Leyden, Martin J

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IN THE :MATTER OF MARTIN J. LEYDEN COMPLAINT, FINDINGS, AND ORDER IN REGARD TO THE ALLEGED VIOLATION OF SEC. 5 OF AN ACT OF CONGRESS APPROVED SEPT. 2fl, 1914 Docket ~822. Complaint, JJiay ~~. 1936-Decision, Oct. 21, 1936 Where an Individual, engaged In the manufacture, distribution, nnd sale of a hair preparation, in advertising same in newspapers of general circulation throughout the United States, and in advertising fohlers and literature circulated throughout the several States- (a) Falsely represented that said Leyden's Hair Tonic would remove dandruff completely, stop Itching scalp, stop the hair from falling out, and bring: the scalp to a healthy condition, start the hair to growing, and bring new' life thereto;

(b) Falsely represented that it would "bring gray and faded hair back to its natural color through the nourishment it imparts to the roots," etc., fact being It would not color, or restore color to, gray or faded hair except in the sense that it might dye the same; and (c) Falsely represented that said preparation contained no harmful ingredients, and was good for children to use as well as adults, and was positively harmless; facts being that under certain conditions It might prove harmful, and also might prove harmful when used by certain persons, either children!l or adults;

With capacity and tendency to mislead and deceive a substantial portion of t!Je purchasing public into the erroneous belief that said representations were true, and with the result that a number of the consuming public, ns a direct consequence of such mistaken and erroneous beliefs, bought a substantial Volume of said hair tonic, and trade was unfairly diverted to him from competitors engaged in the distribution and sale of hair tonics and other products designed, intended and sold for the treatment of tbe hair and scalp, and who truthfully advertise same and their effectiveness in use; to the substantial injury of competition in commerce: IIeld, That such acts and practices were to the prejudice of the public and competitors, and constituted unfair methods of competition. Before Mr. llenry 111. White, trial examiner. Mr. J. T. lVelch for the Commission.

Mr. Philip S. Ehrlich, of San F,rancisco, Calif., for respondent. Complaint Pursuant to the provisions of an Act of Congress approved Sep· tember 26, 1914, entitled "An Act to create a Federal Trade Corn· mission, to define its powers and duties, and for other purposes," the Federal Trade Commission, having reason to believe that Martin J. Leyden, hereinafter referred to as respondent, has been and now is MARTIN J. LEYDEN 671 670 Complaint llsing unfair methods of competition in commerce as "commerce" is defined in said act, and it appearing to the Commission that a proeeeding 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. Respondent, Martin J. Leyden, has his place of business at .1681;2 Thomas Street, city of Seattle, State of Washington. Respondent is now, and has been for some years, engaged in the business <>f manufacturing, distributing, and selling, in commerce as herein set out, a certain preparation known as "Leyden's Hair Tonic". PAn. 2. Said respondent, being engaged in business as aforesaid, eauses said hair tonic, when sold, to be transported from his place of business in the State of 1Vashington to purchasers thereof located at various points in other States of the United States and in the District of Columbia. There is now, and has been for several years, a constant current of trade and commerce in said hair tonic so manufactured, distributed and sold by the respondent, between and among the various States of the United States and in the District of Columbia.

PAR. 3. In the course and conduct of his business, respondent is now, .a~d has been, in substantial competition with other individuals and With firms and corporations likewise engaged in the business of manuf~cturing, distributing, and selling hair tonic or other products des~gned, intended, and sold for th~ purpose of treating various conditions of the hair or scalp, in commerce among and between the various States of the United States and in the District of Columbia. PAn. 4. In the course of the operation of said business, and for the Purpose of inducing the purchase of said hair tonic, respondent has -caused advertisements to be inserted in newspapers of general circulation throughout the United States and has had printed and circulated throughout the several States, to customers and prospective -customers, through the United Sates mails and otherwise, advertising folders and literature in which are made the following statements : Brings the scalp to a healthy condition, removes dandruff completely, stops the hair from falling and starts it to grow. It also bring>! gray and faded hair back to its natural color through the nourishment It Imparts to the roots as water renews the green to grass and Ill ants.

You will feel well repaid for your time and small investment when you find .Yourself with a beautiful head of natural hair. h 4-yden's hair tonic is pleasant to use and very effective. It contains no armful ingredients .

