Charles Antell, Inc.

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IN Ti MATTER OF CHARLES A)/TELL, INC. ET AL.

ORDER REOPEXING PROCEEDING AND ::iODIFYIKG ORDER TO CEASE AND DESIST, AND OPINION OF THE co nIISSION Docket 6102. Order and, Opinion, Nov. , 1954 Order modifying cease and desist order of December 19, 1953/ to bring it into conformity with the stipulated facts so as to prohibit representations that the main ingredient from a percentage standpoint in respondents' product Charles Antell Formula No. 9" was lanolin, and that said product would remedy the cause of cracked or split hail'. Before Mr. John Le1.vis hearing examiner. Mr. WiliiamL. Pencke for the Commission. Mr. Bernard H. Herzfeld of Baltimore, Md., for respondents. Jlodified Order It i8 o1'dered That the responelent Charles Antell, Inc., a corporation, and its offcers anel respondents, Charles D. Kasher Leonard L. Rosen and J uous J. Rosen, individually, and respondent T. A. A. , Inc. , a corporation, and its offcers, and respondents respective agents, representatives and employees, directly or t.through for saleany corporate, or other device, in connection with the oilering sale or distribution of Charles Antell Formula No. 9 and Charles Antell Shampoo, or any products of substantially similar composition or possessing substantially similar properties, whether sold under the same names or any other names, do fort.hwith cease and desist from directly or indirectly:

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 Commission Act, which advertisement represents directly or through inference (a) ,With respect to Charles Antell Formula No. (1) That the main ingredient in said product from a percentage standpoint is lanolin;

(2) That lanolin is the only natural oil or grease that is ab,ol'bed by the hair or scalp or that the lanolin in said product is absorbed by the scalp to the extent that it wil reach the roots of the hair: (3) That the lnnolin in said product will c1ennse the hair: 150 F. T. C. 543.

CHARLES ANTELL) INC. let AL. 493 492 :\lodified Order (4) That its use wil loosen the scalp or constitute an effective treatment for dandruff or infected scalp;

(5) That it will remedy the cause of cracked or split hair: (6) That the use of said product, as directed or otherwise, wil promote the growth of the hair;

(7) That the use of said product will give the hair health or vitality, except to the extent that brushing, pulling and massaging of the hair and scalp with said product regularly serves as a stimulant to circulation around the hair roots and thereby helps maintain normal scalp and hair health;

(8) That the use of said products will not change the color of the hair or will not leave grease on the hair, unless such representation is limited to cases where said product is used in moderate amounts as directed;

(9) That its use will cause the hair to curl; (10) That its use wil prevent the loss of hair or baldness. (b) .With respect to Charles Antell Shampoo: That the hormones present in said product will have any cleansing action on the hair. Z. 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 either of said products, which adver6sement contains any of the representations prohibited in Paragraph 1 hereof.

It Vi fwrther ordered That respondents Charles Antell, Inc., a corporation, and its offcers, and respondents Charles D. Kasher, Leonard L. Rosen and Julius J. Rosen, individually, and respondent T. A. A. Inc., a corporation, and its offcers, and respondents' respective agents representatives and employees, directly or through any corporate or other device, in connection with the offering for sale, sale or distri bution in commerce as "commerce" is defined in the Federal Trade Commission Act, of the proclnct kno\vll HS I-Iexa.chlorophe,ne Soap, or any other soap or product of substantially similar properties, whether sold under the same name or any other name, do herewith cease and desist from:

1. 1fisre.presenting, directly or by implication, the effectiveness of said soap as a cleansing agent.

Z. Representing, directly or by implication, that the use of said soap win prevent impetigo or cradle cap in case of babies or prevent the development of pimples, boils, blackheads or other skin blemishes generally.

':\1 odified Order 1 t is further ordered That respondents Charles Antell, Inc., a corporation, and its offcers, and respondents Charles D. I\:asher, Leonard L. Rosen and Julius J. Roseu, individually, and respondent T. A. A. Inc., a corporation, and its ofHc.crs, and respondents' respective agent.s representatives and employees, directly or through any corporate or other device, in connection \vi1.h the offering for sale, sale or distribution in commerce, as commerce" is defined in the Federal Trade Commission Act, of any article of merchandise do forthwith cease and desist from representing, directly or by implication: That it is being sold at a reduced price when such price is the price at which the article is usually and regularly sold. The order is published as modified by Commission order reopening proceeding and modifying order to cease and desist, as follows: This matter having come on to be heard by the Commission upon respondents' motion to modify the order entered herein on December , 1953, and answer thereto by counsel supporting the complaint; and The Commission having determined, for the reasons appearing in the accompanying opinion, that this proceeding should be reopened and the order to cease and desist modified in the respects requested by the respondents:

