George M. Voss

Text (OCR of the scan at left; may contain errors)

IN THE MATTER OF GEORGE M. VOSS TRADING AS VOSS HAIR EXPERTS OF GEORGIA ORDER, ETC., IN REGARD TO THE ALLEGED VlOLATlOK OF THE FEDERAL TRADE COMMISSION ACT Docket 61,98. Compla.int, Jan. lD56' Vecision, Feb. 1959 Order requiring an individual in Atlanta to cease representing falsely, particularly in newspaper advertising, that through use of his hair and scalJ1 preparations, methods, and treatment.s in his place of business and by purchasers of the preparations in their homes, baldness ,,,auld be prcventcu and overcome, growth of new nrl t.hicker hair would be promoted and lost hflir restored, dandruff cured, etc. ; and to cease representing himself fals(dy as a " Trichologist." and the "Nation s leading hair expert. f,fT. llttrold A. Kennedy and Al,' . Thomas F. llowdeT supporting the complaint.

Getteman 0f Getteman of Chicago, Ill. , by lvlT. Frank E. GettleT/lan and .lV/T. PrankNn M. Lazarus for respondent. INITIAL DECISION BY .JOSEPII CALLAWAY, HEARING EXAMINER PRELIMINARY STATEMENT The complaint issued herein and duly served, as subsequently amended, charges respondent with the dissemination through t.he mails and in commerce of false advertisements for certain cosmetic and medicinal preparations, advertised for external use in the treatment of conditions of the hair and scalp. l'Iisrepresentation by respondent is also alleged in referring- to himself in said advertisements as a " Trichologist" and as the "Nation s Leading- Hair Expert." The ans"\\'cr to the complaint, as amended, denies all t.he mat.erial allegat.ions t.hereof, except. t.he name and address of respondent.

Hearings were held in At.lanta, Ga. and New Or1cans, La., for the taking of evidence in support of the allegations of the complaint. Motion by the respondent to dismiss the complaint at the end of the testimony in support of the allegations of the COILplaint "vas denied and interlocutory appeal to the Commission Jrom the denial of the motion by the hearing examiner was denied. Thereupon, respondent electect not to introduce any evi- Amended Oct. 10 , 1951.

1122 FEDERAL TRADE COMMrSSION .DECISIONS Findings 55 F.

dence. The case is therefore before the hearing examiner for an initial decision upon the pleadings, evidence in the record and proposed findings, conclusions. and orders and the reasons there. for filed by both sides.

Both sides were represented by counsel and given full oppor. tunity to introduce evidence pertinent to the issues, examine witnesses and argue points of law and evidence. The proposed findings, conclusions and orders and the reasons therefor and respondent's motion to dismiss, and the answer thereto, were given careful consideration by the hearing examiner. All such proposed findings, conclusions and orders not hereafter adopted, found or concluded are hereby specifically rejected. Upon the entire record of the proceeding and from the obser. vation of the \vitncsses while testifying-, the hearing examiner makes the following findings as to the facts, conclusions and orders.

FINDINGS AS TO THE FACTS AND CONCLUSIONS 1. Respondent George M. VO':8 is an individual trading and doing business as Voss Hair Experts of Georgia \with his offce and place of business located at 703 Grand Theater Building in the city of Atlanta, Ga. He had conducted this business for about. five and one-half years at the time of the hearing there on February 18, 1958. It consists of giving local treatments for can. ditions of the hair and scalp. He has been in this type of business for thirty three years, having worked for others prior to owning this business in Atlanta. The only education he has is two years in high school. Those coming to him for treatment are uSllalJy afficted with dandruff, itching, irritation of the scalp and what they think is excessive loss of hair.

2. When one having any or ali of these conditions comes to him for treatment he first attempts to determine whether or not he can do them any g-ood. In reaching a decision on this he examines their scalp, takes a history of their scalp troubles and inquires about their teeth and tonsils. The examination of the scalp consists of the use of an orange wood stick to part the hair looking at the scalp with the aid of a lens having- a lig-ht attached to get a better view, and manipulation of the scalp to determine how tig-ht it is. If accepted for treatment, the treatment as described by respondent consists of the application of certain formulas to the scalp together with ultra-violet light, massage heat, vibration and the use of what is called a high frequency VOSS HAIR EXPERTS OF GEORGIA 1123 1121 Findings machine. The formulas used wil depend on what the man is complaining of. For instance, if he is complaining of dandruff one set of formulas wil be used first. If he is complaining of hair loss, the formulas used wil depend on the oiliness or dryness of the hair and scalp. The amount of each formula applied each time wil vary from one to one and one-half ounces, depending on the amount of hair on the scalp. A shampoo, a solvent and an antiseptic hair dressing caJIed TriseptoJ are supplied the client, as he is called, for use at home between treatments. 3. A charge of $5. 00 is made for a single offce treatment. If a client can come in twice a week for treatment, a course of forty treatments is offered for $170. If a client lives too far away to come in regularly, a hon1€ treatment kit for useat home in conjunction with the offce treatment is available, but the home treatment kit is never supplied to one who has not been first examined and treated at the offce by respondent. One furnished a home treatment kit must come in for ofIcc treatment at least once a month. The home treatment kits have in them the same formulae that are applied during offce treatments. The shampoo, solvent, and Triseptol are also included in the kit together with a hair brush and a booklet of instructions. Refils of the shampoo, solvent and Triscptol are charged for extra to both those taking offce treatments only and also those receiving the home treatment kit.

