DKG Advertising, Inc

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IN THE MATTER OF DKG ADVERTISING, INC.

CONSENT ORDER, ETC., IN REGARD TO ALLEGED VIOLATION OF SECS. 5 AND 12 OF THE FEDERAL TRADE COMMISSION ACT Docket C-3069. Complaint. July 17, 1981-Decision, July 17. 1981 This consent order requires, among other things, a New York City advertising agency to cease disseminating advertisements which misrepresent that the Black Man s Shaver or any other device or commercial treatment will cure or minimize "razor bumps." Further, respondent is barted from making statements which are inconsistent with accepted medical opinion or which misrepresent the effcacy, performance or superiority of any drug or device. The order also requires the company to maintain specific records for a period of 3 years and provide its operating divisions with a copy of the order. Appearances For the Commission: Mark A. Heller and Teresa A. Hennessy. For the respondent: Steven Winston, Kantor, Davidoff, Winston & Ferber, P. C, New York City.

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 DKG Advertising, Inc., (hereinafter "DKG"), hereinafter at times referred to as respondent, has violated the provisions of the 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. "DKG" is a corporation organized, existing, and doing business under and by virtue of the laws of the State of New York with its offce and principal place of business located at 1271 Avenue of the Americas, New York, New York. PAR. 2. Respondent is now and for all times relevant to this complaint has been an advertising agency of Sperry-Rand Corporation (hereinafter "Sperry ), for its division Sperry-Remington (hereinafter "Remington ), and for all times relevant to this complaint has prepared and placed for publication, advertising material, including but not limited to the advertising referred to herein, to promote the sale for human use of the product Remington s Black Man s Shaver, a product advertised for treating the shaving prob- Complaint 98 F.

lems of Black men, to wit pseudofollculitis barbae (hereinafter razor bumps ), a disease primarily induced by shaving. As advertised, this product is a "device" within the meaning of Section 12 of the Federal Trade Commission Act.

PAR. 3. In the course and conduct of its said business, the respondent has disseminated and caused the dissemination of certain advertisements concerning the Black Man s Shaver through the U ni ted States mail and by various means in or affecting commerce, as "commerce" is defined in the Federal Trade Commission Act, including but not limited to, the insertion of advertisements in magazines with national circulations and the placement of advertisements with radio and television stations with suffcient power to broadcast across state lines and into the District of Columbia for the purpose of inducing and which were likely to induce, directly or indirectly, the purchase of the Black Man Shaver; and has disseminated and caused the dissemination of advertisements concerning the said product by various means including but not limited to the aforesaid media, for the purpose of inducing and which are likely to induce, directly or indirectly, the purchase of said product in commerce.

PAR. 4. Typical of the statements and representations in said advertisements, disseminated as previously described, but not necessarily inclusive thereof, are the following: :; , ,.,, DKG ADVERTISING, ING Complaint Ab11/16/71t'JlUIJU!.J:O DKG_",, ru:: n::-GTO Oecember 7, 197 I CL,wr!lev. U .D/ RH- 34BSII COOEI RJA- 17- 'OD,"o; "'Irm Shavi"q !'ro:oblcms . Rev. :60 R dio tcr..srcof' SFX ONDER; IIU ;.'tINC OF AN ELECTRIC SHIWER. BLACK ro\!:

I used to h;ave a shaving probler Ingrown hairs that caused ugly .a:tar bumps. Yeah, you know what that' s like. then, Remington came up with the ans er. The Slack !an ' s She The Black j;:m s Shaver cuts off my tough, curly whisk..::" to help prevent them from growing back into my skin and becoming those ugly bumps. I didn t believe it at first. But those guy.' at Remi,,gton ":r.. smart duces. They re so ure the Black !Ian s Shaver .,ill help reduce razo. bumps. that they ' 11 g you your money ba k if you re not completely satisfied, Ian . that' "guarantee! So thanks to Remi"gton, I said, " Sa long messy depilatories... farewell-beard... and bye, bye bumps. -terry I,m.-...n said, " rlo, sexy.

:7he- iJ:ack Man s 5hav"r by Remingtol".. 1::' 5 the ".,,"wer to iI black man s teugti''-;;having preblen.s.

:'the 1".11" Slack :3n ' ;; Si,aver is av"il::bl"" for the fi,,s,: ti at: 5';0 RJ: ':!2S. Sati rac t cn gu nte,.d . 0 r "-,, sh3 er anc s l,.s slip to Rerri T:,; cn ""1 thi;1 , 30 c.::s for a \.ll rc f""cO, . ,. , \ ,.:,, Complaint 98 F.

