Dunshaw, Inc., et al.

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

Ix THE J\fatter OF DENSHA W, I , ET AL.

CONSENT ORDER, ETC., IN REGARD TO THE ALLEGED VIOLATION UP THE FEDERAL TRADE CO:::IMISSIQ),T ACT Docket 8158. Complaint, Oct. 28, 1960-Decision, Apr. , 1961 Consent order requiring New York City retailers of contact lenses to cease misrepresenting in advertising the effectiveness, comfort, and safety of the contact lenses as in the order below set forth. COl\:IPLAIKT 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 Dunshaw, Inc. , a corporation, and A. R. Dunlavy and F. A. Dunlavy, individually and as offcers of said corporation, hereinafter referred to as respondents, have violated the provisions of said Act and it appearing t.o the Commission that a proceeding by it in respect thereof would be in the public interest, hereby issues its complaint stating its charges in that respect as follows;

PARAGRAPH 1. Respondent Dunshaw, Inc., is a corporation organized, existing and doing business under and by virtue of the Jaws of the State of New York with its main offce and principal place of business Jocat.ed at 130 'Vest. 12nd Street, New York, New York. Respondents .A. R.. Dunlavy and F. A. DunJavy are offcers of the corporate respondent. They formulate, direct and control the acts and practices of the corporate respondent, including the acts and practices hereinafter set forth. Their address is the same as that of the corporate respondent.

',TS638 FEDERAL 'rrade COMMISSION DECISIO Complaint 58 F.

PAR. 2. Respondents arc nmv, and for some time last past have been, engaged in the sale of contact lenses flt retail to the consuming public.

Contad lenses are devices designed to correct the vision of the wcarer and arc " c1evic.es " as the tenn ;' c1evice" is defined in the Federal Trade Commission Act.

m, 3. Tn the course and conduct of their saiel business respondents have disseminated, and caused the dissemination of, certain advertisements concerning their contact lenses by the lTnited States mails and by various means in commerce, as "commerce " is defined in the Fedora1 Trade Commission Act, including, but not limited to newspa pets, circulars and other advert.ising matter, for the purpose of inducing and which were likely to induce directly or indirectly, the, purchase of said contact lenses; and have disseminated and caused the dissemination of, advertisements concerning said preparation 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 purcha.se of said preparation in commerce, as "commerce" is defined in the Federal Trade Commission Act. PAR. 4. Among and typical, but not all inclusive, of the statements contained in said advertisements disseminated as hereinabove set forth are the following:

in Today if the patient has motivation and an earnest desire to wear them, the hands of a good fitter, there should be no reason for not being able to do so. See in comfort and safety an day long.

It is safer to wear contact lenses than regular spectacle lenses because the plastic lens acts as a protective covering of the eye. Yes. Contacts are invisible-yet they actually give you better eyesight than ordinary spectacles-better side vision, no steaming, no cleaning, no breaking. PAR. 5. Through the use of the statements in the a,foresaid advertisements, and others of similar import not specifically set out herein respondents represented, directly or by implication, that: 1. All persons in need of visual correction can sllccessfully wear respondents: contact lenses.

2. There is no discomfort in wearing respondents' lenses. 3. All persons can wear respondents' lenses all clay without discomfort.

4. Said lenses act as a protective covering for the eye. 5. Said lenses will correct all defects in vision. 6. Said lenses are unbreakable.

PAR. 6. The said advertisements were misleading in material respects and constituted "false advertisements ' as that term is defined in the Federal Trade Commission Act. In truth and in fact: DLNSHAW, INC. , ET AL. 639 637 Decision 1. A significant number of persons in need of visual correction cannot successfully wear respondents' contact lenses. 2. Practically all persons will experience some discomfort when first wearing respondent.s' contact lenses. In a signiflcant number of cases discomfort will be prolonged.

3. J\Iany persons cannot wear respondents contact lenses all day vdthollt. discomfort and no person can ,year said lenses all day with comfort until such person has become fully adjusted thereto. 4. Said lenses aliaI'd protection only to the small portion of the eye that is covered by them.

5. Said lenses will not correct all defects in vision. 6. Said lenses are not unbreakable.

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 Tmde Commission Act.

31 r. FTcderic1c 31 eill a?H18 for the Commission. Respondents pro Be.

ITIAL DECISION BY \VALTI:R R. .JOHNSON, HEARING EXA:\IINER In the complaint dated October 28, ID60, the respondents are charged with violating the provisions of the Federal Trade Commission Act.

On February 10, 1961, the respondents entered into an agreement with counsel in support of the complaint for a consent order. nder the foregoing agreement, the respondents admit the jurisdictional facts alleged in the complaint. The parties agree, among other things, that the cease and desist order there set forth Inay be entered without further notice and have the sa.me force a.nd effect as if entered after a full hearing and the document includes a "aiver by the respondents of all rights to challenge or contest the validity of the order issuing in accordance therewith. The agremnent further recites that it is for settlement purposes only, does not consti tute an admission by the respondents that they ha,ve violated the law as alleged in the complaint, and that said complaint may be used in construing the terms of the order. The hearing examiner finds that the content of the agreement meets a11 of the requirements of section 3.25 (b) of the Rules of the Commission.

The hearing examiner being of the opinion that the a.agreement and the proposed order provide an appropriate basis for disposition of this proceeding as to aJl of the parties, the agreement is hereby 640 FEDERAL TRADE COJ\IMISSION DECISIONS Order 58 F, cceptccl and it is ordered that the agreement shall not he come fl. part of the offcial record or the proeerding unless and until it becomes a part of the decision of the Commission. The following jurisdictional findings are made and the. rollowing order issued. 1. Respondent Dunshaw, Inc., is it corporation organized, existing and doing business under anll by virtue at the la\\' s of the State of New York '.yitll its main offce and principal place of business located at 130 IV est 42nd Street, in the City of X ew York, State of :iT ew Yark.

Respondents A. R. Dunlay)' n.nc1 F. A. Dunlavy are offcers of th( corporate respondent. They fonnl11rite, direct and control the twts and practices of the corporate respondent. Their address s the same as that of the corporate respondent. 2. The Fedel'alTrac1e Commission has jurisdiction of the subject matter of this proceeding and of the respondents and the proceeding is in the public interest.

ORDER It i,s o1Yle1'ed That Dunshaw, Inc.: a corporation, and its offcers and A. It Dun1avy and F. A. Dunlavy, ine!ivie!lla11y ane! as offccrs 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 contact lenses, do forthwith cease and desist from, directly or indirectly: 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 sllccessfully wear respondents' contact lenses.

b. There is no discomfort in wearing re,spondents' lenses. c. Hesponclents' contact lenses can be worn all day wit.hout discomfort unless it is clearly revca1cd that this is possible only after the wearcr has become fully adjusted thereto. d. Respondents' lenses protect the eye unless limited to the portion of the eye that is covered thereby.

e. Respondents' lenses will correct all defects in V1Slon. f. Said lenses are unbreakable.

2. D-isscminating, or causing to be disscmjnatec1 , a,ny 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 Commis. DORCHESTER WOOLEN COMPANY 641 637 Complaint sion Act, which advertisement contains any representation prohibited in pamgra ph 1 above, or which fails to reve,t! thc facts required by paragraph 1 (c) thereof.

DECISION OF T.HE COJ.DIISSIQN .A.:.m OImER TO FILE REPORT OF co..:.urUAXCE Pursuant to Section 3.21 of the Commission s Hules of Practice the initial decision of the hearing examiner slwJl, on the 27th clay of April 1961 , become the decision of the Commission; and, flceordingly: It is ordered That the respondents herein shall, within sixty (60) days after service upon them of this order, fiJe 'with the Commission a report in \ I'iting setting forth in detail the manner find form in which they have complied \with the orde,I' to cease and desist.