Cyrus Swift

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IN THE MATTER OF CYRGS SWIFT AND MYRTLE F. SWIFT DOI G BUSINESS AS FAIRYFOOT COXSEXT ORDER, ETC. , IX REGARD TO THE ALLEGED VIOLATION OF THE FEDERAL TRADE CO?DUSSION ACT Docket 61;79. Complaint, Dec. j955-J)ecision, June, 1956 Consent order requiring a seller in Chicago to cease representing falsely in advertisements in newspapers, periodicals, leaflets, and form letters, that her bunion plasters, designated "Fairyfoot for Bunions " were a sensational and miraculous scientific achievement use of which would permanently stop the pain of a bunion, cause the inflammation and swellng to quickly subside, correct the deformity of the foot associated with a bunion, etc. Before Mr. Robert L. Piper hearing examiner. Mr. Joseph Callaway for the Commission. COAl PLAINT 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 Cyrus Swift and Myrtle F. Swift, individuals doing business under the trade name of Fairyfoot, 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:

PARAGRAPH 1. Respondents Cyrus Swift and MyrtJe F. Swift are individuals doing business under the trade name of Fairyfoot, with their offce and principal place of business Jocated at 1223 South Wabash Avenue, Chicago 5, Illinois.

PAR. 2. Respondents are now and have been for more than two years last past engaged in the sale and distribution of lnmion plasters designated as Fairyfoot for Bunions. Respondents' said product comes within the classification of both "drug" and "device" as those terms are defined in the Federal Trade Commission Act. According to the manufacturer, the formula is 98% l rubber adhesive base and 2% benzocaine. On the Jabel of the product as sold by respondents it is stated:

this formula in combination contains 1% Benzocainp. 1526 FEDERAL TRADE COM.WSSION DECISIONS Complaint 52 F. T. C.

The directions for use are as follows:

\Vhcn applying the plaster, be sure the foot is dry. Moisture prevents plaster from sticking properly. A little alcohol or witch-hazel rubbed Oll the skin just before applying wil make it perfectly dry. Now remove the special new covering from the face of the plaster. THE ENTIRE PLASTl-JR SHOULD BE APPLIED.

Plaster adheres smoothly when applied in a diamond shape . .. . Rub gentl from center toward edges.

FOR BEST RJJSUW'S A FRESH PLASTER SHOULD BE APPLIED ,;VERY TWO DAYS.

After two days remove the plaster.

DO KOT I,LEAVE IT OX LO:\TGI.JH OR TAKE IT OFF SOONER! After removing the plaster bathe foot in hot water. Dry foot and with palm of hand try and rub bunion for a few minutes. Then apply a fresh plaster. A few applications of Fairyfoot for Bunions relieves pain. This is only the first step.

Do not make the mistake of stopping too soon. Immediately upon finding relief ;you should purchase another package of Fairyfoot and continue your treatment without interruption unti the redness, pain and inflammatory swellng is subdued.

PAR. 3. The respondents cause said bunion plasters, when sold, to be transported from their place of business in the State of Illinois to the purchasers thereof located in various States of the United States. Respondents maintain and at all times mentioned herein have maintained a substantial course of trade in said preparation in commerce bet.\veen and among various States of the United States. AR. 4. In the course and conduct of their said business, respondents have disseminated, and ca,used the dissemination of, advertisements concerning said bunion plasters by the United States mails and by various means in commerce, as "commerce" is defined in the Federal Trade Commission Act, for the purpose of inducing and which were likely to induce, directly or indirectly, the purchase of respondents bunion plasters; and respondents have also disseminated, and caused the dissemination of, advertisements concerning said bunion plasters by various names for the purpose of inducing and which were likely to induce, directly or indirectly. the purchase of sa.id bunion pla.sters in commerce, as "commerce" is defined in the Federa.l Trade Commission Act.

Among and typical,l of the statement.s and representations contained in said advertisements, principally in newspapers and other periodicals, leaflets and form letters, disseminated and caused to be disseminated as hereinabove set forth, are the following: ,. .

