Pascal Co., Inc

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IN THE 1\:fATI'ER OF PASCAL COMPANY, INC.

COMPLAINT, MODIFIED FINDINGS AND ORDER IN REGARD TO THE ALLEGED VIOLATION OF SEC. 5 OF .AN ACT OF CONGRESS .APPROVED SEPT. 26, 1914 Docket 2945. Complaint, Oct. 15, 1936-Decision, Apr. 18, 1939 1 'Vhere a corporation engaged in manufacture of "Breatheasy," preparation, and atomizer or "nebulizer" for treatment of asthma, hay fever and kindred dis· eases, and in the sale and distribution thereof through distributors and drug stores in the various States, in substantial competition with those engaged in interstate sale and distribution of other preparations recommended for, and useful in, treatment of such diseases, and of atomizers for use in con· nectlon therewith; in extensively advertising its said product through various newspapers of interstate circulation and through radio broadcasts having Interstate transmission, and through booklets and circulars issued and distributed by it- Represented that said preparation was a cure or remedy for asthma, hay fever and kindred diseases, which could be used successfully without following any particular form of diet, and constituted a harmless remedy which would return the user to vigorous, buoyant health, and was the one sure relief available for treatment of asthma, and constituted a "doctor" ever ready to relieve asthmatics, through such statements, among others, as "For Asthma • • •," "* • • only one Remedy for Asthma And that Remedy is Breatheasy," "* • • the one, sure asthmatic relief available today • • • gives a sense of well-being, a return to -vigorous, buoyant health • • •," "• • * no diet is necessary. You may eat anything you may desire" ;

Facts being asthma, as classified by medical profession, may result from many varying causes, no specific cure for asthma is recognized by said pro· fession, and such preparation is not cure therefor nor for hay fe,·er, and, while preparation in question, as well as many other remedies containing adrenalin, may in some cases temporarily relieve asthma, it does not con· stitute treatment therefor, and use thereof will not bring about or restore vigorous, buoyant health or give absolute and instant relief to sufferers therefrom, proper diet is very important in many cases and may become means of eiTecting a cure, and said product should not he taken at all in many cases in which diet is essential, and Is no less dangerous to user because taken through "nebulizer" than if taken through hypodermic injection;

With capacity and tendency to mislead and deceive public into erroneous belief that said "Breatheasy" was in truth and in fact a remedy and cure for asthma, hay fever and kindred diseases, and that in use thereof it was not necessary to follow any particular diet, and to induce such purchasing public to buy said "Breatheasy" in preference to other preparations de· signed for treatment of aforesaid diseases and offered for sale by manu· facturers, retailers and distributors, and with result of unfairly diverting • For prior findings and order. see 26 F. T. C. 740. PASCAL CO., INC. 1447 1446 Complaint trade to it from such manufacturers, retailers, and distributors of such other preparations who do not misrepresent the character and quality of their respectiye products or the results to be obtained from the use thereof: Held, That such acts and practices were to the prejudice of the public and competitors and constituted unfair methods of competition. Before /1/r. Henry M. White, trial examiner. Mr. Reuben J. },fartin for the Commission. /1/r. Clarence L. Cere, of Seattle, 'Vash., for respondent. Complaint 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 the other purposes," the Federal Trade Commission, having reason to believe that Pascal Company, Inc. 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:

PARAGRAPH 1. The respondent, Pascal Co., Inc., is a corporation organized and existing under and by virtue of the laws of the State of Washington, with its principal office and place of business located at 1014 .American Bank Building, Second Street at Madison, in the city of Seattle, within the State of "\Vashington. Said respondent is now and for more than 1 year last past has been engaged in the manufacture and sale of a product known as "Breatheasy" for the treatment of asthma, hay fever, and kindred diseases, and of an atomizer or so-called "nebulizer" for administering the preparation "Breatheasy," and in the distribution thereof in commerce between and among the various States of the United States. It causes said "Breatheasy" and the nebulizer, when sold by it, to be transported to purchasers thereof located in the State of 'Vashington and in various Stat~s of the United States other than the State of Washington. There is now and has been for a long time, to wit, for more than 1 Year last past, a constant current of trade and commerce by respondent in said "Breatheasy" and said nebulizer, between and among the various States of the United States.

