Bernard M. Hamberg doing business as Tru-Site Optical Company

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IN THE MATTER OF BERNARD :\f. HAMBERG DOING BUSINESS AS TRU-SITE OPTICAL COMPANY SENT ORDER , ETC. , IN REGARD TO THE ALLEGED VIOLATIO OF Tile FEDERA TRADE COMMISSION ACT Docket 8166. Complaint, Nov. 8, 1960-Decision, Ap1 13, 1961 Consent order requiring a Philadelphia seller of contact lenses to cease representing falsely in advertising that his contact lenses could be worn successfully all day without discomfort by all persons, that they would correct all defects in vision, afford protection to the eye, and were unbreakable.

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 Bernard NI. Hmnberg, individually and trading and doing business as Tru-Site Optical Company, hereinafter referred to as respondent, has violated the provisions of said Act, and it appearing to the Commission that a proceeding by it in respect thereof would be in the public interest hereby issues its complaint, stat.ing its charges in that respect as follows:

PARAGRAPH 1. Respondent Bernard 1\1. Hamberg is an individual trading and doing business as Tru-Site Optical Company, with his oflice and principal place of business located at 107 North 9th Street Philadelphia, Pennsylvania. IIe also trades and does business under the name of Tru-Site Optical Company at the following addresses: 4615 Frankfurt A venue and 67 IV est Chelten Avenue, in Philadelphia, Pennsylvania; 509 Market Street, Chester, Pennsylvania; and 28 North Main Street, Souderton, Pennsylvania. PAR. 2. Respondent is now, and for some years last past has been engaged in the advertising, offering for sale and sale to the public of among other things, corneal contact lenses. Corneal 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. R.respondent causes said contact lenses, when sold, to be transported from his places of business in Philadelphia, Pennsylvania, to purchasers thereof located in various other states of the United States. Respondent maintains, and at all times mentioned herein has maintained, a course of trade in said contact lenses in THU- SITE OPTICAL CO).lPANY 595 59'1 COIlplaint COlllmerce as "commerce" is defined in the Federal Trade Commission Act.

PAR. 4. In the COllrse awl conduct of his aforesaid business respondent has disseminated, and has caused the dissemination of advertisements concerning his said devices by the United States lilails and by various means in commerce, as "commerce" is defmed in the Federal Trade Commission Act, including but not limited to advertisements inserted in newspapers of general circulation and by brochures, for the purpose of inducing, and which are likely to induce, directly or indirectly, the purchase of said devices; and respondent has also disseminated, and caused the dissemination of advertisements concerning his said devices by the afore.said means for the purpose of inducing and which were likely to induce, directly or indirectly, the purchase of his said de.vice.s in commerce, as "commerce" is defined in the Federal Trade Commission Act. Among and typical of the statements and representations contained in the advertisements disseminated and call sed to be disseminated by respondent are the following:

)ly Glasses Are Im"isible, . . I'm Wearing Tru- Tact Contact Lenses: You too, can read, work, dallce, swim, play: do whatever you like without a thought about ho\" you see! Your contact lenses are invisible, absolutely undetectable, supremely comfortable! Yon ll look better, see better, feel better with contact lenses! The finest way to better Tision.

Enjoy your vacation with contact lenses fitled by TRU-Site. \Vear Now Pay Later Invisible, Comfortable, AU day wearing. Contact lenses actually afford protection to the eye. . they are unbreakable.

PAR. 5. By and through the statements in said advertisements disseminat.ed and caused to be disseminat.ed as aforesaid, respondent represented, directly or by implication, that: 1. All persons in need of visual correction can successfully wear re.spondent' s contact lenses.

2. Respondent's contact lenses wil correct all defects in vision. 3. There is no discomfort in wearing respondent's contact lenses. 4. Respondent's contact lenses can be worn all day in complete comfort 5. Respondents contact lenses afford protection to the eye of t.he wearer.

6. Respondent's contact lenses are unbreakable. PAR. 6. The advertisements containing the aforesajd statements and representations were, and are, misleading in material respects and constituted, and now constitllt.e "fa.le. advertisements " as that 596 FEDERAL TRADE COMMISSIO DECISIONS Decision 58F.

term is defined in the Federal Trade Commission Act. In truth and in fact:

1. A significant number of people in need of visual correction cannot successfully wear respondent' s contact lenses. 2. Respondent's lenses will not correct all defects in vision. 3. Practically all persons wil experience some discomfort when first wearing respondent's lenses. In a significant number of cases discomfort wil be prolonged.

4. Many persons cannot wear respondent's eon tact lenses all day without discomfort and no person can wear said lenses all day without discomfort Ultil such pcrson has become fully adjusted thereto.

5. Respondent's contact lenses cover only a small portion of the eye and afford protection only to the portion of the eye that is covered.

6. Respondent's contact lenses are breakable. PAR. 7. The dissemination by the respondent 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 S. Ferguson supporting the complaint. Balka aru Balka by 1111'. Henry W. Balka of Philadelphia, Pa. for respondent.

INITL DECISION BY ,VALTER Ie. HEXXETT, 1-IEARIXG EXA:3IlKER The Commission issued its complaint November 8, 1960 against respondent charging him with disseminating false advertisements concerning contact lenses. The complaint further charged that the dissemination of such advertisements constituted unfair and deceptive acts and practices in commerce, within the intent and meaning of the Federal Trade Commission Act.

Council presented to the undersigned hearing examiner on February 8, 1961 an agreement dated February 1, 1961, among respondent Bernard :\'1 Hamberg, his counsel, and counsel supporting the complaint providing for the entry without further notice of a cease and desist order. Said agreement has been duly approved by the Director the Assistant Director and the Associate Director of the Bureau of Litigation.

The hearing examiner finds that said agreement includes all of the provisions required by Section 3.25 (b) of the Rules of the Commission, that is:

TRU-SITE OPTICAL COMPA. 597 594 Decisioll A. An admission by respondent of all jurisdictional facts alleged in the complaint.

B. Provisions that:

1) The complaint may be used in construing the terms of the order;

2) The order shall have the same force and effect as if entered after a full hearing;

3) The agreement shall not become a part of the offcial record of the proceeding unless and until it becomes a part of the decision of the Commission;

4) The entire record on which any cease and desist order may be based shah consist solely of the complaint and the agreement; 5) The order may be altcred, modified, or set aside in the manner provided by statute for other orders.

C. 'W ai vers of:

1) The requirement that the decision must contain a statement of findings of fact and conclusion of law; 2) Further procedural steps before the hearing examiner and the Commission.

In addition the agreement contains the following permissive provisions: A waiver by the respondent of any right to challenge or contest the validity of the order entered in accordance with the agreement, and a statement that the signing of said agreement is for settlement purposes only and does not constitute an admission by respondent that he has violated the law as alleged in the complaint.

Having considered said agreement including the proposed order and being of thc opinion that they provide au appropriate basis for settlement and disposition of this proceeding, the hearing examiner hereby accepts the agreement but orders that it shall not become a part of the offcial record unless and until it becomes a part of the decision of the Commission.

The following jurisdictional findings are made and the following order issued:

1. Bernard M. Hamberg is an individual trading and doing business as Tru-Site Optical Company, with his principal place of business located at 107 North 9th Street, Philadelphia, Pennsylvania. He also trades and does business under the name of Tru-Site Optical Company at other addresses in the State of Pennsylvania, as set forth in the complaint.

598 FEDERAL TRADE CO DnSSION DECISIO)JS Decisioll 58 F.

of the subject 2. The Federal Trade Commission has jurisdiction matter of this proceeding and of the respondent. ORDER It ordered That respondent Bernard M. Hamberg, individually and trading and doing business as Tru-Site Optical Company, or trading under any other name, and his representatives, agents and inemployees, directly or through any corporate or other device, connection with the sale of his contact lenses, do forthwith cease and desist from, directly or indirectly:

1. Disseminating, or causing to be disseminated, any advertisement by means of thc United States mails or by any means in commerce, as "commerce" is defined in the Federal Trade Commission Act, which advertisement represents directly, indirectly or by implication, that:

(a) All persons in need of visual correction can successfully wear respondent' s contact lenses.

(b) Said lenses wil correct all defects in vision. (c) There is no discomfort in wearing respondent's lenses. (d) A person can wear said lenses all day unless it is clearly disclosed that this is possible only after such person has been fully adjusted thereto.

(e) Said contact lenses afford protection to the eye of the wearer unless limited to the small portion covered thereby. (f) Said contact lenses are unbreakable.

2. Disseminating, or causing the dissemination of any advertisement, by any means, for the purpose of inducing or which is likely to induce, directly or indirectly, the purchase in commerce, as "cornmerce" is defined in the Federal Trade Commission Act, of said contact lenses, which advertisement contains any of the n presentations prohibited in Paragraph 1 hereof.

DECISION OF Tile cO::IlnSSIO AND OlmER '10 FILE REPORT OF CO IPLIANCE Pursuant to Section 3.21 of the Commission s Rules of Practice, the initial decision of the hearing examiner shall all the 13th day of April 1961 , become the decision of the Commission; a.nd, accordingly: 1 t is ordered That the respondent herein shall within sixty (60) days after service upon him of this order file with the Commission :1 report in writing setting forth in detail the manner and form in which lie, has comp1ie,d with the, order to cease and (lesist. EUROPE CRAFT IMPORTS , INC. , ET AL. 599 599 Complaint