C.E.B. Products, Inc

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

IN THE MATTER OF E.E. PRODUCTS, INC., ET AL.

CONSENT ORDER, ETC., IN REGARD TO ALLEGED VIOLATION OF THE FEDERAL TRADE COMMISSION ACT Docket C-2650. Cornpla:int, Mar. , 1975 - Deci. ion, Mar. , 1975 Consent order requiring a Chicago, Ill., cosmetic manufacturer, among other things to cease advertising and packaging "Dark-Eyes Lash end Brow 'print" without a warning to consumers that the product can cause severe pain to the eye for a substantial period of time. Further, the order requires that all existing packages of the product not yet sold to the public and aU point-of-purchase displays either be corrected so as to prominently display the required warning or be recalled by respondent.

Appearances For the Commission: Marvin R. Lange and Stewart A. Block. For the respondents: R. Quincy White and Jack Bierig, Sidley & A ustin Chicago, Ill.

COMPLAINT 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 C. B. Products, Inc. a corporation, and Charlotte E. Barth and Herman Goldenberg, individually and as officers of said 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. For purposes of this complaint, the following definitions shall apply:

1. "Commerce" means commerce as defined in the Federal Trade Commission Act;

2. "False advertisement" means false advertisement as defined in the Federal Trade Commission Act;

3. "Dark-Eyes" means the product "Dark-Eyes Lash and Brow Tint" in each formulation in which it is packaged and sold to the public. Complaint S5 F.

4. "Product package" means the package in which "Dark-Eyes Lash and Brow Tint" is contained and sold.

PAR. 2. Respondent C. B. Products, Inc.; is a corporation, organized existing, and doing business under and by virtue of the laws of the State of Delaware, with its office and principal place of business located at 7115 Ridge Blvd., Chicago, Il Respondent Charlotte E. Barth is an officer of C.E.B. Products, Inc. She formulates, directs, and controls the acts and practices of the corporate respondent C.E.E. Products, Inc., including the acts and practices hereinafter set forth. Her address is the same as that of E. Products, Inc.

Respondent Herman Goldenberg is an officer of C.E.E. Products Inc. He participates in the formulation, direction, and control of the acts and practices of thc corporate respondent C.E.E. Products, Inc. including the acts and practices hereinafter set forth. His address is the same as that of C. E. Products, Inc.

PAR. 3. Respondent C.E.E. Products, Inc., is now, and for all times relevant to this complaint has been, engaged in the manufacturing, advertising, offering for sale, sale, and distribution of a liquid eyelash and eyebrow darkener designated as IIDark-Eyes Lash and Brow Tint. Said product is a I'cosmetic " as that term is defined in Section 15 of the Federal Trade Commission Act.

PAR. 4. In the course and conduct of its aforesaid business respondent C. B. Products, Inc., causes uDark-Eyes" contained in its product package to be transported from its place of business to purchasers thereof located in various other States of the United States and in the District of Columbia. Respondent C.E.E. Products, Inc. maintains and at all times mentioned herein has maintained, a substantial course of trade in said product in commerce. The volume of business in commerce has been and is substantial. PAR. 5. In the course and conduct of their aforesaid business respondents have disseminated, or have caused to be disseminated, in commerce, advertisements for the purpose of inducing, or which are likely to induce, the purchase of "Dark-Eyes " and have disseminated or have caused to be disseminated advertisements for the purpose of inducing, or which are likely to induce, the purchase, in commerce, of Dark-Eyes.

PAR. 6. Among the advertisements disseminated by means of television, but not all inclusive thereof, are the following: ...

lJ. . nVlJU'--'I.. , In,-,. uUI 565 Corn plaint A. EICOFF & COMPANY adver/i. ing. marl.eting' 520 N. MICHIGAN AVE. . CHICAGO, ILLINOIS 60611 PHONE (312) 944 2300 Open on M LS of two women in bed- When a woman cries... You never really room. Daughter opens box with wedd- know.. ing dress and holds up for mother to see.

Cut to CU of mother crying. She could be happy... orsad. Cut MS of girl, who also starts crying. But t/len, that what malws her a woman cmd that makes her all the more beautiful.

Zoom to eu of girl's face 10 show how Rxcept if those tears make her mascara tears have made mascara run down her run. She can t stop those tear. face.