DKG,, IENT !HNG'ION o....mber 9, 1977 -Y.=nA.COOE' RN-)9-77- Black Man Shaver r1T. E""1.Q!.;.' L('T .L".A DIPSrCOP"

BLJ'.CK ANI'OUNCER:

If you re black like I am, shavin9 may cause problem Ou k cw, those ugly razor bumps. \"ou can camouflage the;" w;th a b.."rd. Or mess with depilatories. But there s never: been a real selution. Until new. Because now. Remington has created a revol\ltionary !'e" shdlving system called Th.. Slack Man s Shaver. It comes with a unique Beard Lift!!!: comb "..hieh. helps di51od9" ingrol'" hairs befe"" you shave. Th"n the shaver s specially e"gin...."", ! h.."d,blunt cuts ::our whiskers at skin level to help pre'lent them from growing back in to your skin. The Black Ian ' s. Shaver ",marks sO well, Reminqtan quarantees. it will hel? prevent razor bumps ar they give you your money back. M-'", The Black Min s Shave:r by Re"'ington. It' sthefirst ans""E:rtoa black man s shaving problem.

LI'JE: . :-NCRene"" Black 1an ' s Shaver is available for the first ti...eat: Store 11"","5.

$atis.!action 'i",,,ra"teed 0'" re urn sh,:ver and sales 51-'" to Remington ..ithi:: )0 dilYs for a :ull re:und. ,0"' : :'v :J:I,' ,1 ' I:;;COIc., C"-"' G" "t\'IYOR ..: : ... , .,,_......; ::,: : : . :q! .j .. ,\,. ....;,..;.. y;,.;,,. . ,/./://:,,,.:.......,,,.,.,:.::........_..;::. .; . j; . DKG ADVERTISING, INC.

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PAR. 5. Through the use of said advertisements referred to in Paragraphs Three and Four and others, respondent represented and now represents, directly or by implication that: a. Use of the Black Man s Shaver wil eliminate "razor bumps for persons with that condition.

b. Growing a beard only camouflages "razor bumps" and has no therapeutic value in the treatment of that condition. c. The Black Man s Shaver is the only effective means of treating razor bumps d. Thirty (30) days is an adequate time period for consumers to evaluate the Black Man s Shaver s effcacy and to have a fair opportunity to take advantage of Remington s money back guarantee.

PAR. 6. In truth and in fact:

a. Use of the Black Man s Shaver wil not eliminate "razor bumps" for persons with that condition.

b. Growing a beard is considered by accepted medical opinion the preferred method of treating "razor bumps, and therapeutic beards are prescribed often for the treatment of that condition. c. Regardless of whether the Black Man s Shaver is effective for the treatment of "razor bumps, there are other methods of treating that condition which are effective.

d. Thirty (30) days is an inadequate time period for many consumers to evaluate, the efficacy of the Black Man s Shaver, and many consumers are without a fair opportunity to take advantage of Remington s money back guarantee.

Therefore, the advertisements referred to in Paragraphs Three and Four were and are misleading in material respects, and constituted, and now constitute, false advertisements, and the representations set forth in Paragraph Five were and are false deceptive, or unfair.

PAR. 7. Through the use of the said advertisements referred to in Paragraphs Three and Four and others, respondent represented, and now represents, directly or by implication, that the Black Man Shaver is effective in the treatment of "razor bumps. PAR. 8. There existed at the time of the first dissemination of the representation contained in Paragraph Seven no reasonable basis for the making of that representation. Therefore, the making and dissemination of the said representation as alleged, constituted, and now constitutes, unfair or deceptive acts or practices in commerce. U.tli AUV.KltTltiINU, INC.

Decision and Order PAR. 9. In the course and conduct of its aforesaid business, and at all times mentioned herein, respondent has been and now is in substantial competition in or affecting commerce with other advertising agencies.

PAR. 10. The use by respondent of the aforesaid unfair or deceptive representations and the dissemination of the aforesaid false advertisements has had, and now has, the capacity and tendency to mislead members of the consuming public into the erroneous and mistaken belief that said representations were and are true.

