F. L. McWethy

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IN THE MA 'ITER OF F. L. McWETHY COMPLAINT, FINDINGS, AND ORDER IN REGARD TO THE ALLEGED VIOLATION OF SEC. II 01!' AN ACT OF CONGRESS APPROVED SEPT. 26, 1914 Docket 2859. Complaint, June 26, 1996-Decision, Jan. f2, 199'1 Where an individual engaged in the manufa<:tur~. sale and distribution of a pharmaceutical preparation which was known as "McWethy's Home Treat· ment," and was in the form of pills and made up in packages sold for $5.00, but, in some Instances, to old customers for $3.5()-- Misrepresented, in advertising his said product In newspapers and in periodicals of interstate circulation which, in the main, reached readers in rural com· munities and small towns, that said preparation was an effective or valu· able remedy or treatment for bladder, prostatic, kidney, and bowel troubles, and that it reached the underlying causes thereof and would cure or rid one of all such aliments, and that delay in taking such medicine might make it too late for one to treat hls bladder ailment effectively, and mis· represented the functioning thereof through numerous statements of one sort and another of foregoing tenor, such as 'Suffered 12 years. Bladder trouble now gone. • • • I have just finished two treatments and after 12 years of suffering, I can truthfully say I am free from bladder trouble," "• • • not only for the bladder, but helps the kidneys, liver, and bowels as well," "Now then why not get after this ailment and get rid of it?," etc., facts being said "Home Treatment" is not an effective remedy for such troubles and does not relieve systemic causes of kidney, bladder, and bowel ailments and troubles as represented, and aforesaid representations with respect to nature, value and effect of preparation in question were grossly exaggerated, misleading, and deceptive, and such product does not and wlll not accomplish results claimed therefor; With cnpaclty and tendency to lead purchasers and prospective purchasers of bls said so-called "Home Treatment" into the belief that it constituted an effective or valuable remedy or treatment for such various ailments, and would reach the underlying causes of such troubles and cure or rid one of all such ailments, relieve weakene<l condition of the bladder due to eu1arge1l prostate gland or to deranged condition of the kidneys, be beneficial in effect upon acid or rheumatic conditions of the blood, enable one, through action thereof, to avoid Bright's disease, and that delay might make 1t too late, etc., and to purchase his said product in substantial quantities in and on account of erroneous belief that his said various representa. tions were true, and with result of thereby unfairly diverting trade to him from competitors, including manufacturers and distributors, and sellers nnd distributors of like and similar products, who truthfully advertise and represent the character and nature and therapeutic value of their l'e!!pective products aml <lo not advertise and otherwise represent, as the case may be, that such products have merit or thernpeutlc value which they do not have; to the Injury of competition In commerce among the various States:

Complaint 24F.T.C.

Ilcld, That such acts and practices, under the conditions and circumstances described, were to the prejudice of the public and competitors and constituted unfair methods of competition.

Defore Mr. lV. W. Sheppard, trial examiner. Mr. Joseph 0. Fehr for the Commission.

Nash & Donnelly, of Ohi.cago, Ill., for respondent. Complaint 1 Pursuant to the provisions of an Act of Congress approved September 2G, 1914, entitled "An Act to create a Federal Trade Commission, to define its powers and duties, and for other purposes," the Federal Trade Commission, h:.tving reason to believe that F. L. McWethy, an individual, hereinafter referred to as respondent, has been and is using unfair methods of competition in commerce as "commerce" is defined in said act, and it appearing to said 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:

l.,ARAGRAPII 1. Respondent, F. L. :McWethy, is an individual with his principal office and place of business located at 320 Michigan A venue, in the city of Marshall, State of Michigan. Respondent, for more than three years last past, has been, and still is, engaged in the manufacture and sale of a pharmaceutical preparation known as "1\IdVethy's Home Treatment," which he repr<'sents to be a diuretic stimulant for the kidneys. In the course and conduct of his business respondent offers said product for sale and sells the same in commerce between the State of Michigan and the several States of the Unitr<l States and in the District of Columbia. When said product is sold, respondent transported from his place of business in the State of l\Iichigan to the purchasers thereof located in States of the United States other than the State of Michigan and in the District of Columbia. Thcrt- has been for more than three years last past, and still is, a constant cmrent of trade and commerce in said product so manufactured nnd sold by respondent, betwePll and among the various States of the United States and in the District of Columbia. Respondent is now and for more than three years last past has been engng<'d in substantial competition with 1As amended by ordt•r of CommiHslon on Dec. 30, 1030. Extendt•d Pnumpr·atlon In Pur. 2 of the complaint, ns thus amended, quoting nt lt•ngth r<'SPO!IIIent's vnrions rt•presPnlations with respl'ct to the nllt•ged therapeutic value of respondent's product nntl Its etrect upon users thert>of, Is likewise set forth In the flntlln~s. Infra, nt pn~e ri2t, nnd for this reason ts omitted from the amended complnlnt as puiJII~hed In tbe loter!'Bt of brevity, F, L. McWETHY 521 519 Complaint other individuals and with firms, partnerships, and corporations engaged in the manufacture of like and similar products and in the sale thereof in commerce between and among the various States of the United States and in the District of Columbia. PAn. 2. In the course and conduct of his business, as aforesaid, the respondent, in soliciting the sale of and in selling "Me1Vethy's Home Treatment" and for the purpose of creating a demand upon the part of the consuming public for said product, now causes and for more than three years last past has caused advertisements to be issued, published, and circulated to and among the general public of the United States in various perioLlicals and publications and in other forms of printed matter, and in other ways. In said ways and by said means, respondent makes and has maJe to the general public Inany unfair, false and misleading statements with reference to the alleged therapeutic value of said product and its effect upon the 2 llsers thereof, a portion of which are as follows: PAn. 3. The statements and representations set forth in paragraph 2 hereof, and many others similar thereto, serve as representations on the part of respondent to purchasers and prospective purchasers of respondent's product as to the nature of the product and its effectiveness in use. Said representations are: (a) That said Home Treatment is an effective remedy for nny bladder trouble;

(b} That it is an effective or valuable treatment for prostatic trouble of any kind;

(o) That it is an effective or valuable treatment for kidney trouble· (d) That' it is an effective or valuable treatment for the bowels; (e) That is reaches all of the underlying causes of either bladder or kidney or prostatic or bowel troubles;

(f) That it will "cure" or "rid" one of all such ailments; (g) That it will relieve a weakened condition of the bladder due to enlarged prostate gland or to a deranged condition of the kidneys;

(h) That it can or should eliminate the cause of bladder or other Ot·ganic troubles;

(i) That it will have a beneficial effect upon an acid or rheumatic condition of the blood causing bladder irritations; 1-------b 'I'he quututlons which follow at ll'ngtb In the eomplalut at this point, as all•·gNlly made 1{ r~Rpontlent with rl'spPet to the therapeutic \·value of Its prl'paratlon and elfl'ct upon users l!\r<'or, Is SE-t forth In the findings, Infra, at page 524, and Is, for this reason, omitted here 111 the lnterpst of brevity. Complaint 24F.T.C.

{j) That the use of this medicine in preventing retention of urine will enable one to avoid interstitial nephritis or Bright's disease;

(k) That delay in taking this medicine may make it too late for one to treat his bladder ailment effectively; {l) That the Home Treatment acts directly on the seat of the trouble or that it brings quick relief no matter what the causes are;

(m) That it relieves systemic causes of kidney, bladder and bowel ailment and troubles;

whereas, in truth and in fact, "Mc,Vethy's Home Treatment" is not an effective remedy for bladder, bowel, or prostatic irritations or ailments, nor does it relieve the systemic causes of kidney, bladder, and bowel ailments and troubles, as represented. It does not elim~ inate the cause of such irritations or ailments or relieve a user's weakened physical condition due to a derangement of the kidneys, prostate gland, bladder or bowels. In truth and in fact, the repre~ sentations made by respondent with respect to the nature, value and effect of his preparation, when used, are grossly exaggerated, false, misleading, and untrue, as said preparation will not accom~ plish the results claimed for it.

