Walter Marcyan

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IN THE MATTER OF WALTER :vARCYAN TRADING AS THE MARCY CO. UlmER, ETC. , IN REGARD TO THE ALLE:GF.D VIOLATION OF THE FJ DF.RAL TRADE COMMISSION ACT !Jocket 6706, Complaint, Jan. 957- Decision, Ap, 1.5.9 Ordering requiring a distributor in Los Angeles, Calif., to cease advertising falsely that use of his " DYN- PAK Food Supplements" containing vitamins and minerals would cause hair to grow faster and stronger and become thicker and g;lossicr, and that the preparation would develop energy and endurance in persons lacking those qualities. Mr. John J. McNally for the Commission. M?' G. G. Bawnen of Los Angeles, Calif., for respondent. INITIAL DECISION BY J. EARL COX, HEARIJ\G EXAMINER The complaint charges that respondent has violated the Federal Trade Commission Act by making false, misleading and deceptive statements about a food or drug- preparation which he advertises as being beneficial for thinning or falling hair and baldness. Hearings were held at which evidence in support of and in opposition to the allegations of the complaint was received and proposed findings were submitted by counsel. Upon the basis of the entire record the following findings are made, conclusions reached and order issued.

FI:\DINGS OF FACT 1. Respondent Walter Marcyan is an individual trading as The Marcy Co., with his offce and principal place of business located at 1398 Sunset Boulevard, Los Angeles 26, Calif. Said respondent is now, and for one year and more last past has been, engaged in the sale and distribution of a food or drug preparation, as the terms "food" and "drug-" arc defined in the Federal Trade Commission Act.

2. Respondent causes the said preparation, when sold, to be transported from his place of business in the State of California to purchasers thereof located in various other States of the United States. Respondent maintains, and at all times mentioned herein has maintained, a course of trade in said preparation, in commerce among and between various States of the United States. The volume of such trade has been and is substantial. ) ) THE MARCY CO. 1623 1622 Findings 3. The product is called "DYN- P AK Food Supplements and is marketed in packages of four drawers or compartments each, 30 units per drawer or compartment. In the first drawer the units are in capsule form; in the other three drawers they are in tablet form. The composition of the units varies from drawer to drawer, and is as follows:

Drawer No. Onc. 30 Capsules. A (Fish Liver Oils) -- 000 i. D (Irradiated Ergosterol)-- 000 i. Thiamin (HI) -- 333 i.u. Riboflavin (B2) -- 000 mcg' Ascorbic Acid (C) 000 i. Niacinamide 150 mg. Drawer No. Two. 30 tablets. (Fermentation ProcessL 2 mcg-. Folic Acid 1 mg. Liver (N. 388 mg. Iron (:F'errous Sulfate)-- 5 mg. Iodine (Kelp) -- 1 mg. Cobalt (Sulfate) 1 mg. Copper (Sulfate) -- 1 mg. Magnesium (Kelp) 39 mg. :\Ianganese (Sulfate) 1 mg. Potassium (Kelp) 10 mg. Nickel (Sulfate) 1 mg. Chlorine (Kelp) 10 mg. Sulphur (Kelp) 63 mg. Sodium (Kelp) 33 mg. Drawer No. Three. 30 tablets. B! (Thiamin) -- 000 i. B2 (Riboflavin, Grain ext. 050 mcg. B6 (Pyridoxin) 100 mcg. Xiacinamide - 6 mg. Calcium Pantothenate 600 mcg. C (Ascorbic Acid)-- 200 i.u. E (Tocopherols) 200 meg. Inositol 333 mcg. Biotin -- 66 mcg. Folic Acid - 333 meg. Brewers Yeast 129 mg. Drawer No. Four'.-- 30 tablets. Calcium (Calcium) 200 mg. Phosphorus (Pyrophosphate) 156 mg. Iron (Ferrous Sulfate) - 3 mg. Iodine (Keep) 033 mg. Copper (Sulfate) -- 010 mg. Potassium (Kelp) -- 13 mg. Manganese (Sulfate) 1.66 mg. Findings 55 F.

mg. Magnesium (Kelp) 0.2 mg. Cobalt (Sulfate) .033 mg. Nickel (Sulfate) .033 mg. Sulphur (Kelp) 0.28 1.12 mg. Sodium (Kelp) 100 mg.Chlorphyllin The labels state further that, as shown by spectographic analysis, the kelp, which is a component of the units in drawers two and four, contains the following trace elements: Zinc Lithium Strontium Barium Silicon Titanium Chromium Silver Vanadium. According to directions on the package, one tablet or capsule from each drawer is to be taken daily.

