Witkower Press, Inc.

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

In the Marrer or WITKOWER PRESS, INC., ET AL.

ORDER, ETC., IN REGARD TO THE ALLEGED VIOLATION OF THE FEDERAL TRADE COMMISSION ACT Docket 6583. Complaint, June 29, 1956—Decision, July 19, 1960 Order requiring a Hartford, Conn., publisher to cease representing falsely 1n advertising the book “Arthritis and Common Sense"—in newspapers, and by radio and television, on the paper book jackets, and in promotional material and advertising mats furnished local dealers—that the dietary regimen contained therein was a reliable treatment and cure for all kinds of arthritis and rheumatism, correcting the underlying causes and reliering their discomforts.

Mr. Charles S. Cow representing the Commission. Cohn & Marks, by Mr. Stanley B. Cohen, and dlr. Vincent A. Kleinfeld, of Washington, D.C., for respondents. Initia Decision py James A. Purcett, Hearinc Examiner THE PROCEEDINGS The Federal Trade Commission, by virtue of authority vested in it pursuant to the provisions of the Federal Trade Commission Act, did on June 29, 1956, issue its complaint against respondents, Witkower Press, Inc.. a corporation organized and doing business under and by virtue of the laws of the State of Connecticut, and its officers, individually and in their representative capacities, as here noted: Dan Dale Alexander, President, and Bernard Witkower, Secretary- Treasurer. All respondents have their office and principal place of business at No. 71 Asylum Street, in the city of Hartford, Conn. The complaint charges that the respondents are now, and for more than three years prior to issuance of the complaint, have been engaged in the publication, sale and distribution of a book entitled “Arthritis and Common Sense”; that said book has been sold and transported across State lines by the said respondents who have, at all times herein mentioned maintained a course of trade in said book in commerce within the terms of the Act, and that the volume of 640968—63 Decision 57 F.T.C.

business in the sale of said book, in commerce, is now and has been substantial.

The complaint further charges that respondents, in order to effect sale of said book, have made many false and misleading statements and representations concerning same, by means of advertisements inserted in newspapers of general circulation, over radio broadcasts and television telecasts transmitted across state lines; that the false and misleading statements appearing in said advertisements directly and by inference represented that the regimen set out in their said book, “Arthritis and Common Sense,” will provide: (1) an adequate, effective and reliable treatment for all kinds of arthritis, rheumatism and related conditions, including rheumatic fever ;

(2) an adequate, effective and reliable means of arresting the progress of, correcting the underlying causes of, and curing all kinds of arthritis, rheumatism and related conditions, including rheumatic fever;

(3) an adequate, effective and reliable treatment for the symptoms and manifestations of all kinds of arthritis, rheumatism and related conditions, including rheumatic fever, and will afford complete relief from the aches, pains, stiffness, swelling and other discomforts thereof;

and that use by the respondents of the foregoing has had, and now has, the tendency and capacity to mislead and deceive members of the purchasing public into the erroneous and mistaken belief that such statements are true and, on the strength thereof, to induce the purchase of substantial quantities of respondents’ said book, “Arthritis and Common Sense.”

To the foregoing complaint the respondents filed answer which, except for admitting the formal charges designating the respondents’ capacities and identities, the corporate setup, and the charge of interstate commerce, specifically denies all other allegations and charges. Contemporaneously with the filing of answer respondents moved for a bill of particulars to define and specify with greater particularity the charges of the complaint, which motion was denied; on October 18, 1956, respondents moved for a “Clinical Evaluation” of respondent Alexander’s dietary regimen for the treatment of arthritis, such regimen or theory being contained in the said book, “Arthritis and Common Sense,” of which said book the respondent is the author; said motion was denied and an interim appeal was prosecuted to the Commission resulting in an order by that body, dated November 6, 1956, denying the appeal and stating that: WITKOWER PRESS, INC., ET AL. 147 145 Decision * * * the hearing examiner’s ruling was correct and that respondent’s contentions on appeal are without merit.

At the outset of the hearings respondents filed a “Motion to Adjourn Hearing,” seeking to require the Commission to hold its hearings in Washington, D.C., or in any other one city, to receive the testimony of experts and as reason therefor stated : * * %* there are enough hospitals in the field of rheumatism and arthritis in Washington, D.C., so that expert testimony can be presented at hearings in that city rather than by the unnecessary and burdensome manner of scheduling hearings in various cities throughout the United States. and further charged the Commission with abuse of discretion in scheduling hearings in Hartford, Conn., New York and Ann Arbor, Mich. However, it is passing strange to note that, despite the alleged abundance of expert testimony in Washington, D.C., the respondents, in presenting their defense, did not offer any expert witness closer than Boston and, for their other experts went to Detroit, Mich., Galesburg, I]., Shawnee, Okla., and Beverly Hills, Calif. In presenting their lay witnesses hearings had to be held in Cleveland, Chicago, Los Angeles and San Francisco, where the testimony of twenty-six such witnesses was received. It is also here pointed out that, despite Alexander’s statement (Cx. 55 p. 20) that he had:

made thousands of friends in Philadelphia, and thousands in Minneapolis, and thousands of friends in Denver and thousands of friends in San Francisco, and thousands of friends in Seattle, in Washington, in Houston, in San Antonio and Pittsburgh, and a surge of excitement started through the country, something you can’t stop.

by reason of his book and lectures, he did not produce any of these friends as witnesses in support of his book in any of the named places except Los Angeles and San Francisco and the testimony of these witnesses is hereinafter considered under the heading of “Lay Witnesses for the Defense.”

Thereafter, and subsequent to hearings and arguments on divers motions concerning the times and places for hearings, proceedings commenced for the taking of testimony and reception of evidence in support of, and in opposition to, the charges of the complaint, during the course of which 3,000 pages of testimony were received, (largely of a medical nature touching the subject matter of theories propounded in the aforementioned book). Thirty-five hearings were held in the following cities: Hartford, Conn.; New York, N.Y.; Ann Arbor, Mich.; Buffalo, N.Y.; Boston, Mass.; Washington, D.C.; Cleveland, Ohio; Detroit, Mich.; Chicago, I].; Galesburg, Ill.; Shawnee, Okla.; Los Angeles and San Francisco, Calif. All testimony had at these hearings was stenographically recorded and, to- Findings oT FLTC.

gether with the exhibits relating thereto, filed in the office of the Federal Trade Commission in Washington, D.C., as required by law. At the conclusion of presentation of the testimony-in-chief in support of the complaint, and again upon conclusion of the taking of all testimony, the respondents moved for dismissal of the complaint, both of which motions were, and are hereby, denied. Upon entry of an order closing the matter before the hearing examiner request was made, and granted, for permission to the parties to file their Proposed Findings of Facts, Conclusions, and Order, and, all parties having availed themselves thereof, their respective proposals were received, and considered. Those proposals susceptible of specific rulings have been ruled upon and incorporated herein, and those not susceptible of definite rulings, (tainted by mixture of law and facts, undue prolixity or other infirmities not properly presentable as proposed findings?), have been either considered and incorporated herein in substance, or rejected, as a reading of this initial decision may indicate.

THE ISSUES A reading of the hereinabove specific charges, (1, 2 and 3), of representations made by respondents of and concerning their said book, “Arthritis and Common Sense,” and the charge of falsity thereof, all as challenged by the allegations and denials contained in respondents’ answer, specifies and highlights the issues in this proceeding and it was upon these questions that the case was tried. FINDINGS AS TO THE FACTS 1. Respondent Witkower Press, Inc., is a corporation organized and existing under the laws of the State of Connecticut; individual respondents Dan Dale Alexander is president and Bernard Witkower is secretary-treasurer of the corporate respondent. All respondents have an office and place of business at No. 71 Asylum Street, Hartford, Conn.

Respondent, Alexander, is a director and President of the corporate respondent, and his wife, Edith, (not named as a respondent), is Vice President. Respondent Bernard Witkower is also a director and officer, as above, the directorate named formulating the policies and directing the affairs of the corporate respondent. The corporate stock, representing the ownership of the corporate respondent is owned, as to 50 percent thereof, by Bernard Witkower and the remaining 50 percent by respondent Alexander and his wife, Edith. 1 Rules of Practice 3.19. Knaust Bros. v. Goldschlag, 119 F. 24 1022. Central RR v. Hanover Bank, 29 F. Supp. 826.

WITKOWER PRESS, INC., ET AL. 149 145 Findings In addition to, and exclusive of his pro rata share of earnings by the corporation based on his stock ownership, respondent Alexander receives an author's royalty of 15 percent of the retail sale price of each book.

2. Respondents are now, and for some six years last past have been engaged in the publication, sale and distribution of a book entitled: “Arthritis and Common Sense,” and cause said books, when ordered or sold, to be transported from their place of business in Hartford, Connecticut, or from the place of business of their printer in Bristol, Connecticut, to purchasers thereof located in the various states of the United States. It is. therefore, found upon the record and the admissions of respondents that they were, and are, engaged in interstate commerce, as “commerce” is defined in the Federal Trade Commission Act, wherefore the Federal Trade Commission has jurisdiction over the parties and, as will hereinafter appear from further findings of fact, has likewise jurisdiction over the subject matter of this proceecling.

Production, Promotion, Sale and Circulation of the Book, “Arthritis and Common Sense.”

This book owes its authorship to the respondent, Dan Dale Alexander, who represents that it contains the results of many years of research by him on the subjects of arthritis, rheumatism and related conditions, including aches, pains, stiffness, swelling and attendant discomforts, and to the complete relief of the designated diseases and their symptoms.

The initial publication or printing of the book was had in the fall of 1950 and consisted, in part, of a delivery of 500 copies to respondent, Alexander, and sold by him partly in Hartford, Conn., where the book received favorable press mention by the newspaper, the Hartford Times, and from this beginning launched on a nationwide sale and circulation through at least ten printings of in excess of 500,000 copies, such circulation reaching into every State of the United States. Originally the book retailed at $2.50 per copy, later increased to $2.95 and still later to, $3.95 which is, so far as the record discloses, the current retail selling price. Subsequent to delivery of the first issue to Alexander, and in March of 1951, the corporate respondent, Witkower Press, Inc., was formed for the sole and express purpose of publishing and marketing the book and this corporate setup has been since maintained. The corporation owns no printing presses for production of the book but contracts for same with others and confines itself to publication, advertising, distribution and sale of books, its only two publications Findings 57 F.T.C.

consisting of “Arthritis and Common. Sense” and “Mrs. America’s Homemakers’ Guide,” (the latter not here involved). The preparation of advertising matter in newspapers, magazines, advertising mats for distribution to local booksellers to promote sales, and similar advertising activities and promotions, including the preparation of reading matter, photographic cuts and format of the book-jackets furnished with each copy of the book, was all principally under the supervision and creativity of the respondent, Witkower, assisted by an advertising agency (Ensworth Enterprises of N.Y.) which latter, also, acting with Witkower, had to do with other forms of advertising such as radio and video broadcasting hereinafter mentioned.

The respondents furnished to local dealers and booksellers in various cities certain promotional material among such being advertising mats ? to be used in promoting book sales and further agreed to, and did in many instances, bear 50 percent of all cost of advertising incurred by some local dealers, department stores and booksellers. In order to promote and engender interest in and sale of the book, respondent Alexander made extensive lecture tours across the country, addressing groups in department and bookstores, and appearing on television, both closed and interstate circuits. An undisclosed portion or all. of his expenses incidental to these trips were borne by the corporate respondent.

The Advertising: Its Substance and Methods of Dissemination.

The charges of the complaint are based upon false and misleading statements made by respondents of and concerning their book as contained in certain advertising matter disseminated by means of: (a) Newspapers of general circulation.

(b) The paper cover jackets furnished with each copy of the book exhibited or sold.

(c) Radio broadcasts of interstate coverage. (d) Television telecasts on closed circuits and on interstate coverage.

These advertisements will be categorically considered and commented upen in these findings after first setting forth pertinent portions or quotations therefrom. It is noted that respondents have, from the beginning of the proceeding, asserted that they should not. be chargeable with false advertising of the therapeutic value of the 2 Cx. 31 to 387, ine.

WITKOWER PRESS, INC., ET AL. 151 145 Findings regimens, theories and conclusions stated in said book because, on the ground as expressed by respondents’ counsel: Very succinctly stated, it is our position here, that to the extent that any advertisement of any sort merely repeats the substantive matter in the book, and does nothing more, those advertisements are protected by the First Amendment (R. 1683). [Italics supplied.] The speciosity and superficiality of such reasoning is patent and untenable, as all one would have to do to evade the law would be to write and publish a book containing any sort of unfounded and impossible theories and statements and, on the basis thereof, make false and misleading representations of and concerning the beneficial effects to be had from purchasing and reading of the book, thus thwarting the objects of the specific law, (here sought to be enforced). by a narrow, unrealistic and tortured construction of basic and fundamental law. To permit such would create a vicious circle. patently without the veil of reason and contrary to logic and common sense.

The further defense was made that the book itself is not a “product” nor “an object of commerce” and hence the Commission has no jurisdiction in the premises. In this connection it is noted paragraph 2 of the complaint expressly charges that: Respondents maintain and at all times mentioned herein have maintained a course of trade in said book in commerce among and between the various states * * * and respondents’ volume of business in the sale of said book in commerce is and has been substantial.

By their formal answer respondents admitted the charge which would appear thus to be, at least. inconsistent with respondents’ point here made. Despite the fact such judicial admission, being the highest form of evidence known to the law, may be construed to be a sufficient response to this point, the examiner lays no stress thereon, preferring to let the facts as found, and based upon the record, speak for themselves.

The main defense of respondents is that in attacking the respondents’ advertising the Commission is attempting an illegal, improper and unconstitutional use of its powers for the purpose of effectively censoring and suppressing the publication, sale and distribution of said book, and the contents thereof, which, if successful, would destroy the value thereof and result in irreparable damage to the respondents. After considerable argument and submission of briefs on both objections, embodied in the form of a motion to dismiss, the examiner overruled the same* and ordered the proceedings to go 3 in order that the examiner's position on these questions may be made known and this decision not unduly encumbered, a transcript of his ruling thereon, appearing in the record at pp. 1683-1695, is attached to this decision as ‘Appendix 1." Also, briefs of counsel! on the subject appear as part of the formal record. Findings 7 ETC.

ot forward, saving to the respondents their exceptions to his ruling in the premises.

Advertising :(a) Newspapers of General Circulation. Many advertisements were inserted in newspapers of general circulation in many different states of the union the purpose of such being primarily (1) to advertise and promote the sale of the book by local dealers or bookstores, and (2) announcing imminent personal talks or lectures by Alexander and/or the showing of television programs of the so-called “Conrad Nagel” type hereinafter more fully considered. Representative specimens of such advertisements ave of record? and the following are excerpts of some passages therein contained:

After 15 years of scientific research Dan Dale Alexander, Ph. D., will discuss his new method of combatting arthritis.

Alexander is the author of the famous book “Arthritis and Common Sense,” . more than 225,000 copies are in use throughout the Nation! Watch this T.V. program ... learn how and why Alexander’s discoveries have been so successful against arthritis.

Help yourself to health! Here's how victims of arthritis across America have won their fight against this dread disease.

* * * this book gives you facts and a tested guide toward recovery. Rtead these findings by an authority. This expert has spent his entire lifetime specializing in research on just one disease—arthritis! Patience... Please...

A short delay on delivery ... due to trucking accident. 50,000 copies ready April 20th completely sold out. 25,000 copies ready May 1st almost sold out. 17,000 copies will be available May 15th.

Another 50,000 copies planned for June Ist. During this temporary emergency shortage, bookstores please place your orders with your regular jobber or wholesaler.

Throughout the United States, author Dan Dale Alexander has talked with more than 70,000 arthritics, met them personally during his lecture tours. Millions of Americans have seen and heard Alexander on coast-to-coast radio and television programs. He has done research among these actual victims of the disease, and he understands your arthritic pains and problems. Now you can gain relief and better health. Thousands have. They followed the methods of this author-expert.

Then follow a series of excerpts from letters purportedly written by readers of the book—some claiming “excellent,” “amazing” and “miraculous” results.

4 Cx. 18, 19, 28, 29, 30, 31. 32, 33, 34 and 35, 36 and 37, the last three mentioned being papier-macbe mats furnished by respondents to interested local advertisers. WITKOWER PRESS, INC., ET AL. 153 145 Findings It was stipulated between counsel that all of the exhibits designated in footnote No. 4, from which the foregoing quotes have been excerpted :

* * * anpeared in newspapers or magazines or other periodicals having a circulation in various states of the United States and appeared in connection with the sale and distribution of respondents’ book entitled “Arthritis and Common Sense” by. Dan Dale Alexander.

Based upon the record, it is found that the foregoing falsely represent that the book, “Arthritis and Common Sense” contains the key to successful treatment of arthritis and rheumatism and to the recovery from and cure thereof:

It is further found as a fact that Dan Dale Alexander is not. “The [a] noted author and authority” in this field of medical science, as will hereinafter be made to appear by a critical analysis of the education, experience and background of the author; that no witness was produced by respondents attesting to his capabilities as an “author,” (in fact Alexander expressly disclaimed this appellation when he said (Cx. No. 20) “I’m really not an author. I didn’t study to be a writer”). It is further noted that there is absolutely no evidence or testimony of record, by anyone competent to testify, which would set up the author as an “authority” in this demonstrated complex and abstruse field of medical knowledge. It is further found that Alexander’s assumption of the degree title of “Ph. D.” was used solely for its effect upon the public and to lend an aura of professional medical authenticity, authority and background to his utterances and writings; that said “Ph. D.” was unearned and bestowed upon the author by the “St. Andrew’s Ecumenical University College” of the City of London, England; that. witness had never visited the institution; does not know if it is authorized to confer degrees; that his only knowledge of the existence of such a “university college” is based upon his having “seen it in print emblazoned on his diploma” * * * “but I was happy to receive it.” Witness denied he had “paid a consideration” for the degree but he “sent a check for $100 in appreciation thereof” prior to receiving same.

During the course of the proceeding the “medical training and personal qualifications” of Alexander were placed in issue although strongly resisted by respondents. This subject is hereinafter dealt. with under an appropriate heading. Important in this connection is the use by Alexander of his “Ph. D.” title as to which, as well also Alexander’s general training and qualifications, the respondents, in their motion to dismiss filed July 5, 1957, had this to say: Therefore, in order to focus attention on the significant problem at issue [the defense of the First Amendment to the Constitution] and to terrainate Findings 57 F.T.C.

this proceeding as quickly as possible, respondent[s] will stipulate as to these collateral matters.

Under Commission policy and rules the parlance used, to wit, “vill stipulate,” meant that respondents would admit the truth and materiality of the charge and agree to abandon use of same but without the binding force and effect of a cease and desist order. The offer to stipulate was refused.

It is further found as a fact that the author did not spend “15 years of scientific research” in arriving at “his new method of combatting arthritis” because of his Jack of fundamental training as a scientist to appraise and evaluate the scientific researches and opinions of qualified researchers in the field and, as implied by the statement used, to give a competent and scientific opinion of his own. It is further found as a fact that a fair and reasonable construction and interpretation to be placed on said newspaper advertising by use of the representations:

Methods of combatting arthritis .. .

Alexander’s discoveries hare been [so] successful against arthritis ... Help yourself to health! Here’s how victims of arthritis across America have won their fight against this dread disease...

This book gives you facts and a tested guide toward recovery All import and represent that a cure of arthritis is possible by following the precepts and theories of the book, and it is further found that such representation is false, misleading and deceptive. Advertising: (b) The Paper Covers or Jackets Furnished With Each Book.

The next considered method or form of advertising indulged by respondents consists of accompanying each book with paper jackets or covers, strikingly printed in red, white and black, bearing the legend, on the outside thereof, “Arthritis and Common Sense” and: A startling revelation on arthritis and what you can do about it right in your own home. (Cx. 25) On those portions of said paper jackets folded over the front and rear covers appear certain printed material and in some examples, a half-tone cut of a photograph of the author. It is the material thus described which will be now considered. There are of record a number of specimens of these covers.® At the outset it should be stated that respondents have consistently urged that these jackets were not “advertising” material which might properly or lawfully be considered in this case but, on the 5 Cx. 25, 26, 27, 40, 41, 444, 47A and 484. WITKOWER PRESS, INC., ET AL. 155 145 Findings contrary, formed an integral, constituent and component part of the book and, as such, were sacrosanct and protected by the First Amendment heretofore referred to as a defense. This contention was disallowed by the examiner who takes official notice of the fact that it is, and has been for a long period of time the custom of book publishers to “dress up” their books in attractive and colorful jackets of an eye-arresting nature and appeal so that. the book, when exposed for sale in competition with other books, will attract the attention and interest. of “browsers” and prospective purchasers; that it is customary to present (on the front and back overleaf portions of said covers or jackets), representations as to the author; the subject. matter covered by the book; laudatory expressions concerning the book by reviewers, critics, newspapers and the like, as well also any other matter of interest which will assist in the sale of the book; that such jackets are of great persuasive power, (should one be inclined to accept the statements therein contained at face value), and, serving thus, are clearly and indisputably “advertising matter” under any reasonable standard and interpretation applying to the phrase; that respondents were cognizant of the results to be expected and hoped for by use of such jackets in increasing sales, and having thus availed themselves, must. accept. the responsibility. It is found, as a fact, that the book-jackets circulated by the respondents constituted advertising matter and must. be judged by ‘the standards applicable to such.

Following are excerpts which are found to be false and misleading statements. In order that continuity may be maintained and specific refutation of the statements cited, (such being based upon the evidence of record), it has been thought well to footnote the Jatter in juxtaposition to the quoted false statements. This method has been adopted for the purposes of this decision because of the easy reading and clarity of the decision of the Ninth Circuit. Court of Appeals in the matter of Carter Products Company, (#15,373, June 16, 1959), where it was effectively used by the court in order that the various portions of its opinion might be instantly related to and exemplified by means of running comments and references to pertinent portions of a lengthy, involved and technical record, thus saving space and obviating the chance of overlooking facts necessary to be found in support of the conclusions expressed. In Commission Exhibit No. 25 appears the following: A startling revelation on arthritis and what you can do about it right in your own home.

The author offers this analysis of health to serve as a guide between the cause and cure of arthritis that will outlive dramatic drug discoveries. Unlike present miracle cures with possible detrimental effects, this book propels the Findings 57 F.T.C.

establishment of a good basic foundation of health leading to an inexpensive potential cure for arthritis. [Emphasis supplied.¢] * * * “Joints must be lubricated if bodily movement is to be free... cortisorte and ACTH restore and even increase the stickiness of the membrane so that it can act as a lubricating cushion.” ... The author adds: So does codliver oil, a steroid compound of harmless Nature.7 The author, as guest of the Army and Navy General Hospital of Hot Springs, Arkansas, had further opportunity to observe results of therapeutic treatment by the Services.s Attendance at the International Congress of Rheumatic Diseases at the Mayo Clinic, in Rochester, Minnesota, finally convinced Mr. Alexander that his theory of cure by diet was superior to the many dramatic but potentially harmful drug treatments now in use. Under medical supervision scores of long-suffering patients treated by the author’s therapeutic diet regimen were amazed at their astounding recovery.® 6 Here we have a direct and unequivocal representation that the book is a guide to the cure of arthritis. The overwhelming testimony of the competent medical practitioners and researchers is that there is no cure of arthritis known to medical science. And further, confirmatory of this conclusion, the author admits such to be true in some of his lectures and interviews, which are herein elsewhere considered. 7 Here the author contends that cod-liver oi], which is a keystone of his ‘‘discoveries” laid down in bis book, will furnish a lubricated cushion for the affected joints and thus relieve and cure arthritis. The competent medical testimony here of record negates and refutes this statement.