4. Respondent' s gross business was $31 000 during the year 1957 and about $41 000, two years before that. He was unable to give any percentage of the business that applied to those who used home treatment kits, that is to those who might be classifier) as home ann oftce clients. He has given offce treatments to people from out of the state, but has always refused to ship anything into another state. He doesn t ship anything through the mail anybody even in Georgia unless that person has first presented himse)f at the offce for an examination. He has sent kits to a relative of a client, the relative living in the State of Georgia for transshipment or delivery to a client out of the State. 5. There was no evidence as to how frequently this has been done. One home treatment kit contains enough of the formulas for 32 home treatments. For $80.00 a client gets this home treatment kit and as many offce treatments as he can take. The home treatment kits are not sold separately. 6. AJJ of the respondent' s preparations used in the offce treatnlents and contained in the home treatment kits, including the , , Findings 55 F.

shampoo, solvent and Triseptol, are composed of the following ingredients in various combinations:

Ammoniated mercury (white precipitate) Boric acid Betanaphthol Castor oil Carborwax 4000: Carbide & Carbon Chemicals Co. , (a solid polyethylene glycol) Detergent 77: Peck's Products Co. (a nonionic general household and industrial cleaner) Dyes Hyamine lG22: Rahm & Haas Co. , (di-isobutyl phenoxy ethoxy ethyl dimethyl benzyl ammonium chloride) Isopropyl alcohol Isopropyl alcohol bay rum Liquid soap Metho! Mineral oil NopeD 1034: Nopea Chern. Co, (a sulfonated oil) Oil of bay, terpeneless Oil of tar, rectifie-d Oxyquinoline sulfate Perfume Phenol Polyethylene Glycol 400: Carbide & Carbon Chemicals Co. , (a liquid polyethylene glycol) Propylene glycol Resorcin Salicylic acid Sulfonated ca'itor oil Tegasept 1\: Gold chmidt Chern. Corp. (methyl paraben) Tincture capsicum Twe('n 60: Atlas Powder Co., (PoJyoxyethylew' sorbitan monostearate) Veeg-UJl1: IL T. Vanderbilt Co. , (colloidal mag"ne"il1!1 aluminum silieate) 'Vater 7. Ilcspondent advertises and has advertised in the Atlanta Journal, the Atlanta Constitution and the joint paper put out by t.these two on Sunday. There are in evidence copies of advertisements in these papers as follows:

Atlanta Journal, January 31 , 1955 (Com. Ex. 4) Atlanta Journal, August 20 1955 (Com. Ex. 5) Atlanta ,Journal, August 22 1955 (Com. Ex. 6) Atlanta Journal January 2-1, 1955 (Com. Ex. 7) Atlanta Journal, February 7, 1955 (Com. "Ex. 8) Atlanta Journal, April 11 , 1955 (Com. Ex. 9) Atlanta ,TournaI , :'\1"ay 2, 1955 (Com. Ex. 10) Atlanta Journal and Constitution Magazine, April 1955 (Com. Ex. 11) , .

VOSS HAIR EXPERTS OF GEORGIA 1125 1121 Findings Atlanta Journal and Constitution Magazine, January 9, 1955 (Com. Ex. 12) Atlanta Constitution, February 17, 1953 (Com. Ex. 13) Atlanta Journal and Constitution Magazine, March 6, 1955 (Com. Ex. 14) Atlanta Journal, April 25, 1955 (Corn. Ex. 15) .Atlanta Constitution, January 7, 1958 (Com. Ex. 16) Atlanta Constitution January 14 , 1958 (Com. Ex. 17) Atlanta Journal and Constitution, September 15 , 1957 (Com. Ex. 18) Atlanta Journal, October 21 , 1957 (Com. Ex. 19) Atlanta Journal, November 18, 1957 (Com. Ex. 20) 8. Since there is no question of discontinuance of the alleged offensive advertising involved here, Commission Exhibits 16 through 20 are disregarded in determining whether respondent' advertising is false advertising as alleged in the complaint. These were published after the issuance of the complaint. Commission Exhibit 13 is also disregarded because there was no proof of dissemination by maiJ or in commerce of the Atlanta Constitution for the year 1953.

9. It was stipulated that the average paid daily circulation of the Atlanta .J oumal going by mail to people inside and outside of Georgia during the year 1955 was 12 077 nnd the average paid Sunday circulation during 1955 of the combined paper going by mail to people inside and outside of Georgia was approximately 340; that the average number of copies of the daily Atlanta J ouma! going outside of the State by any means (mail, bus airline, etc. ) during the year 1955 was 7 427 and that the average Sunday circulation of the combined paper during 1955 going outside the State by any means \vas approximately 45 041. The average daily circulation of the .J Dumal during 1955 was 253 992 and the average Sunday circulation of the combined paper during 1955 was 492 890.

10. Following arc some quotations from the advertisements men tioned above:

DANDR1JFF, the commonest hail' problem, is also the commonest cause of haldness! Not dandruff as you see, but imbedded dandruff. . . the kind that lodges d(,,,.,' in your hair tubes to choke off hair gro'\vth . ill( kind that plays a perfect host" to hair-killing' bacteria. (Com. Ex. 4) You can t get rid of it with " tonics " shampoos, or other ordinary methods. But you can get rid of it with Voss treatment. THINK TWICE before you adopt and follow the old "do nothing" method of preserving your hair.

Time was when nothing could he done to prevent baldness, and it didn matter a bit if you believed that baldness was due to heredity, age, or what fJaVe you.

