R. C. Myrick, et al., trading as Carey Surgical Appliance Co., etc.

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

11\ THE IATTEn OF R. C. MYlUCK ET AL. TRADING AS CAREY SURGICAL APPLIA CE CO. ETC.

OIlDEn, ETC. : IX REGARD TO '.fite ALLEGED Vlcd \TION OF THE FEDERAL TRADE COJDnssIOx ACT Docket 1'806. Complaint ,l/(u' . 3 1960-Decfsion, May 24, 19GB Order requiring an individual \with offces in Los Angeles and San Francisco Calif., engaged in sellng hernia trusses both in his offces and on the road to cease making a variety of false claims for his said devices in advertising in newspapers, as ill the order below set forth. COMPLAINT Pnrsnant to the provisions of the Federal Trade Commission l-\ct and by virtue of the authority vested in it by said Act, thc Federal Trade Commission, having reason t.o believe that R.. C. Jfyrick: an individual trading as Carey Surgical Appliance Co. and Allied Surgical AppJianee Co. and Dorothy i. Myriek, an individual, 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 . , .

1622 FEDERAL 1'TRADE CO"\MISSION DECISIONS Complaint 60 F.

thereof would be in the public interest, hereby issues its complaint stating lts charges in that respect a,s follows: PARAGRAPH 1. Respondent R. C. :Ylyrick is an individual trading as Carey Surgieal Appliance Co. and Allied Surgical Appliance Co., his Post Offce address being Box 845, Camden, N,J. Respondent Dorothy ::\-1. l\iyrick, an individual, participates -in the acts and practices hereinafter set forth. Her address is also Post Offce Box 846, Camden PAR. 2. Respondents are 110\\. a.nd have been for marc than one year hst past, engaged in the sale m;c1 distribution of fl- device, as " c1e;ice. is defined in the Federal Trade Commission Act. Said device is designated as " Iernia Guard" Vaeumatic I-Ierl1if! GuarcF. "Vacuum Pad" and "Pneumatic Pa . The device is a hernia truss consisting of two semi-pneumatic rubber pads mount.ed on metal bases attached to the ends of a. plastic covered steel spring rod shaped in a semicirc.e to fit around the body of the ,vearer. One of the pads has a rounded elevation in the center designed to plug a hernial opening. The other pad is flat and is intended to rest on the, back of the wearer. The pads, which tilt up or down, are held in position by tension of the steel spring rod. PAR. 3. In the course and conduct of their said business, respondents have disseminated, and caused the dissemination of, certain advertisement.s concerning the said device by the -United States mails and by various means in commerce, as "co1lmcrce ' is defined in the Ferleral Trade Commission Act, including but not limited to, advertisements inserted in newspapers and other advertising media; and havp disseminated and caused the dissemination of, advertisements con cerning said device by various means, including but not limited to the afores lid media, for the purpose of inducing and which ,were likely to induce, directly or indirectly, the purchase of said device in commerce, as "commerce" is defined in the Federal Trade Commission Act.

PAR. 4. Among and typical of the statements and representations contained in said advertisements disseminated as hereinabove set forth are the fol1moving:

RUPTCRED A FREE r1emonstration wil he given oy a certified Hernia Technologist direct from the factory of the NEW NO BELT, 1\0 STRAP, XO BCLB YACr- ),IATIC PAD for men. womeli and children, AT OUR OF'FICE . . . This is the finest appliance eyer offered. ::0 BEl/r to cnt off circulation. NO STRAP to cbafe. XO BLLE to spread the opening. It helps nature correct the defect. You are In'otected all the time. AS THE VACTDIATIC PAD IS W ATE:RPROOF A:\D RUST-PROOF it is worn in the hath and swimming. s soMany have gotten relief and comfort they never dreamed possible. It' , , CAREY SURGICAL APPLIANCE CO. , ETC. 1623 1621 Complaint light and easy to wear. This ad is worth a dollar on a NE\V V ACUU1\ PAD these dates only J . . . CAREY SURGICAL APPLIANCE CO.

