Air Conditioning Textiles, Inc

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IN THE l\IATTER OF AIR CONDITIONING TEXTILES, INC.

COMPLAINT, FINDINGS, AND ORDER IN REG.\RD TO THE ALLEGED VIOLATION OF SEC. 5 OF AN ACT OF CONGRESS APPROVED SEPT. 26, 1914 Docket 39/'.f. Complaint, Dec. 16, 1939-Decision, .4.ug. 19,1910 Where a corporation engaged in sale and distribution of its so-called "Air Couuitloning the Human Body" soap to purchasers in various other States, lu competition with others also engaged in sale and distribution of soaps designed and used for cleansing the skin, nnd lnclulling many who do not misrepresent properties or efficacy of their respective productslli>presentetl, through use of tenn aforesaid, that its said product possessed airconditioning pt·operties or qualities and reduced body temperature attd humidity, and eliminated perspiration objections, and that body breathed through pores of skin, facts being, while menthol synti.K>tic content of product served to impart to skin a slight cooling and soothing sensation, it had no effect on actual temperature of body, which does not breathe through pores as above alleged, and product in question did not air condition the body nor reduce its temperature, nor accomplish the other effects above claimed;

With capacity and tendency to mislead and deceive a portion of the purchasing public, aware of principle of air conditioning as new scientific development advancing and contributing to bodily comfort, but, in case of many, entirely unfamiliar with manner of operation thereof and principle's limitations, into erroneous and mistaken belief that said false representations were true, and that its soap possessed properties claimed and represented, and would accomplish results Indicated, and into purchase thereof because of such belief, thus Induced, and with result of thereby divt>rting trade unfairly to it from Its competitors in commerce:

Held, That such acts and pt·actlces, undet· the circumHances set forth, wet·e all to the prejudice and injury of the public and competltot·s, and constituted unfair methods of competition in commerce and unfair and decPptlve acts nod practices therein.

Before Mr. John W. Addison, trial examiner. 11/r. Randolph lV. Branch and .Vr. B. G. Wil-son for the Commission. !IIr.llarry B.l{urzrok, of New York City, for respondent. CmrPL.\I~T Pursuant to the provisions of 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 Air Conditioning Textiles, Inc., a corporation, hen'inafter referred to as respondent, has violated the provisions of said act, and it appearing to the Commission that a proceeding by it in respect thereof would be in the Complaint 31F. T. C.

public interest, hereby issues its complaint, stating its charges in that respect as follows:

P ARAGRAPII 1. Respondent, Air Conditioning Textiles, Inc., is a corporation organized, existing, and doing business under and by virtue of the laws of the State of New York, with its office and principal place of business at 1441 Broadway, New York City, N.Y. PAR. 2. The respondent has been for '6 years last past engaged in the business of selling and distributing certain toilet preparations including a toilet soap designated variously as "Air Conditioning the. Human Body" soap and as "Air Conditioning" soap. Respondent causes the said product, when sold by it, to be transported from its aforesaid place of business in the State of New York to the purchasers thereof located in various other States of the United States and in the District of Columbia.

For 3 years last past respondent herein has maintained a course of trade in said product in commerce among and between the various States of the United States and in the District of Columbia. PAR. 3. ·In the course and conduct of its business, respondent has been engaged in competition with other corporations and with partnerships, firms, and individuals also selling and distributing soaps anJ. other products designed and used for the cleansing of the skin, in commerce among and between the various States of the United States. Among such competitors are many who do not in any manner misrepresent the properties or the efficacy of their respective soaps or other products. · PAR. 4. In the course and conduct of its said business, and for the purpose of inducing the purchase of its said product, respondent has caused advertisements containing false and misleading representations and claims with respect to its said product to be disseminated by means of circulars and other printed and written matter and by the use of labels attached to its said product. Among and typical of the false and misleading representations contained in said advertisements are the following:

Air Conditioning Snaps and Toilet Preparations. They Definitely Reduce Body TempPrnture. Reduce Humidity by Evaporation. Eliminates Perspiration Objections.

The use of these preparations is the modern, practical way for ".Air Conditioning the Human Body."