In the course and conduct of its said business, said respondent is now and for a long time, to wit, for more than 1 year last past, has been in substantial competition in commerce between and among the various States of the United States with sundry other corpor::ttions, partnerships, firms, and individuals engaged in the interstate 1448 FEDERAL TRADE C01HIISSION DECISIOXS Complaint 28F. T. C.

sale and distribution of other preparations recommended for the treatment of asthma, hay fever and kindred diseases, and of atomizers or nebulizers for use in connection therewith. PAR. 2. The preparation "Breatheasy" and the atomizer or nebulizer used in connection therewith are manufactured by said respondent and are sold and distributed by said respondent through distributors and drug stores located in the various States of the United States.

PAR. 3. Said respondent, in the course and conduct of its said busi· ness as hereinbefore set out in paragraphs 1 and 2, has been and now is engaged in extensive advertisement of its said products as a means of furthering and aiding in the interstate sale and distribution of "Breatheasy" and the atomizer or nebulizer for use in connection therewith, and as media of such advertising it has been and now is using various newspapers of interstate circulation, and broadcasts over radio stations having interstate reception. Said respondent also issues booklets and circulars describing the said product "Breath· easy."

Said respondent in its said advertisements of the preparation "Breatheasy" and the atomizer or nebulizer used in connection there· with, manufactured and distributed by it, has made and is now mak· ing various false, deceptive, and misleading statements concerning said products. Among the statements which said respondent has used and is now using in its advertisements in newspapers and over the radio and in its booklets and circulars distributed with its said products, are the following:

'WANTED: A distributor for a nationally known remedy for asthma. 'Vould rather have somebody that has had experience in similar lines, or who Is an asthmatic. This does not require a great deal of capital and is a money maker. FOR ASTHMA "Breatheasy"

(trade mark) THE GREATEST DISCOVERY Created by a physician to successfully cure his own asthma, "Breatheasy" is now' sold on money-back guarantee.

RE:\IEMllER There is only one Remedy for ASTHl\IA And that Remedy fs Breatheasy Drentheasy is a creation of a physician, who himself suffered from asthma, and was developed until now it gh·es absolute, instant and complete relief. PASCAL CO., INC. 1449 1446 Complaint For asthmatics who seek relief, they will find this remedy their "doctor," ever ready to relieve them.

BnEATHEASY means exactly what the name implies. It is the one, sure asthmatic relief available today. In working its wonders, BllEATHEASY gives a sense of well-being, a return to vigorous, buoyant health. BREATH- EASY was developed by a physician who suffered from asthma, and, in striv· lng for relief, he evolved this marvelous remedy. IF YOU suffer from asthma or if any of your friends are atfiicted with the symptoms stop in at the West End Drug Store, First and Monroe, and ask to have this thoroughly marvelous treatment demonstrated. Remember, there is no charge. Asthmatics everywhere hail the DREATHEASY method as the one remedy that can be relied upon.

During the use of "Dreatheasy," no diet is n.necessary. You may eat anything You may desire.

In truth and in fact, "Breatheasy" is not a remedy for and it does not cure asthma. In any treatment for asthma the proper diet is essential, as mucus-formi.ng foods are injurious in cases of asthma. Respondent in its said advertising has created and is now creating upon the public the false impression and erroneous belief that "Breatheasy" is a reliable and dependable remedy and cure for asthma, hay fever, and kindred diseases, and that in the use of the same it is not necessary to follow any particular diet. In fact, "Breatheasy" is not a reliable and dependable cure for asthma, hay fever or kindred diseases.