. . . 54 'Vest Randolph St., Ril. 907 Woods Bldg. Chicago RI:PTI:RED (Picture shovdng two hands holding a round pad) his Vacumatic Pad is the Secret to the Su ess of the HER 'nA GUARD for proper RUP URE CO:\TROL! O BELTS o STRAPS 1\0 HAR:-ESS Leading physicians and thousands of wearers endorse the Bernia Guard as the most revolutionary and satisfactory hernia-control since the invention of the truss. SWDI 1 IT. BATHE 11\ IT. It offers almost unbelievable security and comfort and a new way to a more active and pleasant life for men women and children. It helps nature to correct the defect in many cases. PAR. 5. Through the use of said advertisements, and others similar thereto not specifically sct out herein, respondents have represented and are now representing, directly and by implication: 1. Through the use of the expression "Certified Hernia Technologist", that respondent R. C. o\Iyrick and his salesmen and fitters are medically trained and expert in the field of hernias. 2. Tlult said device is new in principle and revolutionary in character and provides benefits not afforded by other trusses. 3. That it controls all hernias.

4. That the device has no bulb in the sense in which bulbs arc used in trusses.

5. Through ,the use of the name Vacumatic, as a part of the name of the device, th Lt it operates on the principle of a vaCUl\l1 and for this reason is beneficial for hernia.s.

6. That it helps nature correct hernias.

7. That it protects wearers by retaining hernias at all times. S. That it give extra.ordinary relief and comfort, and is easier to wear than other trusses generally.

9. Through the use of the name "Vacumatic" and the picture of the so-called vacumatic pad and the statements no belts no straps and "no harness, that the entire device consists of the pad. 10. That leading physicians have endorsed the device as the most revolutionary and satisfactory hernia control since the invention of the truss.

PAR. 6. The said advertisements ,were, and are, misleading in materiRI respects and constituted, and now constitute, "false advertise Initial Decision 60 F, 1nents" as that form is defined in the Federal Trade Commission Act. In truth and in fact:

1. K either respondent R. C. IVlyrick nor his salesmen or fitters are medically trained or experts in the field of hernias. 2. Respondents' device is not new in principle or revolutionary in char cter as it is not essentially dilIel'ent from other spring-type trusses. It will not provide benefits beyond those of other springtype trusses.

3. Respondents' device will not control hernias other than reducible hernias.

4. The pressure pad on respondents ' device is not essentially diffcrcnt and serves the same function as the bulb or pad on other trusses.

5. TJ1e pad on respondents' device does not operate on the vacuum principle. If it did, such action would be more harmful than beneficial to persons Sll ffcring from hernias.

6. Hesponclents' device will not help nature correct a hernia or have any ellect upon a hernia other than to prevent its protrusion. 7. Respondents' device will not protect the wearer at all times as it will not hold a hcrnia under all conditions of activity ,~U1d strain. 8. Hesponclents' (levice affords no greater relicf than other trusses which retain a hernia that would otherwise protrude, nor is it easier to wear than many other trusses.

9. Respondents' device c.onsists of more than a pad as set out in paragraph 2 hereof.

10. Respondents' device has not been endorsed by leading physicians as the most revolutionary and satisfactory hernia control since the invention of the truss.

PAR. 7. The dissemination by the respondents of the false advertisements, as aforesaid, constituted, and now constitutes, l1nfair and deceptive acts and practices, in commerce, within the intent and meaning of the Federal Trade Commission Act.