, Findings 55 F.

J\' ot now. This is the mid-20th-century. Going bald now, in this city where the nation s most famous scalp specialist gua.rantees to stop excess hair loss just doesn t make sense.

If you have hair now, you can keep it--with the help of Voss Hair Experts. Even "fuzz" can be replaced with long- and strong hairs-with the professional help of Voss Hair Experts.

Excessive hair loss, dandruff, itchiness, dryness or oiliness can be corrected in short order-with the help of Voss Hair Experts. (Com. Ex. 5) When you re losing hair-no matter how gradually-surncthing is wrong. It' s not normal And you re going bald unless you take steps to prevent H. (Com. Ex. 6) Specialized Treatment First thing' to remember, Voss pointed out, is that hair loss may start from anyone of 18 common causes. Dandruff in its various forms is one of the most frequent causes. Others are tight scalp, itching and infection, dry or oily hair.

Now ask yourself this question: Is it likely that any kind of bottled "curealj" could do much to correct so many conditions and stop hair loss? Rut any and all of these (Jiso1'lcrs " Voss said can be easily and compJcteJy coneetel! by our specialized treatment. You see the results at once: Dandruff goes, itching stol')S, your hair and scalp feel better and look better. Soon, hair fail decyeO;ses as much as 90 per cent. Examination Free Best of all, your invigorated hail' follides start to replace lost hail' with healthy new hellr.

;\s the treatment progresses, you ll witness the re- growth of stronger mOJ'e virile hail"

And best of all, probably you ll acquire sound new habits of hair-care to keep your hair healthy and growing after treatment is over. (Com. Ex. 7) If you do need treatment, and enl'olI for it, you ll see quick improvement. Dandruff, itching clear up at once. Excess oiliness or dryness arc soon COJ' rected. Hair fail slows down to nonnal. )J( W hair grows stronger-.(lud t.hickerl (Com. Ex. 9) The healthy scalp grows healthy hair-naturally! Ii seems so obvious " says Director George 1\. Voss, of Voss Hair Experts you might thinJ, no intelligent. person would deny its truth. But when yon accept it, you must rule out practically all the common beliefs about haldness. For instance, most people are convinced that baldness is hereditary- runs in families," so to speak. Yet I've never l1eard any body arguc that you can inherit an unhealthy scalp. So you can t very ,"ell inherit baldness, can you? (Com. Ex. 11) How it WOl' You mail in J',gular repurts to the Voss Hair Experts, to kepp them inforIned of your progress. This enab E's them to chang-e your treatment ncccssary to get best results.

Voss home treatment ha saved the hair of hundreds of men who were lmable to take rqwlar offce treatment. 1\Ien and women from all the tovms and cities around Atlnnta-Sewanee, Rome, l\Iarietta, Toccaa, Cairo, Griffn Brinson-have been lavish in their praise of the home method. VOSS HAIR EXPERTS OF' GEORGIA 1127 1121 Findings True, some few men do inherit a scalp structure that may predispose to early baldness. But any such tendency can be overcome by proper hair care. (Com. Ex. 12) The expert talking was George :M. Voss, head of Voss Hair Expert here. He is a trichologist of 30 years experience-More experience in fighting baldness than any other man in the United States. (Com. Ex. 14) 11. Respondent argues that he is in no way responsible for the dissemination of his advertising by United States mails and in commerce since all he did was to place the advertisements in the newspapers. Such argument is rejected. If respondent had not placed his advertisements in these newspapers they would not have been disseminated by United States mails or in commerce through this medium. Respondent's acts were the moving cause or the proximat.e cause of the dissemination by United States mails and in commerce of the advertisements. The advertisements so disseminated resulted in people coming in for consultation and treatment.

12. Through the advertisements, so disseminated, respondent represented directly and by implication that excessive hair loss and baldness in the great majority of cases arc caused by local disorders of the scalp such as dandruff, tight scalp, itching and infection, dry or oily scalp; that the use of his treatment. wil permanently eliminate and cure these disorders l and result in (1) fuzz being replaced with long and strong hairs, (2) excessive hair loss and haldness being prevented and overcome un the growth of new and thicker hair and (4) lost hair being replaced with healthy new hair. The advertisements also refer to respondent as the Nation s leading hair expert and as a trichologist. J3. The complaint alleges that the said advertisement.s are false advertisements wit.hin the meaning of the Federal Trade Commission Act, that is that they are misleading in the following material respects:

14. The great majority of cases of baldness and excessive hair Joss is the common type known as male pattern baldness. Regarclless of the exact formula or combination of the preparations used and regardless of the method of treatment in respondent' offce or t.he method of application in home treat.ment.s, respondent' s preparations '."ill not in such cases prevent or overcome baldness; will not. cause hair t.o grow t.hicker and will not grow 11CW hair or restore oJd hair. Moreover the ingredients contained ) Sl'," finding on similar ad\',"rtisin in reg"ard to dandruff and itching in liishojJ l/"h Experts Dock'"t Nu. 6554 , adopted by the Commission on May 12 , 195H. Findings 55 F.

