S. S. Company

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IN THE :J\L-\ TTER OF S. COI\1P ANY ET AL.

ORDER, OPINION , ETC., IN REGARD TO THE ALLEGED VIOLATION OF THE FEDERAL TIL-\DE col\Il\IlSSION ACT Docket 8646. Complaint, Sept. 14, 1964-Decision, June, 1968 Order requiring an Atlanta, Ga., manufacturer of drug preparations and its advertising agency to cease misrepresenting that respondent's preparations will relieve tiredness or weakness unless expressly limited to a symptom caused by deficiency of vitamins supplied by sllch preparation, that the use of the preparation will aid the prevention of iron or vitamin deficiency, that iron deficiency anemia can be self-diagnosed or determined without medical or laboratory tests, and making other misleading claims for the effectiveness of " S. Tonic" or " S. Tablets.

COl\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 the 8. S. Company, a corporation, and Tucker ,Yayne &. Company, a corporation, 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 thereof would be in the public interest, hereby issues its complaint stating its charges in that respect as follows: PARAGRAPH 1. Respondent S. S. Company is a corporation, organized and existing under the laws of the State of Georgia, with its office and principal plliLce of business located at 71 University Avenue, S\Y. in the city of Atlanta, State of Georgia.

Respondent Tucker \Vayne & Company is a corporation, organized and existing under the laws of the State of Georgia, with its office and principal place of business located at 1175 Peachtree Street, NE. in the citv of Atlanta, State of Georgia.

PAR. 2. Respondent S. S. Company, is now, and has been for more than one year last past, engaged in the sale and distribution of preparations containing ingredients ,which come within the classification of drugs as the term "drug" is defined in the Federal Trade Commission Act.

The designations used by respondent S. S. Company for the said preparations, the formulae thereof and directions for use are follo\ys:

,, _ ______ S. CO. ET AL. 1059 1058 (Complaint 1. Designation: S. S. Tonto Formula: High potency dosage (:1 tablespoons) Contents: contains (Bd Thiamine -------_u_---------------------_uu___mg_- 5. (B2) Riboflavin -----------_u_-':'_u_-----_u__u_____u_ mg_- 5. 0 Niacinamide ---------------------_u_-_u_-------______mg_- 20. (Bd Cyanocobalamine --_u_--------_u_--u_---___u__mcgu 0. Iron (as the Ammonium Citrate) u_-_u_---------______mg_- 100. Also contains: Queen s Delight (Stillingia Sylvatica) , Swamp Sumac (Rhus Vernix), Sumac (Rhus Glabra). ALCOHOL 12 percent. Directions:

ADULTS (High-Potency Dose)-l tablespoon three times daily, at mealtime, for a therapeutic dosage of iron. plus more than the minimum daily requirements of Vitamin BI, B2, Niacinamide, and supplemental amounts of Vitamin B12. CHILDREN:\' (6 to 12 ;\eal's)- G tablespoon tInee time~ dail~-, at mealtime. 2. Designation: S. S. Tablets Formula: High potency .dose (:2 tablets dally) Contents of \'ltamllls, MInerals, etc. pl"Orides rhi~lmine NO:! (Bl) -----_u_u_u_-_u_u_-_u_---______mg_- Rihofin "in (B~) ---------------_u_------------.--______mg_- 4. 8 Niacinamide ---------_u_-_u_-----_u_-_u mg_- Pyridoxine HCI (B~) ---_uu_--------_u_--------______mg_- Vitamin BI~ (Crystalline) -_uu_----_u_------.-_u____mcg_- Ca lei urn Pantothena te___uuuu_u_-------------______mgu Yitflmin Cu---_u_----------_u_----------------______mg_- 150 Iron (Ferrous Fumarate) _u_---u-----n--_u_---______mg_- 100 Copper (Copper Sulphate Anhydrous) u_----------______mg_- Plus the RC'ti"dty of S. S. Drug Extracti,es from Queen s D€light, Swamp Sumac and Sumac.

D irecUons High-potenc-;v (adult) dose of iron and "Vitamins Bli B~, B12: 1 tablet taken t,,' ice daily, at mealtime.

Sustaining (adult) dose supplying more than MDR of iron and important B-yitarnins: 1 tablet daily at mealtime.

Children (6 to 12 years) : 1 tablet daily at mealtime. May be taken regularly ac-cording to directions to provide more than an adequate intake of iron and certain important B-vitarnins. The above designated preparations are sometimes referred to collectively as " S. Tonic.

PAR. 3. Respondent S. S. Company causes the said preparations hen sold, to be transported from its place of business in the State of Georgia to purchasers thereof located in various other States of the 1Jnited States and in the District of Columbia. Respondent maintains, and at all times mentioned herein has maintained, a course of $ .

1060 FEDERAL 'TRADE COMMISSION DECISIONS 'Complaint 1i3 trade in said preparations in COllID1erce, as "commerce': is dei1ned the Federal Trade Commission Act. The volume of business in such commerce has been and is substantial.

Respondent Tucker ,Yayne 8: Company, is now, and since January 1, 1963 , has bee.n, the acl\-ertising agency of the 8. 8. Company, and now prepares and places, and since annary 1 , 1963, has prepared and placed: for publication advertising material, inc.ll1ding certain advertising hereinafter referred to promote the sale of the said preparations. In the conduct of its business, and at all times mentioned herein, respondent Tucker ,Yayne 8: Company has been in substantial competition, in commerce, 'with other corporations, finns and individuals in the advertising business, m. 4. In the course and conduct of their said businesses, respondents hate disseminated, and caused the c1issemina tion of, certain adertisements concerning' the said DrelJarations by the United States mails and by various means in commerce, as "commerce" is c1ei1necl in the Federal Trade Commission Act, including: but not limited to advertisements inserted in ne,,-spapers, magazines and other advertisinq' media. and bv means of television allclradio broadcasts transmitted by television and radio stations located in Yflrions States of the United States, and in the District of Columbia, having sufficient pcJ\,er to carry such broadcasts across State lines, for the purpose of inducing and "which ,,-ere likely to induce, directly or indirectly, the purchase of said preparations; and have disseminated, and caused the dissemination of, aclYertisements concerning said preparations 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 purchase of SGic1 preparGtiolls in commerce, as ';commerce is defined in the Federal Trade Commission ~~\..ct. PAR. 5. Among and typical of the statements and representations . contained in said ache.rtisements disseminated as hereinabm-e set forth are the follo,,-ing :

Do you find yourself missing out on the fun in life? Do you feel clull. draggy ~, just htoo tirecl" to do things? Then maybe you re just suffering from Iron Deficiency Anemia-low bloocl pozcer. If so, what yon need is Tl1rce-S Tonic! Kew-forrnula Three-S Tonic-noy with :S-,vitamins- is rich in iron to help bll ild back your blood power estore your energy * * * help you feel better fast! Three-S Tonic goes to work ,yitbin .24 lIOIIi' S. And if you don t feel better in just six clays * * * the Three-S Company \Will refund your money '" ~ * every cent of it! Yes, yes, yes * * * get S. ! Get started on ne\y-forrnula, iron-ancl-yitaminenriched Three- S Tonic * * '" in liquid or tablet form * * Ight (lira!!! (Radio) :II :;::;: :;: :;: :;: S. CO. ET AL. 1061 1058 (Complain t Get that youngblood feeling. Remember ~hen you felt like that? When you had that ~-o1.mg blood feeling. ,Yell you can have that pep and vitality again with S. Tonic, the Tonic that contains 10 times your minimum daily requirements or iron * :;: * and iron is what helps to build blood power, give you that young blood feeling. So if you ve been tired and listness, suffering from iron deficiency anemia, take S. S. Tonic, in liquid or tablets * :;: * and if you don t feel better in just six days the S. S. Company -n-m refund your money. (Radio) Young blood. How long since you had that young blood feeling, the feeling yon could work all day and dance all night? Too long? Then take S. S. S. Tonic, and if you ve been tired, jumpy, run down, due to iron deficiency anemia, S. S. ~ill help you get that young blood feeling in just six days or your money back. Bow? Listen. Vitamin enriched S. S. Tonic contf!.ins ten times your minimum daily requirements of iron. Iron to help build back the blood po\l-er that carries oxygen and nutrition to muscles and all parts of your body. That's where your pep and vitality come from :;: The conversion of oxygen and nutrition into energy. , if you aren t getting enough iron in your diet, S. S. S. makes this unqualified guarantee. If, in six short days you aren t feeling stronger, happier, aren t getting that young blood feeling, every cent you paid for S. S. Tonic will be refunded by the S. S. S. Company. (Radio) 0;:

Feel -n-eak, dog-tired? Lost your spark? Take Three- . . . tlle tonic that starts giving you more power z;cl'hour . . . \';itl1in 24 hours! (Radio) New formula Three- S Tonic contains the elements you need to help build back your blood power :;: restore your energy. Important, too f;. :;: T11lee- S Tonic he)ps you feel better fast. It goes to \I- ork -n within 24 bo1.1l's! (Radio) PAR. 6. Through. the use of said advertisements, and others similar thereto not spec.ifically set out herein, respondents have represented and are now representing, directly or by implication: 1. That the use of 8. S. Tonic and 8. S. Tablets will be of benefit safe and enec.tive in the treatment and relief of a deficienc.y of iron iron deficiency anemia, tirecbless, lac.k of pep, energy and strength weakness, listlessness, run-dmnl feeling anc1nervousness. 2. That the ingredients other than iron, as supplied by S. S. Tonic and S. S. Tablets, contribute to the effecti,eness of these preparations in the treatment and relief of a defieiency of iron and iron d~ficiency anemla.

3. That the formulae for S. S. Tonic and 8. S. Tablets and the ingredients contained therein are new medical and scientific discoveries and achievements.

4. That the use of S. S. Tonic and 8. S. Tablets will inc.rease the strength and energy in the body within 24 hours. . . .

Complaint 73 F.

5. That the purchase price of S. Tonic and S. S. Tablets "ill be refunded unconditionally if the purchaser is not satisfied with the prepara tions.

PAR. 7. In truth and in fad:

1. Neither 8. S. Tonie nor 8. S. Tablets will be, of benefit in the treatment or relief of tiredness, lack of pep, e,energy or strength, weakness, listlessness, run-dO\"ll reeling 01' nervousness except in a small minority of persons whose tiredness, lack of pep, energy or strength. wea,kness, listlessness, run-dm-vn reeling or nervousness is due to a deficie.ney of one or more or the yitamins provided by these preparations or to a deficiency of iron or to iron-deficiency anemia. 2. None of the ingredients other than iron, as supplied by 8. Tonic or 8. S. Tablets, are oT any benefit in the treatment 01' relief of (1, deficiency of iron or iron deficienc~- anemia. 0. l'~elt1\." lei' ~. 0111C nor ~. ::;. aD ets colltmll any ntf!mln mineral or other illQ:rec1ient or combination of infrredients, which is ne", rnedicnl or scientific discm' ery or nchievE'1l1ent. 4. Neither S. S. Tonic nor 8. S. Tablets "ill increase, strength or energy in the body ",it hill :2-4: hours.

5. The purchase price of S. Tonie or 8. S. Tablets is not refunded lUlconditionally, but there are terms and conditions v.which must be complied ",ith by a purchase,r in order for him to secure a refund which terms and conditions are, not ellselosed in the advertising. There,:fore: the ach-el'tlspments referred to in Paragraph Five above ""e1'8. nncl nre, misleading in 1l1flterial respects and constituted, and 110'."'."' collstitnte, false aclvel'tisement~ ~ as that term is defined in the Federal Trade Commission ~\ct.

PAR. 8.':: Furthermore, the statements and representations in said advertisements have the ca pacity and tend1enc:- to suggest, a11(1 do 811g'g('~t to persons yie,ying:, hearing or l'eacljng.' such acLvertisernents that-in cases or persons of both sexes Hnc1 all ages ",ho experience tiredness lack or pep, energy or strength: \ye~ kness: Jistlessne~s, run-down reeling or nerYonsne~:s: thc'1'e is :! , areas~n;11)le rrrohr.hility that these s:,.-ml'toms win respollc1 to treatment b~- the llse of these. preparations: and have the. cnpae1ty and tendency~- to Sl1ggC':~t. and do sng:gest. that in cases persons of both sexes and all ages \\'110 hate a c1e.i1ciency of iron or who have, iron deficienc7 anemia, the prep2Tations can be used Sri rej:v and effectively in the, treatment nncl relief of n deficiellc~7 of 'iron or of il' c1efic.iency flnemirt and their symptoms. In the light of such statements and representations, said aeh-ertisements are, misleading in a material *Repnrted as amended by hearing examiner s order dated Nov. 28 11)66. ( , ,,, . ; ;. ;j. . ; ;. . , . . . S. CO. ET AL. 1063 1058 Initial Decision respectancl therefore constitute false advertisements, as that term is defined in the Federal 'Trade Commission Act, because they fail to reveal the material facts that in the great majority of persons, or of any age sex or other group or class thereof, \"\'ho experience tiredness, lack of pep, energy or strength eakness, listnessness, run-down feeling or nervousness, these symptoms are not caused by a deficiency of one or 11l0re of the vitamins provided by S. S. Tonic or S. S. Tablets or by a deficiency of iron or iron deficiency anemia, and that in such persons the said prepa rations will be of 110 benefit. PAR. D. The dissemination by the respondents of the false advertisements, as aforesaid, constitnted, and now constitutes, unfair and deceptive acts and practices in COlnmerce, in violation of Sections 5 and 12 of the Federal Trade COlnmission Act.

