Monte Proulx

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IN THE MATTER OF MONTE PROULX CONSENT ORDER, ETC., IN REGARD TO ALLEGED VIOLATION OF SEC. 5 OF THE FEDERAL TRADE COMMISSION ACT Docket C-3124. Complaint, Nov. 3, 1983-Decision, Nov. 3, 1983 This consent order requires Monte Proulx to, among other things, cease disseminating advertisements which represent that the "Extra Margin Emergency Escape Mask" provides protection from carbon monoxide gas; will permit a person to breathe normally, or for an express amount of time; or has been endorsed or approved by any municipal, state or federal agency, unless such claims are true and are sub­ stantiated by competent and reliable scientific evidence. Any representation that an emergency escape mask will protect a person from the hazards associated with fire must be accompanied by the statement, "The mask does not filter carbon monoxide-a lethal gas associated with fire." Additionally, should he continue to market any emergency escape mask in its current packaging, he is required to affix to such packaging a permanent adhesive label advising users ofthe mask's inabili­ ty to filter out lethal carbon monoxide gas. Further, respondent must retain docu­ mentation substantiating or contradicting advertising claims for a period of three years; notify the Commission ofany change in his business status; and provide all present and future sales, advertising and policy-making personnel with a copy of the order and an acknowledgement form. . Appearances For the Commission: Wendy Kloner.

For the respondent: Pro se.

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 t~ believe that Monte Proulx, an individual, hereinafter sometimes referred to as respondent, has vi­ olated the provisions ofsaid 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 :ts follows:

PARAGRAPH 1. Respondent Monte Proulx is an individual; his ad­ tress is 50300 Highway 245, Badger, California. PAR. 2. Respondent is now, arid for sometime past has been, engaged 1 the purchasing, offering for sale, sale and distribution to the public f the ((Extra Margin Emergency Escape Mask", an over-the-head 1723 Complaint mask with a built-in air filter. The mask is manufactured under the name Nakagawa Escape Mask by Nihon Saibohgu Company, Ltd., of Japan.

PAR. 3. In the course and conduct of his said business, respondent is now causing, and for sometime in the past has caused, the Extra Margin Emergency Escape Mask, when sold, to be shipped from his place of business to purchasers thereof located in the various States ofthe United States, and maintains, and at all times mentioned here­ in has maintained, a substantial course oftrade in said Extra Margin Emergency Escape Mask in or affecting commerce, as ~~commerce" is defined in the Federal Trade Commission Act. PAR. 4. In the course and conduct of his business, and for the pur­ pose ofinducing the purchase ofthe Extra Margin Emergency Escape Mask, respondent has at all times mentioned herein made numerous statements, orally and in writing, in various promotional and adver­ tising materials prepared and/or disseminated by respondent for use in selling respondent's product. Illustrative and typical but not inclu­ sive of the statements employed as aforesaid are the following: (1) The Extra Margin Emergency Escape Mask ~~provides filtered breathing for up to 20 minutes or more in dense, poisonous smoke." (2) HWith the Extra Margin Emergency Escape Mask you breathe safely even in choking smoke."

(3) The Extra Margin Emergency Escape Mask enables you to Hbreathe normally for 20 minutes."

(4) The Extra Margin Emergency Escape Mask ~~protects your nose, throat and lungs from noxious gases and low concentrations oflethal gases most frequently associated with fires-hydrogen chloride, hy­ drogen cyanide and carbon monoxide."

(5) Tests by a chemical testing laboratory Hre-confirm the device's excellent gas-filtering capabilities and lifesaving value in a fire disas­ ter."

(6) ~~Tested and Approved! In the U.S. ·and Canada, the mask has undergone vigorous testing by fire officials." (7) HThe filtering system was evaluated by an independent chemical testing lab, approved by OSHA and the California State Health De­ partment."

PAR. 5. Through the use ofthe aforesaid statements, and,others of similar import and meaning not expressly set out herein, respondent has represented and continues to represent, directly or by implica­ tion, that:

(1) The Extra Margin Emergency Escape Mask provides twenty (20) minutes escape time in the event of fire.

Complaint 102 F.T.C. (2) The Extra Margin Emergency Escape Mask screens lethal gases associated with fire, including carbon monoxide. (3) The Extra Margin Emergency Escape Mask permits normal breathing in the event of fire.

