Hernia Control, Inc.

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

IN THE 1\L\.TTER OF HERNIA CONTROL, INC., ET AL.

CONSENT ORDER, ETC., IN REGARD TO TI-IE ALLEGED YIOL.-\ TION OF TI-IE FEDERAL TRADE CO:l\:Il\lission ACT Docket 8261. Complaint, Dec. 80, 1960-Dcci-sion, July, 1961 Consent order requiring Boston, l\lass., distributors to cease misrepresenting the effectiveness of their "l\1uscle-Spension " devices in the control of ruptures and hernias, and their time in business, in advertisements in newspapers ~md by means of brochures, circulars, match covers, and other media.

CO~IPLAINT 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 Hernia Control, Inc., a corporation, and Robert A. Sykes and Ann 1-1. Sykes indi,-ic1urJly and as officers of said corporation, hereinafter referred Complaint 59 F.

to as respondents, have 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 stating its charges in that respect as follows: PARAGRAPH 1. Respondent Hernia Control, Inc., is a corporation organized, existing and doing business under and by virtue of the laws of the State of :Massachusetts ,,-ith its principal office and place of business located at 145 Tremont Street, Boston, ~fassachusetts. Said corporation does business under the name of Sykes Center.

Respondents Robert A. Sykes and Ann 1-1. Sykes are officers 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.

PAR. 2. Respondents are now, and for some years last past have been, engaged in the business of selling and distributing devices as device is defined in the Fe.deral Trade Commission Act. Said devices are designated as "l\iuscle-Spension" and are offered for sale to persons having ruptures or hernias. PAR. 3. Respondents have caused and nmy cause, their said devices, when sold, to be transported from their place of business in the State of l\lassachusetts to purchasers thereof located in various other states of the United States, and at all times mentioned herein have maintained a course of trade. in saiel devices in commerce as "commerce" is defined in the Federal Trade Commission Act. The volume of business in such commerce is and has been su bstan ti al.

PAR. 4. In the course and conduct of their business, respondents have disseminated, and caused the. dissemination of, advertisements concerning 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 various ne',spapers, and by means of brochures, circulars and match covers and other advertising media for the. purpose of inducing and which are likely to induce, directly or indirectly, the purchase of said devices, and respondents hn \'(:' disseminated and caused the dissemination of, ach-ertisements concerning said devices, including but not limited to, the media referred to above for the purpose of inducing, and ,,-hieh "-ere likely to induce c1ireei"ly 01' indi redly, the purchase of said cleyices in commerce, as commerce ~' is defined in the Federal Trade Commission Act. ,, HERNIA CONTROL, INC. , Eti' AL. 143 141 Complaint PAR. 5. Among and typical of the statements contained in said advertisements, disseminated, and caused to be disseminated, by the respondents are the following:

To those who have endured the torment of trusses. To those who fear to work and play normally because of the threat of hernia, to those who have found surgery unsuccessful Muscle-Spension offers a whole new world. :Much as the dentist might fill the cavity in a tooth, the Muscle-Spension technician measures and fits the length, depth and width of this area. The resulting prosthesis or muscular substitute suspends the weakened muscles to prevent their sagging and so prevents the development of the hernia. But the most important fact of all is that whether or not the muscular tone is revived, the control with l\1uscle-Spension can free its wearer of the problems of reducible hernia promptly and permanently, through its proper use. Those victims of hernia who have had the experience of the results of Music1e- Spension as developed at Sykes Center know that it proved a practical answer to the age old problem of finding an orthotic remedy for them. The future of Music1e-Spension then must lay largely in the hands of its present owners. These people had the experience needed to tear down the stone wall of skepticism built by disi11usioned truss wearers and by the medical profession against the possibility that an acceptable remedy without surgery is available.

Serving since 1916.

PAR. 6. Through the use of the statements and representations contained in the advertisements set out in Paragraph Five, and others of similar import not specifically set out herein, respondents represe,nted, directly and by implication that: (a) Their said devices are not trusses.

(b) The use of their said devices ,,-il1 cure ruptures or hernias. ec) That the use of their said devices ,,-ill prevent the development, that is, the enlargement of ruptures or hernias. (d) Said devices win retain or hold an ruptures or hernias. (e) The use of their said devices will free the "-earer of the problems of re.dl1cible ruptures or hernia. (f) Their said devices win retain ruptures or hernias under conditions of activity or strain.

(g) Their said devices provide a remedy for ruptures or hernia itl1Qut surgery.

(h) The respondents have been in the business of ruptllre control since 101 E).

\I~. 7. The aforesaid statements were and are misleading in material respects and consbtute false advertisements as that term defined in the Federal Trade Commission Act. In t1'11t h and in fact:

(a) Respondents devices fire tn1sses.

