Benham, Harry S

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IN THE 1\fApER OF HARRY S. DENHAM, TRADING AS AMERICA'S MEDICINE AND NU-l\IODE COMPANY COliPLAINT, FINDINGS, .AND ORDER IN REGARD TO THE ALLEGED VIOLATION OF SEC. 5 OF .AN ACT OF CONGRESS .APPROVED SEPT. 26, 1914 Docket 3851. Complaint, July 15, 1939-Deci.sion, Sept. 9, 1939 Where an individual engaged in sale and distribution of various medicinal pre>parations, in commerce among the various Stutes and In the District of Columbia, including certain medicinal preparations for the relief of delayed mf'nstruation, designated as "America's l\Jpdicine XX Compound," "Nu-1\lode XX Compound," or "Kotess Perio<lic Relief Compound," "America's lHedi· cine XXX Compound," and "Nu-1\lode xx:x Compound," or ''Kotess Periodic Relief Compound"; in adYertisemeuts which he disseminated through the mails through insertions in newspapers and periodicals of general circulation, and throligh circulars and other printed or written matter dis· tributed in commerce among the various States and in other ways, and which were intended and likely to induce purchase· of said various prepnrationfr- (a) Represented that said pro(lncts, thus variously designated as "America's Medicine XX Compound," "Nn-llfode XX Compound," or "Kotess Periodic RPllPf Compound," "AmPrica's Medicine XXX Compound," and "Nu~lllode XXX Compound," or "Kotess Periodic Relief Compound," were a competent and effective remedy for delayed menstruation, and were harmless and would accomplish results without pain or inconvenience, facts being they were not a competent and effective remedy for said condition and would not accomplish such results as above set forth, and were not safe and harmless in that said "XX Compound" contained aloes and oil of savin, and said "XXX Compound" contained extract of cotton root bark, ergotln and oll of snvin in quantities sufficient to cause serious and irreparable injury to health if taken under conditions prescribed in said advertisements or under. such conditions· as are customary or usual; and (b) Failed to reveal, in advertisements disseminated as aforesaid, that use of said preparations, under conditions prescribed in said advertisements or under such conditions as are customary or usual, might result in serious and irreparable injury to health ;

With effect, through use of such false, deceptive, and misleading statements nnd represcntatlons, of misleading and deceiving substantial portion of purcha~­ ing public into erroneous and mistaken belief that such statements and representations were true, and of inducing portion of purchasing public, because of such belief, to buy its said injurious, drug-containing prepnrations:

Held, That such acts and practices, under the circumstances set forth, were all to the prejudice and injury of the public and constituted unfair and deceptive acts and practices in commerce.

Mr. R. P. Bellilnger for the Commission.

Mr. Edward T. Morris, of Chicago, Ill., for respondent. FEDERAL TRADE COl\1l\IISSION DECISIONS872 Complaint 29F.T.C.

Complaint Pursuant to the provisions o:f the Federal Trade Commission Act, and by virtue of the authority vested in it by said act, the Federal Trade Commission, having reason to believe that Harry S. Denham, an individual, trading as America's Medicine & Nu-Mode Co., hereinafter referred to as respondent, has violated the pro· visions of said act, and it appearing to the Commission that a pro· ceeding by it in respect thereof would be in the public interest, stating its charges in that respect as follows: PARAGRAPH 1. Respondent Harry S'. Benham is an individual trading and doing business as America's Medicine & Nu-1\Iode Co., with his principal office and place of business located at 620 Orleans Street, Chicago, Ill. The respondent is now, and for more than one year last past has been engaged in the sale and distribution of various medicinal preparations in commerce among and between the various States of the United States and in the District of Columbia. Among the preparations so sold and distributed by the respondent are certain medicinal .preparations for the relief of delayed menstruation, designated as "America's Medicine XX Compound," "Nu-Mode XX Compound," or "Kotess Periodic Relief Compound," "America's Medicine XXX Compound," and "Nu-Mode XXX Compound" or "Kotess Periodic Relief Compound." Respondent causes said preparations when sold to be transported from his place of business in the State of Illinois to purchasers thereof located in various other States of the United States and in the District of Columbia.

Respondent maintains, and at all times mentioned herein has maintained, a course of trade in said medicinal preparations in commerce among and between the various States of the United States and in the District of Columbia.