PAR. 4. The use by the said respondent, Pascal Co., Inc., of the foregoing false, deceptive, and misleading representations has had and does now have the capacity and tendency to and does mislead and deceive the public into the erroneous and untrue belief that "Breatheasy" is in truth and in fact a remedy for and will cure asthma, hay fever and kindred diseases, and that in using the same it is not necessary to follow any particular diet. Acting in such erroneous belief, the consuming public, and especially that portion of the public suffering from asthma, hay fever, or kindred diseases, have been induced and are now induced to purchase "Breatheasy" in preference to other preparations designed for the treatment of asthma, hay fever, and kindred diseases, and offered for sale by manufacturers, retail dealers, and distributors. As a result of such false, deceptive, and misleading representations on the part of sai.d respondent, trade is unfairly diverted to respondent from such manufacturers, retail dealers, or distributors of other preparations for treating asthma, hay feyer, and kindred diseases, who do not misrepresent the character and quality of their respective products or the results obtained from the use thereof.

PAR. 5. Said false, deceptive, and misleading representations of said respondent, contained in its advertisements, have resulted in Findings 28 1!'. T. C. injury to respondent's competitors and to retail dealers, and in prejudice to the buying public, 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 power and duties, and for other purposes."

REPORT, Modified FINDINGs AS TO THE FACTS AND Onder 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 on the 15th day of October 1936, is.c;ued and on October 20, 1936, 'Served its complaint in this proceeding upon the respondent, Pascal Co., Inc., charging said respondent with the use of unfair methods of competition in commerce in violation of the provisions of said act. After the issuance of said complaint and the filing·of the respondent's answer thereto, testimony and other evidence in support of the allegations of said complaint were introduced by Reuben J. Martin, attorney for the Commission, before Henry M .. ,Vhite, an examiner of the Commission, theretofore duly designated by it, and in opposition to the allegations of the complaint })y Clarence L. Gere, attorney for the respondent; and said testimony and other evidence were duly recorded and filed in the office of the Commission. Thereafter, the proceeding regularly came on for final hearing before the Commission on the said complaint, the answer thereto, testimony, and other evidence, and briefs in support of the complaint and in opposition thereto, no oral argument having be.en heard, and the Commission having duly considered the same and being advised in the premises found that this proceeding was in the interest of the public and made its findings as to the facts and its conclusion drawn therefrom on September 8, 1937. Thereafter, on February 16, 1938, on motion of Clarence L. Gere, counsel for the respondent, the Commission made its modified findin~s as to the facts and its conclusion drawn therefrom. Thereafter, the proceeding regularly came on for 'final hearing on the motion of ,V. T. Kelley, chief counsel for the Commission, to further modify the findin~s as to the facts and the conclusion drawn therefrom, and on the objection of respondent thereto, and the Commission having duly considered the same and being now fully advised in the premises and in accordance with its order entered herein ~rantin~ said motion, finds that this proceeding is in the interest of the public, and makes this its modified findings as to the facts and its conclusion drawn therefrom.

PASCAL CO., INC. 1451 1446 Findings l\IODIFIED FINDINGS AS TO Tile FACTS PARAGRAPH 1. The respondent, Pascal Co., Inc., is a corporation, crganized and existing under and by virtue of the la,ws of the _State of Washington, with its principal office. and place of business located at 1014 American Bank Building, Second Street at :Madison, in the city of Seattle, within the. State of Washington. Said responclrnt is now, and has been since July 19, 1936, engaged in the manufacture and sale of a preparation known as "llreatheasy" for the treatment of asthma, hay fever, and kindred diseases, and of an atomizer or so-called "nebulizer" for administering the preparation "Breatheasy," and in the distribution thereof in commerce between and among the various States of the United States. It causes said "Breatheasy" and the "nebulizer" when sold by it to be transported to purchasers thereof located in the State of Washington and in various States of the United States other than the State of 'Vashington. There is now, and has been for more than 1 year last past, a constant current of trade and commerce by respondent in said "llreatheasy" and said "nebulizer" between and among the various States of the United States. In the course and conduct of its said business, respondent is now, and since July 19, 1936, has been in substantial competition in commerce between and among the various States of the United States with sundry other corporations, and with partnerships, firms, and individuals engaged in the interstate sale and distribution of other preparations recommended for the treatment of asthma, hay fever, and kindred diseases, and of atomizers or "nebulizers" for use in connection therewith, which said preparations are useful in the treatment of said diseases. PAR. 2. The preparation "Breatheasy" and the atomizer or Hnebulizer," used in connection therewith, are manufactured by said respondent and are sold and distributed by said respondent through distributors and drug stores located in the various States of tho United States.

