Contact Lens Specialists, Inc.

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

In THe MatrTer oF CONTACT LENS SPECIALISTS, INC., ET AL.

CONSENT ORDER, ETC., IN REGARD TO THE ALLEGED VIOLATION OF THE FEDERAL TRADE COMMISSION ACT Docket 7948. Complaint, June 16, 1960—Decision, Oct. 12, 1960 Consent order requiring Boston sellers to cease representing falsely in advertising that all persons could wear their contact lenses and without discomfort; that eyeglasses could be discarded; that the lenses would correct all defects in vision; and that they differed from other lenses. Complaint Pursuant to the provisions of the Federal Trade Commission Act, and by virtue of the authority vested in it by said Act, the Federal Trade Commission, having reason to believe that Contact Lens Specialists, Inc., a corporation, and Leonard G. Wolfson, individually and as an officer of said corporation, hereinafter referred to as respondents, have violated the provisions of said Act, and it appearing to the Commission that a proceeding by it in respect thereot would be in the public interest, hereby issues its complaint, stating -its charges in that respect as follows:

ParacraPH 1. Respondent Contact Lens Specialists, Inc. is a corporation organized, existing and doing business under and by virtue of the laws of the Commonwealth of Massachusetts, with its office and principal place of business located at 77 Summer Street, Boston, Massachusetts. Individual respondent Leonard G. Wolfson is an officer of said corporation. He formulates, directs and eon- _trols the policies of the corporate respondent. His address is the same as that of the corporate respondent. Par. 2. The respondents are now, and for some years last past have been, engaged in the advertising, offering for sale, and sale of corneal contact lenses. Contact lenses are designed to correct errors and deficiencies in the vision of the wearer, and are devices as “device” is defined in the Federal Trade Commission Act. Par. 3. In the course and conduct of their aforesaid business, respondents have disseminated, and have caused the dissemination of, advertisements concerning the said devices by the United States mails, and by various means in commerce, as “commerce” is defined in the Federal Trade Commission Act, including, but not limited to, advertisements inserted in newspapers of general circulation and by means of circulars and pamphlets, for the purpose of inducing, and which were likely to induce, directly or indirectly, the purchase of CONTACT LENS SPECIALISTS, INC., ET AL. 863 862° Complaint said devices; and have disseminated, and caused the dissemination of, advertisements concerning their said devices by various means, ‘including but not limited to the aforesaid media, for the purpose of inducing and which were likely to induce, directly or indirectly, the purchase of said devices, in commerce, as “commerce” is defined ‘in the Federal Trade Commission Act.

Among and typical of the statements contained in advertisements disseminated and: caused to be disseminated, as aforesaid, are the following:

“I wish I could see without glasses.” She can see without glasses—and see ‘better! So can you—and you—and you! Thousands of contact lens wearers enjoy better vision—without glasses—thanks to the amazing Ever-Flo Process. EVER-FLO PROCESS—makes contacts “as comfortable as all outdoors.” EVER-FLO PROCESS—A must for eye comfort and health. Hey! you with the eyeglasses! See better with complete comfort—and safety—without glasses! EVER-FLO PROCESS makes all day wearing of Contact Lenses the usual thing. Not a contact lens but an exclusive registered process for fitting our yented—circle grooved—contoured—all types of contact lenses. The EVER-FLO PROCESS modifies and individualizes the contact lens * * * eliminates all interference by the lens with normal eye functions. Eyelid and Tear action continue normally as nature intended. The only way to be sure is to have us fit you with vented, * * * or circle-grooved—or contoured contact lenses by the EVER-FLO PROCESS.