PAn. 2. In the course and conduct of his aforesaid business the respondent has disseminated, and is now disseminating, and has caused, and is now causing, the dissemination of false advertisements concerning his said preparations by the United States mails, by insertions in newspapers and periodicals, having a general circu· lation, and also in circulars and other printed or written matter, all of which are distributed in commerce among and between the various States of the United States, and by other means in com· merce, as "commerce" is defined in the Federal Trade Commission Act, for the purpose of inducing, and which are likely to induce, directly or indirectly, the purchase of his said preparations; and has disseminated and is now disseminating, and has caused and is l' j;

~~lii AMERICA'S MEDICINE AND NU-1\IODE CO. S73 l' ;I t' 871 Complaint 'l now causing, the dissemination of false advertisements concerning i ! of inducing,his said preparations by various means for the purpose I Iand which are likely to induce, directly or indirectly, the purchase of I his said preparations in commerce, as "commerce" is defined in the- i ! Federal Trade Commission Act. Among an<!_ typical of the false representations contained in the advertisements disseminated andcaused to be disseminated, as aforesaid, are the following: l I Married Secret~ Told.-\Vfien delayed; don't be alarmed, discouraged or unprepared! You can now depend on this wonderful A. l\1. Periodic Relief Compound (Double XX Strength). Quick in action. Powerful, yet absolutely Safe, harmless, easy to take without pain or inconvenience. Produces unbelievable remarkable results, some say magic-like t Generally relieves the wost puzzling. overdue, discouraging, suppressed, scanty, unnatural delays. Triple XXX Strength for obstinate cases-$5.00. When Nature Falls.-Nature may fall you and cause a ·long, overdue, unusual, unnatural, suppressed pet·iod--but don't fear, despair, or become despondent. Now at last you can rely on this amazing Nu-Mode Periodic Reller Compound for safe, secure, desired results generally quick, without pain or inconvenience. No longer need you be uncertain from month to month. Easy tc> take--absolutely harmless.

Triple XXX Strength for most puzzling obstinate cases only $4.00. PAn. 3. By the use of the representations hereinabove set forth, and other representations similar thereto not specifically set out herein, the respondent represents that his medicinal preparations known and designated as "America's Medicine XX Compound," "Nu-l\fode XX Compound," or "Kotess Periodic Relief Compound," "America's Medicine XXX Compound," and ''Nu-Mode XXX Compound," or "Kotess Periodic Relief Compound," are a competent and effective remedy for delayed menstruation; that said preparations are harmless and will accomplish results without pain or inconvenience.

PAR. 4. In truth and in fact said preparations are not a competent and effective remedy for delayed menstruation and will not accomplish results without pain or .inconvenience. Furthermore, said preparations are not safe and harmless in that America's Medicine XX Compound and Nu-Mode XX Compound contains aloes and oil of savin and said preparations, America's Medicine X..."X:X Compound and Nu-Mode XXX Compound contain extract of cotton root bark, ergotin and oil of savin in quantities sufficient to cause serious and irreparable injury to health if taken under the conditions prescribed in said advertisements or under such conditions as are customary or usual.

The use of these preparations under the conuitions prescribed in said advertisements or und£>r such conditions as are customary or S74 FEDERAL TRADE COMMISSION DECISIONS Findings 29F. T. C.

usual may result in gastrointestinal disturbances such as catharsis, nausea, and vomiting with pelvic congestion, congestion of the uterus leading to· excessive uterine hemorrhage and in those cases when either of these preparations is used to interfere with the normal course of pregnancy may result in uterine infection with extension. to other pelvic and abdominal structures and even to the blood stream, causing the condition known as septicemia or blood poisoning. The use of said preparations may also produce a very severe circulatory condition by the constriction of blood vessels and contraction of the' invoiuntary muscles, often with violent poisonous effects upon the human system and tending to cause abortion in some instances, and may result in severe toxic conditions such as hemorrhagic diarrhea and in some instances producing a gangrenous condition in the lower limbs or other serious or irreparable injury to health. PAR. 5. In addition to the representations hereinabove set forth the respondent is also engaged in the dissemination of false advertisements in the manner above set forth in. that said advertisements so disseminated fail to reveal that the use of said preparations under the conditions prescribed in said advertisements or under such conditions as are customary or usual may result in serious and irreparable injury to health.

PAR. 6. The use by the respondent of the foregoing false, deceptive, and misleading statements and representations with respect to his preparations disseminated as aforesaid, has had, and now has, the capacity and tendency to, and does, mislead and deceive a substantial portion of the purchasing public into the erroneous and mistaken belief that such statements and representations are true and induce a portion of the purchasing public, because of such erroneous and mistaken belief to purchase respondent's medicinal preparations containing injurious drugs.