PAR. 3. The respondent, in the course and conduct of its said business has been, and now is engaged in extensive advertising of its said products as a means of furthering and aiding in the interstate sale and distribution of "Breatheasy" and the atomizer or "nebulizer" for m:e in connection therewith, and as mt>dia of such advertising it has been, and now is using various newspapt>rs of interstate circulation and broadcasts over radio stations having interstate transmission. Said respondent also issues and distributt>s booldets and circulars describing the said preparation "Dreatheasy.'' 200346m--4o-vol. 28--94 Finding~ 28F.T. C.

PAn. 4. The respondent, in its said advertisements o£ the preparation "Breatheasy" and the atomizer or "nebulizer'' used in connection therewith manufactured and distributed by it, has made, and is now making, various statements regarding the efficacy of said preparation known as "Breatheasy" in the treatment of asthma, hay fever, and kindred diseases. Among the statements which said respondent has used, and is now using, in its advertisements in newspapers and over the radio, and in its booklets and circulars distributed with its said products are the following: For ASTHMA "Breatheasy"

(trademark) THE GREATEST DISCOVERY Created by a physician to successfully cure his own asthma, "Breatheasy" is now sold on money-back guarantee REMEMBER There is only one Remedy for ASTHMA And that Remedy is Breatheasy Breatheasy is a creation of a physician who himself suffered from asthma, and was developed until now it gives absolute, instant and complete relief. For asthmatics who seek relief, they will find this remedy their "doctor", ever ready to relieve them.

BREATHEASY is beneficial, according to authorities, in asthma and chronic bronchitis, in heart disease and cardiac distress, in gastric ulcer, in serum rnshes, urticaris (hives) and other skin diseases of the erythematous and exzematous types, in hay fever, In Inflammation of the nose, throat, tonsils, larynx and lungs, and in neuralgia and neuritis. This by no means completes the list, but it suffices to show the enormous value of this substance elaborated by the adrenal glands and what may happen if they are deficient. BREATIIEASY means exactly what the name implies. It is the one, sure asthmatic relief available today. In working its wonders, BREATHEASY gives a sense of well-being, a r!'turn to vigorous, buoyant health. BREATH- EASY was developed by a physician who suffered from asthma, and in striving for relil'f, he evolved this marvelous remedy. If YOU suffer from asthma or If any of your friends are afflicted with the symptoms, stop in at the West End Drug Store, First and 1\Ionroe, and ask to have this thoroughly marvelous treatment demonstrated.· Remember, there is no charge. Asthmatics everywhere hail the BREATHEASY method as the one remedy that can be relied upon.

During the use of "Dreatheasy'', no diet is necessary. You may eat anything you may desire.

Doctors had the only relief for ASTHMA PASCAL CO., INC. 1453 1446 Findings thirty years ago "' "' "' but they did not know how to use it. Finally n physician who was an asthmatic, took the remedy and discovered how it could be used to give absolute instant and complete relief. He called it BREATH- EASY-Write today for complete information. STOP Suffering from ASTHMA.

