Commerce Drug Company, Inc

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IN THE MATTER OF COMMERCE DRUG COMPANY, INC., ET AL.

CONSENT ORDER, ETC., IN REGARD TO ALLEGED VIOLATION OF SECS. 5 AND 12 OF' THE FEDERAL TRADE COMMISSION ACT Docket C-271./. Complaint, July 197.5-Decisjcyn, July, 1975 Consent order requiring a FarmingdaJe, N. , producer of vitamins and/or mineral products, and its parent corporation, among other things to cease disseminating unsubstantiated advertisements regarding the effcacy, benefit or need to prospective purchasers of the products.

Appearances For the Commission: Barr E. Barnes and Elizabeth A. Taylor. For the respondents: Raymond D. McMurray, Wash., D. COMPLAINT The Federal Trade Commission, having reason to believe that Commerce Drug Company, Inc., Del Laboratories, Inc., and Levine Huntley & Schmidt, Inc., corporations, hereinafter sometimes referred to as respondents, have violated Sections 5 and 12 of the Federal Trade Commission Act, and that a proceeding in respect thereof would be in Complaint 86 F.

the public interest, h,,,eby issues its complaint, stating its charges as follows:

PARAGRAPH 1. Commerce Drug Company, Inc., a subsidiary of Del Laboratories, Inc., is a Delaware corporation with its office and principal place of business located at 565 Broad Hollow Rd., Farmingdale, N.

Del Laboratories, Inc. is a Delaware corporation with its office and principal place of business located at 565 Broad Hollow Rd., Farmingdale, N.Y PAR. 2. Levine, Huntley & Schmidt, Inc. is a New York corporation with its office and principal place of business located at Ten E. 53rd St. New York, N.

PAR. 3. Respondent Commerce Drug Company, Inc. has been engaged in the manufacturing, advertising, offering for sale, sale and distribution pf a certain vitamin product named "Rev-up, Vitamins For Men " a "food" or "drug" or both, as those terms are defined in Section 15 of the Federal Trade Commission Act.

Each Rev-up capsule contains:

Upper Limit SRD.

Vitamin B-1 (Thiamine Mononitratd 10.00 mys. 25 mys, Vitmnin B-2 (RibojIavin) 10.00 rnys. 2.60 1'YIgs. Vilmnin (Phridoxine Hydrochlcn-ide) 25.00 mys. .'J. UO mys. Vitarnin B- 12 (Cobalamin Cone. OU mC lJs. 00 rw:,gs. Niacinaml:de 100.00 .'W. OO mys. my,'.

Calcium Pan/athena/. '20.00 rngs. l!i OO mys. Folic Acid 10 my.'. 40 mg. Vitllnin (Ascorbic Acid) 100. 90.00 my... rngs.

Vifarnin E (di-Alpha Tocopheryl Acetate) I. ll J.5.00 J.U.in a base containing Fructose IOU.OO * United States Re('ommended Daily Allowan('e as established by the United States Food and Drug Administration.

PAR. 4. Respondent Del Laboratories, Inc. has been and is now engaged in the manufacturing of cosmetics, proprietary drugs and sundries. It dominates and controls or knew of and taeiUy approved the acts and practices of Commerce Drug Company, Inc., as set forth herein.

PAR. 5. Respondent Levine, Huntley & Schmidt, Inc. has been and is now an advertising agency for Commerce Drug Company, Ine. and Del Laboratories, Inc. and has prepared and placed for publication, and caused the dissemination of, advertising material, including but not ,. See p_ 4()1; herein forrleci,;inn a to Levine Huntley & S"hmidt l"t., Docket C-271i1 'J99 Complaint limited to the advertising referred to herein, to promote the sale of Rev-up vitamins, a "food" or "drug" or both, as those terms are defined in Section 15 of the Federal Trade Commission Act. PAR. 6. Respondents Commerce Drug Company, Inc. and Del Laboratories, Inc. have caused Rev-up vitamins, when sold, to be shipped and distributed from their place of business in New York to retail stores and other purehasers located in various other States of the United States.

PAR. 7. In the course and conduct of their business, respondents have disseminated or caused to be disseminated certain advertisements concerning Rev-up vitamins (1) by United States mails and by various means in commerce, including, but. not limited to, insertion in newspapers of interstate dissemination and radio broadcasts of interstate transmission, for the purpose of inducing, or which were likely to induce, directly or indirectly, the purchase of Rev-up vitamins or (2) by various means, for the purpose of inducing, or which were likely to induce, the purchase in commerce of Rev-up vitamins. Eacb of said respondents' volume of business in commerce is substantial. PAR. 8. Typical of the statements and representations made in respondents' advertisements, but not all inclusive thereof, are the following:

. (;. p. , ... , , .::q..., ,,,, :::,:... . 402 FEm RAL TRADE COMMISSION DECISIONS 86 F. Complaint nTHIE AVERAGE MAN TAKESIJETTER CARE OF HIS CAR THA HE DOES OF HIS BOD","

ma the Nobody don t feel like a new man, loves ca more remaining Rev-up capsules to us than I do. and we ll fully refund your And noboy purchase price.

feels more Rev-up is sold at strongly that a counters. And girls, for your sae r. fine iece of as well as your husband's, even if buyi I:. machinery he doesn t get around to Rev-up, do it for him. (12scrvcs a lot of pampering. A man has only one boy. But 1 a1sofee!amarowns Li1other machine that's a lot more Unlke a car, he ca t trade it in for a new one. importt: his boy.