MT. Ohwrles TV. O'Connell supporting the complaint. llit. R"ymond R. Dickey, iliT. 111 """ilal llliller and iliT. Robert F. Rolnick of Danza71s7cy Dickey of IVashington, D. , for respondents. INITIAL Decisio BY JOHN B. POIXDEXTER, HEARING EXA finer The complaint in this procecding charges R. C. :Myrick, an individual trading as Carey Surgical Appliance Co. and Allied Surgical Appliance Co., and Dorothy 1\1. )1yrick, an individual, with false advertising in violation of the Federal Trade Comnlission Act. The CAREY SURGICAL APPLIANCE CO. , ETC. 1625 1621 Initial Decision individual respondent R. C. l\iyrick, through counsel, answercd and denied in substantial part, the anegations in the complaint. After several hearings, counsel for the Commission completed the presenta tion of evidence in support of the anegations of the complaint. Theren ftCI', before offering any evidence on behalf of respondent :\Iyrick, counsel for respondent ;\Iyrick moved for leave to withdraw as his counsel by reason of respondent l\lyrick' s failure to cooperate ,with his counsel, such as failing to advance necessHTY costs for investi gation preparatory for heating rcim burse counsel for certain expenses incurred by counsel on bchnJf of respondent l\lyrick and failure to pay attorneys' fees which the respondent Myrick had previously agreed to do. -Upon the basis of these repl'esentations, the hearing examiner announced that said counsel would be permitted to withdraw. There after, a further hearing was scheduled for J nnnary 1 G, 1962, in ,y ash ington, D. , to aiIord respondent Hyriek an opportunity to employ other counsel, and to present evidence and testimony in his own behalf should he so desire. A notice of said scheduled hearing " as ma.ilec1 to :.11'. JVlyrick at his last known address in Los Angeles and San Francisco, California.. I-low ever, J(r. J\Iyrick did not appear at said hearing nor did anyone appear in his behalf. Accordingly, the re. spondcnt R. C. Myriek will loa considered in default for failure to appear at said hearing and offer evidence and testinlony in his own behalf. Proposed findings of fact, conclusions of law and order have been ficc1 by counsel supporting the complaint. upon the basis of the entire record the undersigned hearing examiner makes the following findings of fact, conclusions of law a,nd order. Fe'WIN as OF FACT 1. The individually'respondent R. C. ::fyrick, for approximately two years prior to October 1958 traded as Carey Surgical Appliance Co. W oods Building, 54 IV est Randolph Street, Chicago, 111., with a branch offce in the Maison Blanche Building, 930 Canal Street New Orleans, La. In October, 1958, thc individual respondent R. C. Myrick sold all of his interest in Carey Surgical Appliance Co. to one J. J. Todd. At the time of the hearing held in this proceeding on June 21, 1960, the Carey Surgical A ppJiance Co. mts no longer in business.

2. The individual respondent, Dorothy M. ::fyrick, formerly the wife of respondent R. C. ::fyriek, was only an employee of Carey Surgical Appliance Co. as a receptionist, and never o"\vned an interest therein. She and the respondent R. C, ::fyrick are now divorced, Initial Decision 60 F, 3. Subsequent to October, 1958 and prior to the issuance of the compiaint herein on .March 3 , 1960, the individual respondent R. C. .Myrick bcgan doing business under the trade name of Allied Surgicai Appliance Co. , with an offce located at 55 1V cst 42d Street, New York, N.Y. On June 21 1960, thc residence address of respondent R. C. Myrick was 116 West 45th Street, New York, N.Y. Subsequcnt to Mr. Myrick' s divorce from Dorothy I. Myrick, he was married to another woman.

4. At some time subsequent to the date of the initiai hearing held in Washington, D.C., on June 21, 1960, thc individual respondent R. C. M::rick moved to the State of California and is now doing business under the trade name of Abbot SurgieaI Appliancc Co., Suite 815, 542 South Broadway, Los Angeles, Calif., with another offce located in Room 215, 516 Sutter Street, San Francisco, Calif. 5. The respondent R. C. Myrick is now, and has been for more than one year last past, engaged in the sale and dist.ribu60n of a device as "device': is defined in the Federal Trade Commission Act. Said device is a hernia truss. The truss is sold both in the offce and on the road by the respondent R. C. Myrick and his empIoyces. Advertisements arc placed in nC'iYspapers for the purpose of inducing the sale of said trusses in commerce, as "commerce" is defined in the Federal Trade COIDlnission Act. \Vhen trusses arc sold on the road the respondent l\1yrick places advertisements in local newspapers advertising the trusses and announcing that he or his salesmen representative wil be at a specified hotel in a specified city at a specified time for the purpose of demonstrating, fitting and selling said trusses. CX-10 is one of the types of trusses said by the respondent R. C. Myrick. Other trusses so1c by ::II'. Myrick are of the same general construction as CX-10 except for some variance in the gauge of steel in the torsion bar which surrounds one side of the body of the wearer or a variance in the size and circumference of the pads attached to the ends of the torsion bar.