§ This implies the author was invited by competent authority to visit the hospital and observe and evaluate treatments used in this hospital on arthritic patients. On this point the testimony of the author ts sufficient refutation of this statement: Upon his discharge from Army Service, and while enroute home, he stopped off at the hospital for the ‘‘best part of the day"; was a visitor on this one occasion only (Tr. 557- 558): ‘went through the wards, talked with ‘the boys’, asked what they were taking for arthritis and looked at their physiotherapy department"; that “I just browsed through the hospital’; upon being asked—Q. “You just went in and went looking around asking questions?’ <A. “It may be hard to believe, but as far as 1 can remember, that's what it was"; that he spoke only to patients, asking ‘‘what they were getting for arthritis," and “did not talk with anyone in charge on the scientific subject of arthritis." (Tr. 517-520.) This is the sum and substance of the author's “opportunity to observe results of therapeutic treatment by the Services," which statement was false and intended only to increase his scientific stature and Jend credence to his false claims of technical competency, training, experience and background in the field of arthritis, and incidently to aid in selling the book.

®Here we have another even grosser misrepresentation than that of the Hot Springs incident. coupled with the cozy, smug reference to the big names: “International Congress of Rheumatic Diseases,” ‘Mayo Clinic” and “Rochester,” all associated in the public mind with vast importance in the medical field. The facts of this visit, in the author‘s words, are as follows: Without. prior permission, and “as a result of self-invitation” he visited the Mayo Clinic; that he had read of the discovery of the drug cortisone so “he borrowed some money and flew out to the Mayo Clinic to see first hand what it was all about’; that he met a Dr. Kendall with whom he spent a “very short time. Perhaps less than a half hour. Maybe as much as an hour’; he then casually became acquainted with a Dr. Slocum, (having recognized him from a picture in ‘Life’ Magazine), with whom he had several discussions, principally aimed at getting Dr. Slocum interested in his, the author’s, “discovery” of his cod-liver oil therapy and, while Dr. Slocum was interested, his supervisor or chief would not “go along with his interest in cod-liver oil.” (Tr. 520, 522.) And that's the story of the author's attendance at the Congress and at the Mayo Clinic. There is no mention of actual attendance upon any meeting of physicians or others covering any discussion of the subject of arthritis. It would be difficult to conjure up a more innocuous visit than was paid by the author to Rochester and, certainly, there were no demonstrable results therefrom to justify the innuendoes inherent in the representations here under discussion.

WITKOWER PRESS, INC., ET AL. 157 145 Findings As an acid test, the author experimented with his own body by introducing an arthritic condition and then effecting the cure through his corrective diet regimen.1° [Italics supplied.] Firm in his belief that the average arthritic sufferer can effect his own recovery with little expense, Mr. Alexander spent over a year transposing his theories and accumulated experience into oné easily understandable book.) In Commission’s Exhibit No. 26:

Here are the results of 12 years of research by the author. In these pages an authority reports his findings about the disease... he lists successful steps which can be taken to bring relief.

You will find, here, a complete analysis of the causes of arthritis and a guide toward an effective recovery.}? Laboratory tests by the author developed a plan and a dietary regimen which have brought health to arthritics and have caused their pains to disappear.13 Unlike present “cures” supposedly caused by costly miracle drugs, this book 10 The unquestioned and unrefuted evidence in this case is to the effect that it is impossible to “introduce an arthritic condition and then effecting the cure through corrective diet’’ or by any other means known to medical science. : On pages 473 to 485 of the transcript the author testified at length on his method of inducing and curing arthritis in his own body; that he did so on numerous occasions throughout the years with the facility that one would turn on or off the water from a tap, the truthfulness of such statements being challenged and denied by competent witnesses, and no valid proof of the truth thereof having been proffered or produced by the witness, aside from his own unsupported testimony.

11 Jt was found that these words hold out and represent that “recovery” (here construed to mean “cure’”), is possible and that such interpretation would be placed on the word “recovery” by the public, as used in its present context and overall intendment, despite the fact that the dictionary (Webster's International) characterizes this usage as obsolate. As the courts have so often held, the general public is not to be presumed expert in the finer definition and usage of words but rather that words shall be given their common meanings as generally understood and accepted. Z2 Tt is found as a fact that the book is not “a complete analysis of the causes of arthritis’ nor is it ‘a guide toward an effective recovery.” Aside from the fact, which is here found, that Alexander is a layman, not qualified to formulate or express ‘a complete analysis of the causes of arthritis’ it is significant to note that even the acknow]ledged experts in this field who have testified herein were most guarded and restrained in expressing an opinion as to the causes of arthritis, being content with giving general descriptions of the various categories of the disease and their symptoms, giving it to be understood that the entire field is shrouded in obscurity, abstruseness, imponderables, and many problems which engage the efforts in research of vast numbers of scientists and technicians in an effort to arrive at ‘a complete analysis of,” or an “effective recovery” from the disease, which aim has not been accomplished wherefore vast and expensive research centers, (supported largely by public donations of money secured by nation-wide solicitation), continue their work and, except for natural] remission and temporary amelioration of pain and symptoms, the victims of the disease continue to suffer, Alexander's book to the contrary notwithstanding.

13 There is no believable evidence or testimony of record that Alexander made any laboratory tests of significance or worthy to be considered; nor were competent and critical tests of Alexander’s theories as expounded in the book, under known and controlled conditions, ever performed on human beings or on animals to test out and evaluate Alexander’s theories although he made many attempts to secure clinical tests without success as he was unable to secure the services of a competent person in this field; nor has the “dietary regimen” developed by Alexander “brought health to arthritics’” nor ‘‘caused their pains to disappear.” Again it is found that the language used in this paragraph constitutes a falee assertion and representation of a “cure” for arthritis and is so here construed. Findings 57 FLTC.

gives a complete outline of an inexpensive corrective diet which lubricates the patient’s joints and returns arthritics to better health.14 In Commission’s Exhibit No. 27:

490,000 copies already in use across America. The most widely accepted book ever printed on arthritis. $3.95.

Here, for the first time, is a way to defeat the illness [arthritis] ...a plan which arthritics can follow right in their homes... The author spent 15 years doing scientific research to gather the facts for this book ... You will find here a complete analysis of the causes of arthritis and a guide toward an effective recovery SEE THE COVER FOR COMMENT BY ACTUAL ARTHRITICS...

PEOPLE WHO WERE HELPED BY THIS BOOK, READERS REPORT ON THE BACK COVER.

Following repetition of his visit as a guest at the Army and Navy General Hospital, it is asserted:

In New York City Alexander collaborated for two years with an orthopedic surgeon, and saw his method being carried on under medical supervision. * * * 15 Finally convinced that his discoveries and his theory of treatment by diet were superior to the use of potentially harmful drugs,!® he spent more than a year writing this book.

141¢ is found as a fact, on the basts of the medical testimony of record, that there 1s no known or demonstrable effect which any diet, “corrective” or otherwise, or any ingested foodstuff, can or does have in “lubricating the patient's joints,’ on the basis whereof it is found that this representation is false and misleading. 15 The name of the orthopedic surgeon mentioned is Dr. Daniel I. Giddings. Alexander, in his application for employment (Cx. 2b) with the U.S. Veteran's Hospital, Bronx, N.Y., gave this history of his relationship with Dr. Giddings: Employed as “Assistant in Research in Preventive Medicine” from ‘April 1947, to November 1947"; “starting salary $45 per week''; “final salary $75 per week.” He admitted that he had no formal scientific or medical training to equip him for research in preventive medicine and that he arrogated to himself the use of this title. His specific work with Dr. Giddings was: “to seek out the foods that caused transitory diabetic syndrome by regulated blood chemistry analysis and urinalysis work-ups.”

Although he claims (Cx. 2c) that he commenced his association with Dr. Giddings tn December 1045, it was only on a part time basis, three afternoons or evenings and a full day on Sunday; that the object of his work was to “expedite transitory diabetic syndrome on myself,” and this work led to his April-November 1947, employment, as above. Dr. Giddings was called as a witness and testified: He never employed Alexander at any time to do research in preventive medicine, or any other kind of research; he did not confer the title “Assistant in Research in Preventive Medicine,"’ or any other title on Alexander; that Alexander's description of his. work with him, as contained in the U.S. application for appointment is vot correct; that Alexander's statement that the reason for terminating the employment was “termination of the research problem” is incorrect, the truth being he, Giddings, was occupied with other things and could not devote any more time to the problem; that he never discussed with Alexander any research problem involving production of a transitory diabetic syndrome in Alexander and never attempted to do so; that Giddings evaluated all tests and Alexander never evaluated any blood chemistries, blood sugars, cholesterols, uric acid, urinalysis or hematologic tests, as Alexander testified he had done; that during the entire period of their association between twenty and thirty volunteer patients were examined in the rheumatoid and osteoarthritis fields although no specific classification of each was made; that Giddings performed all physical] examinations WITKOWER PRESS, INC., ET AL. 159 145 Findings For his work, Dan Dale Alexander, Ph.D. is now being recognized by colleges and recently he was awarded another honorary degree.3? and recorded findings and evaluations; that ‘later on’’ Alexander was permitted to take ease histories ‘like any doctor's nurse’; all blood chemistry tests were done by an independent laboratory and blood counts and urines were done by the office nurse. These tests performed by him to test Alexander’s theories involved the taking of codliver of] and orange juice mixture and under a protocol advocated by Alexander; that the tests ran over a period of three months and thereafter the patients reported for periodic checkups to ascertain what results in the way of benefits bad accrued from the treatments. whereupon the following question and answer ensued : Q. “Did you come to any conclusions relative to your study that you made with the cod-liver oil—orange juice regimen?”

A. “I would say that the series of cases were too small and a follow-up was too brief to make any valid conclusions. I would also like to add I don't feel qualified as a rheumatologist, although arthritis does come under my particular specialty, and I don't feel that this was actually a real experiment. Jt was just a hit and miss affair. I don’t consider it a scientific project of any sort.” [Italics supplied.] (Tr. 684) . While of some length, the foregoing has been deemed pertinent to recapitulate in order to set up the true facts concerning Alexander’s statement, above quoted, and to point up that he did not “collaborate for two years with an orthopedic surgeon and saw his method being carried on under medical supervision.” Certain it is that no affirmative testimony or exhibits were offered concerning such experiments and, it is fair to assume, had any significant beneficial results been obtained in support of Alexander’s theory such would have been produced.

it is also significant to note that, while the direct examination of this witness consumed some 30 pages of the transcript, (657-687), the cross-examination covered almost 90 pages, (687-774), all without effect in detracting from the witness’ direct statements. Despite the testimony of Dr. Giddings, Alexander testified (Tr. 462), that he believed the former's clinical evaluation justifies and supports his, Alexander's, theories. When it is further borne in mind, as’ the record discloses, that Giddings and Alexander parted company in 1947, some five years prior to the publication of the first issue of the book, it will be seen that Alexander reached into antiquity for a straw with which to bolster up his background stature and thus promote the sale of the book. It is found as a fact that the statement as used in the advertising material of respondents was false and misleading and used solely for the purpose and with tbe aim of enhancing the reputation of Alexander as an expert, received and consulted by a medical doctor, and an attempt to further the sale of the book. 16 It is found that this broad statement that Alexander's ‘‘theories of treatment by diet” are superior to those methods of treatment followed by the medical profession generally, the latter entailing the use of ‘potentially harmful drugs,” is false and misleading and not substantiated by the record, nor is the author qualified to make a valid appraisal or evaluation of the relative merits of the treatments. It is further found that such statement may have the potentially dangerous effect on the gullible and untutored of inducing them, to their detriment, to abandon the use of drugs prescribed by competent medical practitioners in favor of a diet as proposed by Alexander. 17 There is nothing in the record to substantiate the author’s “recognition by colleges,” certainly not by any college of any standing in the educational or scientific field. Recognition by the aforementioned “St. Andrew’s Ecumenical University College’ was not a spontaneous recognition but an unqualified “purchase” of a “Ph.D.” by the author. The standing of “St. Andrew's” in the educational field is not referred to in the record nor did respondents offer any testimony thereon.

The further statement that: “* * * recently he, [the author] was awarded another honorary degree’ was explained by Alexander as follows: [Tr. 613, 614 and 615]: He received the degree of “Doctor of Arts and Oratory” [sic] from Staley College of the Spoken Word, of Brookline, Mass.; “that one of the staff pointed out to Dr. Staley about my lectures around the country and perhaps it would be nice if the college honored, with their highest degree, the Degree of Oratory, myself who had been lecturing around the country and speaking before thousands of people.” Dr. Staley evidently acquiesced in the suggestion and the degree was conferred, but before its conferment Alexander made a “contribution” of $1,000°to the College “with the idea that it would be useful in the building of their next college.” This was in 1954. Alexander has no other degrees. It is found as a fact that this degree, as was the “Ph.D.” degree, was an outright purchase on Alexander’s part and used and referred to by him for the principal purpose of enhancing his educational background to impress the public and further the sale of his book. Findings 57 F.T.C.

To prove his discoveries the author experimented with his own body... introduced an arthritic condition in himself, and then used his methods... which are described in these pages ... to defeat the disease and regain full health.18 There are a number of other specimens of advertising of record, (see footnote No. 5), containing representations in this category which are not here analyzed or commented on. It is felt that the foregoing forms a sufficient basis on which to rest the findings herein arrived at and further, that were said exhibits placed under scrutiny, it would be disclosed they all contain representations similar, or analogous to, those exhibits here considered, and the findings thereon, and criticism thereof, would apply thereto with equal force and reason.

Advertising: (c) Radio Broadcasts of Interstate Coverage.

For the purpose of promoting sale of the book through the medium of radio and television broadcasting, respondent Witkower procured the services of a “public relations” agency in New York City whose sole duty, so far as respondents were concerned, was to promote the sale of the book, “Arthritis and Common Sense”; that in pursuance of this employment the agency arranged many radio and television appearances of Alexander, such taking the form of interviews by Conrad Nagel, “Mike Wallace” and “Long John,” the first mentioned being a film prepared at the instance of respondents purely for advertising purposes, and the latter two being arranged appearances of Alexander on regular network shows; a witness of the agency testified that it had been instrumental in arranging appearances of Alexander on radio broadcasts in New York, Connecticut, Texas, Illinois, Michigan and “lots of little cities,” (Tr. 1620), although he could not give precise information, having destroyed his records; that the agency received from Witkower the sum of $7,500 for services performed, and $1,005.84 reimbursement for outof-pocket. expenditures.

There are of record herein the footnoted exhibits affecting radio broadcastings.}° 18 It is found, as a fact, that the language here used constitutes a false and misleading representation that the book offers an open sesame to the cure of arthritis and the “regain{ing of] full health.”

19 Cx. 54, A-B-C—Tape recording of radio interview of Alexander by ‘‘Long John" on station WOR on April 2, 1957.

Cx. 55—Typed transcript of Cx. 54.

Cx. 56 A-G—Phonograph disc records of radio interview of Alexander on ‘Tex and Jinks” show, on station NBC, on March 25, 1957. This exhibit consists of seven 12” discs. Cx. 57—Typed transcript of Cx. 56 A-G.

WITKOWER PRESS, INC., ET AL. 161 145 Findings Indicative of the very high esteem in which the author holds his book, he is here quoted on a radio interview, (Cx. 55): “Don’t you see this book is not just another book. This is a reference book now known as the Bible of Health. This, and I base it on the opinion of others who write to me, next to the Holy Bible, this book of mine ‘Arthritis and Comnon Sense, gives a person «a right to take the guesswork out of their own lives, as far as health is concerned. This can turn pain on, and this can release pain. This book has that knowledge in its pages. This book is the greatest since the Holy Bible, in the opinion of people who write to me, and I am willing to accept that opinion.” (Italics supplied.) This unabashed use of hyperbole by the author is indicative of his own evaluation of himself and his accomplishments as evidenced by his attitude and testimony during the course of the proceedings. Specific instances: While he professed high esteem for the medical profession, such was lip service only and it was plain to be seen that he had only contempt for the profession because its members would not agree with his theories and great “discoveries,” [the most outstanding of which appears to be that “oil and water will not mix”] all of which theories he considered superior to the combined knowledge of the profession in the field which he had preempted as his particular province; that “he has a tremendous educational program on his head” to convince all the doctors who are being trained today to get them to “realize that diet is the controlling factor of the entire problem” [of treatment of arthritis]. This feeling of superiority may have been induced by a sense of frustration on the part of the author because, despite continued effort on his part he was never able to procure the services of any competent or outstanding person, clinic or laboratory which would undertake a clinical evaluation of his theories, despite his tender of remuneration. Even subsequent to the commencement of this action respondents filed herein a lengthy motion titled: “Motion for Clinical Evalnation,” in which the aid of this Commission was sought in procuring such an authoritative evaluation, and tendering reimbursement to the government for the cost thereof. On appeal from this examiner’s denial of the request, the Commission sustained the ruling and dismissed the appeal as “without merit.” A further example of Alexander’s intransigeance toward the orthodox concepts of the profession in its appraisal and treatment of arthritis and related diseases and symptoms, may be cited his statement that: “His function was to teach [Dr. Giddings] everything I knew about arthritis.’ This statement, considered in the hght of Alexander’s dearth of training and experience, hereinafter set forth 64096S—63-——12 7 ETC.

au Findings :

in detail, may be, and is, set down as without foundation, unwarranted and presumptuous.

The following quotations are excerpted from the radio broadcast, (Cx. 55), consisting of some 82 pages, which is the reason for the selection of certain portions:

Arthritis struck my family. My mother was bothered with arthritis * * * I noticed that when she walked upstairs she had a great deal of difficulty with her legs and I became quite interested in her welfare and her arthritic problem. Q. Do you have any medical background? A. No, not in the true sense. I did take a premedical course at Trinity College.

I think it was because I was so interested in arthritis that this interest caused me to spend most of my time studying works on arthritis. In other words, I was taking a basic premedical course at Trinity College, in Hartford, Connecticut, but my time was spent on the study of arthritis, and when I lost interest in my regular curriculum I left school to continue my studies on arthritis. In addition to that I spent three years as a medical technologist, either in the Service, in the Airforce * * * or as a laboratory technician * * *. And I have spent all of ten or more years studying in the medical libraries of Hartford, Connecticut, New York City and Boston, Massachusetts.*° * * * It was my belief that unless you knew how to make arthritis, you really didn’t know how to get rid of arthritis.*1 ; I believe’ the shoulder is involved in a lubrication mechanism; that if you protect the cartilage in the joint linings of the shoulder by natural nutrition, you're not gonna’ ever get arthritis. * * * If you strip the oils that have effect on joint linings from your diet, and then start eating or drinking foods that might tend to dry out the joint areas, * * * vou are not lubricating the mechanism, vou are drying it out, and that exercise and excessive wear and tear will cause arthritis to settle in the joint. * * * In this case we are talking about the right shoulder. If you preferred it in the left knee, for example, well, it would just be a question of following the improper diet, and then causing or doing an exercise that involves wear and tear on just the left knee, and you can have arthritis that way, right in the knee.?* Upon being asked why the American Medical Association and doctors in general do not agree with the theories expressed by Alexander, he responded:

There are today about 180,000 doctors in the United States of which 12,000 are particularly interested in arthritis. These doctors, who perhaps on chance conversation may say “Well, I don’t go along with it", you have to go back to just this year or to 1880, 1900, or 1925 when these doctors were trained in the medical schools of our country there was nothing in the textbooks from which they were taught to the effect that diet had any relationship to arthritis, and 20 This uncompleted and attenuated “premedical course,’ as well also claimed training as a “medical technologist’ and “laboratory technician.” (both of which latter titles are self-assumed), and his ten or more years of medical “browsing” in various libraries are hereinafter reviewed under the “Author’s Education and Background.” 21 Here Alexander repeats his ability to ‘‘make [cause] arthritis” and “get rid of"’ [cure] arthritis, a statement, the truth of which in both of its aspects, is denied by all the competent medical testimony of record herein. 22 This is Alexander's theory of the cause of arthritis, the soundness and truth of which is seriously challenged and effectively rebutted by the weight of the evidence of record. WITKOWER PRESS, INC., ET AL. 1638 145 Findings therefore the doctors will think “Well, I didn’t study that in school, he must be wrong”. So, I say to you, my fight is an uphill type of fight; that my problem wil] become easier only when the medical textbooks are rewritten. When the next generation of doctors going through the various medical schools see in their textbooks that diet is related to arthritis, and why it causes arthritis, and how diet can overcome arthritis, then, and then only, will my work be accepted by the leading doctors interested in arthritis in this country.%3 He then undertakes to explain his discovery that “water and oil don’t go together.” In doing so he discusses chapter No. 12 of his book and by way of explanation likens the human machine to that of an automobile, “both having many joints”: An automobile has a radiator system in which one puts water, and an oil pump in which one places oi] and if you were to take the water from the radiator system and put it in the oi] pump with the oil the chances are the motor would wear out; but the human machine does not have a separate radiator system, an oi] pump or a gasoline tank; we get fuel from breadstuffs, ingested oi] such as butter and eggs, and ingested water; the only way that water should be taken into the body is when there is nothing else in the stomach, i.e, 10 or 15 minutes before a meal. If you take water thus it’s a blessing but drink it with the meal and Jet there be oil in that meal and that same water can be a curse on your body. It'll wear your motor out. It'll lead to arthritis.

