Bernard J. Simmons

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

IN THE MATTER OF BERKARD J. SIMM01\S CONSEK' r ORDl' . ETC. , IN REGARD TO THE ALLF.GED VtOLATWN OF THE FEDERAL THAD : COMMISSION ACT Docket 7348. Cumplaint, Jan. lfJ5,1)--Decisioll, May, 1.959 Consent order requiring- a seller of contact lenses in Philadelphia, Pa. , to cease advertising falsely that his lenses were imported from Germany, were never irritating, could be worn all day with complete comfort by all stayed in place under all conditions including violent exercise and swimming, were unbreakable, better than eyeglasses, were a new type of contact lenses and could not damage the eye; and that his summary of an Army Medical Research Laboratory Report set out aU the disadvantages of contact lenses contained therein.

Mr. Kent P. Kmtz supporting the complaint. Mr. t. Raymond Kremm' of Philadelphia, Pa. for respondent. INITIAL DECISION BY JOHN LEWIS , HEARING EXAMINER The Federal Trade Commission issued its complaint against the above-named respondent on ,Ianuary 6 , 1959, charging- him with the use of unfair and deceptive acts and practices in commerce, in violation of the Federal Trade Commission Act, by falsely advertising the origin, effectiveness, wearing comfort and safety of the contact lenses sold by him. After being- served with said complaint respondent appeared by counsel and entered into an ag-reement, dated April 2, 1959, containing' a consent order to cease and desist purporting to dispose of all of this procecding as to all parties. Said agreement, which h,,, been sig-ned by respondent, by counsel for said respondent, and by counsel supporting the complaint, and approved by the director and assistant director of the Commission s Bureau of Litigation, has been sub- TIlitted to the above-named hearing examiner for his consideration, in accordance with Section 3.25 of the Commission s Rules of Practice for Adjudicative Proceedings. Respondent, pursuant to the aforesaid agreement, has admitted all the jurisdictional facts alleged in 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 agreement further provides that respondent waives any further procedural steps before the hearing examiner and the Com- BERNARD J. SIMMONS 1877 187l) Order mission, the making of findings of fact or conclusions of law and all of the rights he may have to challenge or contest the validity of the order to cease and desist entered in accordance with such agreement. It has been agreed that the order to cease and desist issued in accordance with said agreement shall have the same force and effect as if entered after a full hearing and that the complaint may be used in construing the terms of said order. It has also been agreed that the record herein shall consist solely of the complaint and said agreement, and that said agreement is for settlement purposes only and does not constitute an admission by respondent that he has violated the law as alleged in the complaint.

This proceeding having now come on for final consideration on the complaint and the aforesaid agreement containing consent order, and it appearing- that the order provided for in said agreement covers all the allegations of the complaint and provides for an appropriate disposition of this proceeding as to all parties said agreement is hereby accepted and is ordered filed upon this decision s becoming the decision of the Commission pursuant to Sections 3.21 and 3. 25 of the Commission s Rules of Practice for Adjudicative Proceedings, and the hearing examiner, accordingly, makes the following jurisdictional findings and order: 1. Respondent Bernard J. Simmons is an individual with his principal ollce and place of business located at 13th and Arch Streets, Philadelphia, Pa.

2. The Federal Trade Commission has jurisdiction of the subject matter of this proceeding and of the respondent hereinabove named. The complaint states a 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 O?' dered That Bernard J. Simmons, individually or trading under any name or names, his representatives, agents, and employees, directly or through any corporate or other device in connection with the offering for sak, sale, or djstribution of his contact lenees, do forthwith cease and desist from, directly or indirectly:

A. Djssemh1ating, or causing to be disseminated, any advertisement, by means of the United States mails, or by any means in commerce, as "commerce" js defined in the Federal Trade 1878 FEDERAL TRADE COMMISSION DECISIOXS Decision 55 F.

Commission Act, which advertisement represents, directly or by implication:

(1) That respondent's said contact lenses: (a) Are imported from Germany;

(b) Arc never irritating or will be comfortable to all persons; (c) Can be worn all day by all persons in complete comfort; (d) Stay in place under all conditions and cannot be displaced during swimming and other activities involving violent exercise; (e) Are unbl-eakable outside the eye;

(f) Provide better vision in all cases than eyeglasses; (go) Cltn completely replace eyeglasses; (h) Are a new type of contact lenses;

(i) Cannot damage the eye.

(2) That respondent's summary of U.S. Army Medical Hesearch Laboratory report No. 99 sets out all the disadvantages of contact lenses contained in said report. (3) Through the use of a summary made by respondent of a report of any group, organization, or individual, that said summary contains all of the material facts set out in the report unless such is the fact.

B. Disseminating, or causing" to be disseminated, any advertisement, by any means, for the purpose of inducing, or which is likely to induce, directly or indirectly, the purchase in comlnerce, as "commerce " is defined in the Federal Trade Commission Act, of said contact lenses. which advertisement contains any of the representations prohibited in paragraph A hereof. DECloION OF' THE COMMISSION AND ORDER TO FILE REPORT OF COMPLIANCE Pursuant to Section 3.21 of the Commission s Rules of Practice, the initial decision of tbe hearing examiner shall, on the 26th day of May 1959, become the decision of the Commission; and, accordingly:

It i8 onle1'ed That the respondent herein 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.

WEI!\GEROFF & SON 1879 Decision