PAn. 4. There are among the competitors of the respondent in interstate commerce, manufacturers and distributors of like and sim~ ilar products who truthfully ad\·ertise and represent the nature, merit, and therapeutic value of their respective products. There are also among such competitors of the respondent, sellers and distrib~ utors of like and similar products who do not advertise and other~ wise represent that such products have tho merit or therapeutic value which they do not have.

PAn. 5. The above alleged acts and practices of respondent have the capacity and tendency to mislead and deceive purchasers and prospective purchasers into the erroneous beliefs that respondent's representations set out in paragraph 3 hereof are true and into the purchase of respondent's product in such beliefs. Thereby trade is unfairly diverted to respondent from respondent's competitors in interstate commerce referred to in paragraph 4 and as a consequence thereof substantial injury is done by respondent to competition in interstate comr.nerce.

PAR. 6. Said acts and practices of respondent are all to the preju~ dice of the public and responde~t's competitors, and constitute un~ fair methods of competition in commerce within the intent and meaning of Section 5 of an Act of Congress entitled "An Act to F. L. McWETHY 523 519 Findings create a Federal Trade Commission, to define its powers and duties, and for other purposes," approved September 26, 1914. HEPORT, FINDINGS AS TO THE FACTS, AND ORDER Pursuant to the provisions of an Act of Congress approved September 26, 1914, entitled "An Act to create a Federal Trade Commission, ~0 define its powers and duties, and for other purposes," the Federal !trade Commission, on June 26, 1936, issued and served its complaint ln. this proceeding upon the respondent, F. L. McWethy, charging him ~·Jth the use of unfair methods of competition in commerce in violation of the provisions of said act. The respondent duly filed his answer on July 27, 1936, in which he denied the material allegations of the complaint. Thereafter, testimony and evidence in support of the allegations of said complaint were introduced in behalf of the Commission before W. ,V. Sheppard, an examiner of the Commission, theretofore duly designated by it, no testimony and evidence being offered by the respondent; and said testimony and evidence was duly recorded and filed in the office of the Commission. Thereafter, upon the motion of the attorney for the Commission, notice and service of a copy of said motion having been waived in writing by the attorney for the respondent, the Commission, on December 24, 1936, ordered the complaint amended conformable to the testimony and evidence received at the hearing theretofore held, and ordered that said testilnony and evidence be received and considered as testimony and evidence under said complaint, as amended. After the issuance of said o:der amending the original complaint herein, the respondent, through Ius attorney, John A. Nash, Esq., filed his answer in which said answer ~he respondent stated that he waived hearing on the charges set forth 111 the complaint, as amended, that he admitted all of the material al~egations of the complaint as amended to be true and that the Comnussion might, without trial, without further evidence, and without any intervening procedure, make, enter, issue and serve upon him, the said respondent, its findings as to the facts and conclusion based thereon and an order to cease and desist from the methods of competition alleged in the complaint, as amended. Thereafter, the proceeding regularly carne on for final hearing before the Commission on said amended complaint, and the answer of the respondwt to the amended complaint, testimony and other evidence, and the Commission having duly considered same and being fully advised in the premises, finds !hat this proceeding is in the interest of the public and makes this lts findings as to the facts and its conclusion drawn 'therefrom. Findings 24F.T.C.