Cui to MLS as Mother hand. sue to but she should have used the unique girl who dabs away tellrs eye make- up that won t run, smear wash off, or even cry off for wee/?s and wee/zs.

Di. . to cu of Dark Eyes Pkg. chroma- lI' called DARK EYES. DARK EYES keyed over culendar. SUPER: The is not a mascara...lt' s a once-a-month Once- Month Rye Make- Up. eye cosmetic tint that could save you lots of tedious make-up time each week.

Diss. to Mcr; of girl lightly dabbing Here s what you do. First, apply a little vaseline on eye. and above brows. vaseline around your eyes. Diss. to display of pkg. and bottles. Then simply bnl. h your lashes gently Hand enter. and dips bru. h into cap with DARK EYES It 1. filed with liquid.

Cut to ell us girl applie. Dark Eye, and let dry fora few minutes. lashes.

10. Diss. to CU of girl's eyes us she applies 10. Now, brush them again with DARK Dark Eyes II 2... then wipes with cotton EYES # 2 and wipe with a moistt' cotton ball. ball. 'That s all there is to it. Dis. 10 girl applying Dark Eyes to For eyebrows, apply DARK EYES the brows. same way. 12. Diss. to same girl in shower. Zoom into Now, go ahead and .,hower... even go cu of eyes. swimming as oflen as you lihe... DARK EYES world 't wash off.

13. Diss. to eu of same girl using cream on 13. And, don t hesitate 10 cream your face face. DARK EYES won t cream oft. 14. Diss. to same girl in bed, just awaken- 14. Bu best. yet when you use DARK ing. EYlc;S you wake up pretty every single morning.

15. Diss. to CU display of product. 15. This complete DARK EYES kit will SUPER: The Once- Month Eye keep your eyes beautiful month after Make- Up. al. o SUPER: $2. month... and it costs only 00. 16. Diss. to wedding scene in church. eu of So get DARK EYRS loday-- the oncebride and groom. Groom lifts veil month eye make-up that won t run camera zooms to eu of girls face to smear, wash ofr, cream off or even cry show tears on cheek. off. ... ...

568 FEDERAL TltADE COMMISSION DECISIONS Complaint H5 F.

A. EICOFF & COMPANY advertising' marketina' 520 N, MICHIGAN AVE.' CHICAGO. ILLINOIS 60611 PHONE (312) 944 2300 MS of man and woman in romantic It' the moment you ve waited for dinner table setting with candlelight and you wanted to l(Joll your loveliest. JWan hands woman engagement ring. rn ma ntic candlelight dinner and now you re engaged.

Cut to CU of girl's face. She s weeping But just look at you with your mastears of JOY and mascara is streaking. cara running down your face. Cui back to MS as man hand. woman You can stop those happy tears, but his handkerchief and she dab, at her you should have used the amazing eye eyes. make-up that won t run, smear, wash off, or even cry off for weehs and weeks.

Diss to CU of Dark Eye. pkg chroma- It' s called DAHK EYES. DARK l!' YES keyed over calendar page. Super: The is not a ma. care.. s a Once- Month Once-a-month eye malle-up. eye make-up that will save you hours tense malle- up time each week.

Diss to display of pkgand boltles. Hand Just a few minutes ONCl!' A MONTH enters scene and dips brush into cap with DARK EYES and your eyes will filed with liquid. stay beautiful no mattei' what you do. Cut to CU of girl's eyes she applies Here how it worf, s. Simply brush your Dark Eyes to her eyela.hes. lashes gently with DANK EYES tI 1 and let dry fora few minutes.

Di. s 10 CU of girl's eye, as she applies Then bn.j. h Ihem again with nARK Dark Ryes tI 2.. then wipes with cotton EYRS t= and wipe with a moist cotton ball. ball. 1t' s Ihat easy. Girl applies Dark Eyes to hereyebrows. For eyebrows, apply DARK EYl!'S the same way.

lJiss 10 same girl in shower. Zoom Now, go ahead and shower.., ev( 11 go CU of eyes. swimming. . as often as you lilw.. DARK EYES won t wash oft.

10. Di. to CU uf same girl using cream on 10. And don t hesitate to cream your fac;e. face. DARK EYES won t even cream off.

IJiss to same girl in bedjust awakening. But besl yet, with DARK HYRS you can walw up pretty every single morning.