1. In advertising his product respondent has used newspapers periodicals and other means, and has made statements of which the following is typical;

In every case the e pupils aid they noticed an improvement in energy and endurance within the first 5 days of use. As time went on I noUced that a large percentage of these tesUmonials mentioned that their finger nails were growing' faster and stronger, that theil" hair was growing thicker and that it had stopped falling out. Previously when they washed their hair in the wash bowl the drain always showed large quantities of hair, but after using Dyn- Pak for a month or two there was just a minimum loss. Many women have told me that their hair was growing thicker and glossier. It is possible that somewhere in combining the proportions of this great food supplement we have hit upon something that makes hair grow faster and stronger and keeps it from falling out.

5. By such advertising the respondent has represented, directly and by implication, that through the use of said preparation as directed, thinning or falling hair will be checked and baldness prevented; that hair will grow faster and stronger and become thicker and glossier; and that said preparation will develop energy and endurance in the cases of persons who are tired, weak and lack endurance.

6. Respondent's answer states that "the use of DYN- PAK as directed will develop energy and endurance in the cases of persons who are tired, weak and lack endurance when such cunditions are the result of a deficiency of one or more of the vitamins or minerals supplied by said preparation. " It is generally agreed that favorable results will follow the taking of a vitamin or mineral product only when there is a deficiency of one or Tile MARCY CO. 1625 1622 Conclusions more of the vitamins or minerals supplied by the preparation. s ad-Such qualification should be clearly stated in respondent' vertising.

7. As to the claimed effectiveness of use of the product to check or alleviate or prevent thinning- or falling hail' or baldness strong-er or to becomeor to cause the hair to grow faster or thicker and glossier, the testimony of two highly qualified expert medical witnesses is strongly to the effect that such salubrious results could not be anticipated and would not result. Such testimony was unqualified and uncontradicted, except by the testimony of respondent, who said he had been taking DYN- PAK for the past seven years; that in 1951 he was losing hair and his hairline was receding; that he now has more and thicker hair it has "stopped falling out to the degree it had been " and his hair line has not receded since. Respondent also asserted that he had letters from other people which contained statements which would substantiate the claims made in his advertising. 8. As against statements made by respondent in his own behalf, based on his own experience but without corroboration or other supporting facts, and as against statements based only on the contents of commendatory letters of others, the testimony of the expert witnesses must he accepted and the conclusion reached that respondent's product, taken as directed, will not have any nor will it cause effect upon thinning or falling hair or baldness, hair to grow faster and stronger and become thicker and glossier. CONCLUSIONS (a) The representations made by respondent as to the beneficial results that wil ensue from use of DYN- PAK as directed are false, misleading and deceptive.

(b) The statements and representations contained in the advertisements circulated by respondent have had, and now have, the capacity and tendency to mislead and deceive a substantial portion of the purchasing public into the erroneous and mistaken belief that said statements and representations are true, and into the purchase of said preparation because of such erroneous and mistaken belief.

(c) The acts and practices of the respondent, as herein found, were and are all to the prejudice and injury of the public and deceptive acts and constituted and now constitute unfair and practices, in commerce, within the intent and meaning of the Federal Trade Commission Act.

Opinion 55 F. T .