FINDINGS AS TO THE FACTS PARAGRAPH 1. Tile respondent, F. L. Mc'\Vethy, is an individual with his principal office and place of business located at 32V l\Iichigan Avenue, in the city of Marshall, in the State of Michigan. He is now, and for more than five years last past, has been engaged in the manufacture, sale, and distribution of a pharmaceutical preparation known as "l\lc'\Vethy's Home Treatment." This treatment, in the form of pills, is made up in packages which respondent sells for $5.00, but which, in some instances, he has sold to old customers for $3.50. Respondent represents and has r<'presented this so-called home treatment to be a diuretic stimulant for the kidneys and to be a remedy for bladder and bmvel ailments. He offers and has offered said product for sale and distribution in commerce between and among the various States of the United States, and in the District of Columbia. '\Vhen said product is sold, respondent transports it from his place of business in Marshall, Mich., to the purchasers thereof, located in various parts of the United States and in the District of Columbia. Respondent is now, and has been at all times hereinafter mentioned, in substantial competition with other individuals, firms, partnerships, and corporations likewise engaged in the manufacture, sale, and distribution in commerce as herein set out of like and similar products. PAR. 2. In the course and conduct of his business, as above dcscrihed, respondent advertises his product hy means of advertisements published in newspapers a1Hl magazines such as the "National Farm News" and in other periodicals and publications and forms of printed matter having interstate circulation which, in the main, reach readers in rural communities and small towns. Typical of the advertisements which the respondent thus puhlisll<'d and circulated prior to November 7, Hl32, is the followin~ advertisement which appParcd in the "National Farm News" for January Hl32: CAN YOl! SLEEP ALT, NIGHT? Or Mult You Gtot Up Frrquently Uy H(•aso11 of Bladder Trouble? If you are kept awake Jmlt the night and g<'t up fl'l'I!Hently on ncconnt of Irritation llJHI wrnlnwss of the blad,ler, or if yon nre suffl•ring from prostatic trouble, "'llte me nt once for n g<>nerouli free trial of my home tr<>atment tor the relief of blad1lt>r wenkneRii. I send it free so you can try It in your own case nnd know how quickly It relieves the Irritation and stops the getting nP nights. Thill trial treatment alone will bring you sneh wonderful rdiPf you wlll be delighted i)eyoml words. Write me today. F. J,, McWethy, 32~ l\Ilchlgan Ave., l\Jnrshall, Mich.

F. L. McWETHY 525 51!) J!'!ndlngs In form letters, folders, and circulars, which respondent published prior to November 7, 1032, respondent made many statements and representations concerning his product, of which the following are typical:

• • • The Home 'l'rral"ment Is pro\'lng ell'Pctive in many ca:les of long ~;tanding, and I see no reason why yon cnn not derive the snme f<Jlll'I!(Ji(l results, if you will persist in the use of the medicine. So many reports of cures have been coming In the pn:st two Wl'eks from my customers from all over the United States and Canada that I sometimes feel I do not reccommend the medicine half ns high as I 8should. N'o matter whether caus(•d by enlnrg<>d prostate gland or n <lPranged condition of the kidneys, the Ilome Treatment Is deHignNl to relil'Ye this coudition. (1'o wit: Weakened condition of the bladdl'r.) I inunced a numlwr of my acquaintances to try it, some of them in such an extr<'mely ball condition they conll hardly pass water without artilicial means, nnd the results W<'re so wonderfully :satisfactory that I at once arranged for the manufacture of the medicine.

Dlndder irritations arise from ,·:nious sourees, a ,·ery common one being an acid and rheumatic condition of the blood, but whatever the cause, you can not on•rp~timate the advnntagP to be gained by giving prompt att('utlon to the trouble.

No matt('r what tlw causes arc, you want r('li<'f quickly. ~Iy Home Treatment Is Pr('pared to oct dir('ctly on the spat of ~·our trouble, and you will not have to nse the medicine very long to prove its efft•ctiveness. 'lhe object all the way through is uot only to relieve the existing local conditions, hut as far as po>~sible relieve :o;y>.tl'mic causes of the trouble. 'l'o everyoue afni<'tf'd with a di~ordf'rNI condition of the bladder, I sny, do not let another day go hy, • • • hut ortll'r n full treatnll'nt ot mwe. liicWethy's Combined Home Trentnwut Is not only for the bladder, but the kidnf'ys and bowels.

Why put up with your trouble longl'l". Otlwrs Wl're tohl thpir ca!';e was Incurable, yll aftl'r nil, Sll' whn t tlwy ~ay nhout the nwllidn(' nft<'r giving it n good fair trial.