12. Diss to CU display of prodact. Super: 12. This complete DARK EYES hit will The Once- Month eye malle-up, keep your eyes beautiful month after month... and it costs only $2. 00.

13. KCU of beautifully made-up eyes. One 13. So get carefree DARK EYES clear lear forms and Irichlf down today-- Ihe once- Inon th eye makecheek. that won t run, smear, wa. h off, cream off or even cry off.

, 565 Complaint PAR. 7. Among the statements and representations made on the product package are the following:

Package Front: "Darkens lashes and brows with a tender tint* * * Package Back: "Stars and models recommcnd 'Dark-Eyes' tender tint* * * PAR. 8. Respondents market and advertise "Dark-Eyes" without disclosing in advertising or on thc product package that application of the product can cause severe pain and irritation to the eye for a substantial period of time. This fact is a material fact, which if known to certain consumers would be likely to affect their decisions whether or not to purchase such product.

PAR. 9. Therefore, due to the failure to disclose the aforesaid material fact, all advertisements for "Dark-Eyes" which fail to disclose said fact (including those set forth in Paragraph Six) and aU product packages which fail to disclose said fact constitute false advertisements and/or unfair or deceptive acts or practices in commerce. PAR. 10. Through the use of the statements and representations set forth in Paragraph Seven, respondents have represented that "Dark- E yes" is a "tender tint."

PAR. II. In truth and in fact Dark-Eyes" is not tender. It can cause severe pain and irritation to the eye for a substantial period of time requiring medical attention in some cases.

PAR. 12. Therefore, the statements and representations set forth in Paragraph Seven are misleading in a material respect, and constitute false advertisements and/or unfair or deceptive acts or practices in commerce.

PAR. lB. In the course and conduct of their aforesaid business respondents have disseminated, and have authorized others to disseminate, through the United States mails and in commerce, the following statement or statements similar thereto in response to inquiries about the safety of "Dark-Eyes One of the basic ingredients in "Dark-Eyes" is Silver Nitrate. It is common knowledge that the law in our 50 states require hospitals to use between 1 percent and 2 percent Silver Nitrate in every newborn baby s eyes to prevent infection and blindness. We use 1 percent Silver Nitrate in "Dark-Eyes." However, we do not use "Dark-Eyes " in the eyes-only used for on the eyelashes and eyebrows. PAR. 14. Through use of the statement set forth in Paragraph Thirteen or other statements similar thereto, respondents have represented, directly or by implication:

a. That no formulation for "Dark-Eyes" then marketed contained in excess of 1 percent silver nitrate.

b. That no formulation for "Dark-Eyes" then marketed contained other ingredients which substantially contribute to the capacity of Dark Eyes" to cause severe pain and irritation. 7!!9 0 - 7U - 37 570 FEDERAL TRADB COMMISSION DBCISIQNS Complaint 85 F.

c. That each formulation for "Dark-Eyes" then marketed does not cause severe pain and irritation because it contains no more than 1 percent silver nitrate.

PAR. 15. In truth and in fact, at the times the aforementioned statements were disseminated:

a. Each formulation of "Dark-Eyes" then marketed contained a concentration of silver nitrate in excess of 1 percent. b. Each formulation for "Dark-Eyes" then marketed also contained substantial amounts of silver sulfate which acts similarly to silver nitrate in the "Dark-Eyes" formulae and which substantially contributes to the capacity of "Dark-Eyes" to cause severe pain and irritation. c. Each formulation for "Dark-Eyes" can cause severe pain and irritation to the eye for a substantial period of time because it contains silver nitrate and silver sulfate, which produce an amount of silver ions in excess of the equivalent of a solution containing 2 percent silver nitrate.

PAR. 16. Therefore, the statements and representations set forth in Paragraph Thirteen were and are misleading in a material respect and constitute unfair or deceptive acts or practices in commerce. PAR. 17. Through use of the advertisements set forth in Paragraph Six, and other advertisements not specifically set forth herein respondents have represented directly or by implication that the application process depicted and described in the aforementioned advertisements is the complete process for the application of "Dark- Eyes.

PAR. 18. In truth and in fact the application process depicted and described in the advertisements set forth in Paragraph Six and in other advertisements not specifically set forth herein is not the complete process for application of "Dark-Eyes." The instructions for application contained inside the product package include additional procedures including covering all working surfaces with newspapers to protect against spills and stains, and application of Vaseline ,Petroleum Jelly to all areas of the skin around the eyes other than the eyelashes and eyebrows to prevent the unwanted staining of those areas. Said additional procedures are precautions required for prevention of unwanted results.

