Ross, Dr. Scott M

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IN THE MATTER OF DR. SCOTT M. ROSS CONSENT ORDER, ETC., INREGARD TO ALLEGED VIOLATION OF SEC. 5 OF THE FEDERAL TRADE COMMISSION ACT Docket C-3363. Complaint, January 9, 1992--Decision, January 9, 1992 This consent order requires, among other things, a Minneapolis cosmetic surgeon, d/b/a Mpls. Center for Cosmetic and Laser Surgery, to disclose in certain advertisements the existence of risks from -- and the expected recovery period following -- his cosmetic surgery services, and to have scientific evidence supporting results claims.

Appearances For the Commission: Richard Kelly, Walter C. Gross, III, and Melissa Feinberg.

For the respondent: James Taylor, Jr.. Dorsey & Whitney, Washington, D.C.

COMPLAINT The Federal Trade Commission, having reason to believe that Dr. Scott M. Ross, d/b/a Mpls. Center for Cosmetic and Laser Surgery, ("respondent" and MPLS), has violated certain provisions of the Federal Trade Commission Act ("FTC Act"), 15 U.S.C. 41 et. Seq., and it appearing to the Commission that a proceeding by it in respect thereof would be in the public interest, alleges: PARAGRAPH 1. Dr. Scott M. Ross, d/b/a Mpls. Center for Cosmetic and Laser Surgery, is a resident of Minnesota with his principal office and place of business located at 910 E. 26th Street, Suite 425, Abbott Northwestern Medical Campus, Minneapolis, Minnesota.

PAR. 2. Respondent is a medical doctor who is currently, and has for some time, engaged in the sale and the offering for sale of DR. SCOTT M. ROSS 55 54 Complaint services in connection with liposuction and other cosmetic surgery procedures.

PAR. 3. Respondent has placed, or caused to be placed, advertisements for MPLS in various periodicals that are in general circulation to the public, including but not limited to the advertising material referred to in paragraphs five through ten of this complaint, to promote his services in liposuction to patients and prospective patients.

PAR. 4. The acts and practices of respondent alleged in this complaint have been and are in or affecting commerce. PAR. 5. MPLS's advertisements contain representations as to the safety and efficacy of liposuction for patients who purchase MPLS's services. Typical of these advertisements, but not necessarily allinclusive thereof, is an advertisement that respondent ran in newspapers of general circulation under the headline, LIPO5 1 3 4 5 9 1769 1437 122 43 96.706779 (FAT)4 1 3 4 6 0 557 1482 1334 56 -1 5 1 3 4 6 1 557 1482 238 37 93.934349 SUCTION. The ad prominently features two side-by-side rear view photographs of the buttocks, hips and thighs of an unidentified person or persons with the statement 435 1 3 4 8 7 1213 1607 118 43 96.560661 years appearing directly under the left photograph and the statement 255 1 3 4 9 7 1316 1665 171 36 96.671242 minutes directly underneath the right photograph, and further contains the following statement: It's5 1 4 1 1 2 629 1837 16 20 95.645897 a5 1 4 1 1 3 659 1829 70 34 95.645897 fact;5 1 4 1 1 4 745 1830 48 29 96.960411 thes 1 4 1 1 5 808 1832 157 29 96.992767 unwanted5 1 4 1 1 6 979 1832 42 30 96.732063 fats 1 4 1 1 7 1034 1833 60 30 96.732063 that5 1 4 1 1 8 1108 1843 46 20 96.661209 we5 1 4 1 1 9 1168 1835 38 28 96.899597 all5 1 4 1 1 10 1220 1841 48 31 96.811058 gets 1 4 1 1 11 1283 1845 31 20 96.884552 as5 1 4 1 1 12 1329 1845 45 21 97.016876 we5 1 4 1 1 13 1388 1846 55 29 96.411476 ages 1 4 1 1 14 1457 1847 39 20 96.526939 on5 1 4 1 1 15 1510 1848 53 20 96.891380 ours 1 4 1 1 16 1576 1839 76 38 96.880867 hips,5 1 4 1 1 17 1668 1841 94 34 96.850464 waist,5 1 4 1 1 18 1777 1841 108 38 96.886284 thighs,4 1 4 1 2 0 550 1876 1336 50 -1 5 1 4 1 2 1 550 1876 102 35 96.854279 knees,5 1 4 1 2 2 672 1878 144 34 96.498497 stomach,5 1 4 1 2 3 835 1879 102 30 96.206467 ankles5 1 4 1 2 4 955 1881 57 28 96.292427 ands 1 4 1 2 5 1030 1881 78 35 96.297546 chin,5 1 4 1 2 6 1127 1890 54 21 96.297546 cans 1 4 1 2 7 1199 1883 37 28 96.920578 be5 1 4 1 2 8 1253 1885 141 29 96.656982 removed5 1 4 1 2 9 1412 1886 96 38 96.851250 safely5 1 4 1 2 10 1525 1887 57 29 96.823265 ands 1 4 1 2 11 1599 1890 205 36 95.406616 permanently5 1 4 1 2 12 1822 1890 29 29 96.398010 in5 1 4 1 2 13 1870 1899 16 21 96.398010 a4 1 4 1 3 0 550 1926 313 31 -1 5 1 4 1 3 1 550 1930 104 24 93.592674 matters 1 4 1 3 2 664 1926 37 29 96.485573 of5 1 4 1 3 3 710 1926 153 31 95.759933 minutes. PAR. 6. Through the us of the photographs and statements referred to in paragraph five, respondent has represented, directly or by implication, that the difference between the configurations depicted in the two side-by-side photographs fairly represents the results that can be typically achieved in an actual 25 minute liposuction procedure.