Par. 4. By and through the statements made in said advertisements, disseminated and caused to be disseminated as aforesaid, respondents represented, directly or by implication, that: 1.5 1 6 2 1 2 627 1897 59 31 94.471100 All5 1 6 2 1 3 708 1907 139 30 96.408325 persons5 1 6 2 1 4 869 1896 35 31 96.959549 in5 1 6 2 1 5 925 1897 83 31 96.939857 needs 1 6 2 1 6 1030 1897 39 31 96.000626 of5 1 6 2 1 7 1090 1897 109 31 96.287773 visual5 1 6 2 1 8 1222 1897 184 32 96.403175 corrections 1 6 2 1 9 1429 1908 61 21 96.403175 cans 1 6 2 1 10 1513 1899 220 42 96.086540 successfully5 1 6 2 1 11 1756 1911 88 21 96.570015 wear4 1 6 2 2 0 534 1947 518 42 -1 5 1 6 2 2 1 534 1947 231 42 95.962654 respondents’5 1 6 2 2 2 784 1951 134 28 96.014038 contacts 1 6 2 2 3 937 1947 115 32 95.637169 lenses.3 1 6 3 0 0 534 1998 1310 84 -1 4 1 6 3 1 0 567 1998 1277 42 -1 5 1 6 3 1 1 567 2000 38 29 77.490585 ‘2.5 1 6 3 1 2 628 1998 109 31 95.949059 There5 1 6 3 1 3 768 1998 29 32 96.625488 is5 1 6 3 1 4 829 2009 44 20 96.251457 no5 1 6 3 1 5 906 1998 200 32 96.668709 discomforts 1 6 3 1 6 1139 1998 91 31 96.300163 from5 1 6 3 1 7 1262 1998 151 42 96.589752 wearing5 1 6 3 1 8 1445 2000 232 40 94.908333 respondents’5 1 6 3 1 9 1711 2005 133 27 96.346436 contact4 1 6 3 2 0 534 2049 115 33 -1 5 1 6 3 2 1 534 2049 115 33 96.568390 lenses.3 1 6 4 0 0 534 2098 1310 84 -1 4 1 6 4 1 0 562 2098 1282 44 -1 5 1 6 4 1 1 562 2102 42 29 26.321846 -8.5 1 6 4 1 2 628 2100 199 40 96.376236 Eyeglasses5 1 6 4 1 3 846 2110 61 21 96.605247 cans 1 6 4 1 4 927 2099 40 31 96.841835 be5 1 6 4 1 5 986 2098 176 33 96.357941 discarded5 1 6 4 1 6 1183 2109 90 31 96.290451 upon5 1 6 4 1 7 1293 2100 57 31 96.650398 thes 1 6 4 1 8 1370 2100 165 40 96.314438 purchases 1 6 4 1 9 1554 2100 38 31 96.327644 of5 1 6 4 1 10 1612 2101 232 41 96.141975 respondents’4 1 6 4 2 0 534 2150 265 32 -1 5 1 6 4 2 1 534 2154 134 28 96.250412 contacts 1 6 4 2 2 684 2150 115 32 96.407204 lenses.3 1 6 5 0 0 574 2199 1227 43 -1 4 1 6 5 1 0 574 2199 1227 43 -1 5 1 6 5 1 1 574 2203 29 30 92.235771 4.5 1 6 5 1 2 627 2200 245 42 95.518372 Respondents’5 1 6 5 1 3 892 2204 133 28 96.356628 contacts 1 6 5 1 4 1045 2200 106 31 96.178780 lenses5 1 6 5 1 5 1171 2199 70 32 96.958389 will5 1 6 5 1 6 1261 2205 128 27 96.568275 corrects 1 6 5 1 7 1409 2200 46 32 96.241585 all5 1 6 5 1 8 1476 2200 129 33 96.004257 defects5 1 6 5 1 9 1625 2201 36 32 96.996025 in5 1 6 5 1 10 1681 2202 120 32 95.310120 vision.3 1 6 6 0 0 535 2250 1309 94 -1 4 1 6 6 1 0 576 2250 1268 42 -1 5 1 6 6 1 1 576 2253 29 30 95.588585 5.5 1 6 6 1 2 627 2250 245 42 96.322166 Respondents’5 1 6 6 1 3 901 2254 133 28 96.492218 contacts 1 6 6 1 4 1063 2251 105 31 96.046120 lenses5 1 6 6 1 5 1198 2261 56 21 96.381271 ares 1 6 6 1 6 1283 2250 159 32 96.137421 different5 1 6 6 1 7 1471 2251 84 31 95.876373 than5 1 6 6 1 8 1585 2252 97 31 95.584946 others 1 6 6 1 9 1711 2256 133 28 95.584946 contact4 1 6 6 2 0 535 2301 1204 43 -1 5 1 6 6 2 1 535 2302 103 31 96.861542 lenses5 1 6 6 2 2 656 2301 34 31 96.774414 in5 1 6 6 2 3 709 2301 77 31 96.260780 that5 1 6 6 2 4 803 2301 80 41 96.916573 they5 1 6 6 2 5 903 2301 124 41 96.580406 permits 1 6 6 2 6 1044 2305 89 27 96.795334 tears5 1 6 6 2 7 1151 2305 35 27 96.826591 to5 1 6 6 2 8 1202 2301 103 42 96.154251 bathe5 1 6 6 2 9 1323 2301 56 31 96.757248 thes 1 6 6 2 10 1398 2311 122 21 96.445786 cornea5 1 6 6 2 11 1537 2301 39 32 96.768822 of5 1 6 6 2 12 1594 2302 58 32 96.950066 thes 1 6 6 2 13 1670 