In Novl.'mbl.'r 1!):12, the rl.'spontll.'nt stipulated nntl agn•ed with the Feueral Tnule Commission to tliscontinue making allll advl.'rtising the foregoing stn.tements and rPJH"t-sentations, and other rrpresentations and stutPments equivalrnt thereto, in form ot· substn.nce. Since NovemlJer 7, 1!)32, the effective date of the aforementioned stipulation, Which was approwd hy the Commission, the respondent has no longer ~sed any of the forl.'going udv<•rtist•ments and has discontinued maklllg the specific representations as hereinabove set out. Ilowenr, a~ong the statl.'ments and rt>presc>ntntions made by the respondent since Nowmber 7, 1!)32, hn.ve ht>en the following: Suffer(;>(} 12 years. lllndder trouble now gone. • • • I have just tlnish<'d two treatments and ofter 12 years of suffering, I C'lln trutllfnlly !Illy 1 am fr('e from bladder trouble, b-5a 1467:iG'"-:lil-vol. 24--:JIJ Findings 24F. T. C.

McWethy's Combined Home Treatment is not only for the bladder, but helps the kidneys, liver and bowels as well. b-4d Now then why not get after this ailment and get rid of it? f-12a A medicine that has proven wonderfully successful in relieving what is commonly called a weakened condition of the bladder indicated by an unnatural desire to pass water very frequently both day and night, usually accompanied with a feeling of extreme restlessness. No matter what may have caused it, the Home 'treatment is designed to relieve this condition • • •. Wlmt you or any other sufferer wants is a treatment that will produce results. No matter what the causes are you want relief quickly. My Home Treatment is prepared to act directly on the irritated parts, and you will not have to use the medicine very long to prove its effectiveness. b-4b PAn. 3. The statements and representations as set forth in paragraph 2 hereof, and many others similar thereto, serve as representations on the part of respondent to purchasers and prospective purchasers of his product as to the nature thereof, and its effectiveness in use. These statements and representations of respondent hereinabove set out, and others similar thereto, have the capacity and tendency to lead purchasers and prospectiye purchasers of respondent's so-called home treatment into the belief:

{a) That said Home Treatment is an effective remedy for any organic bladder trouble;

( l;) That it is an effective or valuable treatment for prostatic trouble of any kind;

(c) That it is an effective or valuable treatment for kidney trouble; (d) That it is an effective or valuable treatment for the bowels; (e) That it reaches all of the underlying causes of either bladder, kidney, prostatic or bowel troubles;

(f) That it will "cure" or "rid" one of all such ailments; (g) That it will relieve a weakened condition of the bladder due to enlarged prostate gland or to a deranged condition of the kidney; (h) That it can or should eliminate the cause of bladder or other organic troubles;

(i) That it will have a beneficial effect upon an acid or rheumatic condition of the blood causing bladder irritations; {j) That the use of this medicine in preventing retention of urine will enable one to avoid interstitial nephritis or Bright's disease; (k) That delay in taking this medicine may make it too late for one to treat his bladder ailment effectively; (l) That the Home Treatment acts directly on the seat of the trouble or that it brings quick relief no matter what the causes are; (m) That it relieves systemic causes of kidney, bladder and bowel ailments and troubles;

and to purchase respondent's products in such beliefs. F, L. McWETHY 527 519 Conclusion In truth and in fact, "Me'Vethy's Home Treatment" is not an effective remedy for bladder, bowel, or prostatic troubles, nor does it relieve the systemic causes of kidney, bladder, and bowel ailments and troubles, as represented. It does not eliminate the cause of such irritations or ailments or relieve a user's weakened physico.! condition due . to a derangement of the kidneys, prostate gland, bladder, or bowels. In truth and in fact, the representations made by respondent with respect to the nature, value and effect of his preparation, when used n.re grossly exaggerated, misleading, and deceptive, as said preparation does not and will not accomplish the results claimed for it. PAn. 4. There are among the competitors of respondent in commerce as herein set out, manufacturers and distributors of like and similar products who truthfully advertise and represent the nature, merit, and therapeutic value of their respective products. There are also among such competitors of the respondent, sellers and distributors Qf like and similar products who do not advertise and otherwise represent that such products have merit or therapeutic value which they do not have.