It i8 ordered That this proceeding be, and it hereby is, reopened for the purpose of modifying paragraphs 1 (a) (1) and 1 (a) (5) of the order to cease and desist entered herein on December 18, 1953. It i8 f""ther or-dered That paragraph 1 (a) (1) of said order to cease and desist, which now reads:

That the main ingredient in said product is lanolin; be, and it hereby is, modified to read:

That the main ingredient in sajd product from a percentage stand point it lanolin and that paragraph 1 (a) (5) of said order to cease and desist, which now reads:

"That it will remedy the cause of cracked or split hair or will per-remedy the damage caused hy improper dyeing of the hair, manents, burning or other harmful practices having to do with the hair , and it hereby iS modified to read:

That it wil remedy the cause of cracked or split hair. Commissioner J\fEAD dissenting for the reason that he would reopen and remand the case for the purpose of taking evidence as to the factual questions raised by respondents' motion. CHAR.L'ES !u TELL rxC. ,Err AL. 495 492 Opinion OPINION OF THE COMMISSION By GWYNNE, Commissioner:

This is a motion by respondents for the modification of an order to cease and desist on the ground that certain parts of said order are not justified by the facts.

The complaint charged unfair and deceptive acts and practices in the advertising of a product for the hair known as Charles Antell Formula No. 9. A stipulation was entered into as to the facts and the initial decision based thereon became the decision of the Commission December 18, 1953.

In paragraph 1 (a) (1) of the order the respondents were directed to cease and desist from representing "That the main ingredient in said product is lanolin." Respondents' motion requests that said inhibition should be modified to read "That the main ingredient in said product from a percentage standpoint is lanolin." The reason for the modification is that the stipulated facts are that "The main ingredient, in said product from a percentage standpoint is not lanolin but the lanolin present in the product is of fun strength or Inaximum potency. "

Counsel supporting the complaint makes no objection to this part of the motion.

The suggested amendment would bring the order into conformity with the agreed facts and therefore the motion with regard to paragraph 1 (a) (1) is granted.

( 5) That it will remedy the cause of cracked or split hair or 1uill remedy the damage caused by improper dyeing of the ha:ir, permanents, burning 01" other harmful pract7:ces havin,q to do 'with the hair. Respondents ' motion would strike out the italicized part of the above order. On this point the stipulation provides as rollows: The use or said product will make the hairless brittle and more pliable and jmprove the appearance of hair that is cracked, split or otherwise damaged by improper dyeing, permanents, burning and other harmrul practices, but its use will not remedy the callse or cracked or split hair.

The finding made by the IIearing Examiner was in similar Janguage. The agreed racts clearly set rorth that the use or the rormula will not remedy the cause of cracked or split hair and that part or the order is not questioned. There is no direct statement in the stipulation or iindings as to whether use or the product ,,,ill or will not remedy the darna,qe caused by improper dyeing, permanents, burning or other harmful practices unless improving of the appearance of damaged hair can be said to be a remedy or such damage. It appears that 423783-58- 496 FEDERAL TRADE C01L\IISSION DECISIONS Opinion ;)1 F. T. C. cracked or split hair may be caused by improper dyeing, permanents burning and other harmful practices. It also appears that there. may be other damage but just what that damage may be is not disc.osec1 nor do the facts set out "whether use of the product ,will or "ill not remedy such damage.

Counsel supporting the complaint argues that the clear and ob,'ious meaning of the finding is "that where there is hair that is cracked and split cluo to the emuneratecl causes, the effcacy of said forllula Ko. is limited to improving the appearance of the hair. This is a possible construction of the sentence; however, the finding, together ,\"ith any inference properly drawn therefrom, are not clear enough to warrant that part of the order which is in question. It is therefore directed that respondents' motion be granted; that paragraph 1 (a) (1) be modified to read as follows: (1) That the main ingredient in said product from a percentage standpoint is lanolin.

and that paragraph 1 (a) (5) be modified to read as follows: (5) That it will remedy the cause of cracked or split hair. It is further directed that an order in accordance herewith prepared and filed.

Commissioner l\Iead dissents for the reason that he would reopen and remand the case for the purpose of taking evidence as to the factual questions raised by respondents' motion. BROOKLYK PAINT & WALLPAPER DEALERS ASSN. , INC., ET AL. 497 Complaint