(0) The m:e of said devices ",in not ('mol' ruptures or hernias. 144 FEDERAL TRADE COMMISSIO~ DECISIONS Decision 59 F.

( C) The use of said devices will not prevent the development or enlargement of ruptures or hernias.

(d) Said devices will not be of value in retaining or holding ruptures or hernias except those that are reducible. (e) The use of said devices will not free the wearer of the problems of reducible rupture or hernia.

(f) Said devices will not retain ruptures or hernia under all conditions of activity or strain.

(g) The use of said devices will not provide a remedy for ruptures or hernia without surgery.

(h) Respondents have not been in the business of rupture col1trol since 1916 but for a considerably Jesser period of time. PAR. 8. The dissemination by the respondents of the raise advertisements, as aforesaid constituted, and now constitutes, unfair and deceptive ads and practices, in commerce, 1within the. intent and meaning of the Federal Trade Commission Act. il/l'. F'i'eder-ick l11clJlanus supporting the complaint.. Respondents pro se.

I::-lITIAL DECISION BY EDWARD CREEL: HEARING EXAMINER The Federal Trade Commission issued its complaint against the above-named respondents on December 30, 1960, charging them "ith violation of the Federal Trade Commission Act in connection with the sale and distribution of their devices, designated as "~:Iuscle- Spension On April 20, 1961, there was submitted to the hearing examiner an agreement between the respondents and counsel supporting the complaint providing for the entry of a consent order. Under the terms of the 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 may be entered without further notice and have the same force and effect as if entered after a fun 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 agreement further recites that it is for settlement purposes only and does not constitute an admission by the respondents that they have violated the law as alleged in the complaint. The hearing examiner finds that the content of the agreement meets all of the requirements of Section 3.25 (b) of the Rules of the Commission.

HERNIA CONTROL, INC. , ET AL. 145 141 Order The hearing examiner having considered the agreement and proposed order, and being of the opinion that they provide an approprinted basis for settlement and disposition of this proceeding, the agreement is hereby accepted, and it is ordered that said agreement until it be-shall not become a part of the official record unless and comes a part of the decision of the Commission. The following jurisdictional findings are made and the follo\ying order issued: 1. Respondent Jlernia Control, Inc., is a :Massachusetts corporabusiness located at 145tion with its principal office and place of corporation doesTremont Street, Boston :l\Iassachusetts. Said business under the name of Sykes Center.

Individual respondents Robert A. Sykes and Ann II. Sykes are officers of the corporate respondent and formulate, direct and control the acts and practices of said corporate respondent. Their address is the same as that of the corporate respondent. 2. The Federal Trade Commission has jurisdiction of the subject matter of this proceeding and of the respondents, and the proceeding is in the public interest.

ORDER I t is or-de1V3d That the respondents Hernia Control, Inc. , a eorporation, and its officers, and R.robert A. Sykes and Ann H. Sykes 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 devices known as "l\luscle-Spension, or any device of substantially similar construction or design, whether sold under said name or any other name, do forthwith cease and desist from, directly or indirectly:

1. Disseminating or causing to be disseminated, by means of the Cnited States mails, or by any means in commerce, as "commerce is defined in the Federal Trade Commission Act, any advertisement \\"hi('h represents, directly or by implication that: (a) Said devices are not trusses;

(b) Said devices will cure ruptures or hernias; (c) Said devices will prevent the development or enlargement of ruptures or hernias;

( d) Said devic.es will be of value in holding or retaining a rupture or hernia unless limited to reducible ruptures or hernias; ( e) Said devices will free the wearer thereof of the problems of reducible rupture or hernia;

all conditions of (f) Said devices will retain ruptures under activity or strain;

Q93~90--64---- Complaint 59 F.

(g) The use of said devices will provide an adequate remedy for ruptures or hernia without surgery;

business of (h) Respondents, or any of them, have been in the rupture control since 1916, or misrepresenting the period of time. that they, or any of them, have been in such business. 2. Disseminating, or causing to be disseminated, any advertisement by any means, for the purpose of inducing, or which is likely said devices into induce, directly or indirectly, the purchase of commerce, as "commerce is defined in the Federal Trade Commission Act, which advertisement contains any of the representations prohibited by Paragraph 1 of this order. DECISION OF THE COMMISSION .AND ORDER TO FILE REPORT OF COMPLIANCE Pursuant to Section 3.21 of the Commission s Rules of Practice, 25th daythe initial decision of the hearing examiner shall, on the of July 1961 , become the decision of the Commission; and, accord- (60) It is ordered That respondents herein shall, within sixtyingly :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.