He was then questioned about a statement appearing in “Look” Magazine written by Dr. Russell M. Cecil, M.D., Medical Director of the Arthritis and Rheumatism Foundation, in which the doctor said in commenting on the foregoing facet of Alexander’s theory concerning water and oil in the diet:

That’s pure nonsense. The human body is not an automobile, or machine that needs to be oiled regularly. It has a natural lubricating substance, not dependent on any special fat, or oil-containing food. And in relation of water to arthritis, there is no medical or scientific evidence to show the amount of water you drink has any bad effects upon the disease.74 Alexander then goes on to explain, according to his theories, how the addition of milk or cream to coffee “is a violation of the old rule in chemistry—oil and water do not go together”; that there are exceptions to this rule as in the case of soup, which is a mixture 23In this statement Alexander erroneously castigates a large body of physicians and the textbooks from which they studied, as being out of rapport with his, Alexander's, advanced thinking and ‘‘discoveries’”’ in the interdependency of diet, fluid intake, exercise, and “oiling of the joints” in the causation and cure of arthritis, theories wholly at variance with the competent medical testimony of record. However, 1t should probably be conceeded that his statement to the effect ‘when the next generation of doctors going through the various medical schools” see his theories vindicated then ‘will my work be accepted,” may be true if, in fact, such a state of revised thinking on the subject ensues “in the next generation of doctors.” Certain it is none such have been produced in this generation who have testified in favor of his theories, and this examiner is without science or prescience to speculate on the future generations of doctors. 24.Dr. Russell M. Cecil, here quoted, did not appear herein as a witness but it is worthy of note that bis statement above coincides with the consensus expressed by the witnesses appearing at the instance of the Commission. Findings 57 FVT.C.

of oil and water, and also milk, which is likewise such a mixture, but by the addition of cream to coffee:

* * * you are getting heavier molecule. You are violating the oldest rule in chemistry—oil and water do not go together—and sooner or later your circulation is going to become involved, because you are asking for sludging of the blood. I don’t mean in one day, I don’t mean in one month, I don't mean in one year, or in ten years. If you drink coffee with milk or cream for 30 or 40 years you are going to feel that, in the way of circulation, in the latter part of your life.

In any drink, or huge amount of wine, or any liquid for a meal that has a high surface tension, is going to force the digestive system to work overtime. And when you force the digestive system to work overtime, you are going to tax the liver. And when you tax the liver you are going to tax the uric acid cycle and make yourself more susceptible to a gouty arthritic type of condition.

He then branches off on the subject of cholesterol and says: Cholesterol is a funny thing. You can have either endogenous cholesterol or exogenous cholesterol, by that I mean, endogenous cholesterol originating within the system, and exogenous would be coming into the body from outside of the body, * * * in other words, if you were to cut all the cholesterol out of your food completely, whether you eat any food cholesterol or not, you are gonna’ have, if your system is at fault, if your metabolism is at fault, if your cycles of metabolism is in error, you are going to have an increase of cholesterol, Whether you intake cholesterol, or not.25 He then undertakes to say that arthritics have not been given “an even break,” (presumably by the medical profession) because, despite an increase in the incidence of rheumatoid arthritis, the medical profession has refused to acknowledge the validity of his theories, and bases this statement upon the fact that he approached the head of the American Medical Association, the National Institutes of Health, the Mayo Clinic in Rochester, and the Hot Springs Hospital for clinical evaluation of his theories but “could not get to first base with them” and “when I couldn’t get my work evaluated, I then came to New York and collaborated with an orthopedic surgeon, and we found our work very successful. But, when he was asked by me, to publish this work in the New York State Medical Journal, I was turned down completely.” 76 25 This quotation, and those of the two preceding paragraphs, are merely a hodgepodge of scientific folderol and medical mumbo jumbo, used for the purpose of impressing his public by implying deep-seated knowledge on medical subjects which he picked up by perusal of medical books, and the statements made are found to be not warranted or justified, either by Alexander's educational history or experience or by any evidence of competence exhibited on the witness stand through his eight appearances. 26 Alexander’s unremitting and unsuccessful efforts to procure a valid medical appraisal or clinical evaluation of his theorles appear throughout the record. The nearest he ever came to such was his “collaboration with a [New York] orthopedic surgeon,” [Dr. Giddings, whose testimony is hereinabove related and evaluated]. But, as Alexander puts the matter, while ‘we found our work very successful ‘Dr. Giddings’ turned him down completely” when requested to publish the results of their ‘‘very successful work.’’ Dr. Giddings’ refusal is amply explained by his testimony (Footnote No. 15). WITKOWER PRESS, INC., ET AL. 165 145 Findings Continuing the interview Alexander related that in seeking acceptance of his theories at the hands of the medical profession he found he was:

bucking my head against a stonewall... I took the next best step * * * I set out to lecture to the people who had arthritis throughout the United States and spent four and a half, nearly five years talking to these people. * * * and when people started to getting well by the thousands,27 they took this book of mine to the doctor, and this week for the first time I grew up because this was the week that the American Medical Association chose to make their first recognition of my work.?8 [Italics supplied.] Indicative of the finding of fact, here made, that Alexander was engaged in the selling of his book and in pursuance thereof engaged in the giving of lectures, the following is quoted from the interview:

Q. Did you sell books at the end of your lecture, or were they made available in the local bookstores? A. In most cases, when I lectured in the different cities, they were available at the close of the lecture, and you must take this into consideration, that when I lectured in a city, there was no fee, the public came to hear these lectures without charge. * * * My only source of income, my only way of traveling to pay my hotel expenses would be, of course, through my book, and its sales.29 The interviewer then asked Alexander:

Q. Do you really feel that your qualifications are sufficient to permit you to make a decision, as to a cure for arthritis, or at least relief for arthritis? A. Iam glad that you used the word “relief” for arthritis. I based this on my strong feeling, that there will never, never be a cure for arthritis. It's impossible.

Q. There will never be a cure for arthritis? A. Never, under any stretch of the imagination, will there ever be a drug, or a pill, or an idea.30 °7 The italicized language of this quote is cited as a representation that because of the contents of the book and lectures by the author cures “by the thousands” were being effected. The paucity in numbers of these “thousands” who appeared as witnesses on behalf of respondents is here adverted to with the observation that bad there been such pumbers of cures as claimed respondents failed to produce more than a corporal’s guard thereof and none such had been proved by diagnosis to be arthritic hence none were proved to have been cured of arthritis.

28 In his later testimony Alexander identified this reference to be the American Medical Association's Journal of March 16, 1957, which was not offered or received in evidence for which reason no comment thereon is here made. 29 It is worthy of note at this point that nothing the author ever said at any lecture has been questioned in this entire proceeding but, on the contrary, all inquiry has been directed to and centered upon statements contained in advertising matter used in furtherance of sales of the book.

30 7t is here pointed out that these pious denunciations of the use of the word “cure” is wholly at variance with its frequent use by respondents in the advertising matter hereinbefore and hereinafter considered, and aside from the express use of the specific word itself, there is the overall] intendment and construction to be placed upon all of the advertising matter herein considered which is: ‘That such holds out a cure and relief from the disease and its symptoms and offers a method “for the restoration of health to the afflicted.” No other construction than this is possible within reason and the tremendous sale and popularity of the book is due entirely to these representations. Certain it is that 500.000 people did not purchase this book because they are book lovers in search of erudition or entertainment, or because the book itself is a gem of literary composition. Findings 57 ETC.

It is found as a fact that the foregoing interview was arranged for and procured by the public relations or advertising agency of the respondents and was solely for the purpose of fomenting interest in, and the sale of, the book, “Arthritis and Common Sense,” and for no other purpose whatsoever. That as such it is subject to the ordinary rules of construction and enforcement of truth in advertising which applies to all such matters; that the statements therein made, to wit, that the most important controls and management. of arthritis consist. of diet, water intake at controlled temperatures on an empty stomach, and the administration of cod-liver oil in controlled dosages for the purpose of supplying lubrication to the joints of the body is false and misleading, such finding being based upon unrebutted scientific medical evidence of record in this proceeding.

The following are excerpted from Commission Exhibit 57, a radio broadcast. over radio station NBC on March 25, 1957, from an interview of Alexander on the “Tex and Jinx” program. This radio broadcast was arranged for by the public relations agent of the respondents in the same manner as the interview immediately preceding.

Many of Alexander's statements on this broadcast were repetitious of similar ones dealt with in detail in consideration of Commission Exhibit 55 and will not here be repeated. However, the following are additional statements which serve to illustrate the character and purpose of the interview and, because of the length of the transcript here under consideration, only salient excerpts are cited. Alexander relates in this interview how it was necessary for him to wait five years, during which time he lectured and made other endeavors to bring his book to public attention, when as the result of the mention of the book, “Arthritis and Common Sense,” by Peter Lind Hayes on the Arthur Godfrey show, (the interview lasting 10 or 15 minutes), the respondent Witkower was deluged with orders for 14,800 of the books and within a few days thereafter they had urgent requests for 50,000 more; not long afterwards the book hit the best seller list with sales approaching 555,000 copies. It would appear that the basis of discussion during this interview was occasioned by an article in “Life” Magazine, and many questions were posed by the interlocutory to Alexander based on statements contained in that article. During the course of the proceeding respondents offered in evidence the aforesaid article but same was objected to by Commission counsel and refused in evidence.2! Despite the fact that the article itself is not in evidence 31 Tr. pp. 1,900-1,902.

WITKOWER PRESS, INC., ET AL. 167 145 Findings the interview with Alexander, wherein he many times adverts thereto, is in evidence and comments, as well also findings of fact herein, are based on the interview and Alexander’s statements concerning the article rather than upon the article itself. At the outset of the interview Alexander was asked : Q. Well, now those merits on the good parts of that were brought out a year ago on the program with Peter Lind Hayes and that tremendous reaction in boosting it up into the best seller list, but now a year later “Life Magazine” has the story about you, Dan Dale Alexander, and they say right here at the top of the story by Robert Wallace: “Dan Dale Alexander, who tried to help mother by oiling her joints and thereby grew famous, finds himself accused of false advertising.” Now how do you feel about Life. . .? ** * A Frankly speaking, Jinks, I think my biggest break so far other than the Peter Lind Hayes interview, is this “Life Magazine” because now for the first time the story of “Arthritis and Common Sense,” is available to the American public in print. You have a growing interest in arthritis today: children are getting arthritis by the tens of thousands * * * and I think this Life story * * * will do more to solve the riddle of arthritis than any one thing up to today and I am including the discovery of cortisone. I believe that this article we have now in Life Magazine will save our country. IJ think we are going to reach the peak. * * * Q. And you say this is the best thing that’s happened even though it doesn't have the final results of the, what is it, the Federal Trade Commission investigation. It still leaves it hanging with the question finding you accused of false advertising * * * * * * A | The result of the hearing is incidental. The fact is that the people in the United States have already decided, in their Canasta games and their bridge games, at their church meetings, at their social meetings, that the idea of being relieved from arthritis through sensible eating habits, a better system of eating is now here to stay. The fact that the FTC is going to rule, whenever they do, becomes almost insignificant as far as I am concerned.™ * * * Up until this FTC got involved fortunately for me it now becomes * * * they really are helping me because they are making it a nation-wide issue, where before it was a fight of myself alone. I was the one that had to leave the house for months at a time and lecture through the country and literally stand up by myself, but now I've got, as a result of this Life Magazine in just today’s mail, mail that’s coming in, “I read Life Magazine and I’m one got well and I’ll stand up with you by the Federal Trade Commission.” I'm getting allies now by the tens of thousands standing up to help me so I’m in good shape, so to speak.

32 This statement about the article in Life “Saving the Country,” and that it will ‘Do more to solve the riddle of arthritis than any one thing up to today, and I am including the discovery of cortisone,” is palpably an expression of opinion by the author made for the purpose of boosting sales of the book, and it is difficult to fully appreciate the rationale of Alexander’s reasoning in linking a magazine article, which purported to give or to advance no theory for the cure of arthritis, with the discovery of cortisone or any other supposed cure or alleviator or palliator of the symptoms of arthritis. 33In citing with approval his mail from book readers to the effect “I'm one got well, 4 1 5 2 2 0 544 2652 1312 32 -1 5 1 5 2 2 1 544 2662 141 21 96.143272 Alexander5 1 5 2 2 2 700 2661 22 19 96.143272 is5 1 5 2 2 3 738 2659 175 25 96.704109 representing5 1 5 2 2 4 929 2660 26 18 96.971283 to5 1 5 2 2 5 971 2657 141 20 96.259087 thousands5 1 5 2 2 6 1129 2657 25 20 96.259087 of5 1 5 2 2 7 1170 2657 119 19 96.379654 listeners5 1 5 2 2 8 1306 2656 56 20 96.632751 that5 1 5 2 2 9 1379 2656 39 18 96.520523 his5 1 5 2 2 10 1434 2655 62 20 96.693573 books 1 5 2 2 11 1513 2655 46 20 96.515724 has5 1 5 2 2 12 1575 2654 104 20 96.843010 effected5 1 5 2 2 13 1696 2653 43 21 96.859375 thes 1 5 2 2 14 1756 2658 58 16 96.454422 cures 1 5 2 2 15 1831 2652 25 21 96.703453 of4 1 5 2 3 0 545 2687 1312 31 -1 5 1 5 2 3 1 545 2696 119 20 96.610725 arthritis5 1 5 2 3 2 679 2695 58 23 96.406387 and,5 1 5 2 3 3 754 2694 61 20 96.690750 with5 1 5 2 3 4 833 2692 89 25 96.573708 regards 1 5 2 3 5 940 2693 26 20 95.995323 to5 1 5 2 3 6 983 2692 39 19 96.830963 his5 1 5 2 3 7 1039 2692 66 19 96.255798 sales5 1 5 2 3 8 1123 2691 52 20 96.706711 talks 1 5 2 3 9 1193 2690 58 20 93.290794 that5 1 5 2 3 10 1267 2690 73 20 67.992813 ‘“‘tens5 1 5 2 3 11 1357 2689 26 21 96.431847 of5 1 5 2 3 12 1399 2689 142 20 96.217865 thousands5 1 5 2 3 13 1560 2687 63 24 96.196991 [are]5 1 5 2 3 14 1642 2688 121 23 96.520523 standings 1 5 2 3 15 1780 2692 33 18 95.932755 up5 1 5 2 3 16 1831 2688 26 18 95.932755 to4 1 5 2 4 0 545 2720 1313 34 -1 5 1 5 2 4 1 545 2731 57 23 95.926506 helps 1 5 2 4 2 614 2730 62 22 95.926506 me,”5 1 5 2 4 3 690 2729 20 20 96.344551 it5 1 5 2 4 4 723 2730 20 19 95.983574 is5 1 5 2 4 5 757 2728 101 24 96.350082 pointed5 1 5 2 4 6 871 2728 46 19 96.142052 outs 1 5 2 4 7 929 2726 58 20 84.548233 that5 1 5 2 4 8 1000 2725 71 21 96.412971 these5 1 5 2 4 9 1084 2724 122 25 96.314621 supposed5 1 5 2 4 10 1220 2725 72 18 96.314621 hosts5 1 5 2 4 11 1306 2724 25 19 96.283119 of5 1 5 2 4 12 1343 2723 137 20 95.196877 adherents5 1 5 2 4 13 1492 2722 79 20 96.199860 failed5 1 5 2 4 14 1585 2722 91 23 96.658379 wholly5 1 5 2 4 15 1691 2722 26 19 92.580322 to5 1 5 2 4 16 1729 2720 129 20 74.390709 material-4 1 5 2 5 0 546 2753 1310 33 -1 5 1 5 2 5 1 546 2764 42 21 96.074692 ize,5 1 5 2 5 2 608 2764 24 19 96.189598 in5 1 5 2 5 3 652 2762 173 24 95.600632 respondents’5 1 5 2 5 4 844 2761 61 19 96.633202 times 1 5 2 5 5 923 2760 26 20 96.015671 of5 1 5 2 5 6 967 2759 68 21 95.910812 need,5 1 5 2 5 7 1054 2764 28 15 96.153976 as5 1 5 2 5 8 1101 2764 13 15 96.440125 a5 1 5 2 5 9 1134 2758 99 24 96.418060 perusal5 1 5 2 5 10 1252 2758 27 19 96.543274 of5 1 5 2 5 11 1297 2757 42 19 96.401726 thes 1 5 2 5 12 1358 2756 141 23 96.695183 transcripts 1 5 2 5 13 1517 2755 27 20 95.873901 of5 1 5 2 5 14 1562 2755 42 20 95.873901 thes 1 5 2 5 15 1622 2755 164 23 96.569313 proceedings5 1 5 2 5 16 1804 2753 52 20 95.365089 will4 1 5 2 6 0 545 2799 179 20 -1 5 1 5 2 6 1 545 2799 179 20 96.144745 demonstrate. Findings 57 FLTC.

During the course of the interview Alexander was presented with a question, submitted by a public listener to the broadcast, who desired to know:

Q. What type of scientific experiments has Mr. Alexander done to arrive at his conclusion? A. Well, all I did, Mr. Jackowitz, was make arthritis in my own body about eight different times and made arthritis about four different times in my wife's body and I don't know of any better way of solving the problem, causing it, getting rid of it. There is no sense guessing. * * * If you have arthritis a good way to get well would be to use some cod-liver oil and orange juice as a mixture.34 He then goes on to offer an explanation of his use of the Ph. D. degree heretofore mentioned, and volunteers this statement: And since there are some people who prefer to use little loopholes of that choice, to criticize, I would like to say that in the next printing of my book which is now on the presses, we have deleted the Ph.D. from the flyleaf of the book because I’ve dealt in honesty, I prefer to deal that way. Q. Does the Federal Trade Commission bring that up? A. They talked but they didn’t say I had to delete it. But we went ahead anyway and deleted it because it was something that was given to me and it was something that I realize now shouldn't have been accepted, but as I say, it was done in the midst of the shooting of the picture and I didn’t consider it important when it happened.%s Another example of the author’s exuberance in his lavish recommendations of his book is the following:

I'm very happy to say, do you know, Jean, that there are several million people today on my bandwagon, so to speak, who are telling one another “This is the greatest, this book really works.” * It is here found as a fact that the interview above considered and dealt with was arranged for and obtained by the public relations or advertising agency in the employ of respondents for the sole and single purpose of advancing the sale of the book, “Arthritis and Common Sense,” and that the interview was heard by great num- 34 Here, in the language of the author himself, we have the extent of his experiments to prove his theories and as to the validity of such, and the impossibility of “causing it,” (arthritis), and “getting rid of it,” [effecting a cure of arthritis] are, according to the undisputed medical evidence of record. not feasible of realization in the present state of scientific knowledge.

45 This explanation of use of the term “Ph. D." and which herein elsewhere is found to be false and deceptive is here adverted to merely as an admission by Alexander that he now realizes his use thereof was improper and announces his abandonment thereof in future editions.

86 In this one interview, where the author cites his friends as numbered in the “‘tens of thousands,” he has now progressed to ‘‘several million’’ who are “on his bandwagon.” telling each other ‘This book really works.” It is found that, according to Alexander's consistent representations, the book, in order to ‘work,’ must effect a cure of arthritis, rheumatism and the allied diseases and their symptoms, and it is found, as a fact, that no other or lesser construction of his representations throughout his advertising campaign, is possible.

WITKOWER PRESS, INC., ET AL. 169 145 Findings bers of people across state lines and therefore constitutes an act in interstate commerce, as the term “commerce” has been consistently construed by the Federal Trade Commission, sustained therein by the courts.

Advertising: (d) Television Telecasts on Closed Circuits and on Interstate Coverage.

There were introduced in evidence certain television films, tape recordings and transcriptions which are described in the footnote.*” It was contended in support of the complaint, and is so found, that. the activities of respondents in the use of television telecasts was for the sole and exclusive purpose of promoting the sale of the book, “Arthritis and Common Sense.”

It was testified by one Ensworth, the public relations and publicity agent. of the respondents, who had theretofore booked the personal appearances and lectures of Alexander in his many appearances in some ninety cities throughout the country, that it would be physically impossible for Alexander to keep abreast of the schedule of lectures which Ensworth was capable of producing, whereupon it was decided to place the whole action on film, to be made use of on closed circuits, such as in department stores, or for use in general broadeasting. The whole sequence was staged in a studio and the first film (Cx. 42) was produced in 1958, and the second film, (Cx. 24), about a year and a half thereafter. As far as subject matter was concerned, both films are substantially the same. Exhibitions of the films in each instance were arranged by Ensworth and, prior to each showing or broadcasting, certain newspaper advertisements were run locally calling attention to the up-coming program, all expenses in connection with the advertising and showing being equally borne by respondents and the interested purveyors of the book in the various locales.

Upon completion of the films such received the approval of the respondents without objection and the films here of record are true copies. Concerning the scripts of the films, such were prepared by Ensworth as follows: The approximate first one-third thereof, having to do with the biography of Alexander, was prepared from ma- 37 Cx. 42—Being the original so-called ‘“‘Conrad Nagel” T.V. film prepared at the instance of respondents originally for closed circuits in department stores. Cx. 24—Print No. 7 of Cx. 42 after revision thereof for network and individual station broadcasts. :

Cx. 20—Transcription of sound track on T.V. film, Cx. 24. Cx, 58 A-B-C—Tape recording of audio portion of T.V. telecast of March 27, 1957, of “Night Beat,’ (Mike Wallace), over T.V. station WABD-T.V. There is no film of this interview of record herein.

Cx. 59—Typed transcription of Cx. 58 A-B-C. Findings aT FTC.

terial furnished by him; the second one-third, an explanation of the author’s theories and beliefs about arthritis, his dietary plans, etc., as set out in the book, were prepared by Ensworth; and the final third, consisting of a so-called panel discussion, were staged by Ensworth who, in the original film, had prepared the entire script to be delivered by the panel but, in the second version, he found, upon interviewing the proposed panel members, they were so enthusiastic in their encomiums concerning the book: “We just threw away the script and let them go ahead in an unrehearsed panel discussion and we shot the whole thing.” All of the panel participants, save one, accepted the invitations to appear in New York for the shooting of the film and their individual expenses of approximately $250 or $300 were paid by Witkower. In the film Alexander appears in a “laboratory” scene, (set up especially for the purpose by Ensworth), and undertakes to explain his method of mixing or emulsifying cod-liver oil and orange juice, as well also his belief and theory as to how and why arthritics are helped to better health by use of his book. Apprehending that, because of lack of projection facilities, the reviewing authorities may not be able to view the films here under cliscussion, and believing same to be desirable in order to fully comprehend the bases for the facts herein found, it has been deemed expedient to attach hereto, as Initial Decision Appendices Nos. 2, 3, 4, 5 and 6, (being selections from Cx. No. 24) a few excerpted frames which, considered together, give an over-all presentation of the general subject matter and underlying theme of the films which is, as hereinabove found, a project designed for the sales promotion of the book by advertising its claimed potency and competency to relieve and cure arthritis.

Certain statements of Alexander excerpted from the film, Cx. 42, (appearing in the transcript of the sound track thereof, such transcript being Cx. 20), are here set forth. For brevity, specific findings of fact are set forth in immediate conjunction with each selected excerpt:

Jam not really an author. I didn’t study to be a writer. Tama laboratory technician, a man who fights disease like a scientist. 38 The five prints above referred to appear hereinafter as Initial Decision Appendices 2. 3, 4, 5 and 6, all having been reproduced from Cx. No. 24, and described as follows : No. 2: Alexander and actor Conrad Nagel in the laboratory scene. No. 3: Alexander interviewing the chosen panel wherein all testified to their satisfactory use of his book in overcoming arthritis.

No. 4: Alexander illustrating his lecture br use of an anatomical chart and, No. 5: A “close-up” of the anatomical chart. ; No. 6: Alexander ending his appearance with a final “pitch” advocating the purchase of his book by the listener.