PAR. 19. Therefore, the statements and representations set forth in Paragraph Seventeen are false and misleading in a material respect and constitute false advertisements and unfair or deceptive acts or practices in commerce.

PAR. 20. By use of the advertisements set forth in Paragraph Six, and other advertisements not specifically set forth, respondents have presented demonstrations of the process of application of "Dark-Eyes. 565 Complaint For the reasons set forth in Paragraph Eighteen, said demonstrations substantially vary from and disregard the precautions set forth in the instructions for application of "Dark-Eyes" which are contained within the product package.

PAR. 21. Therefore, the advertisements set forth in Paragraph Six and other advertisements not specifically set forth herein, negate the importance of closely following said instructions for application of Dark-Eyes" and detract from the effectiveness of said precautions and constitute false advertisements and unfair or deceptive acts or practices in commerce.

PAR. 22. Respondents enclose instructions for application of "Dark- Eyes" within the product package. Said instructions state: "If fingers should become stained, moisten cotton with household bleach to remove." The said instructions do not warn against the use of household bleach to remove stains on the skin in the area around the eyes.

PAR. 23. The aforementioned instructions have the tendency or capacity to lead consumers to believe that unwanted stains should be removed from the area around the eyes by the use of household bleach. PAIL 24. In truth and in fact, household bleach should not be used to remove stains from the area around the eyes. If consumers cleanse the area around their eyes with household bleach, there is a risk that household bleach may come in contact with the surface of the eye or surrounding eye tissue. Household bleach can cause severe and extensive pain and irritation to the eye if it comes into contact with the eye.

PAR. 25. Therefore, the failure of the aforementioned instructions to warn consumers that household blcach should not be used in the area around the eye constitutes an unfair or deceptive act or practice in commerce.

PAR. 26. In the course and conduct of its aforesaid business, and at all times mentioned herein respondents have been, and now are, in substantial competition in commerce, with other corporations engaged in the manufacture and sale of cosmetic products. PAR. 27. The aforesaid acts and practices of respondents, as herein alleged, including the dissemination of false advertisements, as aforesaid, were and are all to the prejudice and injury of the public and of respondents' competitors, and constituted and now constitute unfair methods of competition in commerce and unfair or deceptive acts or practices in commerce, in violation of Sections 12 and/or 5 of the Federal Trade Commission Act.

Decision and Order R5 F.

DECISION AND ORDlm The Federal Trade Commission having initiated an investigation of certain acts and practices of the respondents named in the caption hereof, and the respondents having been furnished thereafter with a copy of a draft of complaint which the Bureau of Consumer Protection proposed to present to the Commission for its consideration and which if issued by the Commission, would charge respondents with violation of the Federal Trade Commission Act; and The respondents and counsel for the Commission having thereafter executed an agreement containing a consent order, an admission by the respondents of all the jurisdictional facts set forth in the aforesaid draft of complaint, a statement that the signing of said agreement is for settlement purposes only and does not constitute an admission by respondents that the law has been violated as alleged in such complaint and waivers and other provisions as required by the Commission rules; and The Commission having thereafter considered the matter and having determined that it had reason to believe that the respondents have violated the said Act, and that complaint should issue stating its charges in that respect, and having thereupon accepted the executed consent agreement and placed such agreement on the public record for a period of sixty (60) days, and having duly considered the comment filed thereafter pursuant to Section 2.34(b) of its rules, now in further conformity with the procedure prescribed in Section 2.34(b) of its Rules, the Commission hereby issues its complaint, makes the following jurisdictional findings, and enters the following order: 1. Respondent C. B. Products, Inc. is a corporation, organized existing, and doing business under and by virtue of the laws of the State of Delaware, with its office and principal place of business located at 7115 Ridge Blvd., Chicago, Il Respondent Charlotte E. Barth is an officer of C.KE. Products, Inc. She formulates, directs, and controls the acts and practices of the corporate respondent C. B. Products, Inc., including the acts and practices hereinafter set forth. Her address is the same as that of E. Products, Inc.