FAIHYFOOT 1527 1525 Complaint A sensational advance in miracle science was hailed with the startlng announcement of a simple treatment developed to stop Bunion Pain almost at once and reduce the aching, enlarged hump at the sides of the big toe, then you walk in comfort. Hundreds of letters have been received tellng of prompt comforting relief as bunions get smaller and smaller until sufferers may wear regular shoes again. * * .. Almost overnight relieves terrible stinging itching Runions. The ugly swellng is reduced so you can wear the smart shoes you like. Fairyfoot-Quick pain relief for bunions. Terrible stinging, itching pain goes away-swellng goes down quickly.

While of course it is necessary to remove the pressure immediately, the relief cannot be accomplished by this means alone. Inflammation must first be subdued. Fair.Yfoot contains an effective type of pain reliever that relieves the inflammation and therefore the pain.

PAn. 5. Through the use of the above statements and representations and others similar thereto, not specifically set out herein, respondents IORve represented directly and by implication that said bunion plasters are a sensational and miraculous scientific achievement; that their use (1) permanently stops the pain of a bunion (2) causes the swelling to quickly subside, (3) subdues inflammation and infiammator:, swelling through a pain relieving ingredient (4) corrects the deformity of the foot associated with a bunion by reducing the enlarged hump on the side of the big toe, and (5) causes a bunion to get smaller and smaller until the sufferer is able to wear regular shoes again in comfort.

PAn. 6. The said advertisements are misleading in material respects and constitute " false advertisements:: as that term is defined in the Federal Trade Commission Act. In truth and in fact, respondents bunion plasters are not a sensational miraculous scientific achievement nor sensational or miraculous. (1) The use of respondents bunion plasters does not permanently stop the pain of a bunion; (2) does not cause the swelling to quickly subside; (3) does not subdue inflammation or inflammatory swelling through a pain relieving ingredient. (4) The "enlarged hump': referred to in respondents advertising is usually caused by a deviation of the big toe towards the litte toe in relation to the first metatarsal bone (which is the bone that forms a joint with the big toe) and an accompanying bony enlargement on the side of the first metatarsal near the big toe. The use of respondents' bun ion plaster does not correct the deformity the foot or the "enlarged hump" caused by the deviation of the big toe and the bony enlargement on the side of the first metatarsal (5) The use of respondents' bunion plasters do not cause a bunion to get smaller a.nd smaller until the sufferer is able to wear regular shoes again in comfort.

PAR. 7. The use by respondents of t.he foregoing false and misleading statements and representations, disseminated as aforesaid, has 1528 FEDERAL TRAnE COMMISSION DECISIONS 52 F. T. C. Decision 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 and representations are true and to cause them to purchase respondents' bunion plasters. PAll. 8. The aforesaid acts and practices of respondents are aJl to the prejudice and injury of the public and constitute unfair and deceptive acts and practices within the intent and meaning of the Federal Trade Commission Act.

INITIAL DECISIO BY ROBERT L. PIPER, HEARING EXA.:\IINER The Federal Trade Commission issued its complaint against the above-named respondents on December 8 , 19:)5, charging them with having violated the Federal Trade Commission Act through the making of false and misleading representations concerning the medical properties of their products. In lieu of submitting answer to the complaint, respondent Myrtle F. Swift on April 9, 1956, entered into an agreement for a consent order disposing of all the issues in this proceeding as to said respondent without hearing, which agreement has been duly approved by the Director of the Bureau of Litigation. Said agreement has been submitted to the undersigned, heretofore duly designated to act as hearing examiner herein, for his consideration in accordance with Section 3.25 of the Rules of Practice of the Commission. In addition, counsel supporting the complaint has moved to dismiss it without prejudice as to respondent Cyrus Swift, upon the grounds, as evidenced by a supporting medical statement, of mental incompetence w.ith the likelihood of retrogression rather than improvement. I-Iaving fully considered same, the motion to dismiss the comphtint as to Cyrus Swift should be granted. Respondent "!fyrtle Swift, pursuant to the aforesaid agreement, has admitted a11 of the jurisdictional allegations of the complaint and agreed that the record may be taken as if findings of jurisdictional facts had been duly made in accordance with such allegations. Said agl'eementfurther provides that respondent waive all further procedural steps before the hearing examiner or the Commission, includai1Cl the righting the making of findings of fact or conclusions of law to challenge or contest the validity of the order to cease and desist entered in accorda.nce w.ith such agreement. It has also been agreed that the record herein shall consist solely of the complaint and said agreement, that the agreement shall not become a part of the offcial record unless and until it becomes a part of the decision of the Commission, that said agreement is for settlement purposes only and does not constitute an admission by respondent that she has violated the law as alleged in the complaint, that saiel order to cease and desist F AIRYFQQT 1529 1525 Order shall have the same force and effect as if entered after a full hearing and may be altered, modified or set aside in the manner provided for other orders, and that the cOlnplaint may be used in construing the terms of the order.