Jf1' . Leroy 111. Ya/j' noff, 311'. lVilIiam E. 11fcillahon, II supporting the complaint.

Powell, C/-oldstein, FJ'(!2Y" i' (f~ JIllJ'phy, Atlanta, Ga. , by ill'/'. Edzoal'd E. Dorsey and JIl'. TVayne Ii. j';lwJ't?'idrle for the respondents. IXITL\L DECISION TIY ANDREW C. GOODJ-IOPE , I-IEARIXG EXAlUINER OCTOBER 1.'3 1067 The Federal Trade. Commission issnec1 its complaint against respondents on September 14 1064 charging them "ith viobtions of Sections 5 l1.l1cl1:2 of the Federal Tn~ c1e Commi~si()ll ~-\..ct. The respondents filed an ;nH\\ 01' in ,which they admitted r('Jain a negations of the complaint but llenirrl that they had Yiolntecl either Section f, or 12 of the Federal Trn de COlIlInissioll . ct.

THE PLE.1DIXGS Lt' Ji (' Ctpl'a 1'ac, 0111i111: JO~1 al.p~'::ecl1l1 - ,lnl,(~lap_ l :--"IX O.!- tH~ complaint that the l'espoJlc1cnt~ hall wf1.cle certain l'elwpscnbtions ill the 'T' 1e fie n"'rh~:emellts Chil le pl' ()((nd~; nnlC' n'!(l1 ::,. :":i. 1 ao,etf: . ..t complilinG n1Je;9. C~: that tll:? l' PjH' C'sentntiolls are false and lrlislending since thev rnnke the follo'Y1nr;' C'lnims:

1. 'PlJ..llftt t 18 ~.:'IC'~~. pl'epanH1O11S "II111X' OT Jenetit In treating tEfftn0SS s-r1l1ntOll1S 1 ,yithont will1itin~~' these claims of relief to the smanumber of.I.persons sl1Jlel'ing''from iron cleilciel1cy ~ iron deficiency anemia, 01' n deficiency of the vitamins contained in such preparations (Subpal'. 1 of Pars. Rand 1 For bl'evit~. , the term ' tireclue8s s;nnptoms" is used throughout this Initial Decision to include n11 such terms used in the complaint, including "tireclne;;s, lack of pep, energy or strength. ""eakness. listlessness, run-clown feeliIlg or nervousness, Initial Decision ,73 F. 2. That the ingredients other.r than iron in the 8. S. preparations contribute to the eii'ectiveness of these preparations in the treatment or relief of iron deficiency or iron deficiency anemia. (Subpar. 2 of Pars. 6 and 7).

3. That the S. S. preparations are " new:: medical c1iscoyeries (Subpar. 3' of Pars. 6 and 7).

4. That the 8. S. preparations ,rill incI'ease strength and energy in the body within .2-4: hours after ingestion (Subpar. 4 of Pal's. 6 and 7). 5. That the guarantee for the 8. S. prel)arations is unconditional c-u Jpar. DO eus. aIICL11-I Further, the Federal Trade Commission aiIirmati,-ely alleges in Paragraph Eight of the Complaint that:

1. The advertisements ror the 8. S. preparations suggest: (a) to all persons hearing the euh-ertise.lllents having tiredness 8Yll1ntoms that there is a reasonable Jl'obabilitv that tiredness 8ym toms will respond to treatment b:r use of the 8. S. preparations; and (b) to all persons ,yho have il' on deficiency or iron deficiency anemia that the S. S. preparations are share and effective in the treatment and relier of iron clefieiencv. iron deficiency anemia and their symptoms; and 2. The advertise'll1E'nts making such represent~tions are raise because they fail to reveal the material facts that in the great majority of persons, or any subgroup thereof who lun-e tiredness symptoms, the symptoms are not caused by iron deficieney, iron deficiency anemia or a, cleJiciency of one or more of the vitamins in the 8. S. preparations; and in that great majority or persons, 01' any subgroup thereor, the S. preparations will be of no benefit.

In response to these. allegations, respondents deny that the advertisements represent that the 8. S. preparations ,will be of benefit in treating the tiredness symptoms ,yithol1t an~- limitations. Respondents contend that the advertisements for the 8. S. preparations represent that the 8. S. preparations are or benent. in treating tiredness symptoms only if tiredness symptoms are caused by non deficiency or iron deficiency anemia and that. this representation is true. Respondents deny that there is any representation in its aclveltise- 1llents that the. ingredients other than iron in the. 8. S. preparations are of benefit in the treatment or n:)lief of iron deficiency or iron den.cieney anemia. Respondents contend that no such claim is made and further that the achertisements merely state that the other inQTeclients are present in the products.

, . ) , , , ............ ... , ...... S. CO. ET AL. 1065 lO;jS Initial Decision Respondents deny that the advertisements for the S. S. preparations represent that they are "new medical and scientific discoveries. Respondents deny that the advertisements represent that the S. preparations \will increase strength and energy in the body within 24 hours.

Respondents also deny that the terms of the guarantee are not fully set forth on the cartons and labels of the preparations. Respondents also deny the allegations in Paragraph Eight of the complaint to the, efrect that respondents' ach- ertising is false, and misleading' because it fails to reveal the aJleQ'ecllv materinJ fact that in the great majority of persons, or any subgroup thereof, the tiredness symptoms are not caused by iron defic.iency, iron deficiency anemia, or a, deficiency of one or more of the vitrunins in the S. S. preparations. This matter is before the hearing -examiner for finfll consideration on the complaint, ans"- ~ evidence, the proposed findings of fad and conclusions and briefs filed by collnsel for respondents and counsel supporting the. complaint. Consideration has been g1,-e11 to the proposed findings of fact and conclusions and briefs submitted by both parties, and a 11 proposed findings of fact and conclusions not hereinafter specifically found or concluded are rejected; and the hearing examiner, hit ying considered the entire record herein makes the fo)lo"inq.' finc1inq.'s of ract. conclusions c1ra"\Yll therefrom and issues the following order:

FINDINGS OF PACT 1. Respondent 8. S. Company is a corporation organized, existing and doing business under the la"\ys of the State of Georgia, with its principal office and place of business located at 71 "Cniversity j-\xenue S\V., Atlanta, Georgia. 2. Respondent Tucker ,Yayne & Company is a corporation organized. existin~' and doing' business under the la,yS of the State ot Georgia, "\with its principal office and pJuee of business located at 1175 Peachtree Street, ~\E., Atlfll1ta, Georgju.

3. Respondent 8. S. Company is nO\Y, and has been for more than one year last past, engaged in the sale and distribution of preparations C'ontainillQ' in.Q.Tectients which come within the classific.ation of drug' as the term ;'drug" is clefulec1 in the Federal Trade Commission Act. 4. The designations used by respondent 8. S. Company for said preparations, the formulae thereof and directions for use are as follows:

Conn"el supporting the complaint ha,e proposed no findings of fact or proj)osed order to cease and de,-:i"t pertaining to resj)ondent~ ' guarantee claims. Consequently, the hearing examiner considers this charge to have been abandoned during tria!. 418-345--72---- __ __ : .,) . ;.; 1066 FEDERAL TRADE co~n:IISSION DECISIOKS Initial Decision 73 F. T. 1. Des/:gnat' Z:on: " New Formula 8. Tonic High potency dosage Minimum daily Formula (3 tablespoons) requir~ment . contains equivalent Contents:(B1) Thiamine___- - - - n - - - n n n -- mg - - - - - - - - - - - 5 times MDR. (B2) Ribotlavin--____n-n--nnn 2.4 mg_n___----- 2 times MDR. Niacinamide- - - - 20. 0 mg- - - nn n- 2 times NIDR. (Bd Cyanocobalamine- - - - 6 mcg____--_n- (N ot estab. Iron (as the Ammonium Citrate)_n- 100.0 mg_____--n- 10 times MDR. Note. Also contains: Queen s Delight (Stillingia Sylvatica); Swamp Sumac (Rhus Vernix) ; Sumac (Rhus Glabra); Alcohol 12 percent. Di rcctio"1ls"

ADULTS (High-Potency Dose) -1 tablespoon three times daily, at mealtime, for a therapeutic dosage of iron, plus more than the minimum daily requirements of Vitamin Bl, B~, Niacinamide, and supplemental amounts of Vitamin B1~. CHILDREX (6 to 12 Jears)-~~ tablespoon three times daily, at mealtime. 2. Designation: "New Formula 8. 8. Tablets \.CTIVE I::\GREDIEXTS Formula j::h DOt('llc\' do"e i :\Iinimnm r1ai.1~' ~'eCjnire- tahil'ts ' (buy j)rovicles J11enr l'Cjll1\fll"nt. Contents of Vitamins, ~Iinerals, etc.

10 mg: - - - - - - - - - - - - 10 times l\JDH.. l'lJam1118 Yl).:.~"- 3 J ------- --------i Riboflavin (B2)__--n____--- -1.8 mg----_n_--- -1 time' J\fDR. :N iacinamide - - -- -- - - - n - -- - - - - i GO mg____ 6 times ?dDH. Pyridoxine H CL (Bn) - - - - - - - - - - - - - i 1 mg__--_ Need Accepted. Vitamin B Crntalline) - - :3 In cg - - - - - - - - - - - - eecl Arl'epteeJ.1 Calcium P::ll1tothenate__--- - -1 nlg- - - - - - - - - - - - - Vit amin C - J;jO mg___--_----- time" l\ID R. Iron (Felt011S Fumarate) - - - - - u) mg___ 10 times 1IDn. 3 m2:--_ Need c\except(,'d. Copper (Copper Sulphate Anln-drou,;.:). 1 The need for daily intake; is accepted, but m,inimmn daily requiremel1t is not established.

2 The need in human nutrition is not established, NOTE: l\IDR :'!ignifies the officially established 1111111111um required daily intake for an adult.

NO1E. Plus the activity of 8. 8. Drug Extractives from Queen s Delight Swamp Sumac and Sumac, , ,, . . , .

S. CO. ET AL. 1067 1058 Initial Decision D irection8 High-potency (adult) dose of iron and Vitamins Bl, B2, B12 : 1 tablet taken t\vice daily, at mealtime.

Sustaining" (adult) dose supplying more than ~IDR of iron and important B-vitamins: 1 tablet daily a t mealtime.

Children (6 to 12 years) : 1 tablet daily at mealtime. May be taken regularly according to directions to provide more than an adequate intake of iron and certain important B-vitaillins. (eX 13.-\ and Band CX 14A and B; EX 1 , 5) 6. R.respondent 8. S. Company causes the said preparations hen sold, to be transported from its place of business in the State of Georgia to purchasers thereof located in various other States of the Vnited States and in the District of Columbia. Respondent maintains, and at all times mentioned herein has maintained, a course of trade in said prepara Lions in commerce, as ;;comlllerce" is defined in the Federal Trade Commission ~~ct. The yolmne of business in such commerce has been and is substantial, in excess of 82 million annually (Tr. 132). 6. Respondent Tucker ,Yayne & Company is now, and since ~Tanualy 1, 1963 , 11,;.sbeen pl'~p8.ring and placing- for publication achertising' material. includina: cel'h1in advertising', hereinaft2r referred to, to promote the sale of the said preparations. In the conduct of its business and at 1111 times 1!1ention2c1 herein, respondent Tucker ,Y nyne & Company has he en in substantial competition, in commerce, with other con)Ol'at1o11:-:. nl' lT1s, and inclivlclnn1s in the advertising' business. 7. In the conr'3e and conduct of their ~aic1 bl1since~s, l'e~~polldents hate c1i~seminated, and have ea used the dis~eminntion of, certain f~c1vertisements concerning tlh:' said prepnl'ations b~.c the United States mails ::nc1 by )' (f?;' 07.!8 In('(fJi, c, in C'omnWl'C'2. n~, ;' commerce" is cleaned in the. Fec1ern 1. Tnc1e Cornmi~:c~inn J. ct, inch1 c1jn . l:mt Jl()t limited to, ac1-.-ertisement~ insfl'tecl in ne'xSpape1'8. mag:lzir:E's. and ot1101' ;l(ln:)!'H:~:i1~g media and by mee lis of television f1ndrnc1io broadcasts trallsll1ittec1 by tele,-ision and nlclio ~:tation~. locatpc1 in Y;11'io118 States of the lTnited States and in the District of Columbia, \'\which Laye sufficient Do\'\er to carry such bl'oadcnsts across Sh~te line, , for the purpose of illdnein~;: i1~lcl \which ere' likely:-;- to induce'. dil'C'ctl~,- 01' inc1irrct1y, the pllrchn:)2 of saiel pl'f'p:ll'atioll:;;: and hrn- e (1i::;~"eJnin:lted. and have' ranged the clisseminf'Jion of, nc1' erti:~t'm2nts concerning- said preparations by y:uions mea11: , inch-nc1iJ112. lmt not 1limited to. the afore~nid medil1., for the purpost-' of in(lllC'in;~. ;1!1d ",' hieh ",yen' lik?h to inc111ce. directly or iJ1(1irp('tl~the purchase of said prepal':1timjs in commerce' , as ;bcommeT('e '~ is defined in the Feder:! 1 Trade COi111:iiss';!011 ~~ct. 8, Al11Crlf!.: and t~- pi(,:11 of tlJP ~;tntemE-'llts con, tn ined in l'e:::p:mdt'llt::; acherti:('ments, clis:::emin:lted ,18 described nbm' , is tlie follo,y irlC:: .;. ; :: , ,, :;: ; . ; 1068 FEDERAL TRADE COlVIl\JISSION DECISIONS Initial Decision 173 F. Do you find yourself missing out on the fun in life? Do you feel dull, draggy * * * just "too tired" to do things? IThen maybe you re suffering from Iron Deficieney Anemia-lo It~ blood po leer. If so h:1 t you need is Three- Tonic! New-formula Tllree-S Tonic-now with B-vitamins-is rich in iron to help build back, your blood power e8toJ'e your energy * * * help yon feel better fast! Three- S Tonic goes to ,york ,within Hlollrs. And if you don t feel :I: better in just. 8ijj days '" the Three- S Company will refund your money :I: '" every cent of it! So don '111;88 out on the fun in life. Don let yourself feel "tno tired" to enjoy things. If lion ' I'e suffering from Iron Deficiency Anemia, take Three-S Tonic! Yes, yes. yes '" ,~ ~: get S. S. ! Get started on new-fornmla, ironand-vitamin-enriched Three- S Tonic :~ ::: in liquid or tablet form right alcay! (eX 2. ) 3 The majority of respondents' advertising ('on~ists of radio announcements given oyer stations located throughout the United States (C:X 5C-5Z6; RX 11-16) and coll::tit11tes f1. substantial expenditure on the patt of the 8. S. Company in promoting and selling its products ('II'. 112-113). Respondents: ach-ertising' is directed to and reaches a market comprised primarily of rl1rall~' oriented people, such as \Vhites and N eQ'roes living in rural areas, former rural \Vhites and N eg-roes livin!2" in urban areas and Spnnish speaking Americans living in either rural or urban areas. (Tr. 144: 1;38-GO. 188- , 766-6\\ 928-32; EX 11-1(;. 9. The first charge of false and misleading advertising in the complaint is that these ads falsely cbim that the S. S. preparations will be of benefit for all tiredness symptoms whether arising from a deficiency of iron, iron deficiency anemia, Ol' a deficiency of the vitamins contained in the preparations or from any other CRuse. Respondents c.ontenc1 that their advertisements simply claim that S. S. preparations 'will be beneficial in the relief of tiredness symptoms only if the. tiredness symptoms are due to a deficiency of iron or iron deficiency ane,ll1la.