WITKOWER PRESS, INC., ET AL. 171 145 Findings Alexander is not a “laboratory technician,” this being an assumed title, unearned by experience or education, nor, on the same basis, is he a “scientist” nor can he “fight disease like a scientist.” Searching for an answer to arthritis, I made thousands of scientific tests. Then I wrote a report on my discovery. Later, to my surprise, these facts were published in the form of a book.

Alexander did not make “thousands of scientific tests,” nor was he capable of performing such. He was not, and could not have been, “surprised” when his findings were published in book form because, as he testified throughout, he authored the book, paid $500 for printing the first copies thereof and formed, and is president of, the Witkower Press, Inc., which took over and has continued the publication of the book.

My research and studies on arthritis began more than fifteen years ago. * * * I began talking to doctors and going to medical libraries to read everything I ‘could find on the subject of arthritis. There were volumes and volumes of medical books. Books on physiology, the chemistry of the body, and textbooks about diseases in general. But soon it became evident that there were no comprehensive books on arthritis—alone. And no one seemed to be coming even close to finding a cure. * * * I may have been too optimistic to think that I could track down the answer to arthritis * * * but I resigned from my job and entered a college in Connecticut as a premedical student. Under the specific heading dealing with the author’s educational background, (post), as well also his testimony as a witness, it is found that he did not possess the requisite medical or empiric training or experience to evaluate his reading “of everything I could find on the subject of arthritis,” nor was he competent, when he found that, “no one seemed to be coming even close to finding a cure,” to step into the vacuum he discovered and write his book to fill the void. Again, by innuendo in pointing out that others had “failed to find a cure,” he intimates his own success, and if such was not his intention, then why, may it be asked, was he making this appearance? Upon my return to civilian life I joined an orthopedic surgeon in New York City and we spent two years collaborating on arthritic research. * * * These were actual patients with clinical case histories * * * and they regained their health. * * * J have become convinced that my laboratory tests have developed the best means of relief for arthritis. My conferences with experts, my visits to many other hospitals and laboratories, caused me to write my book. References in the foregoing allude to Alexander’s “colaboration” with the New York orthopedic surgeon, Dr. Giddings; Alexander's visits to the Mayo Clinic and the Hot Springs Veterans’ Hospital; his utter lack of scientific laboratory experiments and his “conferences with experts,” all of which are herein elsewhere considered in Findings 57 I.T.C their true settings as effectively refuting the truth of the above quoted statements. Further, his statement that the patients of Dr. Giddings were clinical cases who “regained their health” is not borne out by the record and constitutes a false representation that they were “cured.”

To end your arthritic pain, stiffness, swelling * * * the secret is diet. You can eat your way into arthritis and you can eat your way out. * * * My laboratory tests indicate that the cause of arthritis is a lack of lubrication * * * a lack of oi] in the human body. Arthritis occurs when certain oils are missing from your daily diet. * * * Friction causes the body joints to become inflamed. If you let the oils in your body dry out, the joints begin to creak * * * the joints rub against each other * * * and a grinding action sets in. After many years of research work, I devised a method of dieting which can stop the symptoms of arthritis. I'll tell you the secrets of this dietary plan in just a moment * * * Many arthritics have dry and brittle fingernails. Other symptoms may include a dry scalp, dry hair or persistent dandruff. * * * [t]he skin over the knees, ankles or elbows is often dry, scaly or white-ish looking. If you are a victim of arthritis, dryness keeps appearing everywhere. A lack of bodily oils.

By making tests, I have discovered that the synovial membranes, the tissues located next to the joints, are very selective. These membranes will accept only certain types of oil, and will reject all others. But there is one type of oi] that will travel directly to the lining of the joints, and will be absorbed to combat arthritis. That lubrication is * * * Vitamin D ofl. *™* * To make the oil stay near the joints—and do the lubrication job—the answer is cortisone. Cortisone is a hormone which adds viscosity to the membrane.

The above theories as stated by Alexander, including his plans of dieting, the ingesting of water and other liquids, the administration of vitamin D oil, (i.e. cod-liver oil), and the various other details of his proposed regimens, as well also the causes of arthritis, are all contrary to the overwhelming weight of the medical and scientific evidence of record and have no substantiation other than Alexander’s unsupported statements, as will appear by a consideration of the scientific testimony of record in support of the charges of the complaint and the inability of the examiner to extend any significant measure of acceptance or credence to the evidence produced by respondents in opposition to such affirmative proof. Alexander at this point invites his television audience into “my laboratory” for a demonstration of “the fastest possible way to relieve your arthritis.” The “my laboratory” is not Alexander's laboratory at all but a theatrical staging simulating a laboratory, in a photographic studio, with the usual accompanying test tubes and racks, tubing, retorts, flasks, beakers, Bunsen burner, porcelain dishes, weight scales, s separating funnel, recording smoke drum, reflux distilling apparatus, etc., as generally found in a medical lab- WITKOWER PRESS, INC., ET AL. 173 145 Findings oratory. During his talk and actions on demonstrating his method of emulsifying “cod-liver oil and pure orange juice,” which method consists solely of pouring the two liquids back and forth from one glass to another, Alexander wears, for the occasion, a white coat or smock, and his “demonstration of the fastest possible way to relieve your arthritis” consisted solely of his mixing the juice and oil. It is found, as a fact, that the use of a simulated laboratory, as here depicted, was for the sole purpose of surrounding Alexander with an aura of medical and scientific atmosphere to impress prospective purchasers of his book and promote its sale. «As said by W. F. Lynch in his work, “The Image Industries: American civilization is suffering from a plague of idea men of very minor competence who go around wearing the vestments of professionalism. The laboratory demonstration was interrupted by a call from Alexander’s “conference room” where some “guests” had just arrived with some “special questions which they would like to ask about arthritis.” The “guests” appearing on his panel were especially selected on the basis of commendatory letters they had written to Alexander concerning this book. Whereupon the moderator announces:

Ladies and gentlemen, you have been listening to Mr. Alexander expound his theories about how to combat arthritis. Now you are going to have the living proof that these theories are sound, are effective and are practical.39 Samples of the testimonials given by panel members: I have had arthritis off and on the greater part of my life. But, about three and a half years ago, it settled very badly in my neck, and shoulders, and arms * * * and then went all over my body. Q. Well, after reading the book, if you followed the instructions, how soon did you notice an improvement? A. I noticed improvement in the first few weeks, and after about six weeks my pain was entirely gone. And after about a year, I was completely well. * * * My young son, at the age of seventeen, was stricken with rheumatic fever and arthritic pain. And after going on the diet, and taking cod-liver oil, he became well.

Q. And was the improvement permanent? A. Yes it was.

_ This witness, (Mrs. Russell Watson), was tendered as a witness by respondents in Galesburg, I]., and her examination on the stand failed to disclose any diagnosis that she suffered from arthritis or a 39 The moderator, Conrad Nagel, was hired by respondents because he is a prominent member of his profession and for such appeal as his presence could engender with his public, and the words uttered by him are chargeable to the respondents. The “living proof” offered, and the announcer’s asseverations that Alexander’s “theories are sound, are effective and are practical” can have no other meaning, within the ambit of the issues of this case, than that the book will serve as an instrument in the cure of arthritis, all of which statements are successfully refuted by the medical evidence of record. Findings 57 F-C.

related disease, and the testimony of her physician who made the examination, showed she was suffering from a “minimal” case of arthritis. Also the reports of a Dr. Newman and Dr. January, filed herein as Respondents’ Exhibits Nos. 16 A-B-C and D, failed to disclose any finding of “arthritis.” In fine, the lady was afflicted with many and divers pains, none of which, according to any proof adduced by respondents, would classify her as an arthritic “who became well” as the result of the dictates of the book and as she represented to the public on her television appearance. Another panel member, Mr. Oswald Jacoby, “the world renowned authority on bridge,” testifying on behalf of the book’s efficacy in the treatment of his wife for arthritis said: I was lecturing in Memphis at the same time as Mr. Alexander. We met. We exchanged books. I read his book, liked it * * * brought it home to Mrs. Jacoby.

Q. And did it help her? A. Well, all I can say, Mr. Alexander, is that if my bridge book does as much for your bridge as your arthritis book did for Mrs. Jacoby's arthritis, then IJ want you as my partner in my next bridge tournament. Here we have a witness of undetermined competency in the field of medicine testifying to the public as to the therapeutic value of the book in its use by another person, [his wife], in the most glowing terms, a fair interpretation of which can only mean that. “the master of bridge” salutes “the master of arthritis.” .This in the total absence of any evidence to the effect that Mrs. Jacoby was in fact a victim of arthritis. Supplementing which Mrs. Jacoby testified to the public:

I had suffered from arthritis for eight years * * * in the cervical and lumbar region of my spine. Several months back, it traveled to the base of my spine. at that time my husband brought home Mr. Alexander’s book from Memphis. I read the book, and followed his dietary regimen rigidly. And within two weeks, al] pain had left the base of my spine. Q. Did an over-all improvement continue?”

A. Definitely * * * I couldn't play [tennis] for years * * * but I started again some months back, and I play just as well and enjoy it tremendously now. Neither of the two foregoing panelists were produced by respondents to testify herein.

Another panel witness:

I found it ({arthritis] a very definite handicap. In fact, my fingers were so bad I could hardly pound the keys of a typewriter * * * I could hardly bold a pencil. * * * The doctors diagnosed it as rheumatoid arthritis. And for many years I had to use a cane. I started the next day [to use the dietary plan of Alexander’s book] and within two weeks the pain left me. I felt very much improved * * * and from then on the progress was steady. WITKOWER PRESS, INC., ET AL. 175.

145 Findings The final panelist said:

* * * T had arthritis in the terminal joints of my fingers [and] considerable stiffness, through the hips, upon rising.

She heard of the book and bought a copy:

And when the book came I was delighted with it. I found it to be everything that the title, (“Arthritis and Common Sense”], says. Simple common sense, written in a language anyone can understand. I followed the directions given in the book faithfully and within a month’s time the swelling and the pain had gone from my joints. And now the daily, pain-free use of my hands is a constant reminder of this grand little book and what it did for me. It is found that the statements of all of the foregoing interviewed were direct representations of cures of arthritis; that all were made at. the instance, expense and procurement of the respondents and are just as binding as though the words had been uttered by Alexander himself, such having been made upon his prompting and in his presence.

In conclusion Alexander said:

* * * The people you have just met are typical case histories. Thousands. of arthritics, just like them, are using my dietary plan. You have seen and heard proof. Do as they did. Read my book and gain relief from arthritis. I have devoted fifteen years of my life to making these discoveries. My one goal has been to help people with arthritis. * * * May this book serve you well * * * and bring you better health.

Alexander is then shown exhibiting a copy of his book. From the foregoing Alexander would have the public believe that. his one goal was to serve the altruistic purpose of helping arthritics and that. the vast profit accruing to him from sales of the book was merely incidental—a representation this examiner is unwilling and unable to accept, having listened to, scrutinized, analyzed and weighed all of the evidence and testimony herein, as well also the actions and demeanors of all witnesses.

No analysis of the audio portion of a television film, (being Cx. No. 58, A, B and ©, and Cx. 59 a transcript thereof), will be undertaken as such would be much along the line of the foregoing and unduly prolong the length of this decision, if in fact. too much has not already been said. However, inasmuch as the charges of the complaint are directed solely at the advertising matter, and in view of the attempted defense of the First Amendment. to the Constitution, claimed to grant immunity to the book as well as the advertising matter referring to the book, it has been deemed important to “lay on the line,” so to speak, all matters pertaining to advertising in order to demonstrate the true issue in the matter and to negative the defense of attempted censorship of the book by this action. Findings 57 ITC.

The Expert Medical Testimony in Support of the Complaint It is found, as a fact, that, despite the use of expert medical testimony adduced by both sides, that produced in support of the charges of the complaint is so preponderant as to leave with this finder of the facts an abiding and unquestioned conviction that there exists herein no significant divergence of expert testimony which would give rise to the necessity of a minute analysis of all such testimony, pro and con, and an exploration of any divergencies, in order to justify the acceptance or selection of one school of scientific opinion over another. In determining this as a fact, this examiner recites that he has presided at every hearing wherein testimony was received; has listened attentively and painstakingly to all testimony; has carefully observed and evaluated all witnesses and their testimony and is aware of the “substantial evidence” rule to the effect that an order must be based upon the “entire record” which, perforce, includes testimony and evidence contra that introduced in support of the complaint.*° Notwithstanding all of the foregoing, it is felt incumbent to give a general outline of the pertinent testimony upon which are based the requisite findings of fact. In the following resumé of such testimony, (and because of the indicated absence of significant and compelling reasons so to do by reason of any cogent or convincing evidence invalidating the great body of affirmative testimony and evidence), no attempt will be made to set forth in minute detail the bases for each and every finding, in other words, to attempt to justify, by a careful analysis of all testimony, every fact found or statement made.* In this connection reference is had to the language of the court.** Carter's arguments * * * emphasizes, and to a marked degree appears to be predicated upon, the assumption that the Commission's final administrative findings of ultimate probative facts in this case are tainted and should and must he rejected on this review as invalid because portions, (or possibly all), of the actual testimony of some of the Commission’s witnesses was, (to quote Carter), “unreported in its findings,” that is to say, such testimony was not set out verbatim in the Commission’s findings of fact. If it be Carter’s theory that in order to be valid and be tolerated in this Court the Commission’s findings of fact should repeat part, or all, of such testimony, we must and do reject such a theory as lacking valadity under established practice in our system of law. And it should be added that our attention has not been drawn to any responsible authority which gives sanction to such a theory concerning the fact 40 Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, et seq. 41 For excellent resumés of the scientific testimony in support of, and in opposition to, the charges of the complaint, reference is had to the Proposed Findings of Fact submitted by counsel on both sides and which are of record in the formal proceedings. : 42 Carter Products, Inc. Vv. F.7.C. £15873 (June 16, 1959) U.S.C.4. 9th Cir. WITKOWER PRESS, INC., ET AL. 177 145 Findings finding functions of an administrative tribunal like the Commission. (The italic is by the Court.) A witness, Dr. William D. Robinson, testified at the instance of the Commission that he is now a professor of internal medicine at the University of Michigan and has occupied that position since the year 1952; was in charge of the Rackham Arthritis Research Unit of the University of Michigan, 1944-1953 and has since been a consultant to said Rackham Arthritis Research Unit, that he is responsible for the teaching and residency training program in the Medical Outpatient Department, University of Michigan Medical School, having been such from 1953 to date. The witness, as an instructor, has been primarily responsible for the instruction of medical students in diagnosing and treating diseases in human beings due to nutritional deficiencies in the field of the rheumatic diseases.*? He testified that arthritis is a general term for the disease affecting the joints. There are many types, the principal ones being infectious arthritis, the arthritis of rheumatic fever, osteo-arthritis, rheumatoid arthritis, gout and a large number of subdivisions of arthritis. Rheumatism is a more general term which groups together conditions producing a common symptom pattern, and under this heading would be a large group designated as arthritis in which the joints would be involved. The other large group is non-particular rheumatism, in which the symptoms may be much the same, but where the difficulty is not in the joint proper, but in the tissues around the joint, such as the bursa, the tendon, the muscles, and sometimes the nerves, and such would include fibrositis, muscular rheumatism, lumbago, and sciatica, as well also psychogenic rheumatism.

Infectious arthritis is caused by specific known infectious agents of a great variety of organisms and at the present time the tuberculosis arthritis is the largest problem in this area. The arthritis of rheumatic fever is the more acute manifestation and does not involve the chronic type of arthritis. Rheumatoid arthritis is a chronic inflammatory disease of the joints with the development of granulation tissue which may lead to joint destruction. Osteoarthritis is a disease where the cartilage is primarily affected and follows quite a different pattern of behaviour than does rheumatoid arthritis. Gout is the only form of arthritis in which a definite 42 The educational qualifications and professional background of this witness appear on pages 843 to 866 of the transcript, supplemented by his curriculum vitae appearing as Cx. 45 A, B and C, as well also his bibliography appearing as Cx. 46, the latter Hsting some fifty of his writings, many of such dealing with nutritional deficiency diseases as they pertain to the diseases of arthritis and rheumatism, and the symptoms thereof. 640068—63. 13 Findings 57 FTC.

abnormality of body chemistry has been identified and is characterized by recurrent acute phases which may send the patient into a chronic gouty arthritic stage.

Eighty-five percent of all patients with arthritis fall into three general groups: (1) osteo-arthritis, (2) nonarticular rheumatism, and (8) rheumatoid arthritis. This witness has had extensive experience in the diagnosis and treatment of all of these classes of arthritics, as well as others not specifically named, and is consulted by other physicians concerning the diagnosis and treatment of arthritic patients.

Rheumatoid arthritis has an extremely variable course, impossible to predict in any given individual; that in a group of patients so afflicted approximately a third to a half will go into remission within the first two or three years of the disease, but unfortunately nearly half of those will subsequently have relapses. Others in this group will follow a course of variations in degree of activity and, after a period of several years, the disease will become relatively quiet and they will be left with some degree of deformity but able to function pretty well. There is another group in the neighborhood of 20 or 25 percent in whom the disease pursues a relentless course, leading to permanent joint damage and destruction and a considerable degree of incapacitation. It is absolutely necessary that a correct diagnosis be made by a competent physician after which the treatment required utilizes all of the resources of internal medicine that can be brought to bear to improve the general health of the patient, including additional use of certain specific measures carefully adapted to the needs of the individual patient, and perhaps the utilization of the principles of orthopedic surgery for the preservation of function and prevention of deformity; treatment likewise utilizes the methods of physical medicine to preserve joint function and the use of muscles. It is quite impossible to generalize about the treatment of rheumatoid arthritis as such has to be adapted to the stage of the disease found to exist at the time and having due consideration to the needs of the individual patient. While rheumatoid arthritis is a disease most common in the adult age it may occur in any age, in young children or in elderly people. Osteo-arthritis is more common in older people and tends to affect. the larger joints of the body causing discomfort and a stiffness rather than joint swelling. The symptomatology of this type varies considerably and is puzzling in that the individual patient may have significant symptoms for a period of time and then be free of symptoms and yet, objectively and by X-ray, the appearance of the joints is exactly the same.

WITKOWER PRESS, INC., ET AL. 179 145 Findings In the various types of nonarticular rheumatism, (among the more common being bursitis, such as bursitis of the shoulder), such are generally self-limited diseases and are effectively treated by various measures to relieve acute pain, a very important step in the treatment being the use of various physical measures to maintain or to restore motion in the joints. These measures include the use of heat, massage and exercises coming under the heading of physical medicine.

Among the other types of nonarticular rheumatism, the common muscular rheumatism is sometimes termed as fibrositis and is characterized by pain, stiffness and tenderness. It is not associated with any demonstrable pathology. This is usually a self-limited condition and various types subside spontaneously from periods of approximately three weeks to three to six months. The treatments are directed primarily to the relief of pain and, again, the use of physical medicine measures are indicated.

At the University of Michigan Hospital, where the witness is stationed, the arthritis clinic treats approximately 2,500 patients per year.

The witness testified that a layman cannot tell whether he has arthritis or rheumatism and that, in addition to the symptoms, the diagnosis of arthritis, and of the particular type of arthritis, re- “quires a scientific evaluation of many other items in the history of the patient. It requires a complete physical examination based on a knowledge of the range of normal variation and joint structure and the muscle and the musculo-skeletal structures which may require X-ray examination and, to secure a more certain finding and differentiation, will often require special laboratory tests. The witness emphasizes that arthritis is not “just one condition” but is a complex of many.

Concerning rheumatoid arthritis, it is his opinion that the same is not caused by any deficiency of any vitamin or combination of vitamins in the diet, nor by a deficiency of any oil or fat or combination of oils or fats in the diet; nor by a lack of lubrication or lack of oil in the body or its joints, the fact being that the joints of the body are not lubricated by oil, such fluid existing im the joints of the body being denoted as synovial fluid, in volume a half teasponful at most existing in each joint. This fluid contains no oil and is the product of filtration of the liquid part of the blood and contains the components of the liquid part of the blood, plus hyaluronic acid. Chemically speaking, it is a member of the class of muco-polysaccharides, and its basic structure consists of n-acety] glucosamine and glucuronic acid in equal molecular proportions. Findings a7 FG.

These two substances are derivations of glucose, one of the simple sugars. In Rheumatoid arthritis the amount of synovial fluid is increased and the joint swells because of this increase. Its primary function is believed to be that of lubrication and is dependent on the viscosity of the joint fluid; that the viscosity is dependent in turn on the degree of polymerization of this hyaluronic acid component of the joint fluid. Rheumatoid arthritis is not caused by any type of improper diet.

In the opinion of the witness osteo-arthritis is not caused by a deficiency of any vitamin or combination of vitamins in the diet, nor by a deficiency of any oils or fats, or combinations of oils or fats, in the diet, nor by lack of lubrication, nor the Jack of oil, in the body or its joints, nor is it caused by any dietary or nutritional deficiency. ' Rheumatic fever, in his opinion, is not caused by deficiency of any vitamin or combination of vitamins, nor by deficiency of oil or fat, or any combination of oils or fats, in the diet, nor is it due to a lack of lubrication, nor lack of oils in the body or joints, nor by any kind of dietary or nutritional deficiency or improper diet. The same is true, in the opinion of the witness, concerning gout and every other kind of arthritis and rheumatism, and related conditions, including bursitis, myositis, fibrositis and lumbago. It is here pointed out that the foregoing opinions are directly contrary to the theories and opinions expressed by Alexander in his book, all of which theories form the bases for the false and misleading representations made by Alexander and the truth of which are challenged in this proceeding. The various expressions of opinion above given were elicited by questions propounded to the witness, based upon the subject matter appearing in the book, and the opinions stated by this witness are not controverted in this proceeding by any testimony or evidence which, in the opinion of this examiner, is of sufficient weight to countervail or adversely affect the validity and truth of the testimony of the witness, nor did the extensive cross-examination of this witness, as disclosed by the record, all of which has been carefully analyzed by this examiner, serve to weaken in any manner the opinions expressed by the witness. Relative to arresting the progress or correcting the underlying causes of, or preventing, any kind of arthritis, rheumatism, rheumatic fever and related conditions. he testified that no vitamin or combination of vitamins will arrest the progress of any kind of arthritis, rheumatism or related conditions, or rheumatic fever, and that no vitamin or combination of vitamins will correct the under- WITKOWER PRESS, INC., ET AL. 181 145 Findings lying cause of any kind of arthritis, rheumatism or related conditions, or rheumatic fever; nor is there any vitamin or combination of vitamins that will prevent a person from developing arthritis or rheumatism or related conditions, or rheumatic fever and that, in his opinion, there is no vitamin or combination of vitamins that will cure any kind of arthritis, rheumatism or related conditions, or rheumatic fever. And further, there is no oil or fat, or combination of oils or fats, that will arrest the progress of, correct. the underlying cause of, or cure, any kind of arthritis, rheumatism or related conditions, or rheumatic fever.