Respondent Herman Goldenberg is an officer of C.KB. Products Inc. He participates in the formulation, direction, and control of the acts and practices of the corporate respondent C. E. Products, Inc. including the acts and practices hereinafter set forth. His address is the same as that of C.E.B. Products, Inc.

2. The Federal Trade Commission has jurisdiction of the subject 565 Decision and Order matter of this proceeding and of the respondents, and the proceeding is in the public interest.

ORDER It is ordered That respondents C. B. Products, Inc., a corporation its successors and assigns, and Charlotte E. Barth and Herman Goldenberg, individually and as officers of said corporation, and said respondents' officers, agents, representatives, and employees, directly or through any corporation, subsidiary, division, or other device, in connection with the advertising, sale, offering for sale, or distribution of Dark-Eyes Lash and Brow Tint, or any other cosmetic product for use on the eyebrows, eyelashes, or otherwise in the area around the eyes, containing the same or substantially the same ingredients including, but not limited to, silver nitrate, silver sulfate, or any other ingredients which produce silver ions when dissolved, forthwith cease and desist from directly or indirectly:

A- Disseminating, or causing to be disseminated, by means of the " isUnited States mails or by any means in commerce, as "commerce defined in the Federal Trade Commission Act, any advertisement, or any statement made on the package in which such product is contained and sold (hereinafter referred to as the "product package ), which represents, directly or by implication, that such product is harmless safe for use, noninjurious, nonirritating, tender, or gentle. B. 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 Commission Act, any advertisement or any product package which fails to contain, clearly and conspicuously, the following specific disclosure:

WARNING: Dark-Eyes" Lor such other name for such product) can cause severe pain to the eye for a substantial period of time. Provided however That Paragraph I(B) herein shall not apply to any such product for which a petition for listing as a "color additive" under Section 706 of the Food, Drug and Cosmetic Act, as amended, and regulations thereto, has been approved by the Secretary of the Department of Health, Education and Welfare where: (1) respondents promptly notify the Commission that such a petition for listing has been fied with the Secretary of the Department of Health, Education and Welfare and make available to the Commission a copy of such petition and supporting documents; (2) respondents promptly notify the Commission when the Secretary Decision and Order H5 F.

has (pursuant to Section 701(e)(1) of the Food, Drug and Cosmetic Act as amended) published his order acting on such petition; and (3) respondents prompUy notify the Commission of the effective date of such order;

Provided, further, however That notwithstanding the foregoing proviso, the Commission may determine, upon its own initiative, that the above required disclosure, or some other disclosure of material fact(s) is required in the public interest. C. Disseminating or causing to be disseminated, by means of the " isUnited States mails or by any means in commerce, as "commerce defined in the Federal Trade Commission Act, any statement or representation, including, but not limited to, statements pr representations in ad vertising or contained on or within the product package which directly or by implication recommends or suggests for removing stains caused by such product from any part of the human body: 1. The use of chlorine bleach, or any substance of like composition unless accompanied by a clear and conspicuous statement that said substance is hazardous to the eye and must not be ured to remove stains from the face, eyelashes, or eyebrows. 2. The use of any substance which can cause pain or injury to any part of the human body; Prol)ided, however If such substance does not cause pain or injury when used on certain parts of the human body, then its use may be recommended or suggested on those particular parts if such recommendation or suggestion iR accompanied by a clear and conspicuous statement that such substance is hazardous and must note.be Disseminating,used on any otherorpartcausingof theto body.be disseminated, by means of the " isUnited States mails or by any means in commerce, as "commerce defined in the Federal Trade Commission Aet, any statement or representation, including but not limited to statements or representations in advertising or contained on or within the product package which, directly or by implication, contradicts, negates, or is inconsistent with the disclosures required by Paragraph I(B) or I(C) above, or in any way obscures the meaning of such disclosure. by any means, any E. Disseminating, or causing to be disseminated, advertisement or any product package, for the purpose of inducing which is likely to induce, directly or indirectly, the purchase of such product in commerce, as "commerce" is defined in the Federal Trade Commission Act, which fails to contain the specific disclosure required by Paragraph I(B), above, or, when appropriate, the disclosures required by Paragraph I(C), above, or which contains any representation prohibited by Paragraphs I(A), I(C), or I(D), above. 565 Decision and Order It is ordered That respondents C.E.E. Products, Inc., a corporation its successors and assigns, and Charlotte Barth and Herman Goldenberg, individually and as officers of said corporation, and said respondents' officers, agents, representatives, and employees, directly or through any corporation, subsidiary, division, or other device, in connection with the advertising, sale, offering for sale, or distribution of any cosmetic, drug, or device, as those terms are defined by the Federal Trade Commission Act, forthwith cease and desist from directlyA. Disseminating,or indirectly: 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 Commission Act, any advertisement or any statement made on the product package which affrJTatively represents, directly or by implication, that the use of such product is safe, noninjurious, harmless, tender, or gentle, or that such product wil not cause pain or irritation or other side effects, unless prior to the time such statement or representation is made, it has been demonstrated that such is the case by competent and reliable scientific tests; Provided, however That it shall not be a violation of this provision to make such claims when qualified by setting forth, in immediate conjunction and equal conspicuousness, all of the circumstances under which, or the type of persons to whom, such claims are inapplicable, if such is the case.