6. Some of the advertisements which the respondent R. C. Myriek inserted in newspapers are the following:

RL"PTUR (Picture showing two hands holding a round pad) This Vacumatic Pad is the Secret to the Success of the HERNIA. GUARD for proper RUPTT:RE CONTROL! 1\0 BELTS NO STRAPS NO HARNESS CAREY SURGICAL APPLIA.'lce CO. , ETC. 1627 1621 Initial Decision Leading physicians and thousands of wearers endorse the Hernia Guard as the most revolutionary and sastifactory hernia-control since the invention of the truss. SWIM IK IT. BATHE IN 1'1'. It offers almost unbelievable security and comfort and a new way to a more active and pleasant life for men, women and children. Helps nature to correct the defect in many cases. Carey Surgical Appliance Co., 54 W. Randolph, 1Voods Bldg., Suite 007. The above advertisement appeared in the Oh-oaqo Daily Tribune Ionday, August 26, 1957, and was received ill evidence as eX- A similar advertisement appeared in the Chicago Daily Trib tne Tuesday, September 3 , 1957. This advertisement, CX- , contained the same language as that quoted in CX-1 above. 7. Another newspaper advertisement inserted by the respondent R. C, Myrick in the ChicC',qo Daily TTib1lne on fonday, September , 1957, was CX-3. This advertisement is as follows: RUPTL"RED A FREE demonstration wil be given by a Certifed Hernia Technologist direct from the factory of the \TEW XO BELT O Strap, NO BCLB V ACCl\ATIC PAD for men, women and children, AT ODR OFFICE.. . This is the finest appliance ever offered. i\TO BELT to cut off circulation. NO STRAP to cbafe. NO BVLB to spread the opening. It helps nature correct the defect. You are protected all the time. AS THE V AC"C),iatic PAD IS WATERPROOF AND RUST-PROOl!" it is worn in the bath and swimming. ::Iany h11 ve gotten relief and comfort they never dreamed possible. It' so light and easy to weal'. This ad is worth a dollar on a NE"' V ACCl))I PAD these dates only! . . . CAREY SURGICAL APPLIL'JCE CO. . . . 54 "West Randolph St., Rm. 907, Woods Bldg. Chicago 8. CX-5 is an advertisement placed by the respondent R. C. fyrick in the Ohicaqo Daily News of ,Tune 14, 1058, similar io CX-3 quoted above. CX-8 is an advertisement which Nil'. Myrick placed in The T1:mes-Picaynne Kew Orleans, Louisiana, on 1:onday, June 30, 1958. The wording in this ad\'eriisement is the same as in CX- 3 except that in CX- , tl;e offce listed was 921 Canal Street, Room 1024, :Maison Blanche Bldg., New Orleans, Louisiana, instead of Woods Bldg. Chicago, Illinois.

9. Through the use of said advertisements, the respondent R. C. Myrick represented directly and hy implication: (1) By using the term "Certified Hernia Tec1mologist", that he and his salesmen fitters are lledic llay t.trained and experts in the field of hernias, "\yhercas neither he nor his salesmen fitters are medically trained or experts in the field of hernias; (2) That said device is new in principle and revolutionary in character and provides benefits not afforded by other trusses, whereas said device is not new in principle or revolutionary in character since it , , 1628 FEDERAL TRADE CG:BlISSIO:\ DECISIONS Initial Deci&ioll 60 J;" is not essentially different. from other spring-type trusses. It will not provide benefits beyond those of other spring-type trusses. (3) That it controls all hernias, \vhereas said truss will not control hernias other than reducible hernias.

(4) That the device has no bulb in the sense in which bulbs arc used in trusses, whereas the pressure pad on the respondent :1iYl'ick's truss is not. e,ssentially diffe.rent and serves the same function as the bulb or pad on other trusses.

(5) By using the word "VacUlllatic " that the truss operates on the principle of a vacuum a,nd for this reason is beneficial for hernias whereas the pad on the responclent s truss does not ope.rate on the vacuum principle, (6) That it helps nature correct hernias, whereas said truss will not help nature correct hernias 01' have any effect upon a hernia other tha11 to prevent its protrusion.

(7) That it protects the wearer by retaining hernias at all times whereas said truss \v111 not protect the wearer at all times as it will not stay in place and prevent a hernia from prot.ruding under all conditions of activity and body movement.