. AU of said statements, together with similar statements appearang in respondent's advertising literature, purport to be descriptive ()f respo11dent's product and its effectiveness in use. In all of his Complaint 23F.T.C.

advertising literature and through other means, respondent represents, through the statements and representations herein set out and other statements of similar import and effect that Leyden's hair tonic (1) will remove dandruff; (2) will stop falling hair; {3) will stop itching scalp; ( 4) will positively restore gray or faded hair back .to its natural color; (5) will restore new life to hair; {6) is good for children to use as well as adults; and (7) is positively harmless. PAR. 5. The representations made by respondent with respect to the nature and effect of his product when used are grossly exaggerated, false, misleading and untrue. In truth and in fact, the product will not impart nourishment to the hair roots and thereby bring gray or faded hair back to its natural or original color. In fact, said product will not color or restore color to gray or faded hair except in the sense that it may dye the hair. Said product will not bring the scalp to a healthy condition, or remove dandruff completely, or stop hair from falling, or start it to grow. Said product will not stop itching of the scalp and will not restore new life to hair. Said hair tonic may prove harmful under some conditions of its use or when used by certain persons either children or adults. PAR. 6. There are among respondent's competitors many who manufacture, distrib:1te and sell hair tonics or other products designed, intended and sold for the purpose of treating the hair or scalp and who do not, in any way, misrepresent the quality or character of their respective product or its effectiveness in use. PAR. 7. Each and all of the false and misleading statements and representations made by the respondent in designating or describing his product and the effectiveness of said product for treating hair and scalp conditions, as hereinabove set out, in his advertising in newspapers, pamphlets, and other advertising literature, in offering for sale and selling his product was, and is, calculated to, and had, and now has, a tendency and capacity to mislead and deceive a substantial portion of the purchasing public into the erroneous belie:f that all of the said representations are true. Further, as a direct consequence of the mistaken and erroneous beliefs, induced by the acts, advertisements and misrepresentations of respondent, as hereinabove detailed, a number of the consuming public has purchased a substantial volume of respondent's hair tonic with the result that trade has been unfairly diverted to the respondent from competitors likewise engaged in the business of manufacturing, distributing, and selling hair tonics or other products designed, intended and sold for the purpose of treating hair and scalp and who truthfully advertise their respective products and the effectiveness thereof in use. As a result thereof, substantial injury has been, and is now being, done by MARTIN J. LEYDEN 673 670 Findings ~respondent to competition in commerce among and between the vurlous States of the United States and in the District of Columbia. PAn. 8. The above and foregoing acts, practices and representations of the respondent have been, and are, all to the prejudice of the public and respondent's competitors as aforesaid, and have been, and are, unfair methods of competition within the meaning and intent of Section 5 of an Act of Congress approved September 26, 1914, entitled "An Act to create a Federal Trade Commission, to define its Powers and duties, and for other purposes." REPORT, FINDINGS AS TO THE FACTs, AND OnnEn Pursuant to the provisions of an Act of Congress approved September 26, 1914, entitled "An Act to create a Federal Trade Commission, to define its powers and duties, and for other purposes," ~he Federal Trade Commission on May 27, 1936, issued and served lts complaint in this proceeding upon respondent, :Martin J. Leyden, charging him with the use of unfair methods of competition in commerce in violation of the provisions of said act. Subsequently the respondent filed his answer in which answer he admitted all the material allegations of the complaint to be true and stated that he. waived hearing on the charges set forth in the said complaint and consented that, without further evidence or other intervening procedure, the Commission might issue and serve upon him findings as to the facts and conclusion and an order to cease and desist from the Violations of law charged in the complaint. Thereafter, the proceeding regularly came on for final hearing before the Commission on the said complaint and the answer thereto, and the Commission having duly considered the same, and being now fully advised in the Premises, finds that this proceeding is in the interest of the public, and makes this its findings as to the facts and its conclusion drawn therefrom.

FINDINGS AS TO THE FACTS PARAGRAPH 1. Respondent, Martin J. Leyden, has his place of business at 168% Thomas Street, in the city of Seattle, State of Washington. For some years, he has been engaged in the business of manufacturing, distributing and selling in commerce among and between the various States of the United States a certain preparation known as "Leyden's Hair Tonic". When the respondent receives orders for said hair tonic, he causes it to be transported from his place of business to purchasers thereof located at various points in other States of the United States. He has, for several years last past, maintained a constant current of trade in said hair tonic which he ;()74 FEDERAL TRADE COMMISSION DECISIONS Findin~s 23F. T.C.

manufactures, distributes and sells, in commerce among and between the various States of the United States. The respondent has been at all times in substantial competition with other individuals and with firms and corporations likewise engaged in the business of manu· facturing, distributing and selling hair tonic or other products de· ·signed, intended and sold for the purpose of treating various ·Conditions of the hair or scalp, in commerce among and between the -various States of the United States.