Preliminarily, neither the, Commission complaint nor c.ounsel in support of the. complaint urge that respondents' preparations do not contain an adequate therapeutic dosage of iron and the vitamins in the preparations if taken as directed. In fact, c.ounsel in support of the complaint agree that the preparations are adequate therapeutic dosages of both the iron and vitamins in the preparations if taken as directed for a sufficient period of time (CSC 66th and 72nd Proposed Findings) . 10. In interpreting the ads themseh" , the examiner is persuaded by a previous decision of the. CO1111nission which was affirmed on appeal to the Courts In the ill attei' of The J. B. TVilliam8 OO?npany, Inc. et ai. FTC Docket No. 8574, decided September 28, 1965 (68 F. 3 All of respondents' radio adt"ertisements are set forth in full in Appendix A, attached hereto and made a part of this finding p. 1080 herein. / )(\ S. CO. ET AL. 1069 1058 Initial Decision 481J, airel and enfo1'ced, The J. B. IVilliams (/ompcu~y, Inc. et al. v. 381 F. 2d 884 (6th Cir., 1967). The Commission and the Court in the TVilliCl1ns case found deception to exist ,,-hen considering virtually identical television ads to those used by the2e respondents on radio. As in the IVilliCl?ns case, the respondents here heavily stress general nonspecific symptoms of tiredness and c.claim that these symptoms can be alleviated and entirely eliminated by consuming their preparations. \Vhile the ads always mention the possibility of iron deficiency anemia or a deficiency of iron, by their very nature the ads suggest that the tiredness symptoms are due to lack of iron and '-';-111 uniformly be eliminated by taking respondents' preparations. It is true that if one is deficient in iron or vitamins, the preparations may be. beneficial; ho"wever, the tiredness symptoms ,which respondents' ads stress so henTilv cannot be said to be ~'el1erally attributed to a de~ficiencv ofil'on. ireclness symptoms are common complaints of many different dis. eases and disorders ('II'. 315 , 346, 362 38T 30S, 537 601 831- , 971, 1090, 1746, 1960). In fact these tiredness symptoms are not even relible indications of the possible existence of iron deficiency or iron deficiency anemia. Generally such deficiency cannot be properly determined without medical tests conducted by 01' under' the. supervision a P \yslclan 1'. 0 , oD" W, , 0 i../:t0~t", 0O 00" W , vi/ , Oi/D,,(\w 1646, 1608- , 2147).

Consequently, respondents' ads are false and misleading in claiming that their preparations ,will cure tiredness symptoms which may not .even be remotelv connected with iron or yitamin deficiencv in most instances.

11. A discussion of iron metabolism, iron deficiency and iron deficiencv anemia. their causes and remedies and the incidences of iron deficiency and iron deficiency anemia in the population is necessary in view of the last and later findings.

12. Iron is necessary for life and is present in the body in hemoglo. bin, myoglobin, certain other enzymes and plasma and as storage iron. The human body does not synthesize iron; therefore, all iron in the bodv must come from outside sources. The total amount of iron in the adult body varies within the range of 3.5 to 6 grams (Tr. 244-245 249 334 1380 1438 1770; RX 5Ei, p. 20). The largest. amolUlt of iron in the body is present in the hemoglobin, the red pigment of red blood cells. Hemoglobin is a protein "~high contains 0.;34 percent iron and cannot be synthesized without iron. The important function of hemoglobin is the transport of oxygen from the lungs to the tissues and carbon dioxide froni the tissues to the lungs (II'. 2:34 , 332-334, 797-798, 953; EX 56 , pp. 21, 26). ~Iyoglobin is an iron-containing protein "which ): (/ . ;) ) (. . ;j ) ..(), .. ,. Initial Decision ;73 F. gives reel color to muscle. tissue. It. is presumed to supply oxygen to the muscle tissues of the body (Tr. 21;'): RX 56, pp. 2G-:27). A very minute amount of the total iron in the body is present in certain enzYJnes "which perform certain important functions (Tr. :2"15, 1589-90; RX 56, pp. 21, 28-31). A Yel'~' small amuont. or the total body iron is also present. in the plasma. the, fluid portion of the. blood (Tr. 250 332- , 1189, 1i188). Iron is stored in the body, principall? in the bone marrow, liver and spleen, and in much JesseI' amount in other tissues. The storage iron is anliln.ble. ,yhen there is increased need for iron such ns occurs in b1eec1inp:. pl'P~'nan('y and periods oT very rapid gro\yth. Storage iron may Yflry from zero to 20 or :30 grams but the normal amount of iron in storl1!2' e is ,yit hill the 1'f:1u:'e of 9Tnm to g:rmns 1"'I'. .)1 1-0.-(.II. ,. l. ()1-\ , o, 13. The usual 'yay in ,,-which iron finds its way into the human bocl\' is through the eating of food since most foods contain some iron. :Meats and eggs are the common foods ,with substantial amounts OT iron. The amount of iron in the avera!re daily adult diet is behyeen (; and :'20 milligrams (Tr. 255-256. 449-4.5() ~ 871, 1.fil- 1882). Ingested iron is absorbed principally from the upper part of the small intestine into the mucosa in the ferrous form: it then passes to the bloodstream "here. it combines "ith a. transport protein: it then ~:oes to the liyer and bone marrow and can be stored or made into hemoglobin. depending upon the need of the moment. (Tr. 247, 1431-33). Red blood cents are formed in the bone malloy either as mature red blood cells or as immnture cells known as reticulocytes. Red blood cells have an average life span of the. cell isapproximately 1:20 da~'s, "\Yhen a red ceH die'3, the. iron in ~ ::);38, 1381reutilized for the production of new reel cells (Tr. :2;)n t.,. i);) . ':1:0~a 14. Iron is normally carefully conselTed and reutilized. however, throughsmall amount of iron, bet,,-een 0.5 mg. and 1 mg. pel' day. is lost cells shed from the skin and from the boyer, in the urine, and in the , ;339 , ;394. 800, 1169, 1375, 1437 bile, the saliva, hair and s,,-eat (Tr. 391 1737). Iron is also lost during pregnancy anc11actation. The net loss of iron by a woman from n normal pregnancy, inchl(1jn~,T bleeding at during: preg'nnncy: is delivery as ,,-ell as iron supplied to the child of Jaetation. the normal between;l 250 and 800 mg. During the period loss of iron by the mother tlPproximates J/i mg. daily in the milk (Tr. 800~802, 1169 , 1167).

15. The only other 'yay that iron can be lost from the human body CRuses is through bleeding. This bleeding can result from many (Tr. 1168- , 1296). I-IO\yever, the only natural ph~'siologi('al blood loss is from menstrual bleeding. X on-pregnant ,yomen during the ...

S. CO. ET AL. 1071 1058 Initial Decision usual child-bearing years lose an additional one to two mg. per day on the average due to m.enstruation (Tr. 249, 53~, 594, 1375- , 1467). The onlv other time w"hen there is a substantial demand for iron in the human body is during infancy, childhood and adolescence (Tr. 278 540-41 802 1449 1882) .

16. Iron deficiency anemia is an anemia due to a deficiency of iron the body (Tr. 270- 790, 954, 1048, 1101, 1166, 1285-1286, 1357). Iron deficiency is a broader term than iron deficiency anemia although it has frequently been used in the record as synonymous therewith. Iron deficiency includes both iron deficiency anemia and a state in which the iron stores have been exhausted, function of the iron in the body has been impaired but the deficiency is not sufficiently great to produce readily recognizable reduction in the hemoglobin level or red blood cell count (Tr. 341, 1439- , 1638, 1873, 2111-12; EX 56, p. 94). Iron defieiency and iron deficiency anemia do not exist until after storage of iron has been exhausted and this usually takes months or years in a normal individual (Tr. 276 340-41 394-95 539 1637 1771, 1893, 1920 029) .

17. Normal levels of hemoglobin below which anemia may be presumed to exist differ for different groups in the population. V,Thile there were variances in these ranges given by the various experts who testified, the following are found to be the normal ranges given: Adult males-12 to 18 grams of hemoglobin per 100 1111. of blood. Adult females of the childbearing age-ll to 16 grams of hemoglobin per 100 ml. of blood.

Post-menopausal femules-ll to 18 grams of hemoglobin per 100 m1. of blood. Infants-10 to 12.5 grams of hemoglobin per 100 m1. of blood. Children ages 6 to 12-11. 5 to 12. 5 grams of hemoglobin per 100 ml. of blood. Adolescents-depends on length of time after puberty. (Tr. 296- , 580- , 680, 855, 966, 1006, 1049, 1138-40, 1200- , 1286 1788 1965- 2041 2062 2125. ) These ranges for hemoglobin content of the blood are merely ranges used by the medical profession as rules of thumb pertaining to most of the health:,. individuals in the population. A given individual may be anemic with a, hemoglobin within a normal range oi' may ha.vB a he1110;, globin content outside these normal ranges without being either anemic or having too 11111eh hemoglobin or blood (Tr. 317, 349. 580, 1006). 18. Generally the causes of iron defieieney and iron deficiency anemia are (1) inadequate intake of iron; (2) poor absorption of iron; (3) excessive demand for iron; or (4) excessive loss of iron from the body through bleeding (Tr. 272, 955 1167 1217 1288 1761-62, 2050). ,, , . , . , : ;:/ ,. 1072 FEDERAL TRADE CO:Ml\:IISSIO~ DECISIONS Initial Decision '73 F. Inadequate intake of iron results from improper dietary habits and is prillci pally found among alcoholics, food faddists and young women in the chilclbeaTing age "ho eat improperly because of considerations of their ,,-eight and appearance and among indigent people 11110 cannot afford a proper diet. Also, some elderly people who live alone may not prepare proper food for themselves. In addition, some infants may be deficient in iron if kept on a strict milk diet which is 10" in iron COll- ,...,-0- ""'r:- , v~ i, I. OJQI-. '1Q 106 1119 vo-"~ 0 1-. :)11 , 1vOen 1809, 1046-48). Poor absorption of iron results from inability on the, part or the person s stomach and intestines to a1x~orb the iron from the food taken and transfer it to the blood so that it may be utilized in 111aking additional hemoglobin (Tr. 368, 586- , 1775). E~cessiYe demand for iron as a cause of iron deficiency Q:enerallv arises in only two situations; namely among rapidly growing adolescents and pregnant women. Excessive loss of iron from the body is al,yavs clue to bleeding in some form. Among adult males, this bleeding is caused by such disorders as uleers, hiatal hernia, diverticulosis, cli verticulitis, lesions in the gastrointestinal tract, hemorrhoids and hook".orm infestation in rural areas of the South (Tr. 880, 956, 1170- , 1296, 1368). Excessive loss of iron among "women of the child1bearing~r age sometimes causes iron deficiency or iron deficiency anemia because or exces:3ive bleeding during menses and loss of non from the mother s bod:" during pregnancy, delivery and lactation (Tr. 383, 386, 576, 635 , 10-19, 1169, 1288 1361, 1616-17).