He further testified that there is no dietary regimen that will arrest. the progress of any kind of arthritis, rheumatism or related conditions, or rheumatic fever, but that the use of dietary measures adapted to the particular individual, varying to some extent with the disease, is one aspect of the treatment of several of these disorders, but that. the use of diet in this connection would have to be predicated upon the individual case, by one competent to diagnose and treat a particular case in the then condition or state of the disease, nor will any dietary regimen, as such, correct the underlying cause of, prevent. the development. of, or cure any kind of arthritis, rheumatism or related conditions, or rheumatic fever, the assertions of Alexander appearing in said book to the contrary notwithstanding.

In the opinion of the witness there is no vitamin or combination of vitamins that constitute an adequate, effective or reliable treatment for the symptoms of any kind of arthritis, rheumatism or related conditions, or rheumatic fever, although in some instances, where certain individuals are afflicted with a complicating vitamin deficiency. the administration of vitamins would have a definite effect. on these accompanying manifestations only, but would have no effect. on the primary or underlying causes producing the arthritic or rheumatic disease.

Concerning the aches and pains arising from the underlying causes it was the opinion of the witness that no vitamin or combination of vitamins will afford any relief from such aches, pains, stiffness, swelling or other discomfort or manifestations brought about by any kind of arthritis, rheumatism or related conditions, or rheumatic fever. nor is there any oi] or fat. or combination thereof, which will afford any relief from the aches, pains. stiffness, swelling or other discomforts of any kind of arthritis, rheumatism or related conditions, or rheumatic fever. It is pointed out, and so here found, that the foregoing opinions are at direct variance with those of the author as expressed in his book.

Findings 57 FTC.

Concerning dietary regimen, as laid down and advocated in the book, the witness is of opinion that none such has a direct effect on the symptoms and manifestations of the arthritic or rheumatic process itself. However, in certain instances dietary management may be needled to control some of the manifestations related to weight loss in the patient who has rheumatoid arthritis and has lost a great deal of weight or, in a patient with osteo-arthritis who is considerably overweight, but this is a consideration which would apply to the individual case under expert supervision and is more of an auxillary tool in the hands of the physician than a cure-all because there is no fixed dietary regimen whatsoever for any type of arthritis or rheumatism.

Contrary to the assertions in the book, and the utterances of Alexander in his advertising endeavors, advocating the use of codliver oil for its soluble vitamin content in order to lubricate the joints, the witness testified that acceptance of oil by the body is not dependent on whether or not it contains an oil soluble vitamin, nor is the manner in which it is accepted by the body dependent thereon; that the vitamins found in cod-liver oil are “A” and “D”; that there is no deficiency of vitamins “A” or “D” that gives rise to arthritis, rheumatism or related conditions, or rheumatic fever. A deficiency of Vitamin A is characterized by a definite type of skin eruption with a development of additional layers of thickening of the skin and of the other covering structures of the body; that a deficiency of Vitamin D gives rise to rickets and a disturbance of bone structure and growth, and in this connection the witness does not consider the cliseases of scurvy or rickets as forms of arthritis or rheumatism. Contrary to the statements contained in the book, the repetition of which, in advertising the book, forms the bases for the charges of the complaint, the witness stated that cod-liver oil is not absorbed from the gastro-intestinal tract as cod-liver oil and that the shaking or stirring of cod-liver oi] with orange juice does not form an emulsion; that the theories of Alexander of mixing cod-liver oil with fresh orange juice to prevent the digestion of the cod-liver oil in the gastro-intestinal tract, is without foundation in fact, nor does such mixing enable the cod-liver oil to go directly to the joints. That the taking of cod-liver oi] will not arrest the progress of, correct the underlying causes of, or cure arthritis, rheumatism or related conditions, or rheumatic fever and that cod-liver oil, as advocated by Alexander, is not an adequate, effective, or reliable treatment for the symptoms and manifestations of any kind of arthritis, rheumatism or related conditions, or rheumatic fever, nor will the same afford relief from the aches, pains, stiffness, swelling or other manifestations of any of the named diseases.

WITKOWER PRESS, INC., ET AL. 183 145 Findings Further, contrary to the statements contained in the book, the witness was of opinion that drinking water with one’s meals will not result in the drying out of the joints, muscles or other parts of the body, nor will the same result in development of any kind of arthritis, rheumatism or related conditions, or rheumatic fever; that the order and sequence of eating foods has no bearing on the development of any kind of arthritis or rheumatism and this statement is not his offhand opinicn but that the subject of the sequence of eating foods has been under study for the past sixty years and it has been found that there is no scientific basis to support such a premise; that the timing and spacing of eating solid foods and drinking liquids has no bearing on the development of any kind of arthritis or rheumatism nor has the temperature of the food eaten any bearing on the same and this statement is equally true relative to the drinking of fruit juice, carbonated and alcoholic beverages, soft drinks, tea and coffee with meals or between meals, all of the foregoing being directly contrary to the representations made in the book. Contrary to one of the major assertions of the causes of arthritis, as contained in the book, in the opinion of the witness: “One cannot ‘eat his way into arthritis nor can he eat his way out of arthritis”; that the consumption of sugar in the diet has no effect on the development of any kinds of arthritis or rheumatism, nor does it have any deleterious effect by way of deterioration of the intestinal walls; that sugar in the diet does not attack and destroy the fats in any part of the body; and further, that none of these or any combination of the foregoing, such as drinking water with meals, the temperature of food eaten, timing and spacing thereof, or the like, have any bearing on, or relationship to, development of any kind of arthritis, rheumatism or related conditions, or of rheumatic fever. The author, Alexander, in the book, and during the course of certain of his sales talks and representations in furtherance of sale of the book, has set forth certain indicia of the states of arthritis and rheumatism, among such being the existence in the individual of the lack of luster of the skin, brittle fingernails, dry scalp, etc. These various manifestations were suggested by Alexander in the book in order to enable the reader thereof to recognize a state of arthritis or rheumatism and a series of questions were propounded to the witness, specifically based upon the enumerated indicia, the responses thereto indicating the following opinion of the witness: The lack of luster of the skin or the dryness thereof has no bearing upon the relationship to the development of any kind of arthritis, rheumatism, or related conditions, or of rheumatic fever, and that the same is true concerning ridged or brittle fingernails, dry scalp, dry hair, persistent dandruff, dry, scaly ear canals, little or no ear wax or the Findings 57 VTC.

total absence of ear wax, dry, scaly or whitish looking skin over the knees, ankles and elbows or dryness elsewhere on the body, nor are any or all of such conditions, where they exist, symptomatic of a condition of arthritis or rheumatism. The same is likewise true concerning crust in the corner of the eyes, itching of nose, itching of the body, or pallor; that while pallor may be one of the findings in certain types of arthritis and rheumatism such is due to a complicating anemia which may be present in some types of arthritis and yet, by itself, is not diagnostic of any kind of arthritis, rheumatism or rheumatic fever.

The witness has read the book, “Arthritis and Common Sense,” and it is his considered opinion that the dietary regimen therein set forth, supplemented by the taking of one tablespoonful of cod-liver oil mixed with tivo tablespoonfuls of orange juice, does not constitute an adequate, effective or reliable treatment for any kind of arthritis, rheumatism or related condition, or rheumatic fever, nor for arresting the progress of, correcting the underlying cause of, or curing any kind of arthritis, rheumatism, or related conditions, or of rheumatic fever; nor does it constitute an adequate, effective or reliable relief for the symptoms and manifestations of any kind of, or afford relief from, the aches and pains, stiffness, swelling or other discomforts of any kind of arthritis, rheumatism, or related conditions, or of rheumatic fever; nor will it afford adequate relief from the aches, pains, swelling, stiffness or other discomforts of any kind of arthritis, rheumatism, or related conditions, nor afford effective relief from the aches, pains, stiffness, swelling or other discomforts of arthritis, rheumatism, or related conditions, or the reliable relief therefrom; that such dietary regimen and cod-liver oil, contrary to the representations in said book, will not lubricate the joints, nor remove friction, nor stimulate the adrenal glands to produce more cortisone; that one complaining of a pain in a joint only could not conclude therefrom that the joint was afflicted with arthritis as this, standing alone, is insufficient for making a diagnosis of arthritis because the condition could be due to many other things; that a patient following the dietary regimen with cod-liver oil for a number of months, experienced a cessation of pain, he could not thereby assume that the pain disappeared because of the cod-liver oil and dietary regimen for the reason that such cessation may have come about by entirely natural physiological processes; that “low back stiffness” in and of itself would not be sufficient for diagnosing the condition to be due to arthritis.

The witness was very skeptical and disbelieving of any of the results which Alexander claimed to have arrived at by reason of his, Alexander’s, so-called experiments, and particularly was this true of WITKOWER PRESS, INC., ET AL. 185 145 Findings Alexander’s representations of the results obtained during his association with Dr. Giddings, which association has been hereinbefore reviewed. In this connection it is worthy of note that the opinion of this witness coincided with the testimony given by Dr. Giddings concerning the inconclusiveness and ineffectiveness of the tests made by Dr. Giddings and Alexander, which was to the effect that Giddings was not satisfied that any of such tests were of any significant moment to demonstrate the effectiveness of Alexander’s theories and further that he, Giddings, refused to publish the results of those tests. In sum, this witness totally disregarded, as being without foundation in scientific fact, any of Alexander’s claims favorable to the theories expressed by him in the book which could be arrived at as a result of any of Alexander’s associations with Dr. Giddings. It is also here pointed out that Alexander’s association with Dr. Giddings is the only claim that Alexander has ever made of association with any competent medical witness for the evaluation of his theories and, specifically, the only claim which Alexander has ever made of pursuing tests in conjunction with any person medically or scientifically competent to set up the necessary protocol, conduct the tests and to evaluate the same, but on the contrary, according to Alexander’s own testimony, he has at all times been unable to procure a clinica] evaluation of his theories all as hereinbefore set forth. In’ this connection, however, the examiner is mindful of the testimony of Dr. Edward T. Johnson, a physician who testified on behalf of the respondents as to certain tests conducted by him for the express purpose of appearing as a witness in this case and testifying on behalf of the respondents. At the appropriate point hereinafter, under consideration of the respondents’ defense, the testimony of Dr. Johnson and the results claimed to have been achieved by him in his experiments and studies, will be the subject of separate comments and findings.

The next medical expert appearing at the instance of the Commission in support of the charges of the complaint was Dr. Marian W. Ropes, of Boston, Mass., a practicing physician since 1931, who limits her practice to internal medicine with emphasis on the rheumatic diseases.

The witness graduated, ew laude, from the Johns Hopkins School of Medicine with the degree of M.D., and is now, in addition to her general practice, an Assistant Clinical Professor in Medicine at the Harvard Medical School, having occupied that position since the year 1947.

The examiner was very much impressed by the professional background of this witness, not only as given orally on the stand but as Findings d7 F.T.C.

reflected in her curriculum vitae and bibliography,** a reading of all of which demonstrates that the witness is eminently qualified to speak with authority on those matters concerning which she testified. The examiner was likewise impressed with the professional and utterly detached manner in which she gave her testimony, her cooperation and willingness to make clear to the mind of the layman the various difficult subjects, and her evident unbiased attitude. Irrespective of the details concerning the witness contained in the exhibits as footnoted, it is felt appropriate that certain comments thereon be made at this point in this decision in order that the weight attached to this testimony by the examiner may be appreciated by any reviewing authority.

Practically from the time of her qualification as a physician, and down to the present, it is apparent that the witness has been pecullarly and actively engaged in a pursuit of the various subjects injected into the issues in this case, and in order to demonstrate the almost cyclopedic familiarity of this witness with the particular subjects, it is deemed proper to set forth the titles of various writings and papers which she has either authored, or co-authoried with others, as contributions to medical science, a reading of which titles will indicate the scope of her experiments and studies: “The Origin and Nature of Synovial Fluid in Health and Disease”; “Pathological Joint Effusions”; “Synovial Fluid in Joint Diseases”; “The Physiology of Particular Structures”; “The Origin and Nature of Normal Human Synovial Fluid”; “The Diagnostic Value of Synovial Fluid Examination”; “The Treatment of Infectious Arthritis with Sulfonamide Compounds”; “Atypical Forms of Rheumatoid Arthritis”; “Differential Diagnosis of Rheumatoid Arthritis”; “Rheumatoid Arthritis: It’s Varied Clinical Manifestation”; “The Natural Course of Rheumatoid Arthritis and the Changes Induced by ACTH”; “Vitamin ‘D’ Intoxication”; “Proceedings of the Seventh International Congress on Rheumatic Diseases”; “Advances in the Treatment of Chronic Rheumatic Diseases”; “Proposed Criteria for the Diagnosis of Rheumatoid Arthritis, Annals of the Rheumatic Diseases”, and many other works of a related nature. Having been extensively engaged in research work concerning arthritis, rheumatism, and conditions related thereto, as well also with nutritional or dietary problems connected therewith, she has likewise engaged in extensive research concerning synovial fluid which she defines to be:

4 The curriculum vitae of this witness appears herein as Cx. Nos. 52 A and B, and her bibliography as Cx. No. 53 A, B, C, D, E, and F. All testimony concerning ber present professional activities and background commences at page 1344 of the transcript. WITKOWER PRESS, INC., ET AL. 187 145 Findings The fluid contained in the joint spaces in the body. We think this is comparable to the tissue fluid in other tissues. It represents the tissue fluid of the joints.

In describing her work in connection with synovial fluid she said: We have tried to study joint fluid from the physiological point of view in an attempt to learn more about nutrition and metabolism in joints. This study included possible therapeutic efficacy of vitamins “D” and “C” for arthritis and rheumatism, as well also various chemicals, minerals and drugs, concerning which researches she has authored approximately twenty articles. She has observed and treated patients with various kinds of arthritis and rheumatic ailments, including rheumatoid arthritis, osteo-arthritis, gout, bursitis, myositis, fibrositis, lumbago, neuritis and rheumatic fever. In her treatment of arthritis and rheumatic patients she has at times used Vitamin “D” in dosages of from 1,000 units up to 300,000 units, which latter would be comparable to 240 times as much Vitamin “D” as one tablespoon of cod-liver oil as advocated by the book; she has also used Vitamin “C” in the treatment of such patients in amounts from 100 milligrams up to 12 grams a day, which latter is equivalent to the dosage of that vitamin as contained in from 6 to 800 glasses of orange juice, and she has had observation of patients so afflicted taking cod-liver oil in dosages from 1 to 4 tablespoonfuls a day and also orange juice in the amount of 6 ounces per day, so that her observations in this field cover the administration of minute as well as massive doses of the vitamins named because of which experiences she feels qualified to speak with authority on this subject.

It is her opinion that no kind or type of arthritis or rheumatism is caused by a deficiency of any vitamin or combination of vitamins in the diet, nor by a deficiency of oil or fat, or combination of oils or fats in the diet; nor by a lack of lubrication or lack of oil in the body or its joints; that the joints of the body are not Iubricated by oil, which opinion is based on her study of over 3,000 of the synovial fluids from humans, including those from normal, as well as from arthritic joints. She has made critical examinations of synovial fluid from degenerative joint diseases; rheumatoid arthritis; traumatic arthritis; infectious arthritis; gouty arthritis; villo-nodular synovitis; rheumatic fever; neuro-arthropathy; hypertrophic pulmonary osteo-arthropathy and from such miscellaneous diseases as bursitis and others. It is her opinion that normal synovial fluid contains no oil or fat but that its lubricating properties depend on and proceed from the presence of hyaluronic acid combined with protein; that clearly there is no evidence of oil, either microscopic or macroscopic in normal joint fluid.

Findings 57 F.T.C.

Based on her studies and experience she testified that there is no kind of arthritis or rheumatism that is caused by any kind of dietary or nutritional deficiency.or improper diet; that there is no vitamin or combination of vitamins that will arrest the progress of any kind of arthritis, rheumatism, or related conditions, or correct. the underlying causes of, or prevent the development of, or cure, any kind of arthritis, rheumatism, or related conditions, or rheumatic fever; that there is no oil or fat or combination of oils and fats, ingested in the diet, which will arrest the progress of, correct the underlying causes of, or prevent the development of, or cure any kind of arthritis, rheumatism, or related conditions, and likewise there is no vitamin or combination of vitamins which will afford any relief from the aches, pains, stiffness, swelling or any other discomforts of any kind of arthritis, rheumatism, or related conditions; that there is no basis for the theory, expressed by Alexander, that the acceptance of any oil bythe body is dependent on whether or not the same contains oil soluble fats or vitamin content, nor is the manner in which the oil is accepted by the human body dependent on whether or not it contains an oil soluble vitamin.

Contrary to the theory advanced by Alexander in his book, the witness testified that she is familiar with the nutritional and therapeutic properties of cod-liver oil and orange juice; that the vitamins present in cod-liver oil are “A” and “D” and that a deficiency of Vitamin “A” in the diet does not give rise to any kind of arthritis, rheumatism, or related conditions, or rheumatic fever, but. that such a deficiency of “A” in the diet gives rise to severe alterations in the skin and eye, consisting of thickening and a hyperkeratosis condition; that a deficiency of Vitamin “D” in the diet does not give rise to any kind of arthritis, rheumatism, or related conditions, or rheumatic fever, but does give rise “in childhood to rickets, which is an abnormality of bone development altering the joints particularly.” Vitamin “D” does not lubricate the joints, nor is there any evidence that it stimulates the adrenal glands to produce more cortisone, and in her opinion, cod-liver oil does not stimulate the adrenal glands to produce more cortisone.

Having reference to the immediate foregoing, attention is invited to the fact that the specific testimony of this witness is directly confirmatory of the preceding witness in the functions and therapeutic qualities of the two vitamins, both of which witnesses are in direct conflict with Alexander in his book on the subject. Also contrary to Alexander’s theories, she stated that cod-liver oil, when ingested, is absorbed from the gastro-intestinal tract, is then passed on to the duodenum where it is split into fatty acids, during which process some of the fatty acids are saponified and the con- WITKOWER PRESS, INC., ET AL. 189 145 Findings stituent parts are then absorbed into the system; that cod-liver oil as such cannot bypass or avoid this digestive process whether taken on a full stomach or an empty stomach, and thus proceed directly to the affected joints resulting in “oiling” the same; that the shaking or stirring of a mixture of cod-liver oil and freshly squeezed and strained orange juice does not, in the true sense, form an emulsion, and that when the stirring or shaking is stopped there is a separation of the oils and fats and water into the basic products; that when such a mixture enters the stomach it is mixed with the other contents thereof and becomes indistinguishable therefrom; that such mixture does not and cannot prevent the digestion of cod-liver oil in the gastro-intestinal tract, nor does it enable the cod-liver oil to be absorbed intact from the gastrointestinal tract as cod-liver oil and go directly in this form to the joints; that this is likewise true concerning the digestion and absorption of oils and fats present in foods. In further opposition to the theories expressed in the book, the witness is of the opinion that the drinking of water with one’s meals will not dry out the joints, muscles, or other parts of the body nor result in the development of any kind of arthritis, rheumatism, or related conditions; that the sequence in which one eats one’s food, and when, has no bearing on the development of any of these diseases, nor does any particular spacing of the eating of solid foods and the drinking of liquids affect these conditions; that the temperature of the food eaten has no relation whatever to any kind of arthritis, rheumatism, or related conditions, nor will the drinking of fruit juices, carbonated or alcoholic beverages, soft drinks, tea or coffee, with meals or between meals, have any bearing on the development of these diseases; that a person cannot “eat one’s way into arthritis and eat one’s way out of arthritis,” nor is there any relationship, in the opinion of the witness, between the indicia or symptoms of ridged or brittle fingernails, dry scalp, dry hair, persistent dandruff, dry scaly ear canals, little ear wax or absence of ear wax, lack of skin luster, dry, scaly or whitish looking skin over the knees, ankles and elbows, and elsewhere on the body, which would connect any such symptoms or conditions to any kind of arthritis, rheumatism, or related conditions, nor are such indicative of incipient or advanced stages of arthritis or rheumatism; that there is no relationship between crusts in the corner of the eyes, itching of the nose, itching of the body, or lack of color, and the development of any kind of arthritis, rheumatism, or related diseases. The witness has read the book, “Arthritis and Common Sense” and, basing her opinion on her scientific knowledge, training, research and experience in the field of arthritis and rheumatism, it was her opinion that the dietary regimen set forth in said book, which. Findings 57 ETC.

includes the taking of one tablespoonful of cod-liver oil mixed with two tablespoonfuls of freshly squeezed and strained orange juice, taken daily on an empty stomach at least one or two hours before breakfast, etc., does not constitute an adequate, effective or reliable treatment for any kind of arthritis, rheumatism, or related conditions, nor will such correct the underlying causes of these, or any of these conditions. And furthermore, the same will not constitute an adequate, effective, or reliable treatment for the symptoms or manifestations of, or afford any relief from, the aches, pains and stiffness, swelling or other discomforts of any kind of arthritis, rheumatism, or related conditions, or of rheumatic fever; that such dietary regimen and its adjuncts, observed and taken under the conditions mentioned in said book, will not lubricate the joints or reduce the friction thereof in any person with any kind of arthritis, rheumatism, or related conditions, nor will the same stimulate the adrenal glands to produce more cortisone, and in connection therewith her experience with Vitamin “D” is that such will not accelerate the secretion of cortisone in any quantity, and that this statement is likewise true of the vitamins “C” and “A”. This witness, who testified subsequent to the appearance on the stand of the respondent, Dan Dale Alexander, testified that she had read pages 1 through 840 of the transcript, such covering, inter alia, the tests, experiments and research by Alexander with Dr. Giddings, as testified to by Alexander and that, based thereon, she would not conclude that arthritis is caused by a lack of lubrication: Because I found no evidence of adequate experiments in any sense, or adequate tests in which there was any experimental plan which would furnish an adequate answer to this problem. For instance, there was no indication of any measurement of synovial fluid or viscosity, which would be essential to any measure of lubrication of joints.

and therefore she would reject the same. In the opinion of the witness the tests aforesaid, by Alexander and Giddings, failed to disclose any evidence which would lead to a valid conclusion that arthritis is caused by a Jack of oil in the human system, nor would she conclude therefrom that arthritis is caused by an oil deficiency or by lack of Vitamin “D”, this being due to the total inadequacy of any such tests or experiments so to evidence. She noted further that. the aforesaid tests were totally inadequate to support the theory that the consuming of water with meals, the consuming of carbonated beverages with meals, drinking alcoholic beverages, coffee or tea with meals, and the like, or consuming an abundance of candy, would predispose to result in any kind of arthritis, rheumatism, or related conditions, for the reason that “no adequate sound evidence was presented on which such a conclusion could be based.” WITKOWER PRESS, INC., ET AL. 191 145 Findings The witness was unable, from anything that she had read in the book or in the testimony of Alexander, as aforesaid, to believe or conclude that he had induced a state of arthritis in himself or that he could “eat his way into arthritis or eat his way out of arthritis,” because there was no evidence of adequate criteria indicating the actual presence of arthritis nor any sufficient diagnosis that such a condition existed.