(4) The Extra Margin Emergency Escape Mask has been endorsed or approved by state and federal government agencies. PAR. 6. In truth and in fact:

(1) The Extra Margin Emergency Escape Mask does not provide twenty (20) minutes escape time in the event of fire. The mask user can be overcome by gases associated with fire in less than twenty (20) minutes.

(2) The Extra Margin Emergency Escape Mask is incapable of screening out carbon monoxide.

(3) The Extra ·Margin Emergency Escape Mask does not permit normal breathing. The mask's filter creates inhalation and exhala­ tion breathing resistance.

(4) The Extra Margin Emergency Escape Mask has not been en­ dorsed or approved by any state or federal agency. Therefore, the statements and representations set forth in Para­ graphs Four and Five were and are unfair, false, misleading and deceptive.

PAR. 7. In the course and conduct of his business, respondent has represented in promotional literature and in the product's packaging the asserted advantages ofthe Extra Margin Emergency Escape Mask but has failed to disclose that the mask does not filter carbon monox­ ide, a lethal gas associated with fire.

PAR. 8. In light ofthe representations described in Paragraphs Four and Five, respondent's failure to disclose the facts described in Para­ graph Seven is misleading in a material respect in that the disclosure of these facts to consumers would be likely to affect· their purchase decisions. Therefore, failure to disclose these material facts renders the sales and packaging materials referred to in Paragraph Seven unfair, false, misleading and deceptive.

PAR. 9. In the course and conduct of his business, and at all times mentioned herein, respondent has been, and now is, in substantial competition, in or affecting commerce with corporations, firms and individuals engaged in the sale of merchandise of the same general kind and nature as merchandise sold by .respondent. PAR. 10. The use by respondent ofthe aforesaid unfair, false, mis­ leading and deceptive statements, representations, acts and practices, and his failure to disclose the aforesaid material facts has had, and now has, the capacity and tendency to mislead members ofthe public into the erroneous and mistaken belief that said statements and rep­ 1722 Decision and Order resentations were, and are, true and complete, and to induce pur­ chases ofsubstantial quantities ofrespondent's products by reason of said erroneous and mistaken beliefs.

PAR. 11. The acts and practices of respondent, as herein alleged, were and are all to the prejudice and injury of the public and of respondent's competitors and constituted, and now constitute, unfair methods ofcompetition and unfair and deceptive acts or practices in or affecting commerce in violation of Section 5 of the Federal Trade Commission Act. The acts and practices of respondent, as herein al­ leged, are continuing.

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 ofa draft ofcomplaint which the Bureau ofConsumer Protection proposed to present to the Commission for its consideration and which, if issued by the Commission, would charge respondent with violation 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 ofall the jurisdictional facts set forth in the aforesaid draft ofcomplaint, a statement that the signing ofsaid agreement is for settlement purposes only and does not constitute an admission by respondent that the law has been violated as alleged in such com­ plaint, and waivers and other provisions as required by the Commis­ sion's Rules; and The Commission having thereafter considered the matter and hav­ ing 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 hereby issues its complaint, makes the following jurisdictional find­ ings and enters the following order:

1. Respondent Monte Proulx is an individual whose address is 50300 Highway 245, Badger, California.

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.

Decision and Order 102 F.T.C. ORDER For the purpose ofthis Order, the following definitions shall apply: (1) The Extra Margin Emergency Escape Mask shall mean the over­ the-head vinyl mask with a built-in mouthpiece and filter manufac­ tured by Nihon Saibohgu Company, Ltd., of Japan. (2) Competent and reliable scientific test shall mean a test in which persons with skill and expert knowledge in the field to which the test pertains conduct the test and evaluate its results in an objective manner using testing, evaluation, and analytical procedures that en­ sure accurate and reliable results.

I It is ordered, That respondent Monte Proulx, an individual, his agents, representatives, and employees, directly or through any cor­ poration, subsidiary, division or other device, in connection with the advertising, offering for sale, sale or distribution ofthe Extra Margin Emergency Escape Mask or any other emergency escape mask, in or affecting commerce as ~~commerce" is defined in the Federal Trade Commission Act, as amended, do forthwith cease and desist from: 1. Disseminating, or causing or permitting the dissemination of, any advertisement or other representation, express or implied, that an emergency escape mask provides protection from carbon monoxide gas unless at the time the representation is made, the representation is true and respondent possesses and relies upon a competent and reliable scientific test substantiating the representation. · 2. Disseminating, or causing or permitting the dissemination of, any advertisement or other representation, express or implied, that an emergency escape mask provides twenty (20) minutes of breatha­ ble air or that an emergency escape mask provides any express amount oftime ofbreathable air unless at the time the representation is made, the representation is true and respondent possesses and relies upon a competent and reliable scientific test substantiating the representation.