in respondent's preparations will not permanently eliminate dandruff, itching, dryness or oiliness of the scalp and will not cause fuzz to be replaced by long and strong hair. Neither the respondent nor his employees have undergone competent professional training in dermatology or any other branch of medicine pertaining to treatment of scalp disorders affecting thc hair. 15. To support these allegations, the testimony of two expert dermatologists was offered, Dr. Hiram M. Sturm of Atlanta Ga., and Dr. James W. Burks, Jr. , of New Orleans, La. Their qualifications as experts are in the record. 16. There was compete unanimity of opinion by Dr. Sturm and Dr. Burks, Jr. on the following points: 17. The most common type of baldness is the type known as male pattern baldness, which comprises 95 I, of al1 cases of baldness. Fuzz on the head of an adult is never replaced by mature hair or what is called terminal hair. The hearing examiner understands this to be the same as Hlong and strong hair" referred to in one of respondent' s advertisements. Ko combination of the ingredients in respondent's preparations applied to the scalp, with or without the physical therapy, employed by respondent or any other kinel of therapy will permanently eliminate or cure dandruff itching, oiliness or dryness of the scalp, or cause fuzz to be replaced by long or strong hair. No combination of the ingredients in respondent' s preparations applied to the scalp vlith or without the physical therapy employed by respondent or any other kind of therapy will prevent or overcome male pattern baldness, or in cases of male pattern baldness, cause hair to gro\v thicker, or longer or stronger, or cause ne"\' hair to grow, or cause lost hair to be replaced with new hair.

1 8. Dr. Sturm further testified that one may have fuzz on the scalp and still have male pattern baldness. In such cases the hair follicles gradually atrophy and cease to produce hair. The hearing examiner understands this to mean that one does not have to be completely bald to have male pattern baldness. It is a gradual process, that may be going on long before it is apparent. 19. Doctor Sturm thought the terms " scalp specialist" and tdchologist" used in the advertisements implied a degree of learning in the field of the hair and scalp that could only be possessed by a dermatologist. Dr. Burks testified that while a dermatologist is an expert in the field of the skin and its appendages, including the hair and scalp, the terms "scalp specialist" \ .

VOSS HAIR EXPERTS OF GEORGIA 1129 1121 Findings and "trichologist" imply a degree of learning in the field of the hair and scalp greater than that possessed by the average dermatologist. It should only be applied to a dermatologist who had gone further and made a special study of the hair and scalp. 20. There was some disagreement between the two doctors as to the cause of male pattern baldness. Dr. Sturm said that the causes were heredity, involving the endocrine glands, and ageing. . Burks thought these two things were a part of the background of male pattern baldness, but he would not go so far as to say they were the cause. In fact he did not think the cause had been definitely established.

21. Each doctor was cross examined at length as to the endocrine system and genetics and each stated that they were not specialists in these fields. Respondent urges that for this reason the testimony of both of these physicians should be stricken or disregarded.

22. In Commission cases, opinion evidence based on the general medical and pharmacological knowledge of qualified experts has been held to constitute substantial evidence even where witnesses who had personally observed the effect of the product testified to the contrary. ' Furthermore the questions about the endocrine system and genetics asked on cross-examination \were on the point of the cause of male pattern baldness, which is not an issue in the case. Both of the experts who testified were familiar with the ingredients in respondent' s preparations and \with the method of physical treatment employed by respondent. Their answers were based upon that and their experience as dermatologists. Their testimony is not disputed by anything else in the record. Respondent asks the hearing examiner to take " judicial notice of the writings of Doctors McCarthy and Savill. This request is rejected, nor will the hearing examiner take omcia! notice of their writings. Even if such writings had been offered in evidence, to accept them would establish a precedent for ftooding the record with scientific writings without the authors being presented for cross-examination,C\Furthermore scientific ,vritings are usual1Jy in technical language and the help of an expert is needed in many instances for the hearing examiner to clearly Bristol-M)jfJra Co. lE5 F. 2d 58 and cases then'in cited; lp,'i" 143 F. 316; Sce alsu article in )"dial;Q La1/ J()nnal Spring 195, entitled 1'T(11'i1l9 the Falsity uf Ad- ,'cTti.8inl: The McAm11lty RNIc and EX11ert E1'dc11CC 3 Sce Opinion of Commission in W1lbrf1ltt SI/stem P1"od1lcts COTpar"t.ion, rt al issued May 1958.

Findings 55 F.

understand them. In addition to that, without the author being present for cross-examination, there is no way of knowing whether such writings express the current opinions 01' the authors. Because of new experiments, or for other reasons the virrilers may have changed their opinions since the articles were written. 23. It is therefore found that respondent's said advertisements were false in representing that his treatments will permanently eliminate or cure dandruff, itching and dryness or oiliness of the scalp and result in fuzz being replaced with long and strong hair. The advertising claims that respondent's treatments ,,,,in result in excessive hair loss and baldness being prevented and overcome; will result in the grmvth of nc\v and thicker hair and in lost hair being replaced with no,\, hair are also false because such claims are not limited to cases other than those coming- within the classification of male pattern baldness. Respondent' s said advertising is also false in representing him as a trichologist and as a scalp specialist.