The witness, by her testimony generally, gave as her opinion that it was impossible to prescribe on any general or mass basis, in the manner attempted by the book, for the treatment of the various diseases in the field here under consideration, but that, on the contrary, each case should be individually considered; it is likewise true that no informed scientific or medical opinion may be had, on a mass basis, concerning the efficacy of the administration of any drug, oil, vitamin or regimen of diet, but in order to arrive at any informed opinion there must be first a complete physical examination of the patient, and history obtained; necessary laboratory examinations where indicated, based upon appraisal of which must be established an adequate control series and repeated follow-up throughout the course of treatment; that after this has been completed subsequent additional and adequate examinations and laboratory tests must be made in order to arrive at an evaluation of the treatment administered and under consideration.

Having to do with the subject of those persons who had read the book and claimed a cure therefrom: The witness was disposed to place the sufferers in the category of psychogenic arthritics who, upon receiving a placebo at the hands of a physician notes an entire remission of pain and believes himself to be cured. In her opinion the reading of this book may act upon some individuals much in the same manner as a placebo and she was frank to say that the medical profession, insofar as she is aware, has no explanation to offer in this connection but she was positive in her statements that, despite the presumed recovery on the part of the patient, neither the book nor the placebo, nor the book acting as a placebo, as the case might be, had no physiological effect whatsoever upon the underlying causes, or the cure or the alleviation of pain, swelling, etc., of arthritis or rheumatism, or any of the related diseases; that the witness has attempted, in her researches down through the years, to arrive at some percentage of this type of victim of arthritis, who may be characterized or classified as of psychogenic origin, but without success. However, she believes the percentage to be very small in relation to the great number of sufferers; that this psychogenic feature or factor is not peculiar to sufferers from these diseases but, on the contrary, plays a significant role in all the other categories of diseases. Findings 57 F.T.C.

Another medical witness appearing at the instance of the Commission, Dr. L. Maxwell Lockie, of Buffalo, New York, testified in substantial accord with many of the opinions expressed by Drs. Robinson and Ropes. The witness has been engaged in the practice of medicine since 1982 and is Chief of the Arthritis Clinic of the Buffalo, (New York), General Hospital and has, throughout his active practice, limited such to the study and treatment of patients with arthritic and rheumatic diseases.4* He has seen approximately 18,000 patients with arthritis, rheumatism, or related conditions, since the beginning of his practice and has approximately 1,500 patients with arthritis on his list or in the index at the clinic which he heads; that he has had occasion to treat approximately one hundred cases of these ailments with vitamins “D” and “C” and has found such treatment to be of no therapeutic value.

It was his opinion that a layman cannot determine for himself whether or not he has arthritis as that is peculiarly the province of a doctor; that he knows of no kind of arthritis or rheumatism which is caused by deficiency of any vitamin or combination of vitamins in the diet, nor by deficiency of any oil or fat, or combination of oils or fats, in the diet or by lack of lubrication or lack of oil in the body or in its joints. It was his opinion that the joints of the body are not lubricated by oils but that there is a certain amount of synovial fluid present in all normal joints, and in most arthritis, particularly the rheumatoid type, there is a delinquent amount of synovial fluid; that synovial fluid does not contain any oil. There is no vitamin or combination of vitamins which will arrest the progress of, correct the underlying causes of, or prevent or cure, any kind of arthritis, rheumatism, or related conditions, and that the same is true with regard to any dietary regimen, or of any oil or fat or combination thereof. That there is no diet regimen, or vitamins, or oil, or any combination thereof, which will afford any relief from the aches or pains, stiffness, swelling or other discomforts attendant on these diseases, insofar as he is apprised. The witness expressed familiarity with the nutritional and therapeutic properties of cod-liver oil and orange juice and has also studied extensively the effects of diet upon these diseases. In the light of this background he has read the book, “Arthritis and Common. Sense,” several times and categorically makes the following statement based upon his experience and training: That he does not consider the dietary regimen set forth in the book, including the taking of one tablespoonful of cod-liver oil mixed with orange juice, 45 The qualifications of this witness and his professional and educational background, appear in the testimony at pages 1240-1252, supplemented by his curriculum vitae and list of publications, being Cx. No. 67 A and B. . WITKOWER PRESS, INC., ET AL. 193 145 Findings etc., as set forth, under all of the conditions prescribed in the book, constitute an adequate, effective or reliable treatment for any kind of arthritis, rheumatism, or related conditions; that it is not an effective, adequate or reliable means of arresting the progress of, or correcting the underlying causes of, or curing, any of said diseases; nor will the same afford relief from the aches, pains, stiffness, swelling or other discomforts of these conditions; nor will the same lubricate the joints or reduce friction, or stimulate the adrenal glands to produce more cortisone.

This witness had read the testimony of respondent Alexander concerning his tests and research as appearing in the record on pages 1 to. 781 concerning which he stated:

In reading the transcript I was unable to make out any type of research, which we identify as scientific research, carried out by him under any such circumstances. I know he did some tests but I cannot see how any of the tests which he described could have any bearing on any phase of arthritis. The Inadequacy of Educational or Empirical Qualifications of Dan Dale Alexander to Author the Book, “Arthritis and Common Sense.”

In this matter we have the unusual situation of an author being charged with false and misleading advertising of and concerning his book, coupled with a defense of freedom of speech under the First Amendment. In order to explore the charges of misrepresentation it becomes necessary, among other things, to examine the subject matter of the bases of the charges, in this case the book, and, in order to decide the issues, embodies the requirement to inquire into the capability of the authority to create the work which he has represented, (by public statements directly leading to sales of the book), to be capable of accomplishing certain specific therapeutic results. The pursuit of this topic is not with the purpose to denigrate or gratuitously challenge the educational qualifications of Alexander or his basic right to express his opinions, as set forth in the book, be they good or bad, but rather to demonstrate by the facts of record, that the matters set forth in the book, and the theories therein expounded, have no basis in scientific fact and further, that the theories advanced by the book have been formulated by the author within the framework of total ignorance of his subject matter, this finding being based upon the competent medical testimony of record, and hence are untrue.

Throughout these proceedings this examiner has been intrigued and beguiled by the impressive lack of medical or other training or education which would fit Alexander to write a book on such a recondite subject as arthritis and rheumatism, and to come up with 640968—63——14 Findings 57 F.T.C.

all the ipse dzwiz solutions in a field which is, and for many years has been, an insurmountable challenge to the outstanding scientific minds of the medical profession. This lack of qualification on his part was made clear by Alexander in his own testimony and by his appearance and demeanor on the stand, as well also the impressive array of competent witnesses who hold views diametrically opposite to practically every statement and theory of the author as expressed in the book and in television and radio appearances. Jt is further found that no attempt was ever made by the defense to qualify Alexander as an expert in this field of medicine, and on the basis of all of the testimony, it is here found that he could not have been so qualified, even upon application of the most generous and relaxed interpretation of the common tests and standards usually applied to expert witnesses. This finding is prompted by the necessity, on the part of an author writing a treatise on a scientific or medical subject, to be the possessor of at least a minimal capacity and background to treat of his subject.

Inasmuch, therefore, as consideration of the foregoing has been a factor and concern of this examiner in arriving at the findings of facts and conclusions based thereon, it is felt that a brief summation of Alexander’s qualifications, or lack thereof as the case may be, should be set forth, just as any other fact which has motivated the making of any finding, this in order to assist others in evaluating the verity of the findings herein made.

Alexander was graduated from the Norwich Free Academy, of Norwich, Connecticut, in June of 1987, as a member of a total class of 358 students, in which he ranked as No. 818; he thereafter entered Trinity College of Hartford, Connecticut, in March of 1945, and took one course during that semester which was a pre-college course in mathematics affording no scholastic credits; in September of 1945 he started his pre-medical courses of which he did not complete even his first semester, was placed on probation by academic action because of failure in two of the required courses and in fact did not earn any semester hour credits or any college credits whatsoever at Trinity College.

Alexander has no earned degree on any subject from any college or institution of learning. His fatuous attempt to pose as a “Ph. D.” by reason of his purchased degree from the St. Andrew’s Ecumenical] | University College of London, England, and his “recently awarded [another] honorary degree,” being that of “Doctor of Arts and Oratory” from the Staley College of the Spoken Word, have both been dealt with under footnote No. 17 (ante). The foregoing in substance represents the sum total of Alexander’s formal education, supplementing which it has been his claim through- WITKOWER PRESS, INC., ET AL. 195 145 Findings out that he has been a voracious reader of medical literature on the subject of arthritis and rheumatism in the several libraries which he has named, and has been a close student of medical subjects as they pertain to the field of arthritis and rheumatism. The record fails to disclose that Alexander named any of the medical books or articles which he studied or which formed the basic material for the writing of his book and this very important information was not brought out on cross-examination, nor tendered on direct examination, when Alexander appeared in his own behalf. There was, therefore, no opportunity of cross-examinations as to the value of the medical subjects or books which he perused and which would have enabled an exploration of the basis for his theories, nor does the record disclose, (which it is the object of this phase of this decision to demonstrate), that Alexander possessed the educational or scientific wherewithal to sift and evaluate the subject matter of these medical treatises, nor to accept some statements and theories as true and to reject others as untenable or untrue. It is also here found that no attempt was ever made by the respondents throughout this proceeding to attribute to Alexander any special competence in the field of arthritis and rheumatism, aside from the phenomenal success and acceptance of his book by the public, but this success of the book as a “best seller” can in no wise be considered as, or take the place of, scientific or medical competence on his part.

As heretofore pointed out, Alexander in his television and radio broadcasts laid great stress and dramatic emphasis upon the large number of people who had found surcease from their afflictions through the medium of his book, all, as he claimed, to have been demonstrated in actual tests alleged to have been conducted by him. These tests, a number of which have been hereinbefore adverted to, appear to have been a sort of “post-graduate” activity of Alexander after his extensive reading in order to attempt to prove, by practical experiment, the validity of his theories, but none of these tests were proved to have any competent or scientific background, protocol, or results, but, on the contrary were wholly worthless. In order to demonstrate from Alexander’s own testimony his naiveté concerning medical tests and their functions, and rather than paraphrase his testimony it is considered the following excerpt is revealing: *° Q. Mr. Alexander, did I understand you to say this morning that the only person you performed any experiments on relevant to your regimen was your mother and your aunt and some patients at Dr. Giddings’ office? A. On the whole; yes, sir.

Q. Well, was it confined to these persons? 46 ‘Transcript pages 1038, et seq.

Findings 57 F.T.C.

A. Perhaps there were one or two other instances, but insignificant. Q. If there were others then you don’t know about it at the present time, is that correct? A. Well, I picked up a soldier one day driving to Middletown, and he told me he had an arthritic condition in his knee and I said that my mother had had arthritis and she had been helped by cod-liver oil and perhaps he might try it, and later he telephoned me and said that the pain, after he started taking cod-liver oil, was reduced.

Q. You didn’t perform any experiments on that soldier, then, did you? A. (The witness shook his head negatively.) Q. Do you know his name and address? A. His name was Mahoney, I believe. It was a name similar to that, and he lived in Middletown.

Q. You don’t know his full name and address? A. Well, I can say that he at that time was employed by the DeSoto Garage on Main Street and he said he lived in Middletown. Q. When was that? A. I think 1945, I would say. * * * Q. As a matter of fact, you don’t know that he had arthritis, do you?” A. “Just what he told me.

Q. And, as a matter of fact, you don’t know that he was cured of whatever he had, do you? A. He just said that he had pain, took the cod-liver oil, and was helped. Q. So, you don’t know that that was true, do you? A. Just what he told me. * * * Q. Now, relative to these people that you tested, is that what you said, you tested them in Dr. Giddings’ office? ‘ A. These three instances where prior —— Q. No, I understand, were there any others prior to the time — A. I can’t think of any at the moment.

So here we have a recount of the extent of his tests on humans and, so far as the entire testimony discloses, aside from the Giddings-Alexander tests which have been hereinbefore adverted to, these were the sum and substance of such tests. No good purpose would be served here in attempting to analyze the various miscellaneous so-called tests which he claims to have conducted, notably those based upon the effect of water taken with meals; temperature tests; chicken soup tests; the tests to demonstrate that “water and oil don’t mix”; ear wax tests; ridged fingernail tests; butter tests, etc. Suflice it to say that the credible testimony of record concerning such tests gives no weight whatever to any of the results claimed to have been secured thereby. Supplementing the foregoing Alexander made certain representations as to the experience which he had gained in this field while in the service of the United States Army and thereafter in hospitals under the United States Veterans Administration. The records of Alexander’s actual service indicating his experience while in the United States Army WITKOWER PRESS, INC., ET AL. 197 145 Findings and under the Veterans’ Administration,4* supplemented by the actual testimony of Dr. Benjamin §. Gordon, Chief of Laboratory Service of the U.S. Veterans Hospital at the Bronx, N.Y., and Dr. Joseph B. Clay, sometime Chief of the Medical Laboratory Service, Military Training Center, Randolph Field, San Antonio, Tex., both of whom were Alexander’s superiors under whom he performed his duties, indicate that the actual experience in laboratory technical procedures which Alexander claimed to have acquired in these services not only were not instrumental in adding to Alexander’s claim of knowledge on the subject of arthritis and rheumatism, but in truth and fact that Alexander’s claims were, and are, greatly magnified and not borne out by Army or Veterans’ Administration records, nor according to the specific knowledge of the two physician witnesses named. In fact, the testimony of these two witnesses went to some length in setting forth many of the various fields pertaining to rheumatism and arthritis in which Alexander had acquired no experience while under their supervision, such as blood chemistry, blood sugars, blood uric acids, blood cholesterol, basal metabolism, etc., all of which procedures, and others, Alexander had represented as having been performed by him during these particular employments. THE DEFENSE Respondents based their defense on three grounds: (1) a plea in bar of the First Amendment to the Constitution hereinbefore (Footnote No. 8, page 8) and hereinafter (Conclusion No. 1 and Appendix I to Initial Decision) considered; (2) the testimony of two physician experts directed to an attempt to justify and prove as genuine the claimed therapeutic or curative value of the theories and regimens contained in the book, “Arthritis and Common Sense”; and (3) the testimony of twenty-five lay, or so-called “public” witnesses who claimed to have been physically benefitted by use of the book. Additionally, three physician-witnesses testified in support of three of the twenty-five witnesses in the lay group.

Respondents’ Lay or “Public” Witnesses Respondents were accorded opportunity to tender all evidence they felt necessary to conduct their defense, pursuant to which the testimony of some twenty-five lay or “public” witnesses was received, (see Footnote No. 48 on page No. 77), as well also the testimony of three physicians who had been in professional attendance on three of these lay witnesses. Practically all of these lay witnesses were 47 Cx. 1 A-B;2 Ato E; 3 A-B; 4;5;6 A-B; 7 A-B; 8; 9;10;11 A, B,C, D; 12 A,B, C,D;18;14;15 A to G; 16 and 17.

Findings 57 F.T.C.

emphatic in attesting to the value of the book in the relief of rheumatic and arthritic pains and discomforts and some were emphatic in their conviction that the book had “brought blessed relief” and, in fact, had “cured” these specific diseases. Notwithstanding that the witnesses were apparently honest and essentially truthful, the fact is that not even one thereof had ever been medically diagnosed by any competent diagnostician as being afflicted with rheumatism, arthritis or rheumatic fever, or with any of the diseases related thereto, so that. their testimony was based wholly upon the supposition or thought that their aches and pains were occasioned by the presence of any of these diseases; that the credible testimony of record is conclusive to the effect that a layman is incapable of diagnosing his own case; that competent diagnosis entails many different factors which must be evaluated by one skilled so to do, and involves many procedures such as the taking of X-rays, individual histories, laboratory tests and procedures as to all of which the layman is quite incapable of performing, and further, again according to the credible evidence of record, the diagnostic indicia suggested by the bock such as crusts in the eye corners—absence of ear wax—pallid complexion, brittle ridged fingernails, dry scaly scalp, dry patches over knees and elbows, ete.—even acute pains in the muscles or joints, any or all are not significant or convincing diagnostic indicia. Concerning those who were convinced they had been “cured”, the testimony of Dr. Ropes hereinbefore reviewed, (pp. 64-65), may suggest an answer. At all events it would appear axiomatic and is so found, that before one may be proven to be relieved or cured one must first be found to have been concurrently suffering from the disease so claimed to have been cured or relieved. The inherent weakness of evidence of this type is apparent and therefore has been disregarded by this examiner because of having no weight in favor of the defense.

The testimony of the three physician-witnesses, in support of the three specific lay witnesses, was also meaningless and unconvincing to this examiner and, in fact, in one instance was demonstrated to be false, hence is also disregarded as without weight. Respondents’ Medical Witnesses The only witness for the respondent. who testified on the broad scope of the medical aspects of this inquiry was Dr. Edward T. Johnson, of Brookline, Mass., who received his degree of B.S. in chemistry in 1948, and his M.D. degree in 1946, both from Tufts College, Medford, Mass.; after some postgraduate studies and internship in New York, he was engaged in private practice in Cali- WITKOWER PRESS, INC., ET AL. 199 145 Findings fornia from 1954 to 1957, after which he returned to the vicinity of Boston and is now (January 1958) a medical consultant with the Brusch Medica] Clinic, Cambridge, Mass., which is a small clinic with a medical staff of three physicians, where patients are seen and treated. Aside from this verbal description of his experience, which appears of record, no further professional qualifications were offered. Dr. Charles Brusch, the Director of the Clinic, invited the witness to undertake the supervision of a clinical evaluation at the Brusch Clinic which would entail reference to the witness of “arthritic patients, to be placed on a regimen similar to that recommended by Mr. Dale Alexander.” Witness met Mr. Alexander through introduction by Dr. Brusch and witness knew that Alexander was not a physician. The witness was not tendered as an expert in the field of arthritis or rheumatism or any of the related diseases; that he is not a member of any professional association having to do with these rheumatic diseases and. has had no previous experience in clinical investigation and evaluation in the field of rheumatism or arthritis, his actual experience being limited to “approximately 150” patients administered to in his private practice. This witness testified at great length concerning tests which he had made on some 140 patients who had been referred to him for his study pursuant to his employment, although he had records only of 98, explaining the discrepancy by stating that he received “no co-operation (from the patients] in connection with visits, incompleted laboratory work, and so on.” That while he knew Alexander was not a physician, nevertheless, Alexander was present when witness examined many of these [male] patients, particularly during the taking of patients’ histories and for the giving of directions as to diet and sundry procedures of the regimen prescribed by the book; that over a period of approximately six months during the course of the tests Alexander was present. about 90 percent. of the time. Witness was asked if he realized, at the time he commenced his study, that he would be required to testify concerning same in this proceeding and replied: “Definitely not”; that he has not. read the book, “Arthritis and Common Sense,” and Jearned of the contents and regimens outlined therein by talking same over with Dr. Brusch and Mr. Alexander, and his understanding thereof is derived solely from these conversations; during the course of the studies certain written data of the tests were made on each and all of the patients concerning whom the witness testified, such reports being contained in a bound volume of 615 pages designated as Respondents Exhibit No. 27; that the formats of the forms upon which reports were made, and the various subjects to be reported Findings 57 ETC.

upon therein, were set up and prescribed mainly by Dr. Brusch and Mr. Alexander after some consultation with the witness. The witness testified in great detail concerning the aforesaid tests, both individually and collectively, and limitation of space, as well also the absence of value and weight to be accorded that testimony, indicates that no good purpose would be served, nor is it necessary, to review same or to comment in detail thereon. Suffice it to say that. all of this testimony has been carefully studied and reviewed by this examiner, who paid strict attention at the time it was taken, and it is here found that because of the many shortcomings in that testimony, and the obvious inconclusiveness of the tests, that the testimony of this witness is of no value to the defense. At the time of the taking of the testimony of this witness the examiner was not favorably impressed with the professional experience or capability of the witness to conduct. the tests concerning which he testified; that witness had had no previous experience in making clinical evaluations in this field of medicine; that he was hazy and hesitant in the giving of his testimony; that the patients which he examined were not diagnosed by him to be afflicted with rheumatism or arthritis, nor had the witness been qualified, nor did he give, any evidence of his ability to make such diagnoses; that patients were referred to him in many instances because they were believed by others on the medical staff of the Brusch Clinic to be afflicted with arthritis or rheumatism, although none of the presumed diagnosticians were produced or tendered to confirm such a diagnosis: that no adequate or competent protocol had been set up by him to adequately direct the tests which he performed, or the observations which he had made, which would form a sound scientific basis to enable him to express the test results and opinions concerning which he testified; that many X-rays, concerning which he testified. were not produced; that, some X-rays on which he had based his then current findings had been taken many months prior to the time the patient appeared before him. and that no follow-up X-rays had been made to confirm the objective and subjective observations of amelioration of pain, symptoms or other details concerning which he undertook to testify: that he made none of the chemical or laboratory tests. nor were anv of the original laboratory notes produced to substantiate his testimony and thus to accord Commission counsel an opportunity for cross-examination. Many of the above defects. noted by the examiner at the time of receiving this testimony, were later confirmed by a competent rebuttal witness appearing on behalf of the Commission, Dr. Lawrence E. Shulman, whose testimony will be hereinafter noted. WITKOWER PRESS, INC.; ET AL. 201 145 Findings The testimony of Dr. Johnson in Jarge part was predicated on the forms contained in the aforesaid Respondents Exhibit No. 27, the entries therein contained, in large measure, being admittedly not original records; that Alexander participated in these tests and the report forms in question are concededly, to the estimated extent of perhaps 50 percent thereof, in the handwriting of Mr. Alexander who, as hereinbefore set forth, in the opinion of this examiner is without demonstrated qualification or ability to participate in any such tests to the extent indicated by his handwriting on the various forms.

The record will disclose that the Commission closed its case in chief on June 19, 1957, and that the witness commenced his tests around the middle of July 1957, completing them sometime prior to January 9, 1958, the latter being the day on which he commenced to testify. It will thus be seen that ihe tests were conducted only after the respondents were apprised of the extent to which they would be compelled to go by way of defense, and after all of the testimony on behalf of the Commission had been received and was available to the respondents, as well as to the witness. At about the time when the witness undertook to make these tests at the request of Dr. Brusch, (he up to that time not. being in the employ of the Brusch Clinic), he received an initial payment of $500 and, for his services in making the entire series of tests, he received the total sum of approximately $3,000. Respondents offered as a further witness, Dr. Everett W. Delong of Beverly Hills, California, who testified that he received his M.D. degree in 1983 from the University of Michigan; spent approximately two years internship in the Cedars of Lebanon Hospital, of Los Angeles, Calif., during which time, (for two days a week), he was Chief of the Outpatient Clinic of Internal Medicine at that Hospital; has published several papers, connected with the subject of nutrition, which have been published in the Journal of Applied Nutrition, the official organ of the American Nutrition Society, and that (in 1948) he was the President of that Society; for a number of years has been on the Board of Directors of the Academy of Nutrition. This witness was qualified as, and used by, the respondents as an expert in the field of clinical nutrition, his qualifications and testimony having been limited thereto. The witness has not read the book, “Arthritis and Common Sense,” but claims acquaintance with the theories therein enunciated which ~ he acquired by talking with the respondent Alexander; that he be- Findings 57 F.T.C.

lieves there is a relationship between diet and nutrition on the one hand, and osteo-and rheumatoid arthritis on the other hand, in that: * * * arthritis is a result of chemical changes in the body, and since this chemistry is in part supplied by our nutrients, I will state that there is a relationship.