PAR. 7. In truth and in fact the difference between the configurations depicted in the two side-by-side photographs does not fairly represent the results that can be typically achieved in an actual 25 minute liposuction procedure.

PAR. 8. Through the use of the statements and representations referred to in paragraphs five and six, respondent has represented, directly or by implication, that at the time respondent made those Decision and Order 115 F.T.C.

representations, respondent possessed and relied upon a reasonable basis for said representations.

PAR. 9. In truth and in fact, at the time respondent made those representations, respondent did not possess and rely upon a reasonable basis for such representations. Therefore, the representation set forth in paragraph eight was and is false and misleading. PAR. 10. Through the use of the photographs and statements referred to in paragraph five, respondent has further represented, directly or by implication, that liposuction of the hips or thighs is a minor medical procedure, with no risk of serious adverse complications and not involving significant discomfort or the need for a lengthy recovery period.

PAR. 11. In truth and in fact, liposuction of the hips or thighs is an invasive, surgical procedure with potential serious adverse complications and risks that include shock, infection, and embolism as well as the risks that accompany any procedure that involves the use of anesthesia, and, furthermore, there is usually significant discomfort and the need for a recovery period of several weeks. PAR. 12. Accordingly, the representations set forth in paragraph five were and are false and misleading.

PAR. 13. The acts and practices of respondent alleged in this complaint constitute unfair and deceptive acts or practices in or affecting commerce in violation of Section 5(a) of the FTC Act, 15 U.S.C. 45(a).

Commissioner Yao not participating.

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 of Consumer 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, its attorney, 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 DR. SCOTT M. ROSS 57 54 Decision and Order 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 respondent that the law has been violated as alleged in such complaint, and waivers and other provisions as required by the Commission's Rules; 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 hereby issues its complaint, makes the following jurisdictional findings and enters the following order:

1. Respondent Scott M. Ross, M.D. is a Minnesota resident doing business as the Mpls. Center for Cosmetic and Laser Surgery, with his principal place of business located at: 910 E. 26th Street, Suite 425, Abbott Northwestern Medical Campus, Minneapolis, Minnesota. 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 DEFINITION For purposes of this order, the phrase, advertising,5 1 7 1 1 9 1641 2164 202 48 96.954445 promotions 1 7 1 1 10 1857 2175 39 24 97.015388 or4 1 7 1 2 0 561 2223 1335 52 -1 5 1 7 1 2 1 561 2231 153 44 96.937569 offerings 1 7 1 2 2 727 2230 55 35 97.010277 for5 1 7 1 2 3 795 2229 101 41 96.168663 sale, does not include any statement made by respondent or his representatives, agents or employees to a patient after the patient has agreed to purchase the service represented. I.

It is ordered, That respondent, Dr. Scott M. Ross, d/b/a Mpls. Center for Cosmetic and Laser Surgery, and his agents, representatives, and employees, directly or through any corporation, subsidiary, division, or other device, in connection with the advertising, Decision and Order 115 F.T.C.

promotion, or offering for sale of liposuction or any surgical procedures, do forthwith cease and desist from: (1) Representing, directly or by implication, that results depicted in advertising are typical of results that can actually be obtained through a cosmetic surgery procedure unless such is the case; (2) Representing, directly or by implication, through any advertisement containing before-and-after photographs, that said photographs accurately depict the results of actual surgical procedures unless he possesses a reasonable basis for such representation, which shall, at a minimum, consist of documentary evidence that the photographs appearing in the advertisement depict actual results of surgical procedures, without enhancement through makeup, padding or other non-surgical improvements in the photographs; (3) Otherwise misrepresenting, in any manner, directly or by implication, the results that can be achieved with liposuction or any other cosmetic surgical procedure;

(4) Representing, through any advertisement, directly or by implication, that liposuction, or any other cosmetic surgery procedure that entails risk of serious medical complications, is safe unless said representation is accompanied by a clear and prominent disclosure that the procedure is a surgical procedure involving the risk of adverse medical complications;

(5) Representing, through any advertisement, directly or by implication, that any cosmetic improvement through surgery can be obtained in any specified period of time unless said representation includes the length of the typical post-operative recovery period or is accompanied by a clear and prominent disclosure of the typical length of said recovery period; and (6) Otherwise misrepresenting, in any manner, directly or by implication, either the recovery times or the likelihood of serious adverse complications associated with liposuction or any other cosmetic surgery procedure.

DR. SCOTT M. ROSS 59 54 Decision and Order Il.

It is further ordered, That respondent shall distribute a copy of this order to all of respondent's present and future officers, agents, representatives, and employees of respondent having responsibilities with respect to the subject matter of this order. III.

It is further ordered, That respondent shall maintain for a period of three (3) years after the date the representation was last made, and make available to the Federal Trade Commission staff upon request for inspection and copying, all materials possessed and relied upon to substantiate any claim or representation covered by this order, and all test reports, studies, surveys or information in his possession or control or of which he has knowledge that contradict, qualify or call into question any such claim or representation. IV.

It is further ordered, That respondent shall promptly notify the Commission of the discontinuance of his present business and, for a period of five (5) years from the date of service of this order, shall promptly notify the Commission of each affiliation with a new business or employment, each such notice to include the respondent's new business address and a statement of the nature of the business or employment in which the respondent is newly engaged as well as a description of the respondent's duties and responsibilities in connection with the business or employment. V.

It is further ordered, That respondent shall, within sixty (60) days after the service of this order, submit to the Commission a report, in writing, setting forth in detail the manner and form in which respondent has complied with all requirements of this order. Commissioner Yao not participating.

Complaint 115 F.T.C.