-O-Lite,” or any other product or products of substantially similar composition or possessing substantially similar properties, whether sold under the same name or under any other name or names, do forthwith cease and desist from directly or indirectly : 1 See 44 F. T. C. 667 at 705.

Order 45 F. T. C. (1) Disseminating, or causing to be disseminated, any advertisement by means of the United States mails or by any other means in commerce as “commerce” is defined in the Federal Trade Commission Act, which advertisement represents, directly or through inference— (a) that the product “Spark-O-Life” or “Spark-O-Lite” is a cure or remedy, or competent or effective treatment, for constipation, nervous trouble, digestive disorders, stomach or bowel trouble, neuritis, common headache, aching muscles or joints, tired or exhausted feeling, or lack of pep, energy, or vitality, or that consumers thereof will enjoy greater health, energy, or vitality, or that its use will correct vitamin deficiencies, unless such representations are expressly limited to those unusual cases in which such conditions are due solely to a very minor vitamin B, deficiency and where the long and continued use of said product as a food supplement in the quantities recommended may tend to overcome said conditions and unless such advertisement discloses that such conditions are most frequently due to other causes and that in such vases said product is ineffective ; (b) that the product “Spark-O-Life” or “Spark-O-Lite” is a cure or remedy, or competent or effective treatment, for rheumatism, arthritis, or migraine headache ;

(c) that the product “Spark-O-Life” or “Spark-O-Lite” is the richest vitamin G food or that it is rich in phosphorus, magnesium, calcium, or iron; : (d) that vitamin E is valuable in human nutrition. (2) Disseminating, or causing the dissemination of, any advertisement 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 product, which advertisement contains any of the representations prohibited in paragraph (1) hereof or which fails to comply with the affirmative requirements set forth in paragraph (1) (a) hereof. [tis further ordered, That the respondents shall, within sixty (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 it.

Commissioner Mason, in accordance with the views he expressed in Docket 5070, American Dietaids Company, Inc., et al., concurs in all of the foregoing except that portion of paragraph (a) of the order requiring affirmative disclosure.

*See 44 F. T. C. 667 at 705.

TRU-HEALTH GARMENTS CORP. 623 Syllabus