PAn. 5. The use of the statements and representu.lions herein set forth in paragraphs 2 and 3 by the respondent in offering for sale and selling his products in commerce herein set out, have had, and now have the tendency and capacity to mislead and deceive members 0.£ the purchasing public into the erroneous belief that said representations are true and into the purchase of substantial quantities of respondent's product on account of such belief induced as aforesaid. As a result thereof, trade has been unfairly diverted to the respondent from competitors referred to in paragraph 4 hereof, who truthfully advertise and represent the character and nature and therapeutic value of their respective products. In consequence thereof, injury has been done by respondent to competition in commerce between and among the various States of the United States. CONCLUSION . The aforesaid acts and practices of said respondent under the condihons and circumstances described in the foregoing findings of facts are to the prejudice of the public and of competitors of respondent. a~d constitute unfair methods of competition in commerce in viola• ~Ion of an Act of Congress approved September 2G, 1914, entitled An Act to create a Federal Trade Commission. to define its powers nnd duties, and for other purposes." . Order 24F. T. C.

OTIDER TO CE.\SE AND DESIST This proceeding having been heard by the Federal Trade Commission upon the complaint of the Commission, the answer of the respond· ent filed herein on July 2j, 1936, testimony and evidence taken before Trial Examiner 1V. 1V. Sheppard, an examiner of the Commission theretofore duly designated by it, in support of the charges of said complaint, upon the said complaint as amended by order of the Commission on December 24, H.l36, and the answer to the said amended complaint, filed herein on January 7, 1937, by respondent admitting all the material allegations of the complaint, as amended, to be true and waiving the taking of further evidence and all other intervening procedure; and the Commission having made its findings as to the facts and its conclusion that said respondent has violated the provi· sions of an Act ()f Congress approved September 26, 1914, entitled "An Act to create a Federal Trade Commission, to define its power.; and duties, and for other purposes."

It is ordered, That the respondent, F. L. Mc1Vethy, his agents, representatives, servants, and employees, in connection with the offering for sale, sale and distribution of a product now designated as "l\Ic· 1Vethy's Home Treatment" or any product of substantially the "amc composition and ingredients sold under the name "l\lc1Vethy's Home Treatment" or under any other llame, ill interstate commerce, do cease and desist from:

Ueprcsenting, directly or indirectly, through form letters, folders. circulars, catalogs, or any other form of printed matter, or by radio broadcasting, or in any other mamwr:

(a) That said Home Treatment is nn effective rentedy for any bladder trouble;

(b) That it is nn effective or valuable treatlllent for prostatic trouble of any kind;

(c) That it is an effective or valuable treatment for killney trouble; (d) That it is an effective or valuable treatment for the bowels; (e) That it reaches all of the underlying causes of either bladder, kidney, prostatic or bowel troubles;

{f) That it will "cme" or "rid" one of all such ailments; (g) That it will relieve a weakened condition of the bladder due to enlarged prostate gland or to a deranged condition of the kidneys; (h) That it can or should eliminate the cause of bhtdder or other organic troubles;

( i) That it will have a beneficial effect upon an acid or rheumatic condition of the blood causing bladder irritations; F. L. McWETHY 529 1'119 Order (j) That the use of this medicine in preventing retention of urine Will enable one to avoid interstitial Hephritis or Bright's disease; (k) That delay in taking this medicine may make it too late for one to treat his Lladder ailment effectively; ( Z) That the Home Tn,atment acts directly on the seat of the trouble or that it brings quick relief no matter what the causes are; (m) That it relieves systemic causes of kidney, bladder and bowel ailments and troubles;

and from making any other representations of similar tenor or import .

.And it is lteJ'eby furtlte1' ordered, That the said respondent shall Within 60 days from the date of the service upon him of this order file with this Commission a report, in writing, setting forth the manner and form in which he shall have complied with this order. Syllabus 24F.T. C.