PAR. 2. In order to induce the purchase of said hair tonic, there· spondent has caused various advertisements to be inserted in news· papers of general circulation throughout the United States and has also printed and circulated throughout the several States, through the United States mails and otherwise, advertising folders and lit· ·erature in which certain representations are made. Some of the statements are as follows:

Brings the scalp to a healthy conuition, removes dandruff completely, stops the hair from falling and starts it to grow. It also brings gray and faded hair back to its natural color through the nonr· ishment it imparts to the root:'! as water renews the green to grass and plants. You wlll feel well repaid for your time and small investment when you tlnd yourself with a beautiful bead of natural hair. Leyden's hair tonic is pleasant to u1.e and very rtrective. It contains no harmful ingredients.

These statements, together with many other statements appearing in his advertising literature, purport to be descriptive of his product and its effectiveness. The respondent has represented, through the ·statements herein set out and through other statements of similar im· port and effect, that Leyden's Hair Tonic (1) will remove dandruff; (2) will stop falling hair; (3) will stop itching scalp; (4) will posi· tively restore gray or faded hair back to its natural color; (5) will restore new life to hair; ( 6) is good for children to use as well as ·adults; and (7) is positively harmless.

PAR. 3. The representations made by the respondent with respect to the nature and effect of his product when used are grossly exag· gerated, false, misleading and untrue. Leyden's Hair Tonic will not impart nourishment to the hair roots and thereby bring gray or f~ded hair back to its natural or original color. In fact, said product Will not color or restore color to gray or faded hair except in the sense that it may dye the hair. It will not bring the scalp to a. l1ealthy condition or remove dandruff completely, or stop hair front falling. It will not start hair to grow and will not restore new life to hair. The use of said product will not stop itching of the scalp. Under some conditions of use, said hair tonic may prove harmful. l\IARTIN J, LEYPEN 675 670 Orde).' ":hen used by certain persons, either children or adults, it may Jike- Wise prove harmful.

PAR, 4. There are among respondent's competitors many who man- ~facture, distribute and sell hair tonics or other products designed, Intended and sold for the purpose of treating the hair or scalp and Who do not, jn any way, misrepresent the quality or character of their respective product or its effectiveness in use. PAR. 5. The false and misleading statements and representations lllads by the respondent in designating and describing said hair tonic and its effectiveness in treating hair and scalp conditions were, and are, calculated to, and had, and now have, the capacity and tendency ~o mislead and deceive a substantial portion of the purchasing public Into the erroneous belie£ that said representations are true. As a direct consequence of such mistaken and erttmeous beliefs, a number of the consuming public have purchased a substantial volume of respondent's hair tonic. As a result thereof, trade has been unfairly diverted to the respondent from competitors likewise engaged in the business of distributing and selling hair tonic and other products designed, intended and sold for the purpose of treating hair and scalp and who truthfully advertise their respective products .and their effectiveness in use. Thereby, substantial injury has been, and is now being, done by respondent to competition in commerce among and between the various States of the United States. CONCLUSION The aforesaid acts and practices of the respondent, Martin J. Leyden, are to the prejudice of the public and of respondent's com- Petitors, and constitute unfair methods of competition in commerce, Within the intent and meaning of Section 5 of an Act of Congress, approved September 26, 1914, entitled "An Act to create a Federal Trade Commission, to define its powers and duties, and for other Purposes."

ORDER TO CEASE AND DESIST This proceeding having been heard by the Federal Trade Commission upon the complaint of the Commission and the answer of respondent, in which answer respondent admits all the material allegations of the complaint to be true, and states that he waives hearing on the charges set forth in said complaint and consents that, Without further evidence or other intervening procedure, the Commission may issue and serve upon him findings as to the facts and conclusion and an order to cease and desist from the violations of law charged in the complaint, and the Commission having m:Lde its 78035m--39--vol.23----45 Order . 23F.T.C.· findings as to the facts and conclusion that said respondent has vio· lated the provisions of an Act of Congress, approved September 26r 1914, entitled, "An Act to create a Federal Trade Commission, to define its powers and duties, and for other purposes." It is ordered, That the respondent, Martin J. Leyden, his represen· tatives, agents and employees, in connection with the offering for sale, sale, and distribution of the product known as "Leyden's Hair Tonic", or any product of substantially the same composition and ingredients sold under the name "Leyden's Hair Tonic" or under any other name, in interstate commerce or in the District of Columbia, do forthwith cease and desist from representing: (1) That said product will remove dandruff; (2) That it will stop hair from falling out; (3) That its use will stop itching scalp;

(4) That it will restore gray or faded hair back to its natural color;

( 5) That it will restore new life to the hair; (6) That it is as good for children to use as for adults; and (7) That it is harmless.

It is further' ordered, That the respondent shall, within GO days after service upon it of this order, file with the Commission a report in writing setting forth in detail the manner and form in which it has complied with this order.

CASTERLINE BROS. 677 Syllabus