The human body breathes through the pores of the skin. Respondent's soap is generally referred to in all of said advertisements and labels as "Air Conditioning Soap."

PAR. 5. Members of the purchasing public have been made conscious of the term "air conditioning" and of the fact that the principle of AIR CONDITIONING TEXTILES, INC. 789 i87 Complaint "air conditioning'' is a new scientific development advancing and contributing to bodily comfort but many of them are entirely unfamiliar with the manner of operation of the principle of air conditioning and the limitations thereon. The use of the term "air conditioning" as descriptive of respondent's soap product, has the tendency and capacity to mislead and deceive purchasers into the mistaken and erroneous beliefs that to some extent the principle of "air conditioning" has in some manner been incorporated into such soap and that, by reason thereof, such soap possessps properties contributing to human comfort which are not possessed by ordinary soaps. 'While respondent's soap possesses pt>rfume and menthol in less than 3 percent, it has no prompt>rties different from ordinary soap.

Through the use of the statements and representations hereinabove set forth, and others similar thereto not herein set out, all of which purport to be descriptive of respondent's product and its effectiveness in use, the rt>spondent has reprt>sented among other things: That its said product "air conditions the human body"; that said product reduces body tempt>rature, reduces humidity by evaporation and eliminates pt>rspiration objections; and that the human body breathes through the pores of the skin.

PAR. 6. The foregoing repres~ntations are grossly exaggerated, misleading, and untrue. In truth and in fact respondent's product will not air condition the human body. It will not reduce body temperature, nor reduce humidity, nor will it eliminate perspiration objections. The human body does not breathe through the pores of the skin. In truth and in fact respondent's product does not diffi in any material respect from other soaps used for ordinary cleansing purposes. PAR. 7. The use by respondent of the foregoing false and misleatlin~ representations with respect to its said product has had the capacity and tendency to mislead and deceive a portion of the purchasing public into the erroneous and mistaken belief that such false representations are true, and that respondent's said product possesses the properties claimed and represented, and will accomplish the re~mlts indicated and into the purchase of quantities of respondent's product on account of such beliefs so induced. As a result, trade has been diverted unfairly to the re~pondent from its competitors, and in con:-;equence thereof, injury has been done and is now being done by respondent to competition in commerce among and between the Yarious Statps of the United States and in the District of Columbia. J> Au. 8. Tlw aforesaid acts and practices of r(•spondent as herein alleged an• all to the prejudice and injury of the public and of l't>~pondt>nt's competitors, und constitute unfair methods of com- 790 FEDERAL TRADE COMl\IISSION DECISIO~S Fiudiugs 311<'. T. C. petition in commerce and 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 Former Pur:;Uant to the provisions of the Federal Trade Commission .Act, the Federal Trade Commission, on D<>cember Hi, 1939, issued and thereafter served its complaint in this proceeding upon .\ir Conditioning Textiles, Inc., a corporation, charging it with the llse of unfair methods of competition in commerce and 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 respondent's answer thereto, testimony and other evidence in support of the allegations of the complaint wet·e introduced by Randolph W. Branch, attorney for the Commission, before John ,V, Addison, an examiner of the Commission theretofore duly designated by it, and said testimony and other evidence were duly recorded and. filed. in the office of the Commission. No testimony or other evidence was offerwl by the respondent. Thereafter, the proceeding regularly came on for final hearing before the Commission on the said complaint, the answer thereto, testimony and other evidence, and brief in support of the complaint, respondent not having filed brief, and on oral argument by counsel for the Commission and by the respondent through its president; and the Commission having duly considered. the matter 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, Air Conditioning Textiles, Inc., is a corporation organized, existing and doing business under and by virtue of the Jaws of the State of New York, with its office and principal place of business at an Broadway, New York City, N.Y. PAR. 2. Respondent, from June 1937, to the summer or fall of 1939, was engaged in the business of selling and distributing soap designated by it as "Air Conditioning the Human Body" soap. It caused the said soap, when sold by it, to be transported from its place of business in the State of New York to the purchasers thereof located in various other States of the United States. Respondent maintained a course of trade in its said soap in commerce among and between the several States of the United States.