PAR. '7. The aforesaid acts and practices of the respondent, as herein alleged, are all to the prejudice and injury of the public and constitute unfair and deceptive acts and practices in commerce within the intent and meaning of the Federal Trade Commission Act. REPORT, FINDINGS AS TO THE Facts, AND Onder Pursuant to the provisions of the. Federal Trade Commission Act, the Federal Trade Commission on July 15, 1939, issued, and on July 18, 1939, served its complaint in this proceeding upon the respondent, Harry S. Benham, an individual, trading as America's l\Iedicine & Nu-1\Iode Co., charging him with the use of unfair and deceptive acts and practices in commerce in violation of the provisions of said act. After the issuance of said complaint and the filing of respond· AMERICA'S MEDICINE ANP NU-1\!0DF, CO. 875 Findings ent's answer, the C01runission, by order entered herein, granted re- Rpondent's motion for permission to withdraw said answer and to 6nbstitute therefor an answer admitting all the material allegations of fact set forth in said complaint and waiving all intervening procedure and :further hearing as to said :facts, which substitute answer "as duly filed in the office of the Commission. Thereafter, this proc~<'ding regularly came on for final hearing before the Commission on the said complaint and substitute answer, and the Commission, hav- \ ing duly considered the matter and being now fully advised in the I premises, finds that this proceeding is in the interest of the public and makes this its findings as to the facts and its conclusion drawnthet'efrom. I FINDINGS AS TO THE FACTS PARAGRAPH 1. Respondent Harry S. Benham is an individual trad-h1g and doing business as America's l\Iedicine & Nu-l\Iode Co., with I I his principal office and place of business located at 620 Orleans Street, ! Chicago, Ill. The respondent is now, and for more than 1 year last past has been engaged in the sale and distribution of various medici- Hal preparations in commerce among and between the various States of the United States and in the District of Columbia. Among the preparations so sold and distributed by the respondentare certain medicinal preparations for the relief of delayed men- Il· struation, designated as "America's :Medicine XX Compound," Nu- ,,,I Mode XX Compound" or "Kotess Periodic Relief Compound," i"America's Medicine XXX Compound," and "Nu-Mode XXX Com- rl pound," or "Kotess Periodic Relief Compound." ''. Respondent causes said preparations when sold to be transportedfrom his place of business in the State of Illinois to purchasers r Ithereof located in various other States of the United States and in ! the District of Columbia.

Respondent maintains, and at all times mentioned herein has !'). maintained, a course of trade in said medicinal preparations in com- !( merce among and between the various States of the United States ' iand in the District of Columbia. PAR. 2. In the course and conduct of his aforesaid business the j respondent has disseminated, and is now disseminating, and has caused, and is now causing, the dissemination: of false advertisements concerning his said preparations by the United States mails, by insertions in newspapers and periodicals, having a general cirlculation, and also in circulars and other printed or written matter, li all of which are distributed in commeroo among and between the various States of the United States, and by other means in commerce, as "commerce'' is defined in the Federal Trade Commission Findings ::!SF. T. C. Act, for the purpose of inducing, and whi~h are likely to induce, directly or indirectly, the purchase of his said preparation; and has disseminated and is now disseminating, and has caused and. is now causing, the dissemination of false advertisements concerning his said preparations by various means for the purpose of inducing, and which are likely to induce, directly or indirectly, the purchase of his said preparations in commerce, as "commerce" is defined in the Federal Trade Commission Act. Among and typical of the false representations contained in the advertisements disseminated and caused to be disseminated, as aforesaid, are the following: Married Secrets Told.-When delayed, don't be alarmed, discouraged or unprepared! You can now depend on this wonderful A. 1\!. Periodic Relief Compound (Double XX Strength.) Quick 1n action. Powerful, yet absolutely Safe, harmless, easy to take without pain or Inconvenience. Produces unbelievable remarkable results, some magic-like! Generally relieves the most puzzling, overdue, discouraged, suppressed, scanty, unnatural delays. Triple XXX Strength for obstinate cases-$5.00. \Vhen Nature Fails.-Nature may fail you and cause a long, overdue, unusual, unnatural, suppressed period-but don't fear, despair, or become despondent Now at last you can rely on this amazing Nu-1\!ode Periodic Relief Compound for safe, secure, desired results generally quick, without pain or inconvenience. No longer need you be uncertain from month to month. Easy to take-absolutely harmless.

Triple XXX Strength for most puzzling obstinate Cll;;es only $4.00. PAR. 3. By the use of the representations hereinabove set forth, and other representations similar thereto not specifically set out herein, the respondent represents that his medicinal preparations known and designated as "America's Medicine XX Compound," "Nu-Mode XX Compound," or "Kotess Periodic Relief Compound," "America's Medicine XXX Compound," and "Nu-Mode XXX Compound," or "Kotess Periodic Relief Compound," are a competent and effective remedy for delayed menstruation; that said preparations are harmless and will accomplish results without pain or inconvenience. PAR. 4. In truth and in fact said preparations are not a competent and effective remedy for delayed menstruation and will not accomplish results without pain or inconvenience. Furthermore, said preparations are not safe and harmless in that America's Medicine XX Compound and Nu-1\fode XX Compound contains aloes and oil of savin and said preparations, America's Medicine XXX Compound and Nu-Mode XXX Compound contain extract of cotton root bark, ergotin and oil of savin in quantities sufficient to cause serious and irreparable injury to health if taken under the conditions prescribed in said advertisements or under such conditions as are customary or usual.