24. Respondent's said advertisements were also false advertisements as alleged in the complaint for another reason. Section 15 of the Federal Trade Commig,ion Act provides that in determining whether any advertisement is misleading there shall be taken into account the extent to ,vhieh Ule advertisement fails to reveal1 facts material in the light of the representations made. Respondent' s advertisements imply that his treatmenb ,vill prevent or overcome baldness in all cases, or at least the great majority of cases, whereas under the evictence they will be totally ineffective for these purposes in 951,; of all cases of baldness. Failure of respondent to reveal this last mentioned fact in his advertisements is itself misleading. It is so found. As alleged in the complaint:

In advertisir1g that his preparations (i. , treatments) will cause hair to grow and will overcome baldnpss, respondent suggests that there is a reasonphle probability that hair less or baldness in any particular case may be due to a cause for which his preparations (j. , treatments) wil be of benefit and ccnstitllte an effectivt: trcDtment. In truth and in fact the instances in which loss of hair or baldness is clue to a cause or condition for "which respondent' pncparations (i. , treatments) will be of benefit am! "will constitute an etfpctive treatment are ran' 25. The hearing examiner finds himself entirely in accord with this quotation, and ,with the statement that "there is no reasonable probability that any particular case of baldness is caused VOSS HAIR EXPERTS OF GEORGIA 1131 1121 Findings by a condition for which respondent' s preparations may be heneficia1."4 26. Section 12 (a) (1) of the Federal Trade Commission Act reads as follows :

It shall be unlawful for any person, partner::hip or corporation to disseminate or cause to bp. disseminated any false advertisement- By United States mails or in commen' e by any means, for the purpose of inducing, or which is likely to induce, directly or indirectly the purchase of food, drugs, devices and cosmetics.

27. It has been found that respondent' s advertisements were false and that they were disseminated by the United States mails and in commerce. The evic1enee shmvs the preparations to be cosmetics. They were to be applied to the hair and scalp and were intended for cleans.ing and promoting attractiveness. 28. There only remains to be considered \vhether the dissemination of the advertising was for the purpose of inducing or likely to induce the purchase of the preparations. The advertising does not mention the preparations but advertises the Voss Hair treatments. In the matter of Bishop Hait E. peTts, et aI. Docket No. 6;'54 , the Commission said that the presence of the word treatment" or the absence of thc mention of a commodity or a description of its qualities in the advertising is not conclusive. 29. The hearing examiner refuses to hold that a sale of the preparations was involved when they were used in giving a treatment as described in the record by respondent. In the opinion of the Commission in the Wybrant. case, Docket No. 6472 there is a statement as to the factors to be included in considering whether such use of preparations in giving treatments constitutes a sale. Here, as there, the record is insufficient to support such holding. 30. The record fully support.s conclusions that the furnishing of cosmetic and medicinal preparations in the form of a treatment kit to some chents for use at home constitutes sales of such preparations. The evidence further shows that both those taking!, offce treatments solely and those receiving home treatment kits in addition to offce treatments wen, charged for refills of the shampoo, solvent and Triseptol, in addition to the cost of the treatments and to the cost of the kits. These were also sales. It is not controlling that t.here is no showing as to the amount of 1 For precedeng on this point sce h1rl;(Ll De(;i i()n ;n the Matta of William T. Loc r:h 1' Docket Ko. 6305 , ::tlopted by tne Commi!'sion, (witn modification on flTJother point) November . 1957; l-Nslw)) llah E:tpeTI. , el aI. Docket No- 11554, alot,l"d by tr,e Commission Mny 12 1958.

Order 55 F.

home treatment kits or refills that were sold during- any year or any other particular period of time. There evidently were suffcient sales of the latter item to justify respondent' s sendingout a printed card showing the price thereof. A1l purchases of the kits and refills were by those who had taken treatments and who presumably orig-inal1y presented themselves for diag-nosis and treatment as a result of the said advertisements. This satisfies the requircments of the statute as to advertising "for the purpose of inducing or which is likely to induce, directly or indirectly the purchase of * * * cosmetics. " Sales in "commerce " are not necessary for a violation of Section 12 (a) (1). 31. Consideration has been given to the question as to whether there is suffcient public interest to justify an order to cease and desist. The dissemination of the said advertising, through the United States mails and in commerce was substantial. The fact that such advertising was suhstantial and was false and the circumstance that such advertising has served to induce the purchase of the aforementioned items supply the necessary public interest.

32. The use by the respondent of the false advertisements disseminated as aforesaid, has had and now has the capacity ano tendency to mislead and deceive a substantial portion of the purchasing public into the erroneous and mistaken belief that the statements and representations in said advertisements were true and to induce a substantial portion of the purchasing public to visit respondent' s offce for the purpose of eonsultation and treatment and to purchase respondent's preparations bccam e of \1ch erroneou and mistaken belief.

33. The aforesaid act and practices of respondent are all to the prejudice and injury of the public and constitute unfair and c1ec.eptive acts and practices in commerce within the intent rind meaning of the Federal Trade Commission Act. ORDER 11 is o?"de,' That the respondent George M. Voss trading as Voss Hair Experts of Georgia or under an:v other name or names and respondent' s agents, represcntativefi and employecfi, directly or through any corporatc or other device in connection with the offering for sale, sale or distribution of the various cosmetic or other preparations set out in the findings herein, or of any other preparations for use in the treatment of hair and scalp conditions do forth,,,ith cease and desist from directly or indirectly: VOSS HAIR EXPERTS OF GEORCIA 1133 1121 Opinion 1. Disseminating or causing to be disseminated by means of the United States mails, or by any means in commerce as "commerce" is defined in the Federal Trade Commission Act, any advertisement which represents directly or by implication: (a) That the use of such preparations alone or in conjunction with any method of treatment will:

(1) Permanency eliminate or cure dandruff, itching, dryness or oUiness of the scalp, (2) Cause fuzz to be replaced with long or strong hair (3) Prevent or overcome excessive hair loss or baldness, unless such representation be expressly limited to cases other than those known as male pattern baldness and unless the advertisement clearly and conspiciously reveals that in the great majority s saidof cases of baldness and e:- cessive hair loss, respondent' preparations and treatments are of no value whatever. (4) Cause new hair to grow, cause hair to gTOVl thicker, cause lost hair to be replaced with new hair, or otherwise grow hair unless such representation be expressly limited to ease:: other than those known as male pattern baldness, and unless the advertisement clearly and conspicuously reveals that the use of sain preparations and treatment will be of no value whatever in the great majority of cases (b) That respondent, his agents, representatives or employees have had competent training in dermatology or other branches of medicine having to do with the diagnosis and treatment of scalp disorders affecting the hair, or are trichologists or scalp specialists.