19. The experts "ho testified all agreed that no lay person can properly diagnose the existence of iron deficiency or iron c1efieiency anemia from any of the tiredness symptoms. Iron deficiency anemia frequently exists without causing any signs or symptoms and, as found above, the tiredness symptoms occur in a great number of diseases other than iron deficiency anemia (Ti'. 282" 318, 366, 660, 684, 867, 1076 , 12-15 , 1332 1390, 1465 , 1960 2011).

20. There are a number of clinic and laboratory tests available and used by the medical profe.ssion to determine, the existence of anemia and that a. particular anemia is due to iron deficieney. The simplest and most common tests used are hemoglobin counts, hematocrit counts and red blood cell counts (Tr. 282- , 347- , 389, 805- , 837 , 12-16-4:7 1357, 1873). In addition, there are a number of medical tests which can be performed if there remains any question as to the e:s:jstence of iron deficiency anemia,. These include study of red cell indices, microscopic. examination of the blood, study of bone marrow and examination of serum iron. Also the therapeutic trial of iron on a patient \\""ith examination of results can be utilized to determine if iron deficiency a1l2- , ,, S. CO. ET AL. 1073 1058 Initial Decision mia exists (Tr. 284- , 350- , 389- , 442-43, 1195- , 1246- , 1358 1440-42 1589 1736 1767- 1873) .

21. The record contains no precise figures as to what percentage of the United States population may be suffering from iron deficiency or iron deficiencv anemia nt nny time. The evidence consists of testimony by experts who as a part. of their medical practice or teaching are concerned with this and similar types of disorders. To arrive at a Jneaningful estimate ,,-ith l'egnl'd to the incidence of iron deficiency anemia, it is necessary to segregate the populntion into groups by age sex, physiological state and by ec.onomic status. The first group is adult males. In this group iron deficiency or iron deficiency anemia is virtunlly nonexistent. Counsel for respondents concede nnd the testimony establishes that no more thnn one percent to two percent of the total male population ever incurs iron deficiency. is fe- (Respondents' Proposed Finding No. 80. ) The next grouping males of the childbearing age. In these adolescent girls and ,,-women iron deficiency anemia occurs ,,-ith more frequency than in any other population group. The principal reason for this is blood loss during menses, pregnancy, childbirth nndlactation. An inac1eqlUl.te intake of iron n:w.y also be a contributi11g factor to the larger number of nnemic persons in this group. The record contains numerous esbmntes on the part of the e:s:peTts ,,-which fire in substantial disagreement. The examof this groupiner is of the opinion that approximately ten percent may be, iron deficient or hnye iron defkiencv nnemia at nnv one time. Some of the experts called testified that onl~' a Yer~' small proportion of these women ever suffered from iron deficiency anemia fit. some time c1nring this period in their lives (1'1'. 383- , :354-5Ej, 614, 802, 1791-95; Other experts testified that the number of iron deficientex 41 A-I-I). constituted apersons in this group was substantial1~' greater, that it public. health problem and that the prophylactic administrntion of iron , 863, 0G4to pregnant women is a common practice (Tr. 300- , 804 of iron 1105- 1378- 1761 2111). In any e,-ent while. the incidence deficiency anemia. is undoubtec1ly higher in this gro11p than others, the examiner is of the opinion that there is not such a great number in this group to warrant respondents making the broflc1 advertising e1aims that they do in their advertising even as pertaining: to this group. Another grouping of the. popula.tion are. infants and children. Iron deficiency anemia is virtunlly nonexistent in this ~:roup unless an infant I1f\s been feel solely a diet of milk which may be low in iron content (Tr. 273, 538, 681-82). In adolescent children, iron elefic.iency nnemiflJ likewise is very rate (Tr. 684-83, 1371). Another group discussed by .

Initial Decision 73 F.

the experts are post-menopausal \';women. Persons in this group may be in a deficiency state carried over from the time of the menopause; however, this situation usually soon corrects itself. Iron deficieney may also 2\,rise because of inadequate diet as these women grow older. This can also arise with elderly men. The examiner, however, does not believe that the number of persons with iron deficiency and iron deficiency anemia in this group of the population can exceed approximately ten percent of this group (Tr. 1053, 1370, 1613, 1795-96). People in the lower social and economic strata of the United States population may be more prone to iron defieieney and iron deficiency anemia than those in the middle and upper strata. This may result from a poorer diet or lack of medieal treatment. However, the reeorc1 does not permit any findings which "would distinguish this group from the general population as far as iron deficienev anemia is c,concerned. Of course, extreme poverty may cause near stan-ation but lack of iron is only one problem in this situation. The examiner finds that in this lo~-er social and economic grouping no significant iron deficiency exists as distinguished from other population groups (Tr. 423- , 2045). 22. A number of the same experts who testified in the 1Villia11?. case (8npl'a) also testified in this proceeding. None of those who appeared in this proceeding in any way changed his testimony from that given in the lViniantS proceeding. ~~"'-after examining the testimony in the TV illiams proceeding as to the ineidence of iron deficiency and iron deficieney anemia, in the population, the Sixth Circuit Court stated:

Xot 1111 of the approximate ten percent of the population ,yho have iron deficiency" anemia have moderate to sen.'re anemia, and consequently exhibit mild or no symptoms. "While there are no statistics available as to the number of people ,,-ho are tired and run-down. or the number of people who are tired and run-down due to iron c1eficiency" anemia, there is direct te!':timony that . only a minority" of people ,with these sy"mptoms exhibit these symptoms because of iron deficiency anemia. Considering this evidence along with the fact that these ~YJllpt01l1S a 1'8 common and nnn-specific, theColllmission could reasonably infer. and there Wfl!': snh:,:tantial evidence to support the finc1ing, that the majority of the people who have these symptom:=,;, have them becflm:e of causes other than iron dE-fideney anemia.

In addition, concerning the ads in the 1V i17iaJ71s case which are yirtnally identical with the ads in this proceeding, the Court stated: Here the ac1YE'rtiselllents em11ha:,-:ize the fact that if yon are often tired anel run-elo\yu you \will fE.'el stronger fast by taking Geritol. The Commission, in looking at the oyernll imlwes:=,;ion crea tecl by" the advertisements on the genel'fll public, could reasonably find these advertisements were false and misleading. The finding that the advertisements link common, non-specific symptoms ,dth ,.. .. ..

S. CO. ET AL. 1075 1058 Initial Decision iron deficiency anemia, .and thereby create a false impression because most people witll these symptoms are not suffering from iron c1eficiency anemia, is both reasona ble and ,,;supported by ~ubstantial edc1ence. 23. The com Jlaint charges that res .1.Don dents' advertisements are deceptive in that they claimLOthat the ingredients other than iron contribute to the efi'ectiveness of the 8. S. preparations in the treatment of iron deficiencv and iron deficiency anemia. The only treatment for iron deficiency anemia is the, ac1ministrntion of iron plus the correction of underlying en uses for the deficiency if possible (Tr. 356, 3G3 40T 602 1451) .

24. Respondents' advertisements do emphasize the fact that the 8. preparations contain vitamins and leave. the distinct impression that these vitamins make the preparations a better product in treating the tiredness symptoms and the possible iron deficiency anemia. The incidence of vitamin deficiency in the United States population is ,-il'tnally nonexistent (Tr. 482, ei seq.. 5:3:'5, 634, 827, 2053). Nor can the existence of the deficiency in the vitamins contained in the 8. preparations properly be diaQ'nosed -,""it hont medical tests concluded bv or under the supelTision of a physician (Tr. 491 501-0:2 508, 516 , ;32-1, D-,-, 00 , 0112, 2;). K one of the vitamins in respondents' preparations are of any benefit whatsoever in the treatment of iron deficienev or iron c1efieiencv anemia. There was some testimony that the administration of iron in the presence of Vitamin C might enhance the absorption of the iron. This testimony, 110 ,,-ever, is so vague that no finding can be based thereon (Tl'. :2:28 , 430 , 563, 970-1015, 165~37, 2066- , 2141). It is true, ho,vever, that the vitamins contained in the 8. S. preparations are present in sufficient quantity to constitute therapeutic dosages of such vitamins if any such deficiency exists. (See CSC Proposed Finding 72.

26. Responde.nts' advertisements refer to their preparations as "N ewformula, Three-S Tonic." The complaint alleges that this is deceptive in that respondents' preparations are. not new medical and scientific discoyc.rie,s and achievements. The principal executive of respondent S. Company stated that the formula for the 8. S. preparations was last. changeel in 1958 (Tr. 734). J-Io-yever~ the respondents have continued to use. the. ,,-on1 "ne' " to describe their preparations until the. present. The. reason for the use of this term ,vas stated to be to distingni~h respondents' present preparations from those. in existence prior to 19;')8 since some of such old preparations are still sold upon request (Tr. 7~j6-37). A product ,-rhic'll has been on sale for nearly ten venrs cannot be. considered to be new in anv circum- , ,, . ,.

1076 FEDERAL TRADE CO?Il\iission DECISIO~S 173 F. T. C. Ini tial Decision stances. Consequently, the continued nse of this term by respondents is deceptive. In addition, respondents could quite readily distinguish their present products from the pre- 1958 products if they so desire without any deception. 27. In their ads respondents emphasize that the S. S. preparations help yon bettei' fa-st.' Three-S Tonic goes to work within Bit-- feel how' The complaint alleges that this is false and deceptive in that it claims that the use or the S. S. preparations "",ill inc.rease the strength and energy in the body ,,-within 24 hours. "'\Vhile some of the iron will undoubtedly be inzested in a matter of 24 hours. the testimony of the record makes it conclusive that there can be no increase in strength 01' decrease in the tiredness sell1ptoms within 24 hours attributable to this (Tr. ;503 , 656 , 6;')8, 864-65). Nor 'will the vitamins contained in the 8. S. preparations have such results within 24 hours (1'1'. 496 , 511, 518- , 544 551). The experts ",ho testified on this point emphasized the, need for continued administration of both iron or vitamins over a considerable period of time months to years, to correct Euch deficiencies. 28. Paragraph Eight of the complaint alleges that respondents ads are misleading first in that they claim that all persons having tiredness symptoms, regardless or cause ill, with reasonable probbility~ be relieved by taking the S. S. preparations. As found abmthis alle~2:atioll has been established bv the evidence of record. Ho,\"ever, Paragraph Eight charges in addition that respondents' ads are false for the rurther re(ison that they rail to re,-eal a material fact; namely, that in the maj ority of people the tiredness symptoms are not can sed by iron deficiency., iron c1eficiencv a.nemia.. or a defieienc\,7 or any of the vitamins in 8. S. preparations, and that, therefore the preparrctions will be of no benefit..

20. As found abmg, the tiredness symptoms ate general, nonspecific symptoms of a myriad of diseases other than iron deficiency or iron c1e.fieiency anemia. These s:vmptoms can even result from such causes as stress, worry or boredom "without any physiological cause. Consequently, respondents broad claims ror the S. S. preparations must be considered decepti,- In the IVBliams case' (8UPi' Ct) ~ the Court stated pertaining to such advertisements:

While the achertising does not make the affirmati,e representation that the majority of people ",ho are tired and run-down a re so because of iron deficienc' anemia and the product Geritol ,,-ill be an effecti,e cure, there is substantial evidence to support the finc1ing of the Commission that most tired people are not so because of iron deficiency anemia, and the failure to disclose this fact S. CO. ET AL. 1077 1058 Initial Decision is false and misleading because the advertisement creates the impression that the tired feeling is caused by something which Geritol can cure. 30. As to the charge that the respondents' ads are deceptive in not affirmatively disclosing the facts as to the actual incidence of iron deficiency, iron deficiency anemia or a deficiency of the vitamins in the preparations, the examiner is bound by the Commission and Circuit Court decision in the lVill-ia1ns ease (S'UjJIYl). In the TV illiam,s case upJ'a the Sixth Circuit Court in discussing s order inthe affirmative disclosure provisions in the Commission that case stated:

Petitioners argue vigorously that the Commission does not have the legal power to require them to state the negatiye fact that. "in the great majority of persons who experience such symptoms, these symptoms are not caused by a deficiency of one or more of the I'vitamins contained in the preparation or by iron deficiency or iron deficiency anemia ;" and "for such persons the preparation will be of no benefit"

"\Ve believe the evidence is clear that Geritol is of no benefit in the treatment of tiredness except in those cases where tiredness has been caused by a deficiency of the ingredients contained in Geritol. The fact that the great majority of people who experience tiredness symptoms do not suffer from any deficiency of the ingredients in Geritol is a "material fact" under the meaning of that term as used in Section 13 of the Federal Trade Commission Act and Petitioners failure to reveal this fact in this day ",hen the consumer is influenced by mass advertising utilizing highly developed arts of persuasion, renders it difficult for the typical consumer to know ,,"whether the product 'will in fact meet his needs unless he is told what the product ,,-m or will not do. This does not fall within the sphere of negative advertising, it merely presents to the consumer an opportunity to make an intelligent choice. Consequently, it is apparent that as in the lVilliams case, respondents have deceived the public in failing to make such essential disclosures in their ads.