(8) By using the name "Vacumatic" and the picture of the so-caned vacumatic pad and the statements no belts no straps :' and " ha.rness, that the entire device consists of the pa.d, whereas the truss consists of more than a, pad.

(9) That leading physieians have endorsed the device as the most revolutionary ilnc1 satisfactory hernia control since.e the invention of the truss, whereas said device has not, been endorsed by leading physicla.ns as the most revoluLiomtry and satisfactory hernia control since the invention of the truss.

(10) The said advPl'tisements Ivere an(i are misleading in material respects and constitute "false advertisements, as that term is defined in the Federal Trade Commission Act.

COXCL"CSIOX The dissemination by the respondent R. C. Myrick of the false advertisements, as found herein, constitutes lUlfair and deceptive acts and practices, in commerce, within the intent and meaning of the Federal Trade Conil1ission Act.

ORDER It is ordered Tlmt respondent R. C. ::1)Tick, an individual trading under his own name or as Carey Surgical Appliance Co., Alled Surgical Appliance Co., or lmdcr any other name or trade desibmation CAREY SL"RGICAL APPLIANCE CO. , ETC. 1629 1621 Initial Decision and his representatives, agents, and employees, directly or through any corporate or other device, in connection with the offering for sale sale or distribution of a device desig1utted as Hernia Guard, Vacumatic Pad and Vncuunl Pad, or any product or device of substa.ntially similar construction or design, ,vhethcr sold under the same names or any other name, do forthwith cease from directly or indirectly: 1. Disseminating or causing to be disseminated by means of the United States mails or by any other means in commerce, as '; C011merce" is defined in the Fec1era.l Trade Commission Act, any advertisement:

a. 'Which represents directly or by implication: (1) TJlat respondent's device operates upon a principle which is new, revolutionary or different from that employed by other trusses In common use.

('2) That respondent's device provides any benefits other than retaining " hernia, or affords benefits beyond those afforded by other trusses in common use.

(3) That respondent's device controls hernias unless expressly limiteel to reducible inguinal hernias.

(1,) That said device is not equipped with a bulb in the sense in which bulbs are used in trusses.

(5) That the use of said device will help nature correct a hernia or have any beneficial effect on a hernia other than to prevent its protrusion.

(G) That said device win retain a hernia at all times and under all circumstances.

(7) That it will give greater relief than other trusses or IS easier or more comfortable to weat than trusses in general use. (8) That respondent's device consists of only a pad. (9) That respondent's device has been endorsed by physicians as the most revolutionary or satisfactory hernia control, or misrepresenting in any manner t.he nature or extent of any endorsement of said device.

b. \Which uses the words "vacuum or "vacumatic" or any other word or term of similar import in connection with said device, or represents in any other manner that said device operates on the vacuum principle.

c. 'Which uses the expression "Certified Hernia Tec1mologist" or any other words or expression of similar import, in reference to respondent, his agents, representatives or employees, or representing in any other manner that respondent, his agents, representatives or Complaint 60 F.

1)mployees are medically trained or qualified to properly diagnose and treat hernias.

2. Disseminating or causing to be disseminated by any means, any advertisement for the purpose of inducing or which is likely to induce directly or indirectly, the purchase of said device in commerce, as commerce:' is defined in the :Federal Trade Commission Act, which advertisement contains any of the representations prohibited in paragraph 1, hereof.

It is further o1'dered That the complaint herein be, and the same hereby is, dismissed as to respondent Dorothy M. :.lyriek. DECISIQX OF THE CO::Ul\ISSlON AND ORDER TO FILE REP01 T OF COl\D L\XCE Pursuant to Section 4.19 of the Commission s Rules of Practice effective July 21 , 1961 , the initial decision of the hea.ring examiner shall, on the 24th day of May 1962, become the decision of the Commission; and, a,ccorclingly:

It is ordered That respondent R. C. jjJyrick, an .individual trading under his own narnc or as Carey Surgical Appliance Co., Allied Surgical Appliance Co., or under any other name or trade designation, shall within sixty (60) days after service upon him of this order, file with the Commission a, report in 1Writing setting forth in detail the manner