OP1NJO OF THE COMMISSION By SECREST, Commissioner:

The complaint, as amended, charges respondent with violation of the Federal Trade Commission Act through the dissemination in commerce and by the United States mail of false advertise- , adver- ments for variQl1s cosmetic and medicinal preparations tised Jor external use in the treatment of conditions of the hair decision held that and scalp. The hearing examiner in his initial the allegations of the complaint were sustained by the evidence and ordered respondent to cease and desist the advertising found to he unlawful. Respondent has appealed from the initial decision and from certain rulings by the hearing examiner. Taking first the issues raised by the appeal from the findings 1134 FEDERAL TRADE CO:l1MISSION DECISIONS Opinion 55 F, and order, respondent contends that his business is not subject to the jurisdiction of the Commission under Section 12 (a) (1) of the Federal Trade Commission Act in that he did not disseminate or cause to be disseminated advertisements by 111ail 01' in commerce. The argument that an advertiser has no control over the methods of circulation of newspapers in which his advertising appears and cannot be held responsible for the dissemination of such advertising lad;:s sound legal basis. Shate, et al. v. Pederal Tmde Commission (C. A. 6, 1958) ; Sidney J. M,wlleT v. United States (C. A. 5, 1958) ; and Johnson Hair Scalp Clinic Docket :-0. 6497 (Decided June 10, 1958). The hearing examiner, there fore, properly concluded that by placing advertisements in newspapers which are distributed by the United States mail and in commerce, respondent had caused the dissemination by mail and in commerce of such advertisements.

The appeal also excepts to the hearing examiner s holding that through use of the word "trichologist" and by other means in his advertising, respondent has falsely represented that he has had competent training in dermatology and other branches of medicine having to do with the treatment of scalp disorders affecting the hair. Respondent has described himself in his advertising as a "trichologist " a "hair expert" and a " scalp specialist." According to the uncontradicted testimony of the expert witnesses, the term "trichologist" denotes a dermatologist specializing in the branch of medicine having to do \-\with the hair and diseases affecting the hair and sc.alp. They also testified that the terms "hair expert" and "scalp specialist" imply a degree of learning in the field of hair and scalp that could only be pos sessed by a dermatologist. The evidence is also clear that rcspondent has not undergone competent professional training in dermatology or any other branch or medicine pertaining to treatment of disorders affecting the hair. vVe therefore concur in the hearing examiner s findings on this point. Respondent also contends that the prohibition in the order against use of the term "scalp specialist" goes beyond the issues raised by the complain1. The advertising s designation of rcspondent as a "scalp specialist" is merely a variation or expansion , re- of the basie theme \vhereby, as charged in the complaint spondent has misrepresented his qualifications and scientific training in treating hair disorders. Hence, there is sound legal basis for including in the order a specific prohibiti011 against use of , VOSS HAIR EXPERTS OF GEORGIA 1135 1121 Opinion this term. Consume?' Sales COTpo1'tion v. Ferle?"rll Tmde Commission 198 F.2d404 (1952).

Respondent also contends that the hearing examiner erred in finding that respondent had represented through his advertising that his treatments will permanently eliminate dandruff, itching, dryness or oiliness of the scalp.

The advertising contains the following claims: Excessive hair loss, dandruff, itchiness, dryness or oiliness can be corrected in short order-with the help of Voss Hair Experts. When you re losing hair-no matter how gradually-something is wrong. It' s not normal. And you re going bald unless you take steps to prevent it. Special1izcu Treatment First thing to remember, Voss pointed ont, is that hair loss may start from anyone of 18 common causes. Dandruff in its various forms is one of the most frequent causes. Others are tight scalp, itching and infection, dry or oily hair' Nth\' ask yourself this question: Is it likely that any kind of bottled "cureall" could do much to correct so many conditions and stop hair loss? But any and all of these disorders " Voss said can be easily and completely c01Tcdr:c! by our specialized treatment. You see the results at once: Dandruff g02S , itching stops, your hair and scalp fpC'l better anel look better. Scan, hair fall dc.crca!:;es "" m,!ch as 00 percent." Examination Free Best of aJl, your invigorated hair follicles start to replace lost hair with healthy new hair.