AMERICA'S MEDICINE AND NU~l\IODE CO. 877 871 Order The use of these preparations under the conditions prescribed in said advertisements or under such conditions as are customary or usual may result in gastrointestinal disturbances such as catharsis, nausea, and vomiting with pelvic congestion, congestion of the uterus leading to excessive uterine hemorrhage and in those cases when either of these preparations is used to interfere with the normal course of pregnancy may result in uterine infection with extension to other pelvic an'd abdominal structures and even to the blood stream, causing the condition known as septicemia or blood poisoning. The use of said preparations may also produce a very severe circulatory con· dition by the constriction of blood vessels and contraction of the involuntary muscles, often with violent poisonous effects upon the human system and tending to cause abortion in some instances, and :may result in severe toxic conditions such as hemorrhagic diarrhea and in some instances producing a gangrenous condition in the lower limbs or other serious or irreparable injury to health. PAR. 5. In addition to the representations hereinabove set forth the respondent is also engaged in the dissemination of false advertise· :rnents in the manner above set forth in that said advertisements so disseminated. fail to reveal that the use of said preparations under the conditions prescribed in said advertisements or under such conditions as are customary or usual may result in serious and irreparable injury to health.

PAR. 6. The use by the respondent of the foregoing false, deceptive, and misleading statements and representations with respect to his preparations disseminated as afores~;~.id, has had, and now has, the capacity and tendency to, and does, mislead and deceive a substantial portion of the purchasing public into the erroneous and mistaken l,. Ibelief that such statements and representations are true and induce a I •·portion of the purchasing public, because of such erroneous and :mistaken belief to purchase respondent's medicinal preparations containing injurious drugs. · I I CONCLUSION The aforesaid acts and practices of the respondent, as herein found, I are all to the prejudice and injury of the public and constitute unfair j· Iand deceptive acts and practices in commerce within the intent and .; :meaning of the Federal Trade Commission Act. I ! ORm:R TO CEASE AND DESIST I This proceeding having been heard by the Federal Trade Com-mission upon the complaint of the Commission and the answer of l 213700m--4Q--vo429----58 l Ji'EDERAL TRADE . COMMISSION DECISIONS878 Order 29F. T.C.

respondent, in which answer respondent admits all the material allegations of fact set forth in said complaint, and states that he waives all intervening procedure and further hearing as to said facts, and the Commission having made its findings as to the facts and conclusion that said respondent has violated the provisions of the Federal Trade Commission Act.

· It i9 ordered, That the respondent, Harry S. Benham, an indi~ vidual, trading as America's Medicine & Nu-Mode Co., or trading under any other name or names, his agents, servants, representatives, and employees, directly or through any corporate or other device, do forthwith cease and desist from:

Disseminating or causing to be disseminated any advertisement by ·means of the United States mails or in commerce, as commerce is defined in the Federal Trade Corrunission Act by any means, for the purpose of inducing, or which is likely to induce, directly or indirectly, the purchase of medicinal preparations known or desig~ nated as America's Medicine XX Compot~:nd, Nu-Mode XX Compound, and Kotess Periodic Relief Compound, and America's Medi~ cine XXX Compound, Nu-Mode XXX Compound, and Kotess Periodic Relief Compound, or any other medicinal preparation composed of substantially similar ingredients or possessing substantially similar therapeutic properties, whether sold under the same name or under any other name or names, or disseminating or causing to be disseminated any advertisement by any means for the purpose of inducing or which is likely to induce, directly or indirectly, the purchase in commerce, as commeq:e is defined in the Federal Trade Commission Act, of said medicinal preparations which advertisements represent, directly or through implication that the use of said medicinal preparations constitutes a safe, competent, and scientific treatment for delayed menstruation and that their use will have no ill effects upon the human body, or which advertisements fail to reveal that the use of these preparations may result in serious or irreparable injury to the health of the user. It is further ordered, That the respondent shall, within 10 days after service upon him of this order, file with the Commission an interim report in writing, stating whether he intends to comply with this order and if so, the manner and form in which he intends to comply; and that, within GO days after the service upon him of this order said respondent shall file with the Commission a report in writing, setting forth in detail the manner and form in which he has complied with this order.

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j: AVERBACH CO., INC., ET AL. . 879 l' 'i Syllabus !: