R. O. Davis

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IN THE l\:IA TIER R. O. DAVIS ET c\L. TRADING AS CONTACT LENS CENTER cox SENT onder, ETC. , IN REGARD TO THE ALLEGED VJOJ,ATION OF THE FEDERAL TRADE COl\nnsSIOX ACT Docket 7.950. Complaint, June 1960-1Jeci..ion, .June, 1961 Consent order requiring sellers in Seattle, Wash., to cellse making such false cja.ims in Hd'Vertising in newspapers, circulars, etc., as that their "Star- Vault" contact lenses could be worn all day with complete comfort by all persons in need of visual correction; and .would correct all defects in ;ioo, protect the eye from (lust and foreign objects, and replace eyeglasses, among other things, as in the order below specified. COJIPT,AIXT Pursuant to the provisions of the Federal Trade Commission Act and by virtue of the authority vested in it by said Act, the Federal T ade Commission, having reason to believe that R. O. .. .. .

1028 FEDERAL TRADE COMMISSIOK DECISIOKS Complaint 58 F.

Davis and 1\. D. 'Whipple, individually and as copartners trading and doing business as Contact Lens Center, have violated the provisions of the Act, and it appearing to the Commission that a proceeding by it in respect thereof ,,"Quid be in the public interest hereby issues its compla.int, stating its charges in that respect follows:

PARAGRAPH 1. R. O. Davis and N. D. 'Whipple are individuals and copart.ners trading and doing business under the name of Contact Lens Center, \\'ith their principal place of business located at J oshna Green Building, 4th and Pike Streets, Seattle, ,Vashington. PAR. 2. nesponclents arc now, and for some years last past have been engaged in the advertising, offering for sale and sale of corneal contact lenses. Certain of said contact lenses are sold under the name of "Star-Vaulf' contact lenses. Corneal contact lenses nre devices 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 t.he dissemination , advertisements concerning their said devices by the United States mails and by various mea,l1S in comme,rce, as "col1l1er( :' is defined in the Federal Trade Commission A. , 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 are likely to induce, directly or indirectly, the purchase of said devices; and have l1isseminatec1 , and have 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 are likely to induce, directly or indirectly, the purchase of said devices, in commerce, as "commerce" is defined in the Fe,deral Trade Commission Act.

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

You too can take off yonI' glasses and see 'with invisible contact lenses. Sooner than you think you l1 thril to the enjoyment of seeing perfectly without glasses.

See Better, Look Better without Glasses. Think of the enjoymcnt of seeing naturally without glasses.

The older types of contact 1lenses coulr1n t be worn more than a few hours but SUn-Vault 5-Vent lenses, can be worn all day. CONTACT LEXIS CENTER 1029 1027 Complaint Q. Are Star-Vault contact lenses painful? A. Absolutely not.

Is there a difference in contact lenses? There certainly is . . . the Star-Vault lens utiizes a natural law to provide all day comfort. A thin layer of lacrimal fluid (tears) is always present on the surface of the human eye. The newly pcrfected designs of 5 vents combined with a central vault allows the normal circulation of tears and oxygen to provide comfort, safety and sharp vision throughout the day. Perfect vision without glasses sounds like an impossible dream but that dream can become a l'ealit,y when you change to Star Vault Contact Lenses. Both medical and optical authorities on contact lenses say that all day weal' , comfort, safety.y and natural vision are offered by the use of the new invisible contact lenses.

As pioneers and researclJcrs in contact lenses ,ye supply both the public and eye profession wit.h the Star-Vault grooved contact lens. . . . provides a covering for the eye. . . protect the eye from dust and foreign objects.

PAn. 4. By and t.through the st.atements made in said advertisements disseminated and caused to be disseminated as aforesaid, rcspondents represented directly or by implication that: 1. All persons in need of visual correction can successfully wear their contact lenses.

2. There is no irritation or discomfort in wearing their contact lenses.

3. Said contact lenses can be worn a11 day by a11 persons with complete comfort.

1,. Eyeghsses ca,n be discarded upon the purchase of said contact lenses.

15. Their contact lenses will correct all defects in vision. 6. TlIPir contact Jenses differ from other contact lenses in that they permit flir nncl tears to bathe the cornea. 7. Hcspondents are pioneers and researchers in the contact lens field.

8. Their contact lenses provide a covering for the eye and protect the eye from dust and foreign objects. PAR. 5. The advertisements containing t.he aforesaid statements and representations ate misleading in material respects and constitute "false advertisements, as that term js defined in the Federal Trade Commission Act. In truth and in fact: 1. A significant number of persons cannot successfully wear respondents: contact lenses.

1030 FEDERAL TRADE CO:MV1ISSION DECISION& Decision !38 F. 2. Practically all persons will experience some irritation and discomfort when first wearing respondents: contact lenses. In a significant number of cases irritation and discomfort "\ill be prolonged, and in some cases will never be overcome. 3. 11any persons cannot wear respondents: contact lenses all day without discomfort and no person can wear s tid lenses all day in complete comfort until he or she has become fully adjusted thereto. 4. Eyeglasses cannot ahvays be discarded upon the purchase of respondents ' contact lenses.

5. Hesponclcnts' contact lenses will not correct all defects i VlSlOIl.

6. l\1:any competitive contact lenses permit air a,ncl tears to bat.he the cornea.

7. Respondents arc neither pioneers nor researchers in the contact lenses field. They purchase their contact lenses from others. 8. Respondents' contact lenses provide a covering and protection for only the cornea "which is a small pori.ion of the eye. PAIL 6. The dissemimtion by respondents of the aforesaid false advertisements constitutes unfair and deceptive acts and practices, in commerce, within the intent Hnc1 meaning of the Federal Trade Commission Act.

join. John J. 2I eN ally and Mr. Gar/m1d S. F eTgUJOn for the Commission.

Respondent R. O. Davis for himself. INITL\L DECISION BY LORE II. LACGHLI::"', IIE1\HTXG EXAMINER The Fe,dcral Trade Commission (sometimes also hereinafter re- , 1960 , issued its com-felTecl to as the Commission), on .June 18 plaint herein charging the respondents R. O. Davis and X. D. \Vhipple, indivic1ually and as copartners trading and doing business as Contact Lens Cr-nter, ivith having violated the provisions of the Federal Trade Commission Act, and respondents i\ere duly served with process.

On February 20 , IDol, there ,nls sl1bmitte,c1 to the undersigned hearing" examiner of the Commission for his consideration and approval an "Agreeme,nt Containing Consent Order To Cease And Desise' , which had been entered into by and beti,een respondent R. O. Davis and the. attorney snpporting t.hc complaint, under date of Ja,nuary 28 , 1961, sub:iect to the approval of the Bureau of Lit,igation of the Commission, ,which had subseqllently duly approved the same.

COX TACT LENS TER 1031 1027 Decision After due consideration, the hearing examiner finds that said agreement, both in form and in eont.ent, is in accord with 25 of the Commission s Rules of Practice for Adjudicative Proceedings,. a.nd tha.t by said agreement the parties signat,ory thereto have specifically agreed to the following matters, as to respondent R. O. Davis:

1. Respondent R. O. Davis is an individual trading and doingbusiness as Contact Lens Center, with his offce and principal place of business located at Joshua Green Building, Fourth and Pike Streets, Seattle, vVashington.

2. Respondent R. O. Davis admits all of the jurisdictional facts alleged in the complaint, and agrees that the record may be taken as if findings of jurisdictional facts had been duly made in accordance with such allegations.

3. This agreement disposes of all of this proceeding as to respondent R. O. Davis. The remaining respondent, N. D. vVhipple, wil be dealt with by further proceedings.

4. Respondent R. O. Davis waives:

(a) Any further procedural steps before the hearing examiner and the Commission;

(b) The making of fu1dings of fact or conclusions of law; and (c) All of the rights he may have to challenge or contest the validity of the order to cease and desist entered in accordance with this agreement.

5. The record on which the initial decision and the decision of the Commission shall be based shall consist solely of the complaint and this agreement.

6. This agreement shall not become a part of the offcial record unless and until it becomes a part of the decision of the Commission. 7. This 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.

8. The following order to cease and desist may be e,ntcred in this proceeding by the Commi sion ,,,without further Hotiee to respondent. when so entered it shall have the same force and effect as if entered after a full hearing. It may be altered, modified or set aside in the manner provided for other orders. The camp hint may be used in construing the terms of the order.

vvith respect to the remaining respondent, K. D. vv11ipple, "hose full name is eal Dow "Thipple, a hearing 'was hc:c1 in Seattle vVashington, on Iarcl1 8 , 1961 , at "which respondent R. O. Davis (full name Ronald O. Davis), having been duly sworn, testified that 1032 FEDERAL TRADE COMlvlISSION DECISIONS Decision 58 F.

respondent N. D. ",Vhipple was only an employee from December 1958 , to and including July, 1959; that he went to Bradentown Florida, and never had and does not now have any interest in the bnsincss of Contact Lens Center. Counsel supporting the complaint upon this evidence, moved for a dismissal of the complaint he.rein as to respondent 1'. D. vYhipple. Said motion was granted by the hea.ring examiner on the record, and is hereby taken into account in this initial decision, pursuant to 8 (e), as amended, of the Commission s Rules of Practice for Adjudicative Proceedings. upon due consideration of said complaint and agreement as to respondent R. O. Davis, and of the record herein as to respondent . D. vYhipple, the hearing examiner approves and accepts the said "Agreement Containing Consent Order To Cease And Desise' finds that the Commission has jurisdiction of the subject matter of this proceeding and of thc respondents herein; that t.he complaint states a legal cause for complaint under the Federal Trade Commission Act against respondent R. O. Davis, both generally and in each of the pnrticu1ars a.alleged t.herein; that this proceeding is the interest of the public; and that the follml'ing order to cease and desist, as proposed in said agreement, is appropriate for the just disposition of all the issues in this proceeding as to said respondent R. O. Davis, as is the dismissal of the complaint herein with respect to respondent 1'. D. ",Yhipple. Therefore It i.., ordered That R. O. Davis individually, or trading as Contact Lens Center, or under any other na,me or na,mes; his representatives, agents and employees, directly or through any corporate or other device, in connection with the sale 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 Fcc.h:ral Trade Commission Act which advertisement represents directly or by implic.ation that: (a) All persons in need of visual correction can successfully wear said contact lenses;

(b) There is no irritat.ion or discomfort in wcaring said contact lenses;

(c) A person can wcar said lenses all day, unless jt is clearly disclosed t.hat this is possible only after such person has become fully adjusted thereto;

(d) Eyeglasses can be discarded upon the purchase of said contact Jenscs;

A. BRASH & SONS , I);C. , ET AL. 1033 1027 Syllabus (e) Said contact lenses will correct all defects in vision; (f) Said contact lenses differ from other contact lenses in that they permit air and tears to bathe the cornea; (g) He is a pioneer and researcher in the contact lens field; (h) Said contact lenses provide a covering for the eye from dust and foreign objects;

II. Disseminating or causing to be disseminated any advertisement, by a.ny means, for the purpose of inducing or which is likely to induce, direct.ly or indirectly, the purchase in commerce, as "commerce" is defined in the Federal 'I'trade Commission Act, of said contact lenses; which advertisement, contains any of the representations prohibited in Paragraph I hereof.

It is further ordered That the compiaint herein, insofar as it concerns respondent N. D. Whipple, be, and the same hereby is, dismissed.

DECISION OF THE COl\flIISSIOX AXD ORDER TO FILE REPORT OF COMPLIANCE Pursuant to Section 3.21 of t.he, Commission s Rules of Practice the initial decision of the hearing examiner shah, on the 6th day of June, 1061 , become the decision of the Commission; and, accordingly:

It is ordered That respondent R 0- Davis, individually and trading and doing business as Contact Lens Center, shall, within sixty (60) days after service upon him of this order, fiJe with the Commission l report in writing, setting forth in detail t.he manner