31. Paragraph Eight of the complaint also alleges that respondents ads are deceptive since they claim that the preparations are safe and effective in the treatment and relief for all persons who have iron deficiency, iron deficieney anemia and their syinptoms. The record es- CO111- tablishes that this claim is true and counsel in support of the plaint apparently so concede. (See CSC Proposed Finding 66.) The iron in the S. S. preparations are proper therapeutic dosages and ,,-ill relieve and eliminate iron deficieney and iron deficiency anemia and their symptoms if taken for a sufficient period of time. COXCLDSIOXS 1. Respondents' advertisements of the S. S. preparations are false and misleading in that they claim directly or by clear implication: , .

10'78 FEDERAL TRADE COl\LMISSION DECISIOXS Initial F. Decision ,73 A. That the use of such preparations will in all cases be of benefit in treating tiredness symptoms I\" ha teTeI' their I' cause. B. That the vitamin and other ingredients in such preparations contribute to the effectiveness of these preparations in the treatment or relief of iron deficieney and iron deficiency anemia. C. That iron deficiency~ iron deficiency anemia, or vitamin deficiency can be diagnosed by the general public without the need of appropriate medical tests.

D. That the preparations are "new products and " nel\" medical discoveries.

E. That the use of suell preparations ,vill increase strength and energy in the body within 24 hours after ingestion. 2. Respondents' adveTbsements of the S. S. preparations are false and misleading in that they claim dire,ctly or by implication that there is a reasonable probability that the tiredness symptoms of any person will be eliminated or al1eviated by use of such preparations without revealing the fact that the majority of persons ,with such symptoms are not suffering from iron deficiency or iron deficiency anemia or a de.fieiency of the vitamins in such preparations and that therefore, such preparations ,,-ill be of no benefit to such persons. 3. The dissemination by the respondents of the false and deceptive advertisements, as found above, constitute, unfair and deceptive acts and practices, in eOml1leTCe, in violation of Sections 5 and 12 of the Federal Trade Commission Act.

ORDER TO CEASE AXD DESIST It is OI'dei' That respondents 8. S. Company, a corporation, and Tucker \Vayne &. Company. a. corporation, and their officers. and responde,nts' representatives, agents and employees, directly or through any corporate or other device, in connection with the offe.ring for sale. sale or distribution of the preparation designated " S. Tonie~' or the preparation designated " 8o. S. Tablets " or any other preparation of substantially similar composition 01' possessing substantially similar propert,ies. do fortlnTith cease and desist from directly or indirectly: b;,-- any means 1. Disseminating or causing the dissemination ot in commerce, as "commerce ~~ is defined in the Federal Trade Comb~- mission Act, any advertisement ,,-which represents. directly or imnlication.I. that:

(a) The. use of sllch preparations win be of benefit in the preyention, relief or treatment of tiredness, lack of pep~ pneT2' Y or stre11&!th, "eakness, listlessness, nul-down feeling or 11e1'1"O11511ess: or any other symptom unless such representa- (g) . ..

S. CO. ET AL. 1079 1058 Initial Decision tion be expressly limited to a symptom or symptoms caused by a. deficiency of one or more of the vitamins or iron provided by that preparation; and, further, unless suchadvertisement discloses clearly find conspicuously, in immediate or close proximity, and with equal prominence that in the majority of persons suffering from any such symptom or symptoms, the preparations ,,"ill be, of no benefit in the prevention, treatment or relief of such symptom or symptoms. (b) The use of such preparations will be. of benefit in the treatment or relief of iron deficiency or iron deficie,ncy nemia in any specific group of people: Pmvided, howe,ve7" That. it shall be a defense in any enforcement proceeding instituted under this prohibition for the respondents to establish that there is a reasonable probability that a majority of persons within such group suffers from iron deficiency or iron deficiency anemia.

(c) The presence of iron deficiency anemia or iron defieieney of any degree can be self-diagnosed.

( d) The presence of iron defieiency anemia, or iron defieiencv of any degree can generally be determined without medica.! tests conductedL- byL.or under the supervision of a physician.

(e.) The presence of a deficiency of the B vitmnins, or of any vitamin, can be self-diagnosed.

(f) The presence. of a deficieney of the B vitamins, or of any vitamin, can generally be determined without medical tests conducted by or under the supervision of a physician. Any ingredient other than iron in 8. 8. Tonic or S. Tablets eontributes to the effectiveness of these or, similar prepara hons in the. prevention treatment or relief of iron deficiency or iron defic.iency anemia or of symptoms represented directly or by inlplic.ation to be caused by iron defieiency or iron deficiency anemia.

(h) There is any greater need for anyone or more of the vitamins in 8. S. Tonie or S. S. Tablets among persons sufferillQ" from iron defieiency or iron deficiency anemia. than among persons not suffering from iron deficiency or iron deficiency anemia.

(i) The use of such prepa.rations will increase the strength or e.energy of any part of the body in any amount of time Jess than that in which the eonsnmer may actually experience, improvement.

(j) ... ::: ::: , ; ; : :::::: . , , . 1080 FEDERAL TRADE COl\L\lission DECISIONS Appendix A !'j3 F. The formula. of S. S. Tonic or S. S. Tablets is " new or the formulae or ingredients are ne,y medical or scientific discm-eries or achieve1nents.

2. Disseminating, or causing to be disseminated, by means or the United States mails or by any mei1ns in commerce, as " commerce" is defined in the Federal Trade Commission Act, any advertisements which contain sti1tements which are inconsistent with, negate or contradict any of the affirmative disclosures required by Paragraph 1 or this Ordet, or in any ,yay obscure the meaning of such disclosures.

3. Disseminating, or causing to be disseminated, by any mean;s for the purpose or inducing, or 'which is likely to induce, directly or indirectly, the purchase of any such preparation in commerce as "commerce" is defined in the Federal Trade Commission Act any advertisement ,which contains any of the representations prohibited by Paragraphs 1 or 2 hereof, or ,,-which fails to comply "With the affirmative requirements or Paragraph 1 hereof. APPEXDIX A AKXOUXCE3IEXT No. 63-13: 60 SECOXDS ANKCR. :

Do you find yourself 1nis,Sing Ollt on the fun in life? Do you feel dull, draggy '* ::: * just " too tired" to do things? Then maybe you re suffering from Iron Deficiency Anemia-loll; blood po ITer. If so, what you need is Three- 's '1'01110:now with B-,vitamins-is rich in iron to help blli7d brrc7" your blood po"-er e.'f;store your energy::: '" * help yon feel better fast! Three- 8 Tonie goe;;: to \york within 7/0111"8. And if you don t feel better in just six days ::: the Thrpe- Company will refund your money every cent of it! So don miss out on the fun in life. Don t let yourself feel "too tired" to enjoy things. If 1/01I re snffering from Iron Deficiency Anemin, take Three- S Tonic! Yes, yes, ye::; ~, get 8. S. : Get started on new-formula. iron-nnd-,vitamin-enriched Three- S Tonic * * .;: in liquid or table form * * ... 1' ght alcay! (CX 2. AXXOUKcE::\IEXT K o. 63- Get that young blood feeling. Like my new hairdo? 8nre do. You b1O"w? 'Yhat? If you could cook, I'd ask you to marry me. Get that youn ~ blood feeling. Remember when you felt like that? 'Yhen you had that young blood feeling, "-ell you can have that pep and vitality again ".ith S. S, Tonic, the Tonic tllat contains 10 times your minimum daily requirements of iron .;: and iron is what helps to build blood power, gives you that young blood feeling. 80 if yon ,e heed tired and listless. suffering from iron deficiency anemia, take 8. 8. Tonic, in liquid or tablets * ... and if you don t feel better in just six days. the 8. Company ,,'ill refund your money. Yes, yes, ye::;, get 8. S. Life is great, don settle for less, get that young blood feeling ,,'i th 8. 8. S. (eX 3. ... ... . . .:.... S. CO. ET AL. 1081 lD58 Appendix A ANNOUNCEDfENT No. 63- Young blood. How long since you had that young blood feeling, the feeling you ~ould work all day and dance all night? Too long? Then take S. S. Tonic, and if you ve been tired, jumpy, run down, due to iron deficiency anemia, S. S. will help you get that young blood feeling in just six days or your money back. How? Listen. Vitamin enriched 8. 8. Tonic contains ten times your minimum daily requirements of iron. Iron to help build back the blood power that carries oxygen and nutrition to muscles and all parts of your body. That' s where your pep and vitality come from * ". '" The conversion of oxygen and nutrition into energy. So, if you 'aren t getting enough iron in your diet 8. S. makes this unqualified guarantee. If, in just six short days you aren t feeling strongat', happier aren t getting that young blood feeling, every cent you paid for 8. S. Tonic will be refunded by the S. S. Company. Yes, Yes, Yes, get S. S. Tonic, in liquid or tablets. And get that young blood feeling fast. (eX 4. ANNOUNCE3IENT No. SSSR-63-16: 60 SECONDS ANNcn. :

Feel weak, dog-tired? Lost your spark? Take Three- * * * the tonic that starts giving you more power per hou7' '" within 24 hours! Just as your ca' needs good gasoline ,~ * '" your bocly, too, needs gooa fuel to convert into energya combination of oxygen and nutrition that' s carried throughout your body by the hemoglobin in your blood. Iron is essential in making this hemoglobin. So when your diet is low in i1'on ~, '" * when you suffer from iron clefi,c-iency anemia '" '" * your body may not get enough fuel to spark you through a busy day. But new-formula, vitamin-enriched Three- Toll'ic contains ten times your minimum daily requirements of iron. It helps to build reserve vitality! And Three- S goes to work fast .;, you feel better in just six days or the Three- Company will refund your money! Yes, yes, yes '" .:. .:. get S. S. Tonic today in liquid or tablet form! (CX 6, 8, 9.

ANNOUNCE:L\IENT No. 63-14 : 60 SEcOXDS ANNCR. :

When you re strong and healthy, you feel like do'~ng things! You have pep and energy to spare. But when you have low blood power * l1'on Deficiency Anemia :I: * you become dull, draggy :\' feel Ured all over * * * and have to force yourself to do your work. And that's when you need :I; '" 2/1 iron-rich vitamin-fortified :I; Three- Tonic! New-formula Three- Tonic contains :the elements you need to help b1.tiUl ba.clc your blood power * * * restore your energy. Important, too * * * Three- S Tonic helps you feel better fast. It goes to work within 24 hours! Yes, yes, yes * lit * S. S. makes it a promise. If you don t feel better in just si,ay days, your money will be refunded by the Three- Company! So if you re suffering from Iron Deficiency Anemia, don t wait! Get started on new-formula Three..S Tonic * '" '" in liquid or tablet form right away! (CX 7.

ANNOUNCEMENT No. 63- How long has it been since you had that happy, wideawake youm.g blood teeUngf Too long? Then take Three-S Tonic! If you ve been tired, rundown due to Iron Deficiency Anemia ... Three- S will help you regain that young blood 418-345-72- , ... ... ... Opinion ('(3 F. !feeling in j1lst s-i:.u days or your money back! Hard to believe? Then listen. Vitamin-enriched Three-S Tonic contains ten times your minimum daily require- ~ents of iron. And iron is what helps to build back blood' pOtver iii ::: * restore pep and vitality. So if YO1l aren t getting enough iron in your diet, Three-S makes you this unqualified guarantee: If in just six short days you' aren t feeling stronger and happier "" * * if you aren t getting that young blood feeling * * the Three-S Company will give you back every cent you paid for Three-S Tonic! See the guarantee on the label. Yes, yes, yes * * * get S. S. Tonic-in liquid or tablets-today '" * * and get that young blood feeling * fast! (CX 10. ANNOUNCEMENT No. 63- Have you ever watched youngsters at play, and then said to yourself: "Oh, to be young again * * * to feel like that I" Well, maybe you can feel yo"unger again * * * with Three-S Tonic! Iron-and-vitamin-enriched Three-S Tonic can help give you that "young blood feeling!" You see, as we grow older, many of us don t get the daily iron we need * * * we develop Iron Deficiency Anemia. The Blood can t maintain that rich young" condition to give you all the pep and energy you need. But when you take wonderful, new-formula Three-S Tonic * you get the iron you need * * * plus essential vitamins and special natmal ingredients to help restore vim and vigor! With Three-S Tonic, YO1l get bac71i that "young blood feeling :Ie * and you get it back in just six days, or get your money back * * '" the Three-S Company will refund every cent you paid! See the guarantee on the label. Yes, Yes, Yes get S. S. Tonic today in liquid or tablet form! (CX 11.