"Breatheasy"

(Trade Mark) Introduces a new medicament of scientific formula which applies synthetic adrenal gland extract vaporized thru the "Dreatheasy"

NEBULIZER "Vapor, not a spray"

Now available, with money-back guarantee ASTHMA "Breatheasy"

(Trade Mark) with SPECIAL NEBULIZER 1s your best answer for ASTHMA Supplies adrenal deficiency which is the prime cause of Asthma, thru special Nebulizer that delivers 10 times the vapor (not spray) possible with ordinary means.· Not habit forming, not a drug.

All asthmatics will find DREATHEASY the one, sure relief available on the market today. Write for full complete details. There is no obligation. Of course you know that eplnephrin Is the only specific remedy for asthmn. .and hay fever, and that it has been in the hands of the medical profession fol" the past twenty years. Only two things prevented its coming into popular use for all sufferers at all times. They were, its high cost and the difficulty of its administration, we have overcome both of these obstacles In DREATIIEASY. The use of BREATHEASY in the treatment of asthma will conclusively prove to you that at last asthmatic sufferers have found the one, sure relief for this painful affliction.

That no other person, firm or corporation has any right to manufacture or in .any manner deal in this l"apol"lzer or any Imitation thereof. DREATHEASY Gives you swift, sure relief for ASTHMA All asthmatics will find DREATIIEASY the one, sure relief on the market today. Write for full, complete details. There is no obligation. PAR. 5. The respondent corporation is owned by Dr. Denjamin S. Paschall and other members of his family. Dr. Paschall is a physi- Findings 28F. T. C.

cian and chief chemist of the respondent corporation. The respondent is engaged in the business of making pharmaceutics and its principal product is epinephrin. The product epinephrin, together with the "nebulizer," an apparatus for administering the epinephrin, constitutes the commodity sold to the public in interstate commerce by the resprmrlent undrr the trade name of "llreatheasy." The respondent maintains a laboratory in which the product epinephrin is manufactured. The product epinephrin is a solution of epinephrin hydrochlorides, at least 2¥2 percent, put up in physiological salt solution conta;ning traces of carminatives and preservatives of chemically pure grarlp, Its structure is racemic.

P•R 6. Epinephrin may be obtained in two ways, namely, by svntlwtically building it up in the laboratory, and also by extracting it from the glands of animals. The epinephrin sold by the respondent is obtained synthetically. The epinephrin is put into the "nebulizer" !mel by means of the "nebulizer'' is breathed into the lungs of the user. The Ppinephrin is not injected into the user by means of a hypodermic needle. The "nebulizer" sold and distributed by the respondent is an instrnment which turns liquid into vapor and is the means by which the uspr takes the medicine into the body. The "nebulizer'' is manufartnred by the respondent for use in connection with its product epinephrin, and epinephrin, together with the "nebulizer," constitutes the commodity sold as "Breatheasy." The chemical ingredients used by respondent in manufacturing its epinephrin are purchased by the respondent in the open market :for use in respondent's laboratory. Epim•nhrin contains the same properties as adrenaline and is synthetic adrenaline. The preparation "llreatheasy" is sold by the respondent :for the purpose o:f treatment of asthma, hay fever, and kindred diseases. Adrenaline has been constantly used by the medical profession :for thirty years in the palliative treatment of asthma to temporarily relieve asthmatic spasms and has been customarily administered to thp patient hypodermically.

PAR. 7. True asthma, is defined as "A condition of shortness of brt>ath causerl by the constriction of the bronchial muscles and by the pxudation of mucus into the narrow bronchial passages, the reason for which is a reflrx due to the ingestion or inhalation of substances to which the patient is hypersensitive." There are many various forms of asthma or physical conditions which are generally classified by the medical profession as asthma. The basic causes of the ailments classified by the medical profession as asthma are not yet known to the mNlical profession, and asthma may result from many varying causes. PAR. 8. There is no specific cure for asthma generally recognized by the medical profession. "llreatheasy" is not a cure for asthma nor is it a cure for hay fever. Asthma may be, and often is, cured when PASCAL CO., INC. 1455 1446 Conclusion the cause of the asthma is known and eliminated. The elimination of the cause of asthma may sometimes be produced by surgery and by other methods, but it cannot be eliminated by '~Breatheasy." "Breatheasy" as well as many other remedies containing adrenaline, may in some cases temporarily relieve asthma. "Breatheasy" does not constitute a treatment for asthma, and its use will not bring about or restore vigorous, buoyant health.