PAR. 11. The aforesaid acts and practices of respondent, as herein alleged, including the dissemination of the aforesaid false advertisements, were and are all to the prejudice and injury of the public and respondent' s competitors, and constituted, and now constitute unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, in violation of Sections 5 and 12 of the Federal Trade Commission Act. DECISION AND ORDER The Federal Trade Commission having initiated an investigation of certain acts and practices of the respondent named in the caption hereof, and the respondent having been furnished thereafter with a copy of a draft of complaint which the bureau proposed to present to the Commission for its consideration and which, if issued by the Commission, would charge respondent with violations of the Federal Trade Commission Act; and The respondent and counsel for the Commission having thereafter executed an agreement containing a consent order, an admission by the respondent of all the jurisdictional facts set forth in the aforesaid draft of complaint, a statement that the signing of such agreement is for settlement purposes only and does not constitute an admission by respondent that the law has been violated as alleged in such complaint, and waivers and other provisions as required by the Commission s Rule; and The Commission having thereafter considered the matter and having determined that it had reason to believe that the respondent has 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, now in further conformity with the procedure prescribed in Section 2. 34 of its Rules, the Commission Decision and Order 98 FT. hereby issues its complaint, makes the following jurisdictional findings, and enters the following order: 1. Respondent DKG Advertising, Inc., is a corporation organized existing and doing business under and by virtue of the laws of the State of New York, with its offce and principal place of business located at 1271 Avenue of the Americas, in the City of New York State of New York.

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

ORDER It is ordered, That respondent DKG Advertising, Inc., a corporation, and its offcers, agents, representatives, and employees, directly or through any corporation, subsidiary, division or other device, in connection with the advertising of all devices as defined by Section 15 of the Federal Trade Commission Act, do forthwith cease and desist from:

A. Disseminating or causing the dissemination of any advertisement by means of the United States mail or by any means in or affecting commerce, as "commerce" is defined in the Federal Trade Commission Act, which directly or indirectly: 1. Represents that the use of the Black Man s Shaver, with or without the Beard Lifter Comb, or any other device or commercial treatment will elminate pseudofollculitis barbae (hereinafter "razor bumps ) for persons with that condition provided however that the respondent shall have an affirmative defense to this provision if it can prove that the statements prohibited herein are in fact true. 2. Represents that the use of the Black Man s Shaver, with or without the Beard Lifter Comb or any other device or commercial treatment wil cure "razor bumps" for persons with that condition provided however that the respondent shall have an affrmative defense to this provision if it can prove that the statements prohibited herein are in fact true.

3. Represents that growing a beard only camouflages "razor bumps" and has no therapeutic value in the treatment of that condition.

4. Misrepresents the uniqueness of any device intended for human use.

Disseminating or causing the dissemination of any advertise- Ul\U .fVV l1.itl, ll Decision and Order ment by means of the United States mail or by any means in or affecting commerce, as "commerce" is defined in the Federal Trade Commission Act, which directly or indirectly: 1. Represents that use of the Black Man s Shaver or any other product by persons afficted with "razor bumps" wil reduce or minimize that condition;

2. Represents that the Black Man s Shaver or any other product is effcacious for the treatment of "razor bumps 3. Represents that the Black Man s Shaver, with or without the Beard Lifter Comb, or any other device or commercial treatment is superior to other treatments for "razor bumps 4. Represents that any time period is an adequate time period for consumers to evaluate the Black Man s Shaver s effectiveness in the treatment of " razor bumps unless at the time of each dissemination of such representation(s) respondent possesses and relies upon competent and reliable scientific or medical evidence as a reasonable basis for such representation(s). Competent and reliable scientific or medical evidence shall be defined as evidence in the form of at least two well-controlled clinical studies which conform to acceptable designs and protocols and are conducted by different persons, independently of each other. Such persons shall be qualified by training and experience to treat razor bumps" and to conduct the aforementioned studies. C. Disseminating or causing the dissemination of any advertisement by means of the United States mail or by any means in or affecting commerce, as "commerce" is defined in the Federal Trade Commission Act, which directly or indirectly makes representations, for the purpose of promoting the sale of a device, that are inconsistent with accepted medical opinion unless a reasonable basis exists therefor. Accepted medical opinion shall mean the general consensus of opinion of specialists as expressed in the medical literature, or if no such literature exists, the consensus of the specialists themselves.

It is further ordered, That DKG Advertising, Inc. shall forthwith distribute a copy of this order to each of its operating divisions. It is further ordered, That respondent notify the Commission at least thirty (30) days prior to any proposed change in respondent such as dissolution, assignment, or sale resulting in the emergence of a 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 respondent shall, within sixty (60) days Decision and Order 98 F. after this order becomes final, and annually thereafter for three (3) in writing, signed byyears, file with the Commission a report, respondent, setting forth in detail the manner and form of its compliance with this order.

It is further ordered, That respondent shall maintain files and records of all substantiation related to the requirements of Parts B (3) years after theand C of this Order for a period of three dissemination of any advertisement which relates to these portions of the Order. Additionally, such material shall be made available to the Federal Trade Commission or its staff within fifteen (15) days of a demand for such material.

YKK (U. A.) INC.

Complaint