2313 69 31 96.966339 eye.3 1 6 7 0 0 533 2350 1309 186 -1 4 1 6 7 1 0 574 2350 1268 42 -1 5 1 6 7 1 1 574 2352 82 32 96.546272 Par.5 1 6 7 1 2 681 2354 27 29 96.559372 5.5 1 6 7 1 3 732 2352 72 32 96.676224 Thes 1 6 7 1 4 832 2351 277 32 96.311844 advertisements5 1 6 7 1 5 1135 2350 199 42 96.311844 containing5 1 6 7 1 6 1361 2352 57 31 96.915260 thes 1 6 7 1 7 1447 2352 171 32 93.818001 aforesaid5 1 6 7 1 8 1648 2357 194 28 96.637939 statements4 1 6 7 2 0 533 2401 1308 42 -1 5 1 6 7 2 1 533 2414 96 28 96.756790 were,5 1 6 7 2 2 649 2402 66 32 96.659348 ands 1 6 7 2 3 738 2413 67 29 96.341698 are,5 1 6 7 2 4 825 2402 203 41 96.350487 misleading5 1 6 7 2 5 1048 2401 34 32 96.677505 in5 1 6 7 2 6 1104 2401 153 32 95.238327 materials 1 6 7 2 7 1280 2406 146 37 96.439270 respects5 1 6 7 2 8 1447 2402 68 32 96.417885 ands 1 6 7 2 9 1537 2402 217 41 96.367226 constituted,5 1 6 7 2 10 1775 2403 66 32 96.845695 anda 1 6 7 3 0 533 2452 1308 40 -1 5 1 6 7 3 1 533 2464 75 21 96.982483 now5 1 6 7 3 2 634 2452 191 40 95.873283 constitute,5 1 6 7 3 3 851 2453 108 31 88.665398 “false5 1 6 7 3 4 985 2452 307 40 89.594421 advertisements”,5 1 6 7 3 5 1318 2463 36 21 96.046082 as5 1 6 7 3 6 1379 2453 76 31 96.292786 that5 1 6 7 3 7 1480 2457 87 27 95.955048 terms 1 6 7 3 8 1593 2453 29 32 96.613655 is5 1 6 7 3 9 1648 2453 132 33 96.918907 defined5 1 6 7 3 10 1805 2454 36 31 96.638618 in4 1 6 7 4 0 533 2503 1107 33 -1 5 1 6 7 4 1 533 2505 56 30 96.952530 thes 1 6 7 4 2 605 2504 141 31 96.021706 Federal5 1 6 7 4 3 796 2503 80 32 96.343643 Trades 1 6 7 4 4 892 2503 223 33 96.385780 Commissions 1 6 7 4 5 1131 2503 77 31 96.459267 Act.5 1 6 7 4 6 1244 2503 43 31 95.753860 In5 1 6 7 4 7 1302 2503 97 31 95.753860 truth5 1 6 7 4 8 1415 2503 67 31 96.431152 ands 1 6 7 4 9 1498 2503 37 31 95.511078 in5 1 6 7 4 10 1551 2503 89 32 95.922112 fact:3 1 6 8 0 0 531 2553 1309 94 -1 4 1 6 8 1 0 575 2553 1265 43 -1 5 1 6 8 1 1 575 2558 27 29 94.379448 1.5 1 6 8 1 2 624 2555 33 32 96.267197 A5 1 6 8 1 3 681 2553 195 43 95.568947 significant5 1 6 8 1 4 898 2554 142 31 96.785210 numbers 1 6 8 1 5 1063 2554 38 31 96.537590 of5 1 6 8 1 6 1126 2563 136 32 96.830246 persons5 1 6 8 1 7 1287 2557 123 28 95.710472 cannot5 1 6 8 1 8 1433 2554 221 42 96.486359 successfully5 1 6 8 1 9 1679 2566 89 21 93.231812 wears 1 6 8 1 10 1792 2566 48 21 92.041328 re-4 1 6 8 2 0 531 2605 479 42 -1 5 1 6 8 2 1 531 2605 194 42 91.339523 spondents’5 1 6 8 2 2 743 2608 134 28 96.472160 contacts 1 6 8 2 3 895 2605 115 31 96.443970 lenses.3 1 6 9 0 0 530 2654 1311 94 -1 4 1 6 9 1 0 573 2654 1268 42 -1 5 1 6 9 1 1 573 2659 29 28 86.717186 2.5 1 6 9 1 2 626 2655 205 41 95.841019 Practically5 1 6 9 1 3 858 2656 45 30 95.851036 all5 1 6 9 1 4 928 2665 139 31 95.851036 persons5 1 6 9 1 5 1092 2655 69 31 96.768188 will5 1 6 9 1 6 1188 2654 194 42 96.149147 experiences 1 6 9 1 7 1408 2665 89 21 96.669624 some5 1 6 9 1 8 1524 2656 201 32 96.393005 discomforts 1 6 9 1 9 1752 2657 89 31 96.832085 after4 1 6 9 2 0 530 2701 1308 47 -1 5 1 6 9 2 1 530 2701 148 47 96.539551 starting5 1 6 9 2 2 697 2710 35 27 96.233025 to5 1 6 9 2 3 754 2717 88 20 96.830482 wears 1 6 9 2 4 864 2706 229 41 91.645462 respondents’5 1 6 9 2 5 1114 2710 133 27 96.297607 contacts 1 6 9 2 6 1267 2706 115 31 74.319008 lenses.5 1 6 9 2 7 1425 2707 43 30 95.695068 In5 1 6 9 2 8 1490 2717 20 20 96.716866 a5 1 6 9 2 9 1531 2706 194 42 93.294128 significant5 1 6 9 2 10 1745 2719 93 21 90.911720 num- Decision 57 FITC.