ANNOUNCEl\IENT No. 63- When your car needs spark plugs * * ... it won t go. It just won t start! Sometimes, your body is the same way. It loses its spark * * * and you feel weak tired-all-over. When that happens * * * and you re suffering from iron deficiency anemia * * * you need Three-S Tonic! New-formula Three-S Tonic is enriched with important B-vitamins and iron * * * to help produce extra energy * * * energy to get you started * * * keep you going! What' s more, Three- S Tonic helps to build reserve vitality. It contains ten times your minimum daily requirements of iron. So if you suffer from iron deficiency anemia * * * if your body needs that extra spark to keep it going through a busy day * * * try Three- Tonic. It starts to work within 24 hours. And if you don t feel better within six days * * '" the Three-S Company will refund your money. Yes, yes, yes * * get S. S. Tonic today * "" $ in liquid or tablet form. (CX 12. OPINION OF THE COl\fl\IISSION Bye Ll\fan 0 O?nmis 8"iO?~el' The complaint in this matter, issued September 14, 1964, charges respondents, the S. S. Company, manufacturer of S. S. tonic and tablets, and Tucker Wayne & Company, advertising agency for these products, with having violated Sections 5 and 12 of the Federal Trade Commission Act., 15 D. C. 9945, 52. S. CO. ET AL. 1083 1058 Opinion It is alleged that respondents made a number of false and nlisleading representations in selling their preparations. Al110ng other charges the complaint alleges that respondents represent that the S. S. preparations will be of benefit in treating tiredness symptoms without disclosing that relief will only be afforded those whose tiredness is attributable to iron deficiency, iron deficiency anemia or a deficiency of the vitamins contained in the preparations. Also challenged were representations that the S. S. preparations are new medical discoveries, will increase strength and energy within 24 hours, and are unconditionally guaranteed.l Respondents filed an answer admitting certain of the allegations in the complaint but denying that they had violated the Federal Trade Comll1ission Act.

Extensive hearings were held after which the hearing examiner entered an initial decision upholding most of the allegations of the complaint and dismissing for want of evidence the chaTge that respondents failed to honor their guarantees. He entered an order similar , but somewhat narrolTer than, the one requested by complaint cOlIDsel.

esponc1ents appeal from this dec.ision contending primarily that their advertiseIl1ents do not misrepresent the effectiveness of their products, that there is no adequate evidentiary basis in the record for imposing the affirmative disclosure requirements of the order, that portions of the order are contrary to the decision of the Court of Appeals in J. B. TVillia?ns 00. , Inc. v. Fede?'al T' pade 00?n17'dssion a case similar, to tills one, a.nd that portions of the order are vague or unsupported by the evidence. Conlplaint counsel challenge portions of the examiner order as being too narrow and request that certain of the examiner findings of fact be 1110dified and that additional findings be n1ade. For the reasons stated below, we grant the appeal of complaint counsel in part, deny respondents' appeal, and modify the order. Except to the extent they ate inconsistent with findings made in this opinion, the findings of the hearing examiner are amply supported by the record and are adopted as the findings of the Commission. 1 A charge that since iron deficiency anemia is usually caused by bleeding from some serious disease or disorder, use of respondents' preparations " may mask the signs and symptoms of said deficiency or anemia and thereby permit the progression of such disease or disorder " was dropped from the complaint, 011 motion of complaint counsel, before any hearings were held.

2381 F.2d 884 (6th Cir. 1967). That case involved Geritol, a widely ad,ertised iron. preparation.

Opinion 73, F.

S. tonic and tablets contain iron, vitamins and various herbs for flavor. They are widely advertised and sold in the United States; sales vohmle is in excess of $2 million annually. Respondents' advertisements of these preparations, the nlajority of which are radio annOlUlce- Inents, follow a fairly standard format. Opening with questions emphasizing tiredness, lack of pep or spark, or absence of that "young blood feeling," the commercials go on to suggest that these symptoms are due to iron deficiency anemia, and state that the S. S. preparations will eliminate the problem, restoring energy and vitality, that the products will go to work within 24 hours, implying that their effects will be felt in that time, and that the purchase price will be refunded if the consumer does not feel better within six days. Having independently reviewed the challenged advertisements, we agree with the hearing examiner that the representations made, which are similar if not identical to those made in the J. B. TVillia?ns case, are false and misleading. These commercials strongly emphasize general tiredness symptoms that are felt by many people and c1ainl that these symptoms can be alleviated or entirely eliminated by using the S. preparations. The examiner found that this c1ainl was misleading because many people suffering from tiredness are not iron deficient and will derive no benefit from the S. S. preparations. l-Imvever, respondents argue that since their advertisements also mention iron deficiency anemia-for example, some of the advertisements state that "if you been tired, jumpy, run-dmyn, due to iron deficiency anemia, S. ,~ill help you get that young blood feeling in just six days there can be no deception. ,Ye do not agree.

It is well settled that in determining the impression created by an advertisement "the Commission need not confine itself to the literal meaning of the ,words used but may look to the overall impact of the entire commercial" 4 and that "the important criterion in determining 3 Typical of these announcements is the following: Do you find yourself mfssing out on the fun in life? Do you feel dull, draggy '" '" * just too tired' to do things? Tben maybe you re suffering from Iron Deficienc~- Allemia- 1010 blood power. If so, what you need is Three-S Tonic! New-formula Three-S TOllicn..'" with B-vitnJl1in~-i~ rich in iro11. to help blli7.d back our blood po"-er * * restore o\lr energy * * ,~ help you feel better fast! Three-S Tonic goes to work within 24 hours. And if you don t feel better in just six days * '" the Three- S Company will refund o\lr money~- '" '" '" every cent of it! So don miss Ollt on the fun in life. Don let yourself feel 'too tired' to enjoy things. If you re suffering from Iron Deficient' Anemia, take Tliree- S Toil ic! Yes, yes, yes '" '" '" get S, ! Get started on new-formula, iron-andvitamin-enriched Three-S Tonic * * '" in liquid or tablat form Tight away!" (CX 2. Other examples are appended to the initial decision of the hearing examiner. Garter Prods. Inc, Y. Fedeloal. Trade Colllul'ission 323 F, 2d 523, 528 (5th Cir. 1963). g.,g.,g., p. p. g., pp. S. CO. ET AL. 1085 1058 Opinion the meaning of an advertisement is the net impression that it is likely to make on the general populace. " 5 There can be little doubt as to the impression that these advertisements are likely to make on the general populace. Each advertisement attempts to get the listener s attention by asking questions concerning tiredness and lack of pep and each then links these common nonspecific symptoms, felt by a great many people, with iron deficiency anemia. Despite the brief reference to iron deficiency, the overall impression created is that people who experience these symptoms are iron deficient or anemic and will benefit from the S. S. preparations. It is equally clear that this impression is false and misleading. 1Vhile it is true that one deficient in iron or vitamins may benefit from taking these products, it is not true, and there is no basis in the record for inferring, that the tiredness symptoms which respondents stress so heavily are generally attributable to a deficiency of iron. Apart from the great number of perfectly healthy individuals who experience tiredness symptoms merely because they are bored or overworked, or for some other reason unrelated to disease or physical disorder that tired, rundown, dull, draggy feeling" is a symptom of many diseases or disorders, and is not peculiar to iron deficiency or iron deficiency anemia.8 Indeed, a person suffering from iron deficiency or iron deficiency anemia may exhibit no tiredness symptoms 9 and properly con- National Bakers Serv., Inc. v. Federal Trade Commission, 329 F. 2d 365, 367 (7th Cir. 1964), citing Aronberg v. Federal Trade Commission 132 F. 2d 165, 167 (7th Cir. 1942) ; see Kalwajtys v. Federal Trade Commission 237 F. 2d 654 , 656 (7th Cir. 1956), cert. denied 353 U. S. 1025 (1957) ; P. Lormarcl CO. V. Federal Trade Commission 186 F. 2d , 58 (4th Cir. 1950) ; Handler The Cont,.ol of False AclverUsing Under the Wheeler- Lea Act 6 Law & Contemp. Prob. 91, 99'-102 (1939). 6 Respondents' advertisements also state or suggest that users of the S. S. products will begin to experience relief from these symptoms within 24 hours. As respondents concede (Appeal Br. 30) the examiner s finding that this representation is false, that there can be no increase in strength or decrease in the tiredness symptoms within 24 hours attributable to" the S. S. preparations, is amply supported by the evidence and excision of this claim is proper. Initial decision 1076; see, R. 496, 503 (Dr. Darby) ; 656-57 (Dr. Ruffin). We note that the parties have agreed that there is an error in the fourth sentence of finding 27 on page 1076 of the initial decision, which is quoted above in part. The sentence is hereby amended to read: While some of the ingested iron would undoubtedly be absorbed and incorporated into the red blood cells in a matter of 24! hours, the testimony in the record makes it conclusive that there can be no increase in strength or decrease in the tiredness symptoms within 24 hours attributable to this.

7 See, R. 387 (Dr. S. Schwartz) ; 1090 (Dr. Briggs) ; 1651-52 (Dr. Beutler) ; 1746 (Dr. A~~rowsmith) ; 1835 (Dr. l\:fcHardy).

8 See, R. 315 (Dr. Williams) ; 362 (Dr. Gendel) ; 387 (Dr. S. Schwartz); 1005(Dr. Horwitz); 1090 (Dr. Briggs); 1390- , 95 (Dr. H. Schwartz); 1658-59 (Dr. Beutler) ; 183:4.-35 (Dr. l\IcHardy) ; 2147 (Dr. Holly) ; initial decision 1069, 1072. 9 See, R. 315 (Dr. Williams) ; 346 (Dr. Gendel) ; 388-89 (Dr. S. Schwartz) ; 833- 34 (Dr. Halpern); 1149-50 (Dr. Rosenthal); 1391 (Dr. H. Schwartz); 1.47, (Dr. Wallerstein) ; 1646, 1658-59 (Dr. Beutler) ; 1835 (Dr. McHardy). g., Opinion 73 F.

duct-ed medical and laboratory tests are almost always necessa.ry to determine whether a patient is suffering from those conditionsaccurate self-diagnosis by a layman is impossible. In short, the record makes clear that only a minority OI people suffering froln tiredness and lack of energy exhibit these symptoms because of iron deficiency or iron deficiency anemia; in most cases these symptoms are, attributable to causes other than iron deficiency. Reviewing a record essentially similar to that in the instant case,l1 the Court of Appeals in the J. B. TVilliwJ7..s case stated: Not all of the approximate ten percent of the population who have iron deficiency anemia have moderate to severe anemia, and consequently exhibit mild or no symptoms. While there are no statistics available as to the number of people who are tired and run-down, or the number of people who are tired and run-down due to iron deficiency anemia, there is direct testimony that only a minority of people with these symptoms exhibit these symptoms because of iron deficiency anemia. Considering this evidence along with the fact that these symptoms are common and non-specific, the Commission could reasonably infer, and there was substantial evidence to support the finding, that the majority of the people who have these symptoms, have them because of causes other than iron deficiency anemia. (381 F. 2d at 889.

,Ve conclude that by creating the false impression that the S. preparations are a quick remedy and are useful and beneficial for all or Inany of those persons experiencing the common, nonspecific tired- 11ess symptoms, which are widely-indeed, almost universally-felt in our society, respondents' advertisements have violated the Federal Trade Commission Act.

III A number of additional grounds are put forward by respondents to support their contention that their advertisements are not misleading and that entry of an order similar to that entered by the hearing examiner would be improper. They argue that their advertised money back guarantee, promising the purchaser that if he does not feel better within six days he can get a full refund of the purchase price, adequately puts potential customers on notice that "there do exist tired- " 12ness symptoms which will not be relieyed by the S. S. preparations. They contend, further, that since the guarantee was apparently honored, dissatisfied customers would suffer no economic loss. 10 See, R. 346-52 (Dr. Gendel) ; 543 (Dr. Darby) ; 867-68 (Dr. Halpern) ; 1076- 77 (Dr. Brjggs); 1358-59 (Dr. H. Schwartz); 1650 (Dr. Beutler); 1960 (Dr. Teem) ; 2148-49 (Dr. Holly) ; initial decision, 11. 1069. 11 A number of the same experts who testified in that proceeding also testified here and none of those who appeared changed his testimony in any way even tangentially material, nor do the views of those experts cliffeI' significantly from the ' views of most of the experts who appeared only in this proceeding. 1.2 Appeal Br. p. 7.

g., s~s. s. CO. ET AL. 1087 1058 Opinion We need not clwelllong on these arguments. The advertised guarantee is lllore likely to be regarded by the public not as minimizing or qualifying the claims made for the product but as bolstering those claims, creating the impression that the representations as to the efficacy of the 8. S. products are so certain and accurate that the seller can confidently offer such a guarantee.13 Far from curing any deception, the statements concerning the guarantee contribute to the fa-lse and misleading impression created by the advertisenlents. Moreover, there is no merit to the notion that the availability of a refund permits sellers to make any inflated, fabricated, or untrue claims for their products that they wish. On that theory, respondents would be free to proclaim their 8. 8. preparations to' be a cure for colds, cancer, or any other ailment, and, by offering a refund, escape any liability under the Federa-l Trade Comlllission Act. Human nature and inertia being what it is, lnany people who buy th~ S. 8. preparations and get no benefits therefrom will not bother to seek a rehuld, simply accepting their loss or chalking it up to experience.14 If respondent' s view' of the law were correct, it would be possible to lnarket worthless product and make a profit based on the difference between selling costs and the number of rehlnds granted. vVe hold that the offer of a money-back guarantee does not in any way cure or overcome the deception involved in respondents' advertising. Respondents next contend that there are numerous errors and defects in the order entered by the hearing examiner. The order requires respondents to cease and desist froln representing that: The use of (the S. ) * * * preparations will be of benefit in the prevention relief or treatment of tiredness, lack of pep, energy or strength, weakness, listlessness, run-down feeling or nervousness, or any other symptom unless such representation be expre$sly limited to a symptom or symptoms caused by a deficiency of one or more of the vitamins or iron provided by that preparation; and, further, unless such advertisement discloses clearly and conspicuously, in immediate or close proximity, and with equal prominence that in the majority of persons suffering from any such symptom or symptoms, the preparations will be of no benefit in the prevention, treatment or relief of such symptom or symptoms. 13 For example, one advertisement (CX 12) states: "Three~S Tonic helps you feel better fast. It goes to work within 24 hours! Yes, yes, yes * '" * 'S. S. makes it a promise. If you don t feel better in just si.x days, your money will be refunded by the Three-S Company !" The Commission is not unfamiliar with such use of an advertised guarantee as an affirmative representation of material facts. See Guides Against Deceptive Advertising of Guarantees, Part VII (1960).