AIR CONDITIONING TEXTILES, INC. 791 787 Findings PAR. 3. Respondent, in the course and conduct of its business as aforesaid, was engaged in competition with other corporations and with partnerships and individuals also engaged in selling and distributing soaps designed and used for cleansing of the skin, in commerce among and between the several States of the United States. Among these competitors are many who do not misrepresent the properties or the efficacy of their respective products. PAR. 4. Respondent, to promote the sale of its soap in conunerce as described above, has represented in its advertising material that its said soap air conditions the human body, that said soap reduces body temperature, reduces humidity by evaporation, eliminates perspiration objections, and that the human body breathes through the pores of the skin.

PAR. 5. The Commission finds that there is no basis in fact for these representations. In truth and in :fact, respondent's soap does not air condition the human body, nor does it reduce body temperature. It does not reduce humidity, nor does it eliminate perspiration objections. The human body does not breathe through the pores of the skin. PAR. 6. Members of the purchasing public have been made conscious of the term "air condition", and of the fact that the principle of "air conditioning" is a new, scientific development advancing and contributing to bodily comfort; but many of them are entirely unfamiliar with the manner of operation of the principle of air conditioning and the limitations thereon. The use of the term "air conditioning" as descriptive of respondent's soap has the tendency and capacity to mislead and deceive purchasers into the mistaken and erroneous belief that to some extent the principle of air conditioning has in some manner been incorporated into such soap, and that by reason thereof, such soap possesses properties contributing to human comfort which are not possessed by ordinary soaps. Respondent's soap contains a 1;erfume solution making up three per cent or less of its total contt'nt, and twothirds of this solution is menthol synthetic. The presence of the menthol serves to impart to the skin a slight cooling and soothing sensation, but it has no effect on the actual temperature of the body. PAR. 7. The use by respondent of the foregoing false and misleading repr«:>!:entations with respect to its said product has the capacity and tendency to mislead and dl'ceive a portion of the purchasing public into the erroneous and mistaken belief that said false representations are true, and that respondent's soap possesses the properties claimed and represented and will accomplish thl' results indicated, and into the purchase of respondt'nt's product because of such lx>lief so induced. .As a result, tratle has bt'en divert«:>d unfairly to respondent from its com- P('titors in commerce among and lx>hwen the several States of tho UnitNl States.

2flH!"ot6m 41 YO!. 31-G3 Order 31 F. T. C.

CONCLUSION The acts and practices of the respondent as found herein are all to the prejudice and injury of the public and of respondent's competitors, and constitute unfair methods o:f competition in commerce and unfair and deceptive acts and practices in commerce, within the intent and meaning of the Federal Trade Commission Act. ORDER TO CEASE AND DESIST This proceeding having been heard by the Federal Trade Commission upon the complaint of the Commission, the answer of the respondent, testimony and other evidence taken before John ,V. Addison, an examiner of the Commission theretofore duly designated by it, in support of the allegations of the complaint, brief filed by counsel for the Commission, and oral argument by D. G. 'Vilson, counsel for the Commission, and by the president of the respondent corporation, and the Commission having made its findings as to the facts and its conclusion that said respondent has violated the provisions of the Federal Trade Commission Act.

It is ordered, That respondent, Air Conditioning Textiles, Inc., a corporation, its officers, representatives, agents, and employees, directly or through any corporate or other device, in connection with the offering for sale, sale, and distribution of its soap designated as "Air Conditioning the Human Body" soap and as "Air Conditioning" soap, or any other soap composed of substantially similar ·ingredients or possessing substantially similar properties, whether sold under the same name or under any other name, in commerce, as "commerce" is defined in the Federal Trade Commission Act, do forthwith cease and desist from:

1. Using the term "Air Conditioning" or "Air Conditioning the Human Body," or any other term of similar import, to designate or describe its said soap, or otherwise representing that said soap possesses air-conditioning properties or qualities. 2. Representing that said soap reduces body temperature or reduces humidity or eliminates perspiration objections. 3. Representing that the human body breathes through the pores of the skin.

It i8 fu.rther ordered, That the respondent 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 this order.

L. HOFFMAN 793 Syllabus