ber of cases discomfort will be prolonged and in some cases will never be overcome.

8. Eyeglasses cannot always be discarded upon the purchase of respondents’ contact lenses.

4, Respondents’ contact lenses will not correct all defects in vision. 5. Contact lenses other than respondents’ permit tears to bathe the cornea of the eye.

Par. 6. Respondents state in their advertising matter, as aforesaid, that there is no discomfort in wearing their contact lenses. In addition, they state—‘EVER-FLO PROCESS makes all day wearing of Contact Lenses the usual thing.” Said advertisements are misleading in a material respect in that they fail to reveal facts material in the light of such representations, that is, that no person can wear their said lenses all day without discomfort until he or she has become fully adjusted thereto.

Par. 7. The dissemination by the respondents of the false advertisements, as aforesaid, constituted unfair and deceptive acts and practices, in commerce, within the intent and meaning of the Federal Trade Commission Act.

Mr. Garland §. Ferguson supporting the complaint. Miller & Miller, of Boston, Mass., for respondents. Intr1au Decision or Joun Lewis, Heartnc EXAMINER The Federal Trade Commission issued its complaint against the above-named respondents on June 16, 1960, charging them with the use of unfair and deceptive acts and practices in commerce, in violation of the Federal Trade Commission Act, by falsely advertising certain contact lenses manufactured and sold by them. After being served with said complaint, respondents appeared by counsel and entered into an agreement dated August 12, 1960, containing a consent order to cease and desist purporting to dispose of all of this proceeding as to all parties. Said agreement, which has been signed by respondents, by counsel for said respondents and by counsel supporting the complaint, and approved by the Director, Acting Associate Director and Acting Assistant Director of the Commission’s Bureau of Litigation, has been submitted to the above-named hearing examiner for his consideration, in accordance with Section 3.25 of the Commission’s Rules of Practice for Adjudicative Proceedings.