14 It is for this reason that we reject respondents' argument that their advertising causes no economic loss. We reach this conclusion quite apart from the obvious fact that respondents' false advertising, by diverting sales from respondents' competitors in commerce, constitutes an unfair method of competition proscribed by Section 5. ), Opinion 73 F. T.

Respondents argue that imposition of these affirmative disclosure requirements would be an abuse of discretion since this is not extreme ease and since their products are not dangerous.15 They contend that the record does not support the conclusion that such disclosures are necessary. Complaint counsel argue, on the other hand, that the order should be modified to require disclosure that the preparations will be of no benefit to the "great majority" of persons suffering from tiredness symptoms.

It is clear that an order requiring affirmative disclosures is not an extraordinary or unusual remedy to be applied only in extreme ea~. Even if it were, we think that such disclosures should properly be ordered here. Affirmative disclosures are appropriate whenever reasonably necessary to prevent deception and not merely when the product involved is dangerous.

The overwhelming weight of the evidence in the record supports the exanliner s conclusion that any representations that the S. S. products ate helpful in treating the tiredness symptoms must be accompanied by affirmative disclosure both that these products are of value only in combatting tiredness caused by a deficiency of the iron or vitamins that they provide and that the great majority of persons experie.ncing In-tiredness symptoms will derive no benefit frolll these products.17 deed, our review of the record confirms that, if anything, the examiner s findings, which are now attacked by respondents, concerning the prevalence of iron deficiency in the lTnited States are overly generous to respondents.

In considering this question it is necessary to draw a distinction between prevalence of iron deficiency or iron deficiency anemia-that is the number or percentage of persons in a particular group suffering from these conditions at any given point of time 18-which is the important statistic for present purposes, and the ineidenee or cumulative incidence of these disorders-that is, the number of new cases occurring within a particular group over a period of time. As the .examiner found and as virtually all the witnesses testified, iron defi- 16 Complaint counsel have argued on thi~ appeal that the examiner erred in finding that the S. S. preparations are safe and effective in the treatment of iron deficiency or iron deficiency anemia. W~ find no need, however, to reexamine or review the examiner finding in this regard.

1e' See, g" Wa,rd Laboratories, Inc. v. Fedeml Trade Commission 276 F. 2d 952, 954- 55 (2d Cir. cert. denied 364 U. S. 827 (1960); Keele Hair Scalp Specialists, Inc. Federal Trade Commission, 275 F. 2d 18, 23 (5th Cir. 1966) ; see also Federal Trade Commission, Statement of Basis and Purpose Accompanying the Trade Regulation Rule for the Prevention of Unfair or Deceptive Advertising and Labeling of Cigarettes 87- 89 (1964).

17 We hold in1m, that other disclosures are also necessary when such representations are made.

18 Some of the witnesses referred to this concept Dot as prevalence but as "incidence at anyone time.

g.)g.)g.)g.)g.) S. CO. ET AL. 1089 1058 Opinion ciency or iron clefieiency anemia is virtually nonexistent. among adult 111ales; no more than one or at best. two percent of this group ever incurs iron deficiency, and the number afflicted with this condition at anyone time is extremely small. There is also little doubt that iron defieiency is infrequent among infants and children. On the other hand, while iron deficiency is folmd most frequently mllong women of childbearing age, there is some conflict in the record as to its exact prevalence. There is evidence that the prevalence of the condition in this group is insubstantial 19 but there is also evidence that 20 or even as high asits eumulative incidence may be 10-20 percent 30-40 percent. 21 The examiner s finding that approximately ten percent of this group may be iron deficient at anyone time may be a little high but the evidence is not so clear that we think it necessary to reje,ct his finding. Finally, we accept the examiner s finding that the maximum prevalence of iron deficiency in post-menopausal females is ten percent although here again we think this figure may be too generous to respondents.

Since the evidence if anything is even less favorable to respondents than the evidence in the J. B. 1V iZlia1ns ease, we adhere to the conelusion reached in that ease that at any given time less, and probably a great deal less, than ten percent of the entire population suffers frolll iron deficiency or iron deficiency anemia. In the face of this evidence, respondents' argument that the record does not support the conclusion that the great majority of persons who suffer from tiredness symptoms are not suffering frolll iron deficieney or iron deficiency anemia borders on the frivolous. 1Ve recognize that iron deficiency is, medieally speaking, not uncommon or rare, that it afflicts more people than do a number of other well known diseases or conditions, and that it may be a public health problem. We also do not question that treatment withiron preparations, even preparations containing fewer ingredients than S. S. tonic or tablets and eosting less 23 may be a relatively safe and effective lneans for dealing 19 See R. 554-56 (Dr. Darby).

~O See, R. 1447 (Dr. Wallerstein).

~l See R. 1612-13, 1658 (Dr. Beutler) ; 1984 (Dr. Brewer) ; Dr. Beutler gave these incidence figures for women of chilclbearing age in low-income groups, He estimated the pre,alence of iron deficiency among well-to-do women as "perhaps five or six percent" (R. 1612-13) and the prevalence among poor women as 20-30 percent. R. 1658. 2". See R, 1053 (incidence is one percent in post-menopausal females and adult males) (Dr. Briggs) ; 1613, 1658 (incidence drops off to under ten percent or under five percentpercent withinina fewwomenyears of menopause)over age(Dr. Beutler)60) (Dr.; 1795-96McHardy).(incidence ten to twelve ~3 See, R. 1002-03 (Dr. Horowitz). Asked whether he prescribed or would prescribe the S. S. preparation for his patients, this witness, called by respondents, replied: No. '" oil * I think they are getting a lot that is unnecessary. If the problem is iron deficiency, then I don t think that the additional vitamins are beneficial and I don t feel the need to burden them with the cost.

See also R. 2140 (Dr. Holly).

1090 FEDERAL 'TRADE CO~11\lission DECISIONS Opinion 73 F.

with this condition. This proceeding is not intenc1e.d to, and will not drive the 8. S. preparations off the market, depriving consumers of a useful remedy for iron deficiency. However, when the products are represe.nted not as a cure for iron deficiency but as a treatment for tiredness andlaek of pep, both the fact that they will be of no benefit to the great majority of persons suffering from such symptoms and the fact that they are useful only to those persons whose symptoms are due to these disorders or to a deficiency of the vitamins conta-ined in the S. preparations, are clearly material and lllust be disclosed. As the court held in the J. B. Williams case: The fact that the great majority of people who experience tiredness symptoms do not suffer from any deficiency of the ingredients in Geritol is a "material fact" under the meaning of that term as used in Section 15 of the Federal Trade Commission Act and Petitioners' failure to reveal this fact in this day when the consumer is influenced by mass advertising utilizing highly developed arts of persuasion, renders it difficult for the typical consumer to know whether the product will in fact meet his needs unless he is told what the product will or will not do. This does not fall within the sphere of negative advertising, it merely presents to the consumer an opportunity to make an intelligent choice. 381 F. at 890 (footnote omitted).

Respondents argue that, even if otherwise permissible, these affirmative disclosure provisions of the order subvert the Congressional policy favoring self-medication on a trial-and-error basis. They contend that other provisions of the order dealing with self-diagnosis of iron or vitamin deficiency 24 fly in the face of that policy, as it was e.xpressed in the opinion of the Court of Appeals in the J. B. Willia1TLB case. Discussing a prohibition similar to the self-diagnosis provisions here at issue, the court said:

The danger to be remedied here has been fully and adequately taken care of ~n the other requirements of the Order. We can find no Congressional policy against self-medication on a trial and error basis where the consumer is fully informed and the product is safe as Geritol is conceded to be. In fact, Congressional policy is to encourage such self-help. In effect the Commission s Order 1 (f) tends to place Geritol in the prescription drug field. We do not consider it within the power of the Federal Trade Commission to remove Geritol from the area of proprietary drugs and place it in the area of prescription drugs. 381 F. at 891.

In analyzing this question, it is necessa,ry to distinguish betwe.en selfdiagnosis and self-medication. The two concepts are not the same. Self- 24 Sedions 1 (c)-l (f) of the order.

pp.

S. CO. ET AL. 1091 1058 Opinion diagnosis may be possible for a condition for ivhich self-medieatiol1 is impossible. For example, a layman who has suffereel a, coll1.pol1nclleg fracture can readily observe it but is unable to treat or remedy the condition. On the other hand, self-medication may be perfectly appropriate for a condition which cannot be self-diagnosed. A diabetic. may treat himself with insulin but this fact does not indicate that diabetes may be self-diagnosed.

As we have noted, the evidence in this case overwhelmingly supports the conclusion that iron c1eficieney and iron deficiency anemia cannot be self-diagnosed.25 The evidence also supports the examiner parallel conclusion that vitamin deficiency is virtually nonexistent and "cannot properly be diagnosed without medical tests conducted by or under the supervision of a physician. " 26 Representations to the contrary are false and deceptive and c.cannot be condoned on the ground that Congressional policy favors self-medication on a, trial-and-error basis. Provisions in the examiner s order forbidding respondents from making such false representations, even when their advertise- Inents do not mention tiredness, are necessary and will be included in the final order. Nor do we believe that a prohibition of such representations, which is essential if the Commission s order is to be effective in protecting the public and insuring that purehasers of respondents products are fully informed before buying, will place the 8. S. preparations in the prescription drug field. Nothing in the order will prohibit respondents frolll representing that the S. S. preparations are effective in treating a properly diagnosed case of iron deficiency or iron deficiency anemia. On the contrary, our order is intended to encourage respondents to utilize truthful representations such as these instead of relying on falsehoods, misstatements, or half-truths that are misleading because 111aterial facts are omitted. For similar reasons, we reject respondents' argument that requiring affirmative disclosure of all material fads "when the S. S. prepara-tions are advertised as remedies for tiredness interferes with the Congressional policy favoring self-medieation. The short answer to this contention is that the very authority that respondents cite in support of this proposition, the opinion of the Court of Appeals in the J. B. Willi(m~s ease, upholds an order including disclosure provisions similar to those here challenged by respondents.2i ~ioreover, in addition to upholding the disclosure provisions of the order, the court indi- 2;; See notes 7-10, 8 Up1"a: initial decision 1069 1072. 26 See initial decision, p. 1075.

27 See p. 1090 supra..

Opinion 73 F.

cat-ed that the Congressional policy referred to extended onlv to " selfmedication on a trial and error basis where the consumer i~ fully informed and the product is safe as Ge-ritol is conceded to be." 381 F. at 891.

The purpose of the disclosure provisions in this order, as in the J. B. Williams order, is to insure that the consumer is in fact fully informed. Respondents' advertisements create the false impression that tiredness is generally or frequently attributable to iron deficiency or iron deficiency anemia. In effect, when the reader is asked to draw the conclusion that his tiredness is attributable to iron de,fiC'ienc~T . he is being asked to engage in self-diagnosis. ,Ve do not hold in this case that such an invitation to seh-diagnosis is prohibited. However~ we agree with the court in the J. B. IViZliams case that where an advertisement for a proprietary drug seeks to sell the product on the basis of such self-diagnosis, the consumer must. be fully and honestl)- informed of the material facts.

IfseIf-medication is to be encouraged, it is important that there not be a wrong diagnosis. If each of us is invited to become his o"n doctor and to choose among the various reme.dies offered for sale to the public a clear obligation rests on the seller to disclose all the relevant facts concerning his product, including its dangers if any and the limits of its efficacy. This need is illustrated by the pre,sent case, where respondents admit that among the principal groups to whom their advertising is directed are the urban and rural poor-who are less likely to ~:et the medical attention they need. who are more likelv to be uneducated and uninformed, and who are thus most likely to be victimized by improper self-m.edication resulting from false, and n1misleading advertising.

,Ve are adding to paragraph 1 (a) of the order, which deals with the 8. products tiredness symptoms, the requirement that \Then the 8. a.re. represented as a cure for tiredness, or as a cure for vitamin or iron that such defieiency causing tiredness, respondents must also disclose. deficiencies cannot be self-diagnosed but can be detenninec1 only by medical or laboratory tests conducteel by or under the supervision of a doctor. Our orde-r \Till require respondents to disclose all the matethat rial facts when their advertismnents invite people to .conclude their tiredness is related to an iron or vitamin deficiency which can be remedied by the 8. S. products.

