Plough, Inc.

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

IN THE MATTER OF PLOUGH, INC., ET AL.

ORDER, ETC., IN REGARD '10 THE ALLEGED VIOLATION OF THE FEDERA TRADE COMMISSIO ACT Docket 8563. Complaint, :Mar. 19 1963-DeeisifJn, Apr. 80, 1964 Order dismissing, in 'View of the Feb. 20, 1964, dismissal of a similar complaint in Sterling Drug, Inc. Docket 85' 64 )\"'I'. C. 898, complaint charging the distributor of "St. .Joseph Aspirin" and its advertising agency with representi falsely that "America s leading medical journal" reported that St. .Joseph Aspirin was the best buy in pain relief.

COMPLAINT Pursuant to the provisions of the Federal Trade Commission Aet and by virtue of the authority vested in it by said Act, the Federal Trade Commission, hn.ving rea.son to believe that Plough, Inc., a corporation, and Lake-Spiro-Shurma, , Inc., a corporation, hereinafter referred to as respondents, have violated the provisions of said Act and it ,,appearing to the Commission that a proceding 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 Plough, Inc., is a corporation organized existing and doing business under and by virtue of the laws of the State of Delaware, with its principal offce and place of business located at 3022 J ,,ckson Avenue in the city of Memphis, State of Tennessee. Respondent Lake-Spiro-Shurman, Inc., is a corporation organized existing and doing business under and by virt.ue of the la \VB of the State of Tennessee, with its principal offce and place of business located at Radio Center Building, :Vhin and Union Streets, in the City of Afemph1s, State of Tennessee.

PAR. 2. Respondent Plough, Inc., is now, and for some time last past has been, enga.ged in the sale and distribution of a preparation which 614 FEDERAL TRADE CO L\IISSION DECISIOXS Complaint 63 ); .'r.

comes within the classification of drugs as the term "drug': is defined in the Federal Trade COll1mission Act.

The designation used by respondent Plough, Inc., for said preparation, the formula thereof and direotions for use are as follows: Designation: St. Joseph Aspirin.

Pnrm1fln: Each tablet contains five (5) grains of aspirin. Direct-ions: (Take) Olle (1) or two (2) tablets with water. May be repeated every four (4) hours. If pains persist, or are unusually severe, S physician. PAR. 3. Respondent Plough, Inc., causes the said preparation ' when sold, to be transported from its place of business in the State of Tennessee to purchasers thereof located in various other States of the United Slates and in the District of Columbia. Respondent maintains, and at all times mentioned herein ha,s 11laintained, a course of trade in said preparation in COlIl1nerce as "commerce" is defined in the Federal Trade Commission Act. The volume of business in such commerce has been and is substantial.

Respondent Lake-Spiro-Shllrman, Inc., is no", and for some tinm Jast past has been, the advertising agency of Plough, Inc., and now prepares and places, and for some time last past has prepared and placed, for publication, advertising material, including the advertising hereinalter referred to, to pronwte the sale of the said preparation. In the conduct of its business, at all times mentioned lmrein, respondent Lake- Spiro-Shurman, Inc., has been in substantial competition, in commerce with other corporations firms and individuals in the advertising business.

PAl. 4. In the course and conduct of their business, respondents have disseminated, and caused the c1isseminat.ion of, certain advertise ments c.oncerning the preparation referred to in Paragraph Two, above by the United States mails and by various means in conllnerce, as "com- )nerce" is defined in the Federal Trade Commission Act, including, but not limited to, advertisements inserted in newspapers and magazines and other advertising media fmd by means of television and radio continuities broadcast through stations located in various States of the United States "nd in the District of Columbia, and by means of other radio and television continuities broadcast over stations having sufficient power to earry such broadcasts across state lines, for the purpose of inducing, and which were likely to induce, directly or indirectly, the purchase of St. oseph Aspirin; and have disseminated, and caused the dissemination of, advertisements concerning said St. Joseph Aspirin by various means, including but not limited to the aforesaid media, for the purpose of inducing and which were likely to induce ,, ) : , : , , PLOrGH INC. ET AL. 615 613 Complaint directly or indirectly, the purchase of said preparation in commerce, as eOnllnel'ee ' is defined in the Federal Trade Commission Act. PAR. 5. Among ana typical, but not all-inclusive thereof, of the :-tatements and representations contained in sR;id advertisements and television a.nd radio broadcasts dissemina:ted as hereinabove set forth are the following:

AoIEmCA' S LEADI!\G MEDICAL JOURNAL REPORTS ST. JOSEPH ASPIRe, YOUR "BEST BUY" IN PAl!\ RELIEF! Clinical Study Explodes Claims of So-caned Extra Strength or Combination Drugs, the Principal Bufered Product and the High-priced Aspirin, It Proved There Is No Difference of Note in the Speed, Strength or Percentage of Relief of iny of These Products .When Compared .With St. Joseph Aspirin, It Also Showed the So-called Extra Strength Products Which Contain Phenacetin, Caused a Significant Amount of Stomach Distress-but St. Joseph Aspirin 'Vas as Gentle to the Stomach as a Plain Sugar Pil. STOMACH l:PSET" OLADIS EXPLODED! Doesu t upset the stomach" No stomach irritation Gentler than aspirin have you been puzzled by such scare claims? The fact is, St. Joseph Aspirin was shown to be as gentle to the stomach a!' a plain sugar pil, Actually, the only products which caused any noticeable stomach irritation in this test were the so-called extra strength" or combination drugs containing phenacetin. (A reproduction of a newspaper advertisement containing the foregoing representations is attached hereto marked Exhibit 1 and incorporated herein, Here s important news about pain relievcrs-just released by one of America most. highly respected medical journals. It reports on a clinical test of five leading' pain relievers-the leading so-called extra strength combination drugs; a very highly advertised aspirin; the principal ImffeJ'ed pl"oduct-and St. Joseph Aspirin. Xow IJlO're s what this test shmn?d. It pro.ed that there is no difference of note in the speed, Cll.alitJ-' or percentage of relief of any of tllese productshen compared .with St. Joseph Aspirin. It also showed the so-called extra strength products ca used a significant amount of stomach distress-whereas pure St. Joseph Aspirin was as free of irritating effects as a plain sugar pil, So why pay more-especially for products that contain an added drug, phenacetin that your doctor ilily not ,want you to take. This drug, barred in one country except on prescription, is found in most so-called extra strength combination drgs. So ,"hy risk more 01' pay more? Ask for pure St. Joseph Aspirin-clinically shown to be the best buy in pain relief. Get it today, , . , Radio Station 'VBRO, Birmingham, Alabama, (A reproduction of the report referred to in the above-quoted "(h-ertisements js attached hereto marked Exhibit 2 and incorporated herein.

"'Pictorial exhibit 1 is omitted in printing. "Pictorial exhibit 2 is omitted in printing. ) Complaint 65 F.

PAR. 6. Through the use of said advertisements, and others similar thereto not specifically set out herein, respondents have represented and are now representing, directly and by implication: (1) That a report of a clinical study of pain relievers published in America s leading medical journal reflected the views of tbe medical association under "hose auspices the said journal was published. (2) That America s leading medical journal reported that St. J oseph Aspirin is the "best buy" in pain relief. (3) That the clinical investigators who conducted the study and published the report in question found and reported that St. Joseph Aspirin causes no noticeable stomach irritation and that the said preparation is as gentle to the stomach as a plain sugar pill. PAR. 7. In tmthand in fact:

(1) The report of a clinical study referred to by respondents was published in The Journal of The American 1\fedical Association, Vol. 182 No. , December 29, 1962. This said report was not a report of the American :Medical Association. The opinions expressed in the said report were solely those of the clinical investigators who conducted the study reported on, and such opinions did not represent those of the American Medical Association (The American Medical Association policy with regard to publication of articles in its Journal is set out in the Journal under the caption "Responsibility for Statements, as shown in a reproduction of page 156 of The Journal of The American cvledical Association, Vol. 182 No. , December 29 , 1962, attached hereto marked Exhibit 3 and incorporated herein. (2) The Journal of The American Medical Association did not state, and the clinical investigators who conducted the study published in said Journal did not report therein, that St. Joseph Aspirin is the best buy" in pain relief.

(3) The clinical investigators did not state as a finding in their report that St. .J oseph Aspirin causes no noticeable stomach irritation or that the said preparation is as gentle to the stomach as a sugar pil. Therefore, the advertisements referred to in Paragraph Five were and are misleading in material respects and constituted, and now constitute, "false advertisements" RS that term is defined in the Federal Trade Commission Act.

PAR. 8. The dissemination by the respondents of the false advertisements, as aforesaid, canstitured, and now constitutes, unfair and deceptive acts and pra.ctices, in commerce, in violation of Sections 5 and 1'2 of the Federal Trade Commission Act.

"'Pictorial exhibit 3 is: omitted in printing. GEORGE :\ACY COMPANIES, INC. 617 613 Syllabus ORDER GRANTIXG 1\LOTION To DIS:;IlSS C01\IPLAINT On April 15, 1964, the examiner certified to the Commission a motion by respondents to dismiss the cOlnpla.int on the ground that further proceecEngs upon it would not be in the pubhc interest. The examiner recommends that the motion be granted, and complaint counsel have stated that they do not object to the mohon. Respondents have accompanied their mohon with affdavits by responsible offcers that respondents have ceased using the particular advertisement upon which the complaint was based and do not intend to resume. It does not appear however that respondents either have abandoned or intend to abandon dissemination of another advertisement which contains almost all of the representations that were alleged in the complaint to be deceptive. Nevertheless the Commission has concluded that the deceptive practices alleged herenl are substantially similar to those alleged in the complaint of Sterling Dntg, Inc. Docket o. 8554, and that in view of the Commission order of February 20 1964 (64 F. 898 herein), dismissing the complaint in Sterling D1'g, Inc. further proceedings 'herein would not be in the public interest. The Commission takes note of the fact that, in its order of June 25 1962, it placed upon the suspense calendar proceedings against respondent Plough, Inc. and other major disseminators of analgesic products pending further investigation. The Commission will take such actions in these matters as appear to be required by the pubhc interest in the Eght of the information which is now available and which wil become available. Accordingly, It i8 ordered That respondents' motion to dismiss the compla.int be and it hereby is, granted and that the complaint be, and it hereby is dismissed.

Commissioner 1\faclntyre concurring only in the result.