Respondents, pursuant to the aforesaid agreement, have admitted all the jurisdictional facts alleged in the complaint and agreed that the record may be taken as if findings of jurisdictional facts had been made in accordance with such allegations. Said agreement CONTACT LENS SPECIALISTS, INC., ET AL. 865 862 Decision further provides that respondents waive any further procedural steps before the hearing examiner and the Commission, the making of findings of fact or conclusions of law and all of the rights they may have to challenge or contest the validity of the order to cease and desist entered in accordance with such agreement. It has been agreed that the order to cease and desist issued in accordance with said agreement shall have the same force and effect as if entered after a full hearing and that the complaint may be used in construing the terms of said order. It has also been agreed that the record herein shall consist solely of the complaint and said agreement, and that said agreement is for settlement purposes only and does not constitute an admission by respondents that they have violated the law as alleged in the complaint. The order which has been agreed upon provides that the complaint shall be dismissed as to respondent Leonard G. Wolfson as an officer of the corporate respondent. The basis for such a disposition as to said respondent is set forth in an affidavit by him which has been submitted together with, and as part of, the abovementioned agreement containing consent order. Said affidavit, which was subscribed and sworn to on August 2, 1960, recites that respondent Leonard G. Wolfson severed all connection as an officer and director of the corporate respondent on January 19, 1960, and has completely divorced himself from the direct or indirect control of the business and advertising of said respondent, to the extent he ever had any connection therewith.

This proceeding having now come on for final consideration on the complaint and the aforesaid agreement containing consent order, together with the affidavit of Leonard G. Wolfson which has been made a part of said agreement, and it appearing that the order provided for in said agreement covers all the allegations of the complaint and provides for an appropriate disposition of this proceeding as to all parties, said agreement is hereby accepted and is ordered filed upon this decision’s becoming the decision of the Commission pursuant to Section 3.21 and 38.25 of the Commission’s Rules of Practice for Adjudicative Proceedings, and the hearing examiner, accordingly, makes the following jurisdictional findings and order:

1. Corporate respondent Contact Lens Specialists, Inc., is a corporation existing and doing business under and by virtue of the laws of the Commonwealth of Massachusetts with its office and principal place of business located at 77 Summer Street, Boston, Massachusetts. Leonard G. Wolfson, an individual, was formerly an officer of the corporate respondent, and was so named in the com- 640968—63-—-56 Order 57 F.T.C.

plaint. His address is now 54 Amherst Road, Newton, Massachu- ‘setts. f 2. The Federal Trade Commission has jurisdiction of the subject matter of this proceeding and of the respondents hereinabove named. The complaint states a cause of action against said respondents under the Federal Trade Commission Act, and this proceeding is in the interest of the public. , ORDER It is ordered, That respondents Contact Lens Specialists, Inc., a corporation, and its officers, and Leonard G. Wolfson, individually and as a former officer 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 their contact lenses, do forthwith cease and desist, directly or indirectly, from:

1. Disseminating or causing to be disseminated any advertisement by means of the United States mails or by any means in commerce, as “commerce” is defined in the Federal Trade Commission Act, which advertisement represents, directly or by implication, that: (a) All persons in need of visual correction can successfully wear respondents’ contact lenses.

(b) There is no discomfort from wearing respondents’ contact lenses.

(c) A person can wear said contact lenses all day without discomfort unless it is clearly revealed that this is possible only after such person has become fully adjusted thereto. (d) Eyeglasses can always be discarded upon the purchase of respondents’ contact lenses.

(e) Respondents’ contact lenses will correct al] defects in vision. (f) Respondents’ contact lenses are different than other contact lenses in that they permit tears to bathe the cornea of the eye of the wearer; or are different in any other respect, unless such is the fact. 2. Disseminating or causing to be disseminated any advertisement, .by any means, for the purpose of inducing, or which is likely to induce, directly or indirectly, the purchase of said products, in commerce, as “commerce” is defined in the Federal Trade Commission Act, which advertisement contains any representation prohibited in paragraph 1, above, or which fails to reveal the facts set out in paragraph 1(c) above.

lt ts further ordered, That the complaint be, and the same hereby is, dismissed as to Leonard G. Wolfson as an officer of said corporation.

DR. E. KAPCHAN & ASSOCIATES, OPTOMETRISTS, ETC. 867 862 Complaint DECISION OF THE COMMISSION AND ORDER TO FILE REPORT OF COMPLIANCE Pursuant to Section 3.21 of the Commission’s Rules of Practice, the initial decision of the hearing examiner shall, on the 12th day of October, 1960, become the decision of the Commission; and, accordingly :

It is ordered, That respondent Contact Lens Specialists, Inc., a corporation and Leonard G. Wolfson, individually, 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.