And because a man s boy 15 something special, I'mvitams. ecommending Rev.up fhey re formulated speciicaly :01' active men. Takng into consideration the stresses and trains a man must face each day.

Each Rev-up capsule contans seven B.complex -jtaroins, in addition to vitamins C and E. Each capsule contas more Limn a normal dBiy requirementvitas. of every one of these Take Rev-up durg the low energy period, from 3 p.m. to VITAMDNS FOR MEN. m. for 30 days. Then, if you ''''O\' COMMERCE DRUG CO., lng, ET AL. 403 :J99 Complaint PAR. 9. Through the use of such advertisements and others not specifically set out herein, respondents have represented, directly or by implication, that:

A. The stresses and strains a man undergoes create a condition which wi1 be benefited by consumption of a vitamin product like Revup vitamins.

B. Active men need a specially formulated vitamin product like Rev-up vitamins.

C. There is a low-energy period in men from a p.m. to 6 p.m. each day.

D. Rev-up vitamins will make one feel like a "new man. PAR. 10. At the time the representations set forth in Paragraph Nine were made, respondents had no reasonable basis from which to conclude that such representations were true. Therefore the advertisements and representations referred to in Paragraphs Eight and Nine were and are deceptive and unfair. PAR. II. In the course and conduct of their business, and at all times mentioned herein, respondents Commerce Drug Company, Inc. and Del Laboratories, Inc. have been and are now in substantial competition in commerce with corporations, firms and individuals selling and distributing nonprescription vitamin products.

PAR. 12. In the course and conduct of its aforesaid business, and at all times mentioned herein, respondent Levine, Huntley & Schmidt, Inc. has been, and now is, in substantial competition in commerce with other advertising agencies.

PAR. 13. The use by respondents of the aforesaid deceptive and unfair advertisements has had the tendency and capacity to mislead members of the public to rely thereon and to purchase substantial quantities of Rev-up vitamins.

PAR. 14. The aforesaid acts and practices of respondents were and are all to the prejudice and injury of the public and of respondents competitors and constituted and now constitute unfair or deceptive acts or practices in commerce and unfair methods of competition in commerce in violation of Sections 5 and 12 of the Federal Trade Commission Act. fHD 5; Decision and Order) DECISION AND ORDER 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 Seattle Regional Office proposed to present to the Commission for its consideration and which, if issued (:complaint 86 F.T.C. by the Commission, would charge respondents with violation of the Federal Trade Commission Act; and The respondents and counsel for tbe Comwission 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 the 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 days, now in further conformity with tbe 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:

A. Respondent Commerce Drug Company, Inc., a subsidiary of Del Laboratories, Inc., is a Delaware corporation with its offce and principal place of business located at 565 Broad Hollow Rd., Farmingdale, N.

Respondent Del Laboratories, Inc. is a Delaware corporation with its office and principal place of business located at 565 Broad Hollow Rd. Farmingdale, N.

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

ORDER It is ordered That respondents Commerce Drug Company, Inc. and Del Laboratories, Inc., corporations, their successors and assigns, and their officers, agents, representatives and employees, directly or inthrough any corporation, subsidiary, division or other device, connection with the advertising, offering for sale, sale or distribution of the product Rev-up vitamins or any vitamin and/or mineral product of Commerce Drug Company, Inc. or Del Laboratories, Inc. do forthwith cease and desist from:

A. Disseminating or causing to be disseminated any advertisement isby United States mails or by any means in commerce, as "commerce" defined in the Federal Trade Commission Act, which represents in ;399 Complaint writing, orally, visually or in any other manner, directly or by implication, that:

I. The stresses and strains a person undergoes create a condition which wil be benefited by consumption of such product; 2. People need such a specially formulated product; 3. Such product is of special benefit to a person or particular group of persons;

4. There is a daily low-energy period in people at any particular time of day, or words of similar import or meaning; 5. Such product wil make one feel like a new person, or words of similar import or meaning;

U nIess, at the time the statement or representation is made respondents have a reasonable basis for such representations consisting of competent and reliable evidence.

B. Disseminating or causing to be disseminated by any means, for the purpose of inducing, or which is likely to induce, directly or indirectly, the purchase of any such product in commerce, as Ilcommcrce" is defined in the Federal Trade Commission Ad, any advertisement containing any representation referred to in Paragraph A above which is not supported by the aforesaid reasonable basis. It is funher ordered That respondents maintain complete business records relative to the manner and form of their compliance with this order, and shall retain each record for three years after such record is made.

It is funher ordered That the respondents shall forthwith distribute a copy of this order to each of their present and future operating divisions, officers, and directors, and to all present and future agents or representatives engaged in the preparation or placement of advertisements.

It is further ordered That respondents notify the Commission at least thirty (30) days prior to any proposed change in the corporate respondents such as dissolution, assignment or sale resulting in tbe emergence of a successor corporation, the creation or dissolution of subsidiaries, or any other change in tbe corporations which may affect compliance obligations arising out of this order. It is further ordered That respondents 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 compliance with this order.

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Complaint H'; FTC.