3. Disseminating, or causing or permitting the dissemination of, any advertisement or other representation, express or implied, that an emergency escape mask permits normal breathing unless at the time the representation is made, the representation is true andre­ spondent possesses and relies upon a competent and reliable scientific test substantiating the representation.

4. Disseminating, or causing or permitting the dissemination of, any advertisement or other representation, express or implied, that MONTE PROULX 1727 1722 Decision and Order an emergency escape mask has been endorsed or approved by any municipal, state or federal agency unless at the time the representa­ tion is made, respondent possesses and relies upon a reasonable basis for the claim consisting ofa verified statement from the agency that endorsed orapproved the mask When referring to any test conducted by or. on behalf of the aforesaid agency as a basis for the agency's endorsement or approval, the results ofsuch test must be fairly and accurately disclosed in conjunction with the representation or claim. II It is further ordered, That respondent Monte Proulx, an individual, his agents, representatives, and employees, directly or through any corporation, subsidiary, division or other device, in connection with the advertising, offering for sale, sale or distribution of the Extra Margin Emergency Escape Mask or any other emergency escape mask, in or affecting commerce, as ((commerce" is defined in the Federal Trade Commission Act, do forthwith cease and desist from representing, directly or by implication, that an emergency escape mask protects the user from thehazards associated with fire without disclosing in close conjunction therewith the following statement in print at least as large as the print in which the representation is made, with nothing to the contrary or in mitigation ofthis statement: The mask does not filter carbon monoxide-a lethal gas associated with fire.

III It is further ordered, That should respondent Monte Proulx, an individual, his agents, representatives, and employees, directly or through any corporation, subsidiary, division or other device, contin­ ue to market the Extra Margin Emergency Escape Mask, or any other emergency escape mask, in its current pac,kaging, the respondent shall affix a white permanent-adhesive label to all its current packag­ ing. This label shall remove all references on the current packaging relating to the emergency escape mask's ability to provide protection from carbon monoxide and its effectiveness for up to twenty (20) minutes. The first line of this label shall state nthe mask does not filter carbon monoxide-a lethal gas associated with fire". As shown in Attachment A ofthis Order, this sentence shall appear on the label in ten-point bold type.

Decision and Order 102 F.T.C. IV ,. It.is[llrther ordered~ That respondt:mt distribut~ a C()PY ofthis Order to fill pre~~ntandfuture personnel, agents or repr~~entatives having ~al~s, advertising, orpolicy responsibilities withrespe~ttothe subject matter of this Order andthat respondent secure from eachsuch person a signed statement acknowledging receipt of said Order. v It is further ordered, That respondent, for a period of three years after respondent lastdisseminates the advertisements for products covered by this Order, shall retain all test results; data, and other documents orinformation on which he relied for his representations orany documentationwhich contradicts, qualifies or calls into serious question any claim included in such advertisement which were in his possession during eithertheircreation ordissemination. Such records may be inspected by the staff of the Commission upon reasonable notice.

VI It is further ordered, That respondent promptly notify the Commis­ sion ofthe discontinuation ofhis present business or employment. In . addition, for a period offive (5) years from the date ofservice of this Order, the respondent shall promptly notify the Commission of each affiliation with a new business or employment whose activities in­ clude the offering for sale, sale or distribution of emergency escape masks or of his affiliation with a new business or employment in which his duties and responsibilities involve the offering for sale, sale or distribution of emergency gas masks. Each such notice shall in­ clude the respondent's new business address and a statement of the nature of the business or employment in which the respondent is n~wly engaged, as well as a description of respondent's duties and responsibilities in connection with the business or employment. The expiration of the notice provision of this paragraph shall not affect any other obligation arising under this Order. VII It is further ordered, That the respondent shall within sixty (60) iays after service upon him ofthis Order, file with the Commission t report, in writing, setting forth in detail, the manner and form in which he has complied with this Order.

lVl.Ul'fl'.l!; .t'.ttUULA 1722 Decision and Order ATTACHMENT A THE MASK DOES NOT FILTER CARBON MONOXIDE-A LETHAL GAS ASSOCIATED WITH FIRE.

Interlocutory Order 102 F.T.C.