B. 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 Commission Act (1) any advertisement or any statement or representation contained on or within the product package for such product which directly or by implication misrepresents the presence or quantity of any ingredient in such product;

(2) any statement or representation other than statements or representations made in advertising or contained on or within the product package for such product which purports to give the qualitative or quantitative formula for such product, or any portion thereof, or to describe the composition of such product, and which does not actually give the complete qualiative or quantitative formula. C. Disseminating, or causing to be disseminated by means of the isUnited States mails or by any means in commerce, as "commerce" defined in the Federal Trade Commission Act, any advertisement or any product package which relates or depicts any portion of the application process or method of use of such product without relating Uecision and Order 85 F.

or depicting, in conjunction therewith and equally conspicuously, each Type A" precaution which is set forth in the directions for use of such product (as those terms are defined in Part IV of this order); Provided however That it shall not be a violation of this provision to present no more than a single stil depiction of an action in the application process or method of use of such product, so long as (a) nothing in said still depiction in any way negates, is inconsistent with, or detracts from the effectiveness of any of the "Type A" or "Type B" precautions set forth and (b) there is noin the directions for use of such product, representation, directly or by implication, that the entire application process or method of use of such product has been depicted. by means of the D. Disseminating, or causing to be disseminated, isUnited States mails or by any means in commerce, as " commerce" defined in the Federal Trade Commission Act, any statement or representation, including but not limited to statements or representa tions in advertising or contained on or within the product package which directly or by implication contradicts, negates, or is inconsistent with the disclosures required by Paragraph Il(A), II(B)(2) or Il(C), above, or in any way obscures the meaning of such disclosure. by any means, any E. Disseminating, or causing to be disseminated, advertisement or any product package, for the purpose of inducing or which is likely to induce, directly or indirectly, the purchase of such product in commerce, as "commerce" is defined in the Federal Trade , theCommission Act, which fails to contain, when appropriate disclosures required by Paragraph Il(A), Il(B)(2) or Il(C), above, or which contains any representation prohibited by Paragraph Il(A), Il(B)(l), II(C) or Ild), above.

It is further ordered That Paragraphs I(A), Il(A), and Il(B) of this order also apply to all oral or written statements or representations whether or not such statements or representations are made in advertising, on or in a product package, or elsewhere, when made or following authorized by the aforesaid respondents, to any of the individuals, partnerships or corporations, whether or not doing business with respondents:

a- advertising agencies;

b. radio and television stations and print media; c. representatives of Better Business Bureaus, the National Association of Broadcasters, the National Advertising Review Board or other similar nongovernmental regulatory bodies; except in d. purchasers, distributors, wholesalers, and retailers, 565 Decision and Order connection with routine indemnifications or warranties specifically requested by the aforesaid;

e. members of the public, including correspondence with ultimate purchasers after purchase of such product.

For the purposes of Parts II and IV of this order, the following definitions apply:

1. "Directions for use" means the directions or instructions for the application, use, or storage of a product or its packaging which are contained in the "labeling" (as defined in Section 20l(m) of the Food Drug and Cosmetic Act, as amended) of such product. 2. "Type A precaution" means an affirmative action relating to application or use (but not storage) of a product, prescribed by the directions for use of the product (whether stated affirmafively or negatively) for the purpose of avoiding or reducing a risk to person or property, and applicable to all or substantially all users of the product. By way of ilustration and not limitation, the following are examples of Type A" precautions: "Apply petroleum jelly to skin before use. not use until petroleum jelly is applied to skin. Shake well before using" (if this is prescribed for the purpose of avoiding or reducing a risk to person or property).