This proceeding having now come on for f1l1al consideration on the complaint and the aforesaid agreement containing the consent order and it appearing that the order and agreeme, , together with the aforesaid motion to dismiss, cover' all of the allegations of the complaint and provide for appropriate disposition of this proceeding, th6' order and agreement are hereby accepted and ordered fied upon: becoming part of the Commission s decision pursuant to Sections 21 a.nd 3.25 of the Itules of Practice, and the hearing examiner accordingly lTHLkes the follmving findings, for jurisdictional purposes and order:

1. Respondent Myrtle F. Swift is an individual doing business under the trade name of Fairyfoot, with offce and principal place of business located at 1223 South "W abash Avenue, Chicago 5, Illnois. 2. The Federal Trade Commission has jurisdiction of the subject matter of this proceeding and of the respondent hereinabove named. The complaint states R cause of action against said respondent under the Federal Trade Commission Act, and this proceeding is in the interest of the public.

ORDER It is ordered That the respondent Myrtle F. Swift, individually and doing business under the trade name of Fairyfoot or under any other name, and responclenfs agents, representatives, and employees directly or through any corporate or other device, in connection with the offering for sale, sale or distribution of bunion plasters or of any other product of substantially the same composition or possessing substantially similar properties, whether sold lmcler the same name or under any other name, clo forthwith cease and desist frolll directly or indirectly:

1. Disseminating or causing to be disseminated any advertisement by means of the United States Inails, or by any means in commerce as "commerce" is deiined in the Federal Trade Commission Act, which advertisement represents, directly or indirectly: (a) That said product is a sensational or scientific achievement or sensational or miraculous:

(b) That the use of said product (1) permanently stops the pain of a bunion (2) eauses the swelling to quickly subside (3) subdues inflammation or swelling through a pain relieving ingredient;

Decision 52 F. T. C.

(4) corrects the deformity of the foot associated with a bunion or reduces the bony enlargement (5) causes a bunion to get smaller and smaller until the sufferer is able to wear regular shoes again in comfort. 2. Disseminating or causing the dissemination of any advertisement by any means for the purpose of inducing or which is Jikely to induce, directly or indirectly, the purchase in commerce as "commerce" is defined in the Federa.l Trade Commission Act, of said product, which advertisement contains any of the representations prohibited in Paragraph 1 hereof.

I t is JUTther ordered That the complaint, as to respondent Cyrus Swift, be and hereby is dismissed without prejudice. DECISION OF THE COJlBIISSION AXD ORDER TO FILE PORT OF COl"IPLrA Pursuant to Section 3. 21 of the Commission Hules of Practice, the initial decision of the hearing examiner shall, on the 19th day of .J nne 1956, become the decision of the Commission; and, accordingly: It ordered That the respondent herein shall within sixty (60) days after service upon her of this order, file with the Commission a report in writing setting forth in detail the manner and form in which she has complied with the order to cease and desist. COURANT DISTRIBUTING CO. 1531 Complaint