Through use of the foregoing statements, respondent if, represent.ing that dandruff, itchiness, dryness and oiliness are causes of excessive hair loss antl that by correcting these conclitioT1S he can prevent baldness and cause hair to gTO\'\. He is, therefore omising something more than temporary alleviation of danctrufT itching, dryness and oiliness; he is representing that he can cun: or correct these disorders of the scalp and thereby restore hair and prevent baldness. His claims are made with respect to eorrections of a permanent nature and not merely to a temporary which the treatments benefit limited to the period during rec.eived or during \which the preparations are used. Respondent also contends that the hearing examiner erred in finding that responc1enl has represented that his services and treatments would stop excessive hail' fall in the type of baldness known to dermatologists as male pattern ba1c1ness, that he could prevent or overcome male pattern baldness, or induce new hair to grow in male pattern bahlness. The hearing examiner specifically found in this connection that respondent' s advertisements imply that his treatments Ivil1 prevent or overcome baldness in a11 cases Opinion 55 F.

or at least the great majority of cases. The respondent' s advertising includes the following statements and claims: DANDRlJF'F , the commonest hair problem, is also the commonest cause of baldness! Xot dandruff as you see, but imbedded dandruff. . . the kind that lodge" down in your hair tubes to choke off hair growth. . the kind that plays a perfect host" to hair-killing bacteria.

You can t get rid of it with "tonics " Ehampoof' , or other ordinary methods. But you can get rid of it with Voss treatment. THI:!' K TWICE before you adopt ancJ follow the old " do nothing" method of preserving your hair.

Time was when nothing could be done to prevent baldness, and it didn mauer a bit if you believed that baldness was due to heredity, age, or what have you.

Kat now. This is true mid-20th-century. Going bald now, in this city where the nation s most famous scalp specialist guuHIJlces to st.op excess hair loss just doesn t make sense.

If you have hair now, you can keep it,- with the help of Voss Hair Experts. Even "fuzz" can he replaced with long and strong hairs-with the professioJlal help of Voss Hair Experts.

In view of these claims, we hold that the finding by the hearing examiner on this point was correct.

There is undisputed evidence j n the record that the type of baldness known as male pattern baldness comprises 95 % of all cases of baldness. By representing that his treatmcnts can prevent or overcome baldness in all cases, or in the great majority of cases, respondent has, of course, represente;cl that he ead effectively treat baldness 01" the male pattern type. The hearing examiner conclusions as to the falsity of respondent' s advertising representations have full support in the record. Respondent points out that the order of the hearing examiner would prohibit him from disseminating certain advertising elaims in connection with the offering for sale, sale or distribution of the various cosmetics or other preparations set out in the findings herein, or of any other preparations for use in the treatment of hair and scalp conditions." He contends that the order is at variance \with the complaint since the complaint does not charge the dissemination of false advertising of preparations other than those sold by respondent. He also argues that the order is not supported by the findings of the hearing examiner since the findings relate to respondent's treatments and do not include ;:my other preparations.

It is well sewed that a Commission order need not be limited to enjoining specific acts which are charged and founel to be VOSS HAIR EXPERTS OF GEORGIA 1137 1121 Opinion unlawful. Henhey Chocolate COTporation v. Fedeml Tmde Commission 121 F. 2d 968 (1941); Consumer Sales COTpomtion v. Fedeml Tmde Commission, supm. The uncontradicted testimony of the two expert witnesses clearly establishes that there are no preparations or treatments which will permanently eliminate or cure dandruff, itching, dryness or oiliness of the scalp, cause fuzz to be replaced by long- or strong hair, prevent or overcome male pattern baldness, or in cases of male pattern baldness cause hair to grow thicker, or longer or stronger, or cause new hair to grow, or cause lost hair to be replaced with new hair. We construe the findings set forth in paragraph 17 of the initial decision as in substance expressing these Same conclusions. In view thereof, we are of the opinion that the order is not too broad and that the prohibitions thereof should extend to respondent' use of advertising in connection with the offering for sale, sale or distribution "of any other preparations for use in the treatment of hair and scalp conditions.

Respondent also argues that Section 12 of the Act applies to the advertising of products and not to the advertising of treatments. It is his contention, therefore, that the order is invalid since it does not contain a reservation to the effect that it will 2.apply only to the dissemination of false advertisements which induce or are likely to induce the purchase of his products. The hearing examiner correctly found that although-h respondent' s advertising docs not mention preparations, the dissemination thereof in commerce comes within the scope of Section 12 (a) (1) of the Act. As we stated in Bishop llail" E:rpe"l. , et aI. Dockct No. 6554 (Decided ?day 12, 1958) :

\Ve do not thirJk that the pres('Jl('e of the word " treatment" or the absence of mention of a commodity or a description of its qualities is necessarily conclusive. The question is whether the net died of the advertisement was likely to induce directly or indirectly the purchase of cosmetics. The hearing examiner properly found that although respondent' s advertising referred to his treatments, the dissemination thereof ,vas for the purpose of inducing or likely to induce the purchase of the preparations. Inasmuch as the order is expressly limited in its application to practices promoting the sale of preparations, no further restriction thereof js necessary. I,respondent contends that the hearing examiner committed prejudicial error in denying respondent' s motion to exclude from the hearing room an expert witness who had not as yet testified. 1138 FEDERAL TRADE COMMISSION DECISIOKS Opinion 55 F.

He contends that the expert, having heard respondent testify, was "briefed" on what the nature of respondent's testimony ,vas and that this tended to destroy his objectivity when he did testify.

It would appear from a review of the record that the only portion of respondent's testimony which had any bearing on the testimony given by the expert witness concerned respondent' method of treating hair and scalp conditions. There can be no objection to this information being imparted to the expert in some form so that he mighi express an opinion as to the effectiveness of respondent' s treatments. We can think of no sound reason, and none has been suggested by respondent, why the expert' objectivity would be affected because the information came from respondent himself rather than from some other source. The purpose of the rule of exclusion or sequestration is merely to prevent one prospective witness from being taught by hearing another s testimony. (Wigmole on Evidence 3d ed. (1940), Sec. 1838. ) An order of exclusion is not demandable as a matter of right but is rather a matter wit bin tbe discretion of the trial judge. (Jones, The Law of Evidence in Civil Cases 3d eel. (1924), pp. 1257- 1259; Wig"'(JI' , sv)J1" Sec. 1839. ) Altbough an expert witness may be placed under the rule if there is any reason to believe he m ty be influenced by the testimony of other witnesses we are cf the opinion that no such reason existed here and that there was no abuse of the hearing examiner s discretion in denying re 'llondent's motion to exclude the witness. Respondent also appeals from the hearing examiner s ruling denying a motion to strike, for lack of competence, the testimony of the two doctors who testified in behalf of the complaint. He nrgues that although neither of the doctors was quaJificd as an expert geneticist or an expert endocrinologist, they discussed the cause of male pattern baldness in terms of heredit:y, endocrine balance and aging to explain why they felt that the condition would be untreatable. The record discloses, ho\vever, that the opinion expressed by each of the doctors with respect to the futility of attempting to treat baldness of t.he male pattern type was based upon his experience as a dermatologist and not upon any knowledge he may have had with respect to the cause of the condition. The two doctors merely advanced theories as to the cause of male paUern baldness and the information elicited on cross-examination with respect thereto was not relevant to any of the issues in the case. The hearing examiner, therefore, prop- :

VOSS HAIR EXPERTS OF GEORGIA 1139 112J Opinion erly denied the motion to strike the testimony of the two witnesses.

No question has been raised on appeal with respect to the hearing examiner s ruling that sales of preparations were made by respondent only when those persons taking offce treatments and those receiving home treatment kits were charged for reti1s of shampoo, solvent and Triseptol. The evidence shmvs that respondent' s clients who receive home and otlee treatment are furnished a home treatment kit containing the same preparations which are applied during offce treatments, the shampoo, solvent and Triseptol, a booklet of instructions and a hair brush. This kit contains enough of the formulas for 32 home treatments, a four-months ' supply. During this period, the client is required to come in for offce treatment once a month although he may get as 111any offce treatments as he can take. Despite the fad that the client must be examined and treated by respondent before receiving the kit and must come in at least once a month for an offce treatment, it is beUeved that the transaction is something other than the sale of a series of treatments by respondent. As we stated in Wybmnt System Pmducts CO/' lJoml.,:o" et a. Docket No. 6472, the important question to be determined \with respect to such a transaction is ,, :( does it consist mainly of a transfer of gouds or is it basically the rendering of a service in ,which the use of preparations is purel:y incidental thereto?" Insofar as the arrangement between respondent and the home and offce client is concerned, the office treatments furnished by respondent appear to be merely incidental to the sale of the home treatment kit. ICespondent himself has so indicated hy testifying that in addition to the kit, the client receives as many offce treatments as he can take "without any extra charge." Furthermore, the difference in the amount charged clients taking oince treatments exclusively, $170 for 40 treatments, and that charged elicnts receiving the home treatment kit, $80 for 32 home treatments plus an indefinite number of oflce treatments, would indicate that the lauer class of clients is purchasing the product rather than the service. We are ot the opinion, therefore, that in addition to the sales of refills of the various preparations, as found by the hearing examiner, the transactions involving the furnishing of home treatment kits to certain clients constitute sales by respondent of the preparations contained in such kits.

Order 55 F.

Respondent' s appeal is denied and the initial decision, modified to conform with this opinion, will be adopted as the decision of the Commission.

FINAL ORDER This matter having been heard by the Commission upon respondent' s appeal from the hearing examiner s initial decision and upon briefs and oral argument in support thereof and in opposition thereto; and the Commission having rendered its decision denying the appeal and directing modification of the initial decision:

It is onlered That paragraphs 30 and 31 of the initial decision be modified to read as follows:

30. The record fully supports conclusions that the furnishing of cosmetic and medicinal preparations in the form of a treatment kit to some clients for use at home constitutes sales of such preparations. The evidence further shows that both those taking offce treatments solely and those receiving home treatment kits in addition to offce treatments were charged for refills of the shampoo, solvent and Triseptol, in addition to the cost of the treatments and to the cost of the kits. These were also sales. It is not controlling- that there is no showing as to the amount of home treatment kits or refills that were sold during any year or any other particular period of time. 'There evidently ,were suffcient sales of the latter item to justify respondent' s sending out a printed card showing the price thereof. All purchases of the kits and refills were by those who had taken treatments and who presumably originally presented themselves for diagnosis and treatment as a result of the said advertisements. This satisfies the requirements of the statute as to advertising "for the purpose of inducing or which is likely to induce, directly or indirectly the purchase of: :I cosmetics. " Sales in commerce " are not necessary for a violation of Section 12 (a) (1). 31. Consideration has been given to the question as to whether there is suilcient public inierest to justify an order to cease and desist. The dissemination of the said advertising, through the l)united States mails and in commerce was substantial. The fact that such advertising was substantia! and was false and the circumstance that such advertising has served to induce the purchase of the aforementioned items supply the necessary public interest.

VOSS HAIR EXPERTS OF GEORGIA 1141 1121 Order It is further ordered That the initial decision of the hearing examiner, as so modified, be, and it hereby is, adopted as the decision of the Commission.

It is fwDwr on/ered That respondent, George M. Voss, shall within sixty (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 the order t.o cease and desist.

Complaint 55 F.