"\Ve repeat that the order is not intended to discourage the sale of respondents' products, but to encourage that they be advertised truthfully and honestly. ,Vl1ere a. seiler of a proprietary drug, or any other S. CO. ET AL. 1093 1058 Opinion product, confines himself to such advertising, he serves his own as well as the public interest.

1Ve now turn to the remaining questions, all of which concern the scope of the order. Prohibition 1 (b) of the hearing examiner s order bars respondents from repr~senting that their preparations will be of b~nefit in the treatment of iron deficiency or iron deficiency anemia in any particular population group unless there is a reasonable probability that a majority of persons within such group Buffers from these disorders. This section of the order is designed to prevent respondents from falsely representing expressly or by implication that particular groups are likely to have a need for their products. For example, the. statement ":Men over thirty-take 8. S. Tonic for iron deficiency falsely suggests that men over thirty are likely to need iron and to benefit from the S. S. preparation. On the other hand, we agree with the examiner that advertising directed to a population group in which the prevalence of iron deficiency is high would not be deceptive in this respect. In order to permit respondents sufficient flexibility if they choose to direct their advertising appeals to particular groups we have added a second proviso to the order entered by the examiner. If respondents show either that their advertising is directed to a population group the majority of which is reasonably likely to be iron deficient or that their advertising does no 11lore than truthfully and accurately represent the percentage of people in the group addressed who are lik~ly to be suffering fronl iron deficiency, this section of the order would not be violated.

Respondents argue that placing on them the burden of proving that their advertisements fall within one of these provisos in any enforcement proceeding is inlpermissible. ,Ve do not agree. The record indicates that it is likely tha,t there is no major population group the majority of whose m~mbers are iron deficient at anyone time. The record and our own extensive exp~rience with deceptive advertising also suggest that appeals directed to any particular population group could easily, even if inadvertently, create a false or misleading impression as to the need of Inelnbers of that group for the S. S. products. Rather than broadly forbid aU such representations we ha:ve decided to draw the order nlore selectively, permitting respondents sufficient leeway so that they may make honest representations concerning the need for their products. However, if this provision is not to become a nullity, and if this entire proceeding is not to be rendered nugatory, theburden of proving the truth of any such repr~sentations must be on respondg.)g Opinion 73 F .

ents. Answering an argument similar to that made by these respondents the Court of Appeals for the First Circuit stated: "\Ve will add, ho\\"eyer, in view of the strenuous opposition expressed by respondent * * * to the so-called "imposition of a burden" of showing extenuation, that respondent has misconceived the principle. The Commission has alv. Feel-lo,ved it an escape, rather than imposed a burden. Colgate-Palmolive Co. cruz Traele C011l'missfon 326 F. 2d 517, 523 (1st Cir. 1963). On appeal, the order involved in that case was upheld by the Supreme Court.28 vVe conclude that it is not unfair to hold respondents to r:.account if they choose to walk perilously close to the line separating legal from illegal conduct. "Having been caught violating the Act respondents 'lnust expect some fencing in. '" 29 Respondents also challenge provisions of the order forbidding any misrepresentations concerning the efficacy of the vitamins and herbs in the S. S. preparations in treating iron deficiency or iron deficiency anemia and barring any misrepresentations as to the need for those ingredients among persons suffering from iron deficiency. These provisions are said to be unsupported by the evidence and unduly vague. As the examiner found, the evidence does not support respondents contention below, not pressed on this appeal, that the vitamin C found in the S. S. preparations enhances the absorption of iron.3O Nor does the evidence establish that persons suffering from iron deficiency are also likely to need vitamins. The evidence does establish, on the treating iron defi-other hand, that iron, and only iron, is effective in ciency or iron deficiency anemia-the administration of other drugs herbs, or vitamins, is unnecessary.31 Yet respondents have represented in the advertising and labeling for their products that the 8. preparations are an effective remedy for tiredness and iron deficiency in part because they are "vitamin fortified~' or " vitalnin enriched that the elements in S. S. including the vitamins "help b'Ltild back your blood power " thrut S. S. contains "essential vitanrn.ls and special natural ingredients to help restore vim and vigor" and that the S. preparations also provide "the activity of S. S. Drug Extractives frolll Queen s Delight, Swamp Sumac and Sumac. " 32 28 Federal Trade Co1nlltission v. Colgate-Palmolive Co. 380 U. S. 374 (1965). 29 Fede,.al Trade Co'm.mission' v. Colgate-Palmolive Co., 81lpm, at 395, quoting Federal Trade Col1wtission v. National Lead, Co.) 352 U.S. 419, 431 (1957); see Federal Trade Comm.ission v. Ruberoid Co., 343 U.S. 470, 473-75 (1952). 30 Initial Decision pp. 7075-76: see R. 228 (Dr. Williams) : 563 (Dr; Darby) ; D70, 1013 (Dr. Horowitz) ; 1653-55 (Dr. Beutler) ; 2066-67 (Dr. Clements) ; 2140-41 (Dr. Holly). 31 See, R. 363 (Dr. Gendel) ; 407 (Dr. S. Schwartz) ; 1002-03 (Dr. Horowitz) ; 1451- 52 (Dr. Wallerstein) ; 2066-67 (Dr. Clements); 2140-41 (Dr. Holly). 32 See CX 4, 6, 7, 11 , 13A.

: pp, :!.. , pp. S. CO. ET AL. 1095 1058 Opinion These advertisements clearly imply both that the vitamins or other ingredients in 8. S. tonic and tablets, in addition to the iron contained in these preparations, contribute to the effectiveness of these preparations in treating, relieving, or curing tiredness or iron deficiency and that persons suffering from tiredness or iron deficiency are especially likely to suffer from vitmnin deficiency. In consequence, the impression is created that, for one reason or another, vitamins will be of benefit to persons to whom the advertising is addressed. The order is narrowly and carefully drawn to proscribe these false and deceptive representations. while we fail to see in what respect the order may be regarded as vague, we point out that if respondents entertain any doubts as to what is required of them they are free to eonsult informallv with the Commission s staff or to utilize the advisory opinion procedure under Section 3. 61 ( c) of the Comlnission Rules to obtain a definitive construction of the Commission s order without risking a civil penalty proceeding.

Finally, we must consider issues raised by the appeal of colnplaint counsel. The principal question before us is whether the order should require respondents to disclose in their advertising that "in adults other than pregnant women, iron deficiency or iron deficiency anemia almost never develops in the absence of bleeding, hidden or obvious. Of the four principal causes of iron deficiency or iron deficiency anemia enumerated by the hearing examiner 33 it seems clear, and we find, that excessive loss of iron through bleeding is by far the most common among adults other than pregnant women.34 However since bleeding may be, and in many cases is, hidden, a person suffering iron deficiency due to excessive blood loss may be unaware that he is losing blood and that he may be suffering from anemia. The purpose of our order is to require respondents truthfully to represerlt their products so that consumers may make an informed judgment in deciding whether to purchase the S. S. preparations. Since blood loss frequently is not manifest, disclosure that anemia is most often attributable to blood loss would not enhance the effectiveness of the order in achieving that objective. ~loreover, in view of complaint counsel' decision to strike frolll the complaint the so-called "masking" charge which was predicated in part on the same facts as are relied on to support the contentions under discussion, we are somewhat reluctant to reintroduce the issue obliquely on this appeal. 33 These are inadequate intake of iron, poor absorption of iron, excessive dpilland for il" , and excessiye loss of iron from the body through bleeding. See initial decision 1071-10'7:2.

R. 8SS- CD (Dr. Genc1el) : ,1O5-0G (Dr. S, Schwartz) ; 538-39 (Dr. Darby) 1:217 (Dr. Trobaugh) ; 1387 (Dr. H. Schwartz). 1096 FEDERAL TRADE COMMISSION DECISIONS, Final Order 73 F.

conclusion that On the other hand, the record amply supports the the herbs in respondents' preparations are of no therapeutic value despite respondents' representations to the contrary. 35 vVe therefore agree with complaint counsel that representations as to the therapeutic value of these herbs should be forbidden.

The appeal of respondents is denied. The appeal of complaint counsel is granted in part and denied in part. The findings and conclusions of the hearing examiner, except to tle extent they are inconsistent with this opinion, are adopted as the findings and conclusions of the Commission. The examiner s order is modified and, as so modified, adopted 'as the order of the Commission.

FINAL ORDER This matter has been heard by the Commission on tile cross-appeals initial decision of the of complaint counsel and respondents from the hearing examiner filed on October 13 Hm7. The Commission has rendered its decision denying respondents' appeal in all respects granting complaint counsel's appeal in part, and adopting the findings are not inconsistent of the hearing examiner to the extent that they with the opinion accompanying this order. Other findings of fact and conclusions of law made by the Commission are contained in that opinion. For the reasons therein stated, the Commission has determined that the order entered by the hearing examiner should be modified and, as so modified, adopted and issued by the Commission as its final order. Accordingly, It i13 ordered That respondents S. S. Company, a corporation, and their officers, and Tucker Wayne & Company, a 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 the preparation designated " " or any other Tonic" or the preparation designated "S. S. Tablets preparation of substantially similar composition or possessing substantially similar properties, do forthwith cease and desist from directly or indirectly:

1. Disseminating or causing the dissemination of, by any means in commerce, as "commerce" is defined in the Federal Trade Commission Act, any advertisement which represents, directly or by implication, that:

( a) The use of such preparations will be of benefit in the prevention, relief or treatment of tiredness, lack of pep, 815Compare Respondents' Proposed Finding of Fact 5 with CX 13.8.. S. CO. ET AL. 1097 1058 Final Order energy or strength, weakness, listlessness, run-down feeling or nervousness, or any other symptom, unless such representation is expressly limited to a symptom or symptoms caused by a deficiency of one or more of the vitamins or iron provided by such preparations; and, further, unless such advertisement also discloses clearly and conspicuously, in immediate or close proximity, and with equal prominence to any such representations:

(1) That, in the great majority of persons suffering from any such symptom or symptoms, the preparations will be of no benefit in the prevention, treatment or relief of such symptom or symptoms; and (2) That the presence of iron deficiency anemia or iron deficiency of any degree cannot be self-diagnose.d and can be determined only by means of medical or laboratory tests conducted by or lUlder the supervision of a physician; and (3) That the presence of a deficiency of the B vitamins or of any vitamin, cannot be self-diagllosed and can be determined only by means of medical or laboratory tests conducted by or under the supervision of 'R physician. (b) The use of such preparations \\~ill be of benefit in the prevention, relief 01' treatment of iron or vitamill deficiency or iron deficiency anemia in any specific or described group people: Pro~'-ided, howe1Je1' That it shall be a defense in any enforcement proceeding instituted under this prohibition for respondents affirmatively to show:

(1) That there is a reasonable probability that a majority of persons within such group suffers from iron or vitamin deficiency or iron deficiency anemia; (2) That their advertising did no more than truthfully and accurately represent the percentage of persons in a specific population group who suffer from iron or vitamin deficiency or iron de.ficiency anemia. (c) The presence of iron deficiency anemia or iron defi., ciency of any degree can be self -diagnosed.

(d) The presence of iron deficiency anemia or iron deficiency of any degree can generally be determined without medical or laboratory tests conducted by or under the supervision of a physician.

( e) The presence of a deficiency of the B vitamins, or orany vitamin, can be self-diagnosed.

~18-345--72---- (j) ,Final Order 73 F.

(f) The presence of a deficiency of the B vitamins, or of any vitamin, can generally be determined "\vithout medical tests conducted by or under the supervision of 'R physician. (g) Any ingredient other than iron in S. S. Tonic or S. Tablets contributes to the effectiveness of these similar.r preparations in the prevention, relief or treatment of iron defieiency or iron deficiency anemia or of symptoms represented directly or by implication to be caused by iron deficiency or iron deficiency anemia.

(h) There is any greater need for anyone or more of the vitamins in 8. S. Tonic or 8. S. Tablets among persons suffering from iron deficiencv or iron dcficiencv anemia than among persons not suffering from iron deficiency or iron c~ . deficiency anemia. (i) The use of such preparations will increase the strength or energy of any part of the body in any period or amount of time less than that in which the consume.r may actually experience ill1provemellt.

The formula of 8. S. Tonic or 8. S. Tablets is "new or the formulae or ingredients are new medical or scientific discoveries or achievements.

(k) The herbs in S. S. Tonic or S. S. Tablets are of any therapeutic benefit or value.

2. Disseminating, or causing to be disseminated, by means of the United States mails or by any means in commerce, as "commerce is defined in the Federal Trade Coml11ission Act, any advertisements which contain statements which are inconsistent with negate, contradict, or dilute any of the affirmative disclosures required by Paragraph 1 of this Order, or which in any way obscure the meaning or effect of such required disclosures. 3. Disseminating, or causing to be disseminated, by any 11leans for the purpose of inducing, or which is likely to induce, directly or indirectly, the purchase of any such preparation in COlll1llerce as "commerce" is defined in the Federal Trade Commission Act any advertisement which contains any of the representations prohibited by Paragraphs lor 2 hereof, or which fails to comply with the affirmative requirements of Paragraph 1 hereof. 1 t ,is lnTthe1' ordel' That the respondents herein shall, within sixty (60) days after service upon them of this order, file with the Commission a written report setting forth in detail the manner and form of their cornpliance ,with thisorcler.

THE SPERRY AXD HUTCHINSON CO. 1099 Complaint