3. "Type R precaution" means all actions, except "Type A" precautions, proscribed or prescribed by the directions for use of a product for the purpose of avoiding or reducing a risk to person or property, including but not limited to the following categories of actions: (By way of ilustration and not limitation, examples of "Type B" precautions are given after each category. (a) Actions relating to storage of a product. ("Refrigerate after opening. Store in a cool dry place." HKeep out of reach of children. (b) Actions prescribed or proscribed for fewer than all or substantially all users of a product. ("If you have sensitive skin, wear gloves. not use if you have kidney disease.

(c) Actions to remedy problems which may arise in less than every instance of application or use. ("If product gets into eye, rinse out with water. If a rash develops, see a doctor. If product drips onto painted surface, wash off immediately.

(d) Actions proscribed, whether stated affirmatively or negatively, in the directions for use. ("Do not use near open flame. D se only in well ventilated areas. For external use only. Do not puncture or incinerate container.

It is ordered That respondents C. B. Products, Inc., a corporation its successors and assigns, and Charlotte E. Barth and Herman Decision and Order HS F :r. Goldenberg, individually and as officers of said corporation, and said respondents' officers, agents, representatives, and employees, directly inor through any corporation, subsidiary, division or other device, connection with the advertising, sale, offering for sale or distribution of any product, forthwith cease and desist from directly or indirectly: A. Disseminating, or causing to be disseminated by means of the isUnited States mails or by any means in commerce, as "commerce" defined in the Federal Trade Commission Act, any advertisement or any product package which relates or depiets the application process or method of use of such product which, in any way negates, is inconsistent with or detracts from the effectiveness of any of the "Type A" or "Type B" precautions set forth in the directions for use of such product.

by any means, any B. Disseminating, or causing to be disseminated, advertisement or any statement made on the product package, for the purpose of inducing or which is likely to induce, directly or indirectly, the purchase of such product in commerce, as "commerce" is defined in the Federal Trade Commission Act, which contains any representation prohibited by Paragraph IV(A), above.

It is further ordered That respondent C.E.E. Products, Inc., a corporation, its successors and assigns, and said respondent's officers agents, representatives, and employees (but not Charlotte E. Barth or Herman Goldenberg in their individual capacities, nor A. Eicoff & Co., a corporation) directly or through any corporation, subsidiary, division, or other device, within ao days from the entry of this order: A. Correct (1) each and every previously disseminated point-ofpurchase advertisement and cooperative print advertising copy for Dark-Eyes Lash and Brow Tint in the possession of any wholesaler distributor or retail store (hereinafter referred to as "retailer ) at the time of the entry of this order, and (2) each and every product package distributed by for said product which has been sold or otherwise respondent or its agents, distributors, wholesalers or chain headquarters, to wholesalers, distributors and retailers, which has not been sold to the ultimate consumer at the time of entry of this order, which contains the' statements or representations prohibited in Paragraph I(A) of this order or which fails to contain the specific disclosure required in Paragraph 1(B) of this order. The provisions of this Paragraph shall be fulfilled as follows:

i. With respect to cooperative print advertising copy, respondent shall (a) recall and retrieve such copy, or (b) instruct directly (or in the case of chain retailers, throug-h chain headquarters) each and every 565 Decision and Order such wholesaler, distributor or retailer to destroy such copy, and obtain from each such wholesaler, distributor and retailer a signed statement acknowledging the fact of said destruction. ii. With respect to point-of-purchase advertising and product packages, respondent shall:

(a) Recall and retrieve said packages and advertising; or (b) Distribute directly (or in the case of chain retailers, through chain headquarters) to each and every such wholesaler, distributor and retailer corrected product packages and advertising, instruct them that the packages and advertising which fail to comply with Paragraphs from each suchI(A) or (B) of this order are to be destroyed, and obtain wholesaler, distributor and retailer, a signed statement acknowledging the fact of said destruction; or (c) Distribute directly (or in the case of chain retailers, through chain headquarters) to each and every such wholesaler, distributor and retailer gummed strips to be placed on advertising and product packages, to obscure any representations prohibited by Paragraph lea) of this order, and to include the disclosure required by Paragraph I(B) of this order, and obtain from each such wholesaler, distributor and retailer a signed statemcnt acknowledging the fact of the placement of said gummed strips; or (d) Distribute directly (or in the case of chain retailers, through chain headquarters) to each and every retailer to which respondent or its agents, distributors, wholesalers, or chain headquarters, sold or otherwise distributed Dark-Eyes Lash and Brow Tint, the point-ofpurchase display attached hereto as Appendix A, (printed on any pastel colored paper), instruct each and every such retailer that such display is required to be prominently displayed adjacent to the packages of the product offered for sale by such retailer for such period of time as any package of Dark-Eyes Lash and Brow Tint which does not contain such disclosure required by Paragraph I(B) of this order is offered for sale or is on display in the store of such retailer, and obtain from each such retailer a signed statement acknowledging that such display has been placed as hereinbefore described;

Provided, however That if respondent is unable to secure from any such wholesaler, distributor or retailer such a signed statement, it shall forthwith provide to the Commission an affidavit setting forth (a) the name of such wholesaler, distributor or retailer, (b) a description of respondent' s attempts to secure such a signed statement and (c) the reasons for respondent's inability to secure such a signed statement; Provided further, however That. if respondent is unaware of the identity of any such retailer, it shall forthwith provide to the Commission an affidavit setting forth (a) a description of respondent' Decision and Order 85 F.

attempts to ascertain the identity of such retailer, and (b) the reasons for respondent' s inabilty to ascertain the identity of such retailer. B. Mail to each and every individual, partnership, corporation, or other entity to which said respondent or any of its offcers, employees or agents, including but not limited to A. Eicoff & Co., has, since Jan. I 1972, represented by letter that Dark-Eyes Lash and Brow Tint contains 1 percent silver nitrate, or has otherwise inaccurately or incompletely stated the formulation for Dark-Eyes Lash and Brow Tint, a letter correctly stating the complete formulation for each color of said product and include in said letter, a statement that the Federal Trade Commission had determined that Dark-Eyes Lash and Brow Tint can cause severe pain and irritation for a substantial period of time to the eyes of users of Dark-Eyes Lash and Brow Tint. It is further ordered That notwithstanding the foregoing, Parts II III, and IV, hereof shall not apply to the individual respondents Charlotte E. Barth and Herman Goldenberg, as an individual or as an agent of any corporation other than respondent C.E.E. Products, Inc. its successors or assigns, in her or his capacity as sales representative jobber or in other similar capacities in which she or he sells, distributes or disseminates packages or advertising, the claims or representations over which she or he has no control; Provided, however That this exemption shall not apply to oral or written statements or representations originated by said individual respondents or those which she or he knew, at the time made to be false.

It is further ordered That, notwithstanding the foregoing, Parts 1, II I II, IV, and V, hereof, shall not apply to statements or representations including but not limited to, statements or representations made in advertising or contained on or within the product package, which are or were disseminated or caused to be disseminated solely outside of the United States or its territories; Provided, however That all "labeling (as that term is defined in Section 20l(m) of the Food, Drug and Cosmetic Act) shall comply with Section 801(d) of the Food, Drug and Cosmetic Act, as amended, and regulations thereto. VII It is further ordered That the corporate respondent shall forthwith distribute a copy of this order to each of its operating divisions. It is further ordered That the corporate respondent notify the Commission at least thirty (30) days prior to any proposed change such as dissolution, assignment or sale resulting in the emergence of a fi65 Dccision and Order successor corporation, the creation or dissolution of subsidiaries or any other change in the corporation which may affect compliance obligations arising out of the order.

It is further ordered That each respective individual respondent named herein promptly notify the Commission of the discontinuance of his or her present business or employment and/or his or her affiliation with a new business or employment in which he or she is involved in a management, policymaking or ownership capacity. Such notice shall include his or her current business address and a statement as to the nature of the business or employment in which he or she is engaged, as well as a description of his or her duties and responsibilties. It is further ordered That the respondents herein shall, within sixty (60) days after service upon them of this order, file with the Commission a report in writing setting forth in detail the manner and form in which they have complied with this order. :: ;: . . ;: .. 5H2 FJoDERAL TRADE COMMISSION DECISIONS Decision and Order 85 FTC. .. 0en ..

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583 Complaint