It is significant to note that the witness was not asked, and did not express, any personal or expert opinion, as a physician, on the book, “Arthritis and Common Sense,” nor on the efficacy of any of the theories or regimens therein set forth, to constitute an adequate, effective or reliable treatment for any kind of arthritis, rheumatism, or related conditions, or rheumatic fever, or any of the pains or symptoms thereof; that he did not advance or advocate that any such result. could be accomplished through the instrumentality of dietary change or regimen or by the administration of cod-liver oil or the use of vitamins, all of these tools of treatment being within the especial expertise of the witness whose specialty was dietary studies. Quite to the contrary, when such questions on these and related subjects were put to him he was hesitant and unsure in his answers, in each instance explaining that research was still being pursued and had not arrived at a point which would warrant his expression of a definite opinion; that there were many questions in this field yet to be answered.

Respondents paid for the transportation of the witness from California to Washington, D.C., where he testified, as well also his hotel bill and expert fee of $200 per day.*8 This examiner was not at all impressed with the qualifications of this witness to testify on the various technical subject matters inherent in this proceeding, nor did the witness in fact testify to any matter or thing which would be of assistance to the respondents in proving their defense, or in rebutting the testimony of the Com- 48 From the commencement of this proceeding respondents have urged that there was no necessity to hold hearings elsewhere than in Washington, D.C., because: “* * * Tt]here are enough hospitals and recognized authorities in the field of rheumatism and arthritis in Washington, D.C., so that expert testimony can be presented at hearings in that City * * * and that some consideration should be given to the difficulty and expense thrust upon respondents by scheduling hearings in various cities. * * * and it is an abuse of discretion * * * to require respondents to attend hearings in various cities throughout the couutry for no substantially useful purpose.” (Motion by Respondents to Adjourn Hearing, filed herein October 16, 1956.) Despite the foregoing assertions it is noted that respondents did not produce a single ‘expert witness from Washington, D.C., but demanded and received hearings, and produced such witnesses, in Cleveland, Ohio, Detroit, Mich., Galesburg, Ill., Shawnee, Okla., Boston, Mass., and the above witness from Los Angeles, Calif., all at great expense to the parties. From this it is found that respondents not only experienced the impossibility of securing a clinical evaluation of the claimed value of the book as a therapeutic agent, but likewise found it difficult, if not impossible, to produce competent expert testimony in such behalf within the entire area of the United States. WITKOWER PRESS, INC., ET AL. 203 145 Findings mission’s witnesses in any material respect, and is, therefore, disregarded in its entirety.

Commission Rebuttal Witness Contra Dr. Johnson The Commission next introduced a witness, Dr. Lawrence E. Shulman, for the purpose of rebutting the testimony of respondents’ witness, Dr. Edward T. Johnson, the entire testimony of Dr. Johnson and all exhibits pertaining thereto, (specifically Respondents’ Exhibit No. 27), having been theretofore submitted to him for the purpose of reviewing the tests and testimony of Dr. Johnson and giving his expert testimony thereon.

Dr. Shulman has been a practicing physician since 1949, specializing in internal medicine; degree of A.B. Harvard University, 1941; Ph. D. from Yale University, Graduate School, Department of Public Health, 1945; M.D. Yale University School of Medicine, 1949; at present (July 22, 1958), Assistant Professor of Medicine, The Johns Hopkins University, where his duties include research work, practice and teaching, necessitating the keeping abreast of therapeutic developments in the field of arthritis and rheumatism. His curriculum vitae is of record as Cx. No. 67 A, supplemented by a list of his publications (Cx. 67 B) numbering thirteen, of which eleven deal with the subject of arthritis and rheumatism. The witness testified at some length, and in much detail, concerning Dr. Johnson’s testimony, and likewise subjected many of the tests, made by Johnson and reported in Rx. No. 27, to critical examination. He testified to many shortcomings in the tests; could not agree with many of the findings based on the tests; pointed out that some of the test subjects were wrongly diagnosed in that the recorded symptoms, objective and subjective, did not support the diagnoses; the absence of X-ray photographs where it was highly desirable, if not indispensable, to have such in aid of diagnosis, and a great many other facts and factors which impugned the validity of the tests and the weight of testimony of Dr. Johnson. It having heretofore been found as a fact that the testimony of Dr. Johnson was unavailing and worthless to respondents as a defense, it follows that no lengthy discussion or consideration of the testimony of this witness, Dr. Shulman, need be indulged. If, however, that finding of fact should be attacked by respondents, the testimony of Dr. Shulman should certainly be considered as, in the opinion of this examiner, which is here found as a fact, the sum ‘and substance of Dr. Shulman’s testimony poses a complete and understandable refutation of Dr. Johnson’s testimony. Conclusions 57 FVT.C.

GENERAL FINDINGS OF FACT Based upon the entire record, and for the many reasons assigned in the foregoing findings of specific facts, and in addition thereto, the following general findings of fact are made: 1. The regimen, material or contents of the book, “Arthritis and Common Sense,” do not provide or afford adequate, effective or reliable treatment for any kind of arthritis, rheumatism or related condition, or rheumatic fever; nor 2. Adequate, effective or reliable means of arresting the progress of, correcting the underlying causes of, or curing any kind of arthritis, rheumatism or related condition, or rheumatic fever; nor 3. Adequate, effective or reliable treatment for the symptoms and manifestations of any kind of arthritis, rheumatism or related condition, or rheumatic fever, nor will the regimen, material or contents of the book, “Arthritis and Common Sense,” afford any relief from the aches, pains, stiffness, swelling or other discomforts arising from such conditions.

CONCLUSIONS 1. As hereinabove recited, respondents have entered herein a plea in which they allege that the action of the Federal Trade Commission in issuing its complaint in this matter constitutes an attempt on the part of said Commission to censor the book, “Arthritis and Common Sense,” and to thus restrain and interfere with the respondents in the exercise of their right of free speech as guaranteed under Amendment I to the Constitution of the United States prohibiting “* * * abridging the freedom of speech, or of the press.” In, refusing to grant the motion to dismiss the complaint predicated of this plea, the examiner gave his reasons for such denial, all of which appear in Appendix No. J to this decision. It is concluded as a matter of law, as well as a matter of fact, that this action does not constitute an attempt to censor, restrain, interfere with, or im- .pinge upon, the rights of respondents as guaranteed by the Constitution; that the action herein, as hereinbefore found with great specificity, involves representations made in and by false and misleading advertising by the respondents of and concerning the book, “Arthritis and Common Sense,” and of and concerning the results which were thus represented could be obtained by the purchase and perusal of said book, and the use of the regimens and theories therein enunciated for the therapeutic treatment of arthritis, rheumatism, and related conditions or rheumatic fever. Such are thus clearly within the scope of the jurisdiction of the Federal Trade Commission WITKOWER PRESS, INC., ET AL. 205 145 Conclusions as conferred by its organic act. This having been so determined, an analysis or review of the many authorities cited by respondents in support of their position in this behalf is unnecessary. And further, the order to be passed herein will not interfere with the right of the respondent Alexander to freely express himself, and to freely publish his writings, the scope of such order being directed to prohibiting the respondents from publishing and circulating, any false or misleading advertisements of and concerning the beneficial and therapeutic results that could be expected by use of the theories and regimens set forth in the book. This vital differentiation between the book itself and advertising matter pertaining to the book, is clear and necessary to be made because, were it otherwise, one could simply write or compose a book containing many untenable, even absurd, theories and then, by. means of advertising in the public press, and by radio and television, represent that all such things were in fact true and, according to the theory of the respondents, they would occupy an impregnable position in so asserting under the aegis of the constitutional right, an obvious non sequitur. As said by the Court in Drew v. F.T.C., 235 F. 2d 735, “there is no constitutional right to disseminate false or misleading advertisements.” 2. It is concluded that the corporate respondent as well also the ‘ndividual respondents named in this proceeding are all engaged in the common enterprise and that the order to be herein passed shall include the individual respondents in their personal and representative capacities, (this for the reason that the latter have been proved to be the dictators of the business policies and acts of the corporation), thus to ensure that the order to cease and desist may be fully effective.

International Art Company v. F.T.C., 109 F. 2d 398. Steelco Stainless Steel, Inc. v. F.T.C., 187 F. 2d 698. Sebrone Company v. F.T.C., 185 F. 2d 676.

Consumers Sales Corporation v. F.T.C., 198 F. 2d 404. Parke, Austin & Lipscomb, Inc. v. F.7.C., 142 F. 2d 487. 8. It is concluded as a matter of law that the dominant aim and theme of the advertising found to be false and misleading, is to sell the book, “Arthritis and Common Sense,” and that the occasional pious mouthings of the respondent, Alexander, in his television and radio broadcasts, to the effect that the book is not held out as a “cure” for arthritis and rheumatism, cannot be considered as effective to negative or submerge the dominant theme of his activities, as herein found, even if such mouthings could be considered in isolation, which it is concluded, because of their context, cannot be done. Conclusions 57 F.T.C.

4. It is concluded as a matter of law that neither the Wheeler-Lea Amendments to the Federal Trade Commission Act, (38 Stat. 111 as codified at 15 U.S.C. 52 et. seq.) nor any other law *® imposes an obligation or burden on the Federal Trade Commission to prove that there is a consensus of the medical profession in support of the. allegations of the complaint, or of the opinions expressed by the individual medical experts on behalf of the Commission given in support of the charges of the complaint. It is pointed out that no such consensus has been herein found, nor has it been deemed necessary to make such a finding in order to sustain the charges; that the Commission is within its rights in relying upon the testimony of its experts herein which testimony, incidently, stands unrefuted. On the right and duty of the Commission to make independent and unassailable findings on technical questions where apparent conflict exists, the Court, in Carter Products, Inc. v. F.T.C., 9th Cir., CCA, (June 16, 1959) (p. 44) had this to say: We agree with Commission counsel that it was for the hearing examiner and the Commission, not the courts, to pass upon the credibility of witnesses and the weight to be accorded their testimony. See decision of this Court in Tractor Training Service v. F.T.C., 227 IF’. 2d 420, 424. See also Corn Products Refining Co., et al. v. F.T.C., 324 U.S. 726, 789. Many decisions of like purport fully support this well established rule. So much may also be said concerning: the weight to be given by the Commission to the facts and circumstances admitted as well as inferences reasonably to be drawn therefrom. The possibility of drawing either of two inconsistent inferences from the evidence does not prevent the Commission from drawing one of them. and further * * * In our appraisal and assessment of the record as a whole, we endeavored tomake a fair estimate of the worth of the medical testimony of the expert witnesses, having in mind that in the last analysis, the evaluation of the Commission as to the weight to be given such testimony concerning medical truths was @ matter committed for decision to the informed judgment of the Commission, and that making a primary decision on that question was a duty that fell within the area of its competence. So far as concerns any conflicts in such testimony, we are also of the view that such conflicts presented questions of fact for resolution by the Commission and not for resolution by this Court. See Irwin v. F.T.C., 143 F. 2d 316, 823. * * * (Italic supplied.) 5. It is concluded that there is no respectable body of medical opinion of record to support the enunciated theories contained in the 49 In this connection the following authorities have been considered : American School of Magnetic Healing v. McAnnulty, 187 U.S. 94. Universal Camera Corp. v. NLRB, 340 U.S. 474. Reilly v. Pinkus, 338 U.S. 269. , Alberty v. F.T.C., 182 F. 2d 36.

Also studied at length and found not controlling here: F.T.C. Matter re Lambert Pharmacal Co., (‘Listerine”’ case) F.T.C. Docket No. 4232. WITKOWER PRESS, INC., ET AL. 207 145 Conclusions book, “Arthritis and Common Sense,” and in fact there is no credible expert or other testimony or facts of record, worthy of consideration or belief, in substantiation of the theories of the book. 6. It is concluded that there is no substantial, credible or significant divergence of medical opinion, appearing of record, on any or all of the pertinent disputed theories advanced by the book, which would necessitate a “picking and choosing” therefrom, or the disregarding thereof, in order to arrive at, or select one school of medical thought over another so as to arrive at a choice of which school or segment of medical opinion should prevail for the determination of the issues herein, this for the reason, that the preponderance of evidence in favor of the charges of the complaint is overwhelming. 7. It is concluded, on the basis of the record and by observation and appraisal by this examiner, that respondent Alexander, due to total lack of professional status, experience, background and education, or by reason of anything whatsoever of record, was not qualified to write an authoritative book or treatise on, or to express an authoritative opinion upon, the causes of, cure of, or method of alleviating the pains and discomforts of, or arresting or diagnosing, arthritis, rheumatism or related diseases, or rheumatic fever. This conclusion is based upon, and distilled from, the entire record, or so much thereof as pertains to Alexander, hence it is concluded that the representations by respondents made in their said advertisements are false, deceptive and misleading and as such must be enjoined. 8. Another argument urged by respondents in their defense is that no harm can come to the public by following the diet, medication theory and regimens advanced in the book: In sum, they say the book, at worst, is innocuous. Laying aside, for the moment, any consideration of the possibility of inherent danger to the public in not promptly seeking proper and competent medical diagnosis, advice and treatment in serious cases because of reliance upon the falsely asserted remedial and curative procedures advocated by the book, (in which aspect this Commission is, of course, seriously interested), it is likewise solicitous of the public’s pocketbook to the end that it be protected against false and misleading statements inducing large outlays of money for the purchase of articles and books which do not meet such representations, or worse still, are utterly worthless. In the instant matter, based upon respondents’ admission of 500,000 sales of the book, (there are no figures of record as to total dollar sales), a simple computation thereof at $3.95 each amounts to $1,975,000 and to this extent the public has been mulcted and the respondents, less their cost of production and operating expenditures, have profited. Further, it is observed, that the number of books sold Order 57 EVT.C.

is not a true indicia of the actual circulation among those who gain access to, and read and rely upon, the book to their detriment. 9. It is concluded that the book, “Arthritis and Common Sense,” is but a thesis by Alexander, predicated of unsupportable and unprovable postulates and amounts to nothing more than a collection and summation of the author’s theories concerning arthritis, rheumatism and related diseases, all of which yet remain pure theory, insofar as the probative testimony of record is concerned and which this examiner must accept, in the absence of technical competence of his own. Viewing Alexander’s theories, as opposed by the facts of record in opposition thereto, prompts the quotation: One of the Tragedies of Life is the Murder of a Beautiful Theory by a Brutal Gang of Facts.

10. The use by the respondents of the foregoing found false, misleading and deceptive statements and representations has had, and now has, the capacity and tendency to mislead and deceive the purchasing public into the erroneous and mistaken belief that said representations are true and into the purchase of respondents’ said book by reason thereof.

11. The aforesaid acts and practices of the respondents are all to” the prejudice and injury of the public and constitute unfair and deceptive acts and practices in commerce within the intent and meaning of the Federal Trade Commission Act. ORDER It is ordered, That respondent Witkower Press, Inc., a corporation, and its officers, and respondents Dan Dale Alexander and Bernard Witkower, individually and as officers of said corporation, and respondents’ representatives, agents and employees, directly or through any corporate or other device, in connection with the offering for sale, sale or distribution of a book entitled “Arthritis and Common Sense,” in commerce, as “commerce” is defined in the Federal Trade Commission Act, do forthwith cease and desist from representing, directly or indirectly, that the regimen set out in said book provides:

1. An adequate, effective or reliable treatment for any kind of arthritis, rheumatism or related condition, or rheumatic fever. 2. An adequate, effective or reliable means of arresting the progress of, correcting the underlying causes of, or curing any kind of arthritis. rheumatism or related condition, or rheumatic fever. 8. An adequate, effective or reliable treatment for the symptoms and manifestations of any kind of arthritis, rheumatism or related WITKOWER PRESS, INC., ET AL, 209 145 Appendix condition, or rheumatic fever, or will afford any relief from aches, pains, stiffness, swelling or other discomforts thereof. Apprenpix I ro Inirrat Decision HEARING EXAMINER’S RULING ON RESPONDENTS’ MOTION TO DISMISS ON CONSTITUTIONAL GROUNDS Hearing Examiner Purcety. Gentlemen, I have given a great deal of thought to this matter down through the past ten months, so that the question raised today—and I am directing my remarks primarily to the constitutional objection—has been a matter of concern to me, because, as you will recall in Hartford at the initial hearing quite an extensive argument was made, and I refused to rule on that argument, at that time, either favorably or adversely, but directed the proceedings to go on.

Now, Mr. Cox, the object of any argument on your part would be, naturally, to convince me that the respondent is wrong in his motion. I don’t need any such argument, and I will not accept it. Suffice © it to say, I have given very earnest study to the briefs on both sides in the light of my knowledge of the facts, and this is not a decision which I have arrived at on the spur-of-the-moment, but only after careful reflection, and I have taken the occasion to write down my thoughts on the subject.

Mr. Cox, in the light of the examiner’s statement, if you care, irrespective of the examiner’s statement, to make any argument, to point out anything special, the record is at your command, sir. Mr. Cox. I have no necessity of replying to what respondent has said. My brief covers the situation.

As to my position regarding what was stated on page nine, that was superfluous. It still doesn’t change my position about it being false advertising that I am attacking.

Hearing Examiner Purceiz. Now, in ruling on the respondents’ motion to dismiss, and as a basis for the following observations, I might say that I have carefully observed and evaluated the testimony and exhibits thus far introduced in this matter andgthat I have practically lived with the case for the past ten months. This has not been confined to listening to the testimony of some twenty-two witnesses, scientific and otherwise, but also listening to replays of extensive radio broadcasts and the viewing of replays of television programs, plus analysis of some seventy-three exhibits aud. of course, the reading of the book, “Arthritis and Common Sense.” That the respondents have misconceived the object of the present proceeding is evidenced not only in their motion to dismiss filed 640968—63. 15 Appendix 57 F.T.C.

herein on July 5, 1957, and in their supporting brief, but also in their motion to dismiss at the outset of these proceedings and in various statements and arguments made during the course of the proceeding, all of which may be exemplified in a paragraph contained in respondents’ petition for a review of denial of motion for clinical evaluation, filed herein October 29, 1956, in which document on page 7, paragraph 11, respondents have the following to say: “The complaint in the instant case raises the question of misleading advertising, not in the sense that the advertising is not reflective of what is in the book, but rather on the assumption that if the theory and treatment advocated in the book are ineffective, then any advertising suggesting that the book has any value in connection with the treatment of arthritis is also per se false and misleading. It is thus apparent that the instant complaint involves the suppression of a medical theory—the book itself. That this is so is further evidenced by the fact that a subpoena duces tecum to produce copies of the book’s jacket has been issued.” Now, Mr. Cohen, that is a statement of your position on October 29, 1956, and I wish to inquire, is that sti]l counsel’s position? Mr. Conen. Yes sir.

Hearing Examiner Purceti. Very well.

Respondents further proceed in the same instrument to say: “Respondents’ constitutional right of freedom of speech and freedom of press are invaded by this governmental action which, although disguised in the form of an attack upon ‘advertising,’ is clearly and obviously an attack against publication of respondents’ book and the theories outlined therein. * * *”

Further along in the same instrument, on page 11, respondents urge:

“* * * At worst, respondents’ book would result in a delay, ‘(on the part of an afflicted person)’ of several months in securing medical attention,” (this referring to arthritis of a degenerative or of a nonspecific origin).

Further along in the same paragraph, advertising to the possible injury to the public of delays in seeking medical advice, respondents say: “This maximum delay of a few months will work no hardship in connection with any arthritic case of a degenerative or of a nonspecific infectious origin,’ but they fail to accept any responsibility because of the “few months” of perhaps unnecessary suffering by the afflicted person, nor the dangers attendant upon failure to secure, in limzne, proper medical advice in instances where arthritis or rheumatism is due to infection of a specific nature, such as gonorrheal infections and rheumatic fever, stating only that: “The re- WITKOWER PRESS, INC., ET AL. 211 145 Appendix spondents have instituted precautions to preclude any inadvertent reference to such diseases and are willing to cooperate with the Commission to achieve this result and to insure that there is no danger to the public.”

This may be, although not so decided at this moment, a tacit admission on the part of respondents that there is some realization © on their part, of a potential injury to the public under specific circumstances or facts. But whether it is admitted or not, the fact. remains that the dangers attendant upon nondisclosure, or by themaking of any representations as to the remedial or curative capabilities contained in the book, are clearly matters within the pur-. view of the jurisdiction of the Federal Trade Commission. That there is clearly involved in this proceeding the matter of false advertising statements is admitted to be true by the respond-. ents on page 22 of their brief in support of this motion to dismiss wherein they say:

“Respondents concede, for present purposes, that misstatements in advertising, such as those relating to Mr. Alexander’s qualification, may be proscribed.”

The complaint in this case does not in any way, and contrary to the earnest contentions of the respondents, seek to criticize, censor, or curtail the circulation of the book or its publication. On the contrary, the complaint is carefully drawn and specifically charges in paragraph 8 as follows:

“In the course and conduct of their business aforesaid respondents have made many statements concerning said book, in advertisements inserted in newspapers having a general circulation,” (and such advertisements have been received in evidence), “over radio broad-— casts and television telecasts which were transmitted across state lines into various states of the United States and in the District of Columbia,” (evidence of which radio broadcasts and television telecasts have all been received in evidence). “By means of the statements made in said adverisements, respondents represent, directly and by inference, that the regimen set out in their said book ‘Arthritis and Common Sense’ provides:

“(1) an adequate, effective and reliable treatment for all kinds of arthritis, rheumatism and related conditions, including rheumatic fever;

“(2) an adequate, effective and reliable means of arresting the progress of, correcting the underlying causes of, and curing all kinds of arthritis, rheumatism and-related conditions, including rheumatic fever;

“(3) an adequate, effective and reliable treatment for the symptoms and manifestations of all kinds of arthritis, rheumatism and Appendix 57 F.T.C.

related conditions, including rheumatic fever, and will afford complete relief from the aches, pains, stiffness, swelling and other discomforts thereof.”

The foregoing paragraph contains the genesis of all of the charges here in issue. Such charges are clearly confined to the representations made by means of advertising in newspapers, radio broadcasts and television telecasts, concerning the ineffectiveness of the book itself to live up to and discharge the effective remedial qualities ascribed to it by the author and his co-respondents. Concrete evidence of all of these media of representation have been introduced in evidence and while at this stage of the proceedings the hearing examiner does not pass upon the effectiveness or validity of the recorded evidence to prove the charges of the complaint, nevertheless the proof thus far had and accepted in evidence, tends strongly to prove the complaint’s charges and conclusions concerning the necessary construction attendant upon their publication and as such they form the very foundations of the evidence in this case. Supplementing the foregoing media of advertising is the matter of the various representations made on the jackets covering the ten successive printings of the book in question, all of which were and are contended by Commission counsel to be clearly within the category of advertisements and necessary to be considered as relevant matter in this proceeding. This view has been concurred in by the hearing examiner and the Commission’s contentions in this particular sustained, as is evidenced by a large number of rulings accepting such matters in evidence.