PAR. 9. "Breatheasy" will not give "absolute, instant, and complete relief" to sufferers from asthma and is not a sure relief for persons -suffering with asthma. The use of "Breatheasy" is not harmless in all cases, and there are cases where its use would be distinctly dangerous.

PAR. 10. In many cases of asthma, proper diet is very important and may become the means of effecting a cure. Many persons suffer from asthma due to being allergic to certain foods. In such cases diet is {\Essential, as only by refraining from using the particular food to which the sufferer is allergic may a cure be effected. In such cases diet is essential and "Breatheasy" will not give relief in these cases independent of the proper diet. In many of such cases "Breatheasy" -should not be used at all. Epinephrin is no less dangerous to the user because it is taken by means of a "nebulizer" than it would be if taken by means of a hypodermic injection.

PAR. 11. The advertisements and representations made to the pur- ~hasing public by the respondent, as hereinbefore set out in paragraph 4, are false and misleading. They have had, and do now have, the ~apacity and tendency to mislead and deceive the public into the {\rroneous and untrue belief that "Breathensy" is in truth and in fact a remedy for, and will cure, asthma, hay fever, and kindred diseases, and that in the use of the same it is not necessary to follow any particular diet, and to induce such purchasing public to purchase "Breatheasy" in preference to other preparations designed for the treatment of asthma, hay fever, and kindi·ed diseases and offered for sale by manufacturers, retail dealers, and distributors. The result of such false, deceptive, and misleading representations on the part of said respondent is to unfairly divert trade to said respondent from such manufacturers, retailers or distributors of other preparations for treating asthma, hay fever, and kindred diseases, who do not misrepresent the character and quality of their respective products or the results to be obtained from the use thereof.

CONCLUSION The aforesaid acts and practices of the respondent, Pascal Co., Inc., are to the prejudice of the public and competitors of the re- Order 28F. T, C.

spondent 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."

l\'I:ODIFIED ORDER TO CEASE AND DESIST This proceeding having been heard by the Federal Trade Commission upon the motion of "\V. T. Kelley, chief counsel for the Commission, to modify the findings as to the facts and the conclusion drawn therefrom and the order to cease and desist issued in this proceeding on February 16, 1938, upon the objection of respondent thereto, and the Commission having duly considered said motion and the record herein, and having granted said motion, and being now fully ad vised in the premises.

It is ordered, That the respondent, Pascal Co. Inc., its officers, representatives, agents, and employees, in connection with the offering for sale, sale and distribution of the preparation now known as, and sold under the name "Breatheasy ," or any preparation, under whatever name sold, composed of the same or similar ingredients, and possessing similar therapeutic properties, in interstate commerce or in the District of Columbia, do forthwith cease and desist from representing that .

(a) Said preparation is a cure or remedy for asthma, hay fever, or kindred diseases.

(b) Said preparation cim be successfully used without following any particular form of diet.

(c) Said preparation is a harmless remedy which will return the user to vigorous, buoyant health.

(d) Said preparation will give relief to those suffering from asthma, other than temporary relief from asthmatic spasms. (e) Said preparation is the one sure relief available for the treatment of asthma.

(f) Said preparation is a "doctor" ever ready to relieve asthmatics. (g) And from making any other similar representations of like import or effect as to the therapeutic or medicinal value of said preparation.

It is further ordered, That the respondent, Pascal Co., Inc., shall within 60 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 the order to cease and desist hereinabove set forth.

CANADIAN CHAMOIS & LEATHER CORP, 1457 Syllabus