ORDER It is ordered That respondent Walter lVarcyan, an individual trading as The ;\farcy Co. , or under any other trade name or names, and respondent's agents, representatives and employees directly or through any corporate or other device, in connection with the offering for sale, sale, or distribution of the product DYN- PAK " or any product of substantially similar composition or possessing substantially similar properties, whether sold under the same name or any other name, do forthwith cease and desist from, directly or indirectly:

(1) Disseminating or causing to be disseminated any advertisement by means of the linited States mails, or by any means in commerce, as "commerce" is defined in the Federal Tracie Commission Act, which represents, directly or by implication, that the use of such product will:

(a) Check thinning or falling hair;

(b) Prevent baldness;

(c) Cause the hair to grow faster or stronger or become thicker or glossier;

(d) Develop energy or endurance in the cases of persons who are tired, weak, or lack endurance, unless expressly limited to cases where such conditions are the result of a deficiency of one or more of the vitamins or minerals supplied by respondent's product;

(2) Disseminating or causing- to be disseminated any advertisement by any means, for the purpose of inducing or which likely to induce, directly or indirectly, the purchase of said product in commerce, as "commerce" is defined in the Federal Trade Commission Act, which advertisement contains any of the representations prohibited in paragraph (1) hereof. OPINION OF THE COMMISSION By TAIT, Commissioner:

The complaint charges respondent with violating the Federal Trade Commission Act through the dissemination of false advertisements for inducing the sale of a food supplement preparation. The hearing examiner in his initial decision held that tbe allegations of the complaint were sustained by the evidence and ordered respondent to cease and desist the advertising found to be unlawful. Respondent has appealed from that decision. The only question raised on appeal is whether certain find- THE MARCY CO. 1627 1622 Opinion ings of fact in the initial decision are supported by the evidence. These findings are based in part on the testimony of two doctors who testified in behalf of the complaint. Respondent points out that neither of the doctors had ever used his preparation or had contends that theseever concluded clinical tests with it. He also doctors were not experts on the subject on which they gave testimony. He, therefore, argues that there was insuffcient founelation for the testimony of these witnesses and that such testievidence to support themony does not constitute substantial findings that his product will not check thinning or failng hair prevent baldness, cause hair to grow faster or stronger or cause hair to become thicker or glossier.

The contention that the two doctors who testified were not qualified to express an opinion in this matter is refuted by the facts. Without listing their qualifications, it is suffcient to say that both witnesses were well equipped by formal training and experience to testify as experts in the field of their specializations. Each witness had included in his specialization the diagnosis and treatment of conditions affecting the hair and scalp. After years of clinical observation of those factors which influence hair growth and hair loss, they were qualified to speak authoritatively on that subj ect.

Respondent' s argument that a proper foundation was not laid for the witnesses ' opinions ignores the fact that both doctors testified after having examined the list of ingredients in respondent' s product. Since they had suffcient factual information upon which to give an opinion, it was unnecessary that any other data be presented to them in the form of a hypothetical question, as contended ,by respondent. Both witnesses expressed the opinion that neither the product nor the ingredients contained therein would have the beneficial effect on hair growth claimed by respondent. The fact that they had not tested or used the product did not make their testimony incompetent or v. Federal Trade inadmissible. Chades of the Ritz Dist. COTp. v. Fede1' Commission 143 F. 2d 676; Dr. W. B. Caldwell, Inc. Trade Commission 111 F. 2d 889.

Respondent' s contention that no weight should be given the testimony of the two doctors is likewise rejected. Both men testified on the basis of their clinical observations and experience that there was no evidence that any of the vitamins and minerals contained in respondent's product would have any influence on hair growth or hair loss. The law is well setted that the testi- Order 55 F.

mony of an expert based on his general knowledge in a partieular field may constitute substantial evidence to support the allegations of a complaint. Charles of the Ritz Dist. Corp. Federal Trade Crnnmission, supra; D,'. W. B. Caldwell, Inc. Federal Trade Cmnmission, sUPTa; Neff v. Federal Trade Commi."ion 117 F. 2d 495; Rristol-M even Co. v. Federal Trade Commission 185 F. 2d 58. The testimony of the expert witnesses opposed only by the uncorroborated testimony of the respondent as a user of the preparation, fully sustains the findings as to the falsity of respondent' s advertising representations. Respondent' s appeal is denied, ,md the initial decision will be adopted as the decision of the Commission. FIKAL ORDER This matter having been heard by the Commission upon respondent's appeal from the hearing examiner s initial decision and upon briefs in support thereof and in opposition thereto, no oral argument having been requested; and the Commission having rendered its decision denying the appeal and adopting the initial decision;

It is ordered That the respondent, Walter Mareyan, 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 to cease and desist.

NASSAU FASHIONS, I;\C. ET AL. 1629 Decision