Having to prove the representations which are claimed to be false, it thereupon became and was the duty of the attorney in support of the complaint to show by expert or scientific evidence, as well as by additional evidence of a non-scientific nature, that the representations were in truth and in fact false and misleading in that the subject matter of the book itself did not bear out the truthfulness of the representations attributed to it in the many advertisements made for the purpose of promoting sale of the book. It thereupon became and was the duty of the attorney in support of the complaint to produce the testimony of medical experts to examine in detail the various portions of the book and to show with particularity those specific instances in which the book was shortcoming in carrying out the remedial processes attributed to it. As a result of the advertising aforesaid some five hundred thousand copies of the book have been sold. It was upon this theory that the hearing examiner received, over the objections of the respondents, testimony and evidence of this particular type, being mindful of the fact that the naked charges of false advertising and misrepresentations could not stand unsupported WITKOWER PRESS, INC., ET AL. 213 145 Appendix by proof, and the type of proof delineated constituted the only possible method of showing falsity. It was upon this belief and his understanding of the Jaw on the subject, that the hearing examiner received such evidence and not because there was any clesire on behalf of the Federal Trade Commission or its counsel, or of this hearing examiner, as charged by the respondents, to censor the subject matter of the book, “Arthritis and Common Sense,” or to in anywise suppress its publication or curtail its sale and circulation. In his brief in support of the motion to dismiss, respondents’ counsel cites many cases as precedents for his position, in none of which has the hearing examiner found to exist a sound basis for granting the relief sought. Some of the cases cited by counsel had to do with curtailing or hindering expressions of religious opinions, all such expressions of course being based primarily upon opinion, faith, belief or the medium of the Revealed Word, such being obviously not susceptible of clear proof or disproof as facts, but rather, perforce, must be left to the hereafter for ultimate determination. ther citations were based upon cases involving political rights and expressions of political beliefs and these, too, are not demonstrable as facts other than by the asseverations ‘and arguments of the particular individuals advancing them as facts, but on the contrary, the proof thereof must be left to history. However, in the instant matter, the representations made in furtherance of the sale of the book, are, in many respects, refuteble by medical testimony, ven though “medicine” may be classified as an inexact science, and this the Commission counsel has undertaken to do the best of his ability and within the framework of the clearly defined issues herein. The weight to be accorded such testimony is peculiarly within the province of the Commission as the ultimate finder of the facts. At this pomt then, in passing, it is to be observed that we are not here confronted with the necessity of choosing and selecting between different schools of medical thought. The conflicting testimony of the several meclical experts, outstanding in this field, contrasted with the writings and testimony of Alexander, an admitted layman, whose formal education in matters medical consists of but one semester as a pre-medical student, negates any argument that there may be a divergence of medical opinion. If any choosing as between medicals schools has been indulged, that has been ec confined to Alexander himto (0 his 1a Tay wind, ‘seemed to him to be ] proper; Fand am not at all cona a ee arene —_ tment eve enon ee vinced, 1 ton te ‘evider ice before 3 ne, , that - Alexander has, ¢ or ever Appendix: 57 F.T.C.

In making these observations the hearing examiner wishes it to be distinctly understood that he is making no definite ruling as to the probative value of any evidence thus for offered in the case, but, on the contrary, is expressly reserving any such expression to a time in the future when he shall have had an opportunity to rule upon and appraise the testimony to be offered by the respondents in their defense.

Now, adverting to the point made by the respondents of the lack of any “product” in this proceeding: On the subject of “books” not being “products” within the purview of the Act, as contended by the respondents, it must be remembered that respondent Witkower Press, Inc., is the publisher of the book and certainly, as to it, the book is its “product.” The author, respondent Alexander, is the president of Witkower Press, and he, Alexander, and his wife, own fifty per cent of the capital stock of Witkower, Inc., and the profits accruing from sale of the product book enriches him so that he is vitally and financially interested in sales volume. In addition, as the evidence to date tends to show, Alexander is the prime utterer of the alleged false representations of physical benefits to be derived from perusal of the book and has, according to testimony, misrepresented his past personal history as to his medical background in an endeavor to cast an aura of authenticity and medical foundation and acceptance to his book utterances and thus to promote its sale. The Commission has assumed jurisdiction in a number of instances where the contents of books did not measure up to the representations made on their behalf in advertisements by means of various media. One such is the F.T.C. matter re: Levine, Docket No. 5028, where the Commission issued an order restraining respondent: «“* * * his agents, representatives and employees * * * in connection with the offering for sale, sale and distribution in commerce . . . of respondent’s book entitled ‘The Complete Guide to Bust Culture, do forthwith cease and desist. from disseminating any advertisement or advertising material which represents, directly or by implication, that by following the directions in said book (and here follow the inhibitions) .”

I am of the opinion that there is no merit in respondents’ contention that the complaint should be dismissed because a “product,” such as a “pot or a pan” (to use the simile selected by respondents’ counsel), is not here involved. Respondents contend that, in the marketing of the book, They were engaged in the selling of the ideas and: opinions contained in the book, and not the book itself as an object of commerce. The argument is specious because the sales of respondents have, by common arithmetic based on their own admis- WITKOWER PRESS, INC., ET AL. 215 145 Opinion sions, amounted to approximately one million dollars and this, to me, amounts to big business in a product in commerce. In other words, for the purposes of this case, the book is a product, and the advertising and false representations on the book jackets, in newspapers, radio and television broadcasting concerning it, not being truthful according to the contentions of the Commission, the whole matter is quite within the jurisdictional cognizance of the Commission to inquire into the facts and act accordingly. Respondents have cited in support of their position several cases involving fraud orders issued by the Post Office Department. These are inapposite to this proceeding, not only because of the difference in the nature of proof to be adduced to warrant issuance of a fraud order by the Post Office Department compared with that required in a proceeding before the Federal Trade Commission, but likewise because of the vast difference between the severity of the orders. In the former the recipient of the order is, in many instances peremptorially put out of business while here the order requires a respondent merely to restrict himself to the truth. These differences are clearly pointed out in the case of Riley v. Pincus, 338 U.S. 269, cited with approval by the Supreme Court, per curiam, in the remand to the Ninth Circuit Court of Appeals of the Carter Little Liver Pills case No. 114 October Term, 1953, S.C.U.S.

The motion to dismiss the complaint will be denied. OPINION OF THE COMMISSION By Anpverson, Commissioner :

The respondents are engaged in the sale and distribution in commerce of a book, entitled “Arthritis and Common Sense”, which was written by respondent Dan Dale Alexander. In the initial decision, the hearing examiner found that respondents have falsely represented in advertising for their book the benefits afforded by its regimen and thereby engaged in unfair and deceptive acts and practices within the meaning of the Federal Trade Commission Act. The order contained in the initial decision would forbid the use of such representations in promoting the sale of the publication in commerce and respondents have appealed.

The basic theme of the book and its advertising is that arthritis and related conditions will be corrected and effectively relieved by a dietary regimen which includes cod liver oil and orange juice and use of other foods and beverages prepared and eaten in sequences recommended. The hearing examiner correctly found that the advertising has offered the book as an effective and reliable treatment for arthritis and related conditions and for correcting their under- Opinion 57 F.T.C.

lying causes and relieving the aches, pains and symptoms thereof. Respondents state, however, that the book was written as a public service and that the basic objective of their advertising has been to stimulate circulation and discussion of the book’s views for establishing their validity. Those considerations, they contend, plus the fact that some professional and lay opinion subscribes to respondents’ regimen precludes their book from being considered a commercial product for purposes of regulating advertising publicizing its ideas. Over a half million copies of the book have been sold resulting from its nationwide promotion in newspaper advertising and on television and radio. The book: clearly constitutes an article of commerce. And insofar as the brief’s foregoing contentions would portray respondents’ promotional activities as an intellectual crusade solely for establishing the validity of the author’s medical theories, such argument must be appraised against the background of other record facts. For example, the false statements of therapeutic merit have been attended by gross misrepresentations in advertising respecting the author’s educational and scientific backgrounds. The covers or jackets for the books state that he “* * * as guest of the Army and Navy General Hospital of Hot Springs, Arkansas, had further opportunity to observe results of therapeutic treatment employed by the services.” This language clearly implies professional recognition of the author ly those services, including invitation to observe and evaluate treatinent used for arthritic patients. However, his visit to the hospital came about by self-invitation and included no scientific discussion with hospital officials. The jackets also state: “Hor his work, Dan Daie Alexander, Ph.D., is now being recognized by colieges and recently he was awarded another honorary degree.” The iatter degree, “Doctor of Arts and Cratory”, was conferred by Staley College of the Spoken Word, Brookline, Mass. The award was subsequent to his contribution of $1,000 to that institution. The hearing examiner found that the author’s Ph.D. degree represented an outright purchase by him? Mr. Alexander has no earned degrees.

1 The author testified that upon bis discharge from army service, and while enroute home, he stopped at the hospital for the “best part of the day’; was a visitor on this one oecasion only; went through the wards, “talked with several of the boys", without however seeing any of their case histories; and “looked at” the physiotherapy department; and that he “just browsed through tbe hospital” and did not talk with anyone in charge on the scientific subject of arthritis.

2The hearing examiner further found that it was unearned and bestowed by the “St. Andrew’s Ecumenical University College” of the City of London, England; that respondent Alexander bad never visited the institution and did not know if it were authorized to confer degrees ;.that his only knowledge of the existence of such a university college was based upon his having seen it “in print emblazoned on this diploma” * * * “but I was happy to receive it.” Mr. Alexander denied he had ‘paid a consideration” for the degree but be ‘‘sent a check for a hundred dollars in appreciation” prior to receiving it. WITKOWER PRESS, INC., ET AL. 217 145 Opinion Also detracting from conclusions of sales promotions primarily inspired by noncommercial motives is the advertising statement that as an “acid test, the author experimented with his own body by introducing an arthritic condition and then effecting the cure through his corrective diet regime.” Similar representations are contained in other advertising statements including those offering the book as a “ouide between the cause and cure of arthritis.” The medical and lay opinion evidence introduced by respondents for showing that the book’s regimen has value included the testimony of Dr. Edward T, Johnson, respecting clinical studies undertaken during the course of this proceeding. The hearing examiner found that testimony unpersuasive for reasons stated in the initial decision; and rebuttal testimony was received detracting from the weight of Dr. Johnson’s studies. The witnesses called by counsel supporting the complaint included physicians who were members of faculties of medical schools or held résponsible hospital posts and were eminently qualified by training and clinical experience to express authoritative views on the subjects of arthritis and similar diseases. The circumstance that the-causes of those diseases have not been authoritatively determined and that studies thereon and looking to their cure continue at research centers does not, however, signify an entire absence of scientific knowledge as to the management and treatment of those disorders. The witnesses called by counsel supporting the complaint stated, among other things, that those ailments are not caused by any kind of vitamin, oil or dietary deficiency and that the regimen advocated in the book would be wholly ineffective for treating or combatting them or their symptoms; and the hearing examiner correctly found that the respondent Alexander’s professions in the advertising respecting ability to self-induce arthritis are completely refuted by the medical testimony received of record. Respondents concede that the author’s scientific views are contrary to orthodox medical opinion. We think the record conclusively establishes, that respondents’ dietary regimen has no therapeutic value for ‘correcting arthritis and related disorders or relieving their symptoms.

Respondents’ main argument is that the bans of the order against representations that the book’s regimen affords an effective treatment for arthritis and its symptoms constitute an undue restraint on the. dissemination of views and medical ideas set forth in their publication and that the order accordingly violates the Constitution’s First- Amendment. That Amendment, among other things, directs that Congress male no law abridging freedom of speech or of the press. Respondents concede that the order does not purport to forbid Opinion 57 F.T.C.

printing or sale of the book but looks instead to prohibiting therapeutic claims used in advertising * which were found false in the initial decision. Thus, a basic question presented in their appeal is whether the freedom of expression protected by the Amendment also extends to falsé promises of therapeutic benefits in the advertising for a book when such advertising statements derive from or reflect like views or information contained i in the publication itself. The power of Congress to regulate commerce is complete within itself and has no limitations other than as prescribed by the Constitution. Respondents concede that freedom of speech does not mean that one can talk or distribute where, when and how he chooses inasmuch as rights of others are involved. The right of free press accordingly has been held not violated by general laws which extended to publishing and newspaper businesses for regulating labor relations * or standards * or monopolistic practices forbidden by the antitrust laws.® Nor does freedom of the press include right by a publisher to fraudulent use of the mails to promote circulation by deception of the public. Donaldson v. Read, 333 U.S. 178 (1948). Furthermore, Section 15(a) (2) of the Federal Trade Commission Act (the so-called oleomargarine amendment) has been judicially approved as not offending the freedom of speech guarantee. That court further held that there is no constitutional right to disseminate false or misleading advertising.’ The party challenging that amendment was not a publisher, however.

Respondents argue that those cases are not controlling here and that the order conflicts with principles applied by courts in two decisions reviewing Commission orders.’ In the Koch case, a medicinal preparation was being sold and the court noted that a book written by Dr. Koch and widely distributed among physicians ex- Plained his his theory of natural immunity and also contained case ~ 3 Though su such argument is not pressed in the appeal brief, the respondents further contenfiGd Betoce Tis eating ose that the previously mentioned paper jackets or or covers “became constituents or components of their books when placed upon them anc and that the _) Statements on the s_did not constitute advertising. Sag eer jackets, we note 0 be eye-arresting and attractive and clearly designed to attract the attention and interest of prospective ‘Durehasers; ‘The covers Nave included iavdatory “PRDTESS ons reviewers and others for the obvious Bu rpose of inv iting and inducing ‘Bales in book stores and when made ars Hable _inwa author's lectures in—various clearly supports inferences that the Statements and Tepresentations appearing on the paper covers constituted advertising “oe am a tii applicable to that term. When kets’ § s to be advertistug, the bearing examiner officially “to thee certain © ers not of retord. “However, our determinations on this aspect rest “50 D of record and ces reasonably based thereon. 4 Associated Présv vy. . TS. 103 (19387).

5 Oklahoma Press Publishing Co. ve Ww alting, 827 U.S. 186 (1946). 6 Lorain Journal Co. v. U.S., 842 U.S. 143 (1951). TL. EF. Drew & Co. v. Federal Trade Commission, 235 F. 2d 735 (2d Cir. 1956). 8 Scientific Manufacturing Company v. Federal Trade Commission, 124 F. 24 640 (8d Cir. 1941) ; Koch v. Federal Trade Commission, 206 F. 2d 811 (6th Cir. 1953). £ WITKOWER PRESS, INC., ET AL. 219 145 Opinion histories of treatments. The court said that the book set forth primarily matters of opinion and that the appended case histories did not serve to change its character in that respect. It held that construing the Act to prohibit dissemination of the book as though it were an advertisement would contravene the First Amendmen and ruled such book not an advertisement within the meaning AY such Act. The order in the instant case does not extend to tors A bidding dissemination of respondents’ book. There, the book was held not. an advertisement; but here respondents’ newspaper ad LU book jackets al and the television shows sponsored by t. them “unquestion\ _ ably constitute. “commercial _advertising. Furthermore, that court upheld the Commission’s order insofar as directed against advertisements for the medicinal preparation being sold which contained like case histories and were disseminated to the public generally. Jn the Scientific case, the parties were selling pamphlets written by one of them which Talsely disparaged the use of aluminum cooking utensils. as poisonous-and. dangerous; and_the order “appealed. from required, cessation..of those representations in connection with the ‘pamphlets’ sale, offeri ng for sal sale or distribution. “Unlike here, it interdicted sale . “of the pamphlets: as Jong as they” contained: the matters found. misstated. When vacating the ‘order as one forbidding expressions of honest opinions and beliefs by the author, the court added that accepting the theory argued to support the order would permit sanctions against the subject matter of pamphlets if contained in an article in a newspaper, magazine or book. Would be. Tegally ¥ repugnant “were the order “directed solely ‘against _ ; . “deceptive advertising” ‘previously “used for inducing sales _ ‘of the pamphlets.” “Respondents” contentions that the holdings in the fore: going two cases bar an appropriate order in this proceeding are rejected.

The state statutes and local ordinances considered and declared invalid in the various cases additionally cited by respondents dealt primarily with curtailments of the distribution of religious pamphlets or of rights by labor to solicit for union members or to picket. Even in labor dispute situations, however, the First Amendment affords no shield for a course of conduct entailing dissemination of falsified information. Cafeteria Employees Union v. Angelos, 320 U.S. 298, 295 (1943). Books, motion pictures, newspapers and publications, of course, are expressions of opinion and information safeguarded by the First Amendment and its protection extends to their dissemination and circulation as well as publication; and we concur in respondents’ view that they are not stripped of that status because sold for a profit. Such selling, however, “brings into the Opinion 57 F.T.C.

transaction a commercial feature.” Breard v. Alexandria, 341 U.S. 622, 642 (1951). We think that the essence of those decisions is that regulatory statutes drawn to protect the public against serious and substantial evils do not transgress the First Amendment. Evils in that category which inhere in commercial aspects of the publishing business accordingly are valid subjects for appropriate regulation by Congress.

The argument that the Federal Trade Commission Act confers no valid’ power to regulate false representations in advertising when integral to theories or views expressed in particular publications being advertised and sold misconceives the objectives and essential nature of the Act. When enacting it and amendments thereto, Congress expressed and reaffirmed a national policy against unfair and deceptive acts, practices and methods in commerce. The legislative targets included practices opposed to good morals because characterized by deception, bad faith or fraud. Federal Trade Commission v. Gratz, 253 U.S. 421, 427 (1920). Though far-reaching in its effects, the Act dealt with a specific problem, namely, commercial evils ceemed by Congress to be substantial and serious threats to the welfare of business and basic rights of the public. This included deceptive advertising. The sanctions of the Act and its amendments, therefore, are directed against abuses by those using the channels of interstate commerce of their and others’ rights, including constitutional rights. :

Some statutes, the postal frau statute for example, require that conclusions of violation rest on proof of fraudulent purpose cr intent. Even when such proof is necessary, a universality of scientific belief that advertising representations are wholly unsupportable supports inferences of the fraudulent purpese or intent. Leilly v. Pinkus, 888 U.S. 269, 276 (1949).® And as a corollary, the Supreme Court has held that there is a kind of fraud in clinging to benefits afforded to a seller by his misrepresentations even in situations where such misrepresentations are innocently made. Mederal Trade Commission v. Algoma Lumber Co., 291 U.S. 67, 81 (1984). To the extent that the order proscribes misrepresentations of therapeutic bene- _ Co - ea 9 With respect to the scientific proof, the hearing examiner correctly found: “Tt is concluded that there is no respectable body of medical opinion of record to support the enurciated theories contained in the book, ‘Arthritis and Common Sense,’ and in fact there is no credible expert or other testimony or facts of record, worthy of consideration or belief, in substantiation of the theories of the book. “It is concluded that there is no substantial, credible or significant divergence of medical opinion, appearing or record, on any or all of the pertinent disputed theories advanced by the book, which would necessitate a ‘picking and choosing’ therefrom, or the disregarding thereof, in order to arrive at, or select one school of medical thought over another so as to arrive at a choice of which school or segment of medical opinion should prevail for the determination of the issues herein, this for the reason, that the preponderance of evidence in favor of the charges of the complaint is overwhelming.” WITKOWER PRESS, INC., ET AL. 221 145 Opinion fits in. respondents’ commercial advertising, we think it valid. It invades none of the the “essential attributes” of the ziberties protested by the First Amendment (Compare Vea 697, “708 (1981) yy. “Full enjoy enjoyment of Hi inst “Amendment rights does does not ‘contemplate t a license to engage in false and deceptive a advertising. “Respondent Alexander has made" “guest appearances on various. radio and television discussion-type programs sponsored by others. Though conceding that such invitations were solicited by respondents, they state that those extending the invitations and responsible for the programs were inspired by entertainment or news values. inherent in interviewing the author and discussing his and the book’s theories and ideas. Because of those claimed noncommercial aspects,.respondents. contend that the ordér’s prohibitions cannot. extend to statements by the author at such forums without unlawfully | impairing rights of of free speech. “In the advertising matter, the ‘ alithor’s t neories_on ee and. his opinions, ‘that the book’s. Te G1=-— evidence, certa in 0 of the | prol omotional, activities Soy Brobat ‘the. author's theor ies and opinions the status of proved scientific facts. It is this ch, among: ; others Ss) m respondents’ adver tising and various grder, is not. intended to prohibit_trut hibit truthful and nondeceptive_stat “state ~ ‘pounding 1g the author's theories 2 and 0 and opinions. On the ¢ other hand; it is mtended to forbid _ respondents from representing that — the author's 1 s theories and theses are more than unproved and scientifically untested ‘theories and theses. ~Thus, contrary to respondents’ is, the “order does not infringe respondents’ constitutional — ons:

right. ‘to expound their medi medical ical theories, but. constitutes a reasonable exercise of the Commission’s duty to r equire the truth in the disae eee SPU an the ais -semination of those theories.

The 6 dfder Appears inappropriate in one respect, however. By its preamble, the order’s succeeding proscriptions relate to sales activities in commerce for “a book entitled ‘Arthritis and Common Sense’.” This language might be construed as not extending to similar deceptive acts and practices for promoting sales of revised editions of this book offered under another name or other publications in related vein. The order is being appropriately modified. Sylabus The respondents’ appeal is denied. The initial decision, modified as noted above, is adopted as the decision of the Commission. FINAL ORDER This matter having been heard by the Commission upon the appeal filed by the respondents from the initial decision of the hearing examiner; and The Commission having denied the appeal for reasons stated in the accompanying opinion and having further determined that the order to cease and desist contained in the initial decision should be modified :

It is ordered, That the unnumbered paragraph in preamble to the three numbered paragraphs contained in said order be, and it hereby is, modified to read as follows:

“Tt is ordered, That respondent Witkower Press, Inc., a corporation, and its officers, and respondents Dan Dale Alexander and Bernard Witkower, individually and as officers of said corporation, and respondents’ representatives, agents and employees, directly or through any corporate or other device, in connection with the offering for sale, sale or distribution of a book entitled ‘Arthritis and Common Sense,’ or any other book or books of the same or of approximately the same content, material or methods, whether sold under the same name or any other name, in commerce, as ‘commerce’ is defined in the Federal Trade Commission Act, do forthwith cease and desist from representing, directly or indirectly, that the regimen set out in said book provides :”

It is further ordered, That the initial decision, as so modified, be, and it hereby is, adopted as the decision of the Commission. li is further ordered, That the respondents shall, within sixty (60) days after service upon them of this order, file with the Commission a report, in writing, setting forth in detail the manner and form in which they have complied with the order to cease and desist as modified.