Parker, White & Heyl, Inc

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IN THE MATTER OF BARD-PARKER COMPANY, INC., AND PARKER, WHITE & HEYL, INC.

COliiPLAil\".1.', FINDINGS, AND ORDER IN REGARD TO THE ALLEGED VIOLATION OF SEC. 5 OF AN ACT OF CONGRESS APPROVED SEPT. 26, 1914 Docket His. Complaint, .Mar. 28, 1941-Dccision, Sept. 15, 1941 Where a corporation and Its subsidiary, engaged in interstate sale and distribution of their "Bard-Parker Formaldehyde Germicide," referred to sometimes as "Bard-Parker Germicide," and "B-P Germicide," and of "B-P Instrument Containers," "B-P Sterilizers," and "B-P Instrument Jars" for use therewith; by means of advertisements in pamphlets, circulars, medical journals, letterheads, and other advertising literature, and through imprinted or raised letterings on the sides of said instrument containers, and through photomicrographs, in pamphlets distributed by them, of the cutting edge of surgical :n blades, directly and by implicationepresented that their said "Bard-Parker· Formaldehyde Germicide" chemical Solution was an efficient, practical and certain sterilization medium for the Pre-operative preparation of surgical and dental Instruments, and a safe, F Prac~ical substitute for heat sterilization; acts bemg that, while their said solution had high germicidal and destructive bacteriological properties, it would not destroy all forms of bacteria when Used in accordance with the customary sterilization technique; and it was not efficient, practical and certain, or a safe substitute for heat sterilization, Unless the instruments remained continuously immersed therein for a period \ . of 18 hours between usage;

VLth eilect of misleading and deceiving a substantial portion of the purchasing PUblic into the erroneous belief that such false representations were true, 1I and ·of inducing it, beca;se of said belief, to purchase their chemical solution: eld, That such acts and practices, under1· the circumstances set forth, were a:n to the prejudice and injury of the public, and constituted unfair and deceptive acts and practices in commerce.

Air, John W. Carter, Jr., for the Commission. lViggin & Dana, of New Haven, Conn., for respondents . • Col\IPLAINT 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 Bard-Parker Co., Inc., a corporation, and Parker, ·white & Heyl, Inc., a corporation, hereinafter referred to as respondents, have violated the provisions of said act, and it appearing to the Commission that a proceeding by it Complaint 33 F. T. C. in respect thereof would be in the public interest, hereby issues its complaint, stating its charges Jn that respect as follows: PA:rv\GRAPH 1. The respondent, Bard-Parker Co., Inc., is a corpora· tion with its principal office and place of business located at Danbury, Conn. The respondent, Parker, ·white & Heyl, Inc., is a corporation organized and existing under and Ly virtue of the laws of the State of New York, with its principal office and place of business located at Danbury, Conn. It is a subsidiary of the said Bard-Parker Co., Inc., and is engaged primarily as the selling and distributing agent for its principal. The said respondent corporations act in conjunction and cooperation with each other with respect _to the acts and practices hereinafter set forth.

PAn. 2. Respondent, Parker, White & Heyl, Inc., and respondent, Bard-Parker Co., Inc., acting through its said subsidiary, are now, and for more than 1 year last past, have been engaged in the sale and distribution of the following Bard-Parker products: (a) A chemical solution designated "Bard-Parker Formaldehyde Germicide," s-ometimes referred to as "Bard-Parker Germicide" and "B-P Germicide."

(b) Instrument containers designed and intended to be used in con· nection with the aforesaid "Bard-Parker Formaldehyde Germicide" designated as "B-P Instrument Containers" and "B-P Sterilizers." (c) Instrument jars designed and intended to be used in connection with the said "Bard-Parker Formaldehyde Germicide" and designated as "B-P Instrument J·ars."

Hespondents cause their said products, when sold, to be transported from their said place of business in the State of Connecticut to the purchasers thereof at their respective points of location in various States of the United States, other than the State of Connecticut, and in the District of Columbia. Respondents maintain, and at all times mentioned herein have maintained, a course of trade in said products in commerce, among and between the various States of the United States and in the District of Columbia.

PAR. 3. I~ the course and conduct of their' aforesaid business the said respondents have disseminated and are disseminating, and have caused and are now causing the dissemination of, false advertisements concerning thl' · r said chemical solution "Bard-Parker Formaldehyde Germicide" by the United States mails and by various other means in. commerce as commerce is defined in the Federal Trade Commission Act; and the respondents have also disseminated, and are now dis· seminating, and have caused and are now causing the dissemination of, false advertisements concerning their said product, by various means for the purpose of inducing, and which are likely to induce, BARD-PARKER CO., INC., ET AL. 1303 1301 Complaint .directly or indirectly, the purchase of their said product in commerce, as commerce is defined in the Federal Trade Commission Act. Among anc{ typical of the false, mi~leading, and deceptive statements -and representations contained in said false advertisements, disseminated ~nd caused to be disseminated as hereinabove set forth, by the United . states mails, in pamphlets, circulars, advertisements in medical Jo~rnals, letterheads, by statements imprinted on the various contamers and Ly other advertising literature, are the following: Studies on the Chemical Sterilization of Surgical Instruments. The Impi·oved Bard-Parker Formaldehyde Germicide-a highlight In the cavalcade of protective instrument sterilization methods. ~Decifical!y developed as a more efficient, practical and economical sterilizing lllethod that insures preservation of the factory new charactet·istlcs of delicate surgical instruments • * •.

Clinically and chemically stable. Does not lose germicidal efficiency or deteriorate with age or evaporation.

Greate1· and more rapid bactericidal and sporicidal effectiveness. Destructive Factor Eliminated by the 1\Iodern B-P Instrument Sterilization Medium.

Sterilization by boiling is known to produce a progressively destructive action Upon keen cutting edges and points.

Bard-Parker Germicide provides effective rust-proof sterilization. " * • often far exceeds the nomina! cost of this invaluable sterilizing llled!um.

No costly or intricate mechanical equipment is necessary for the satisfactory Use ot B-P Germicide. No occasion for functional failure due to temporary lllscontiuuation of gas or electric service. No perpetual gas or electrielty ex- Pense Jnvolved.

liARI)-PARKER INSTRUMENT OONTAINF.RS designed to afford added measurPS of instrument protection during the sterilizing process. A compact container of heavy duty "PYREX" gla,ss, designed for use with B-P Germicide to facilitate the rust-proof sterilization of fine surgical instruments. 0! high germicidal potency * * * destructive to both vegetati•e and spore forllls of bacteria.

It Sterilizes.

B-p Sterilizer.

Through the use of the statements and representations hereinabove Set forth, and others of similar import not specifically set out herein, an of which purport to be descriptive of the destructive bacteriological Properties of their said chemical solution, respondents represent, di· rectly or through implication, that their said chemical solution "Bard- Parker Formaldehyde Germicide" is an efficient, practical ~nd certain ~terilization medium for surgical and .dental instruments, and that it Is a safe substitution for heat sterilization . • :PAR. 4. The foregoing statements and representations, and others of !llmilar import not specitical1y set forth herein, are grossly exaggerr1ted, false, and misleading. While respondents' said preparation lias Findings 33 F. T. C. germicidal properties it will not, when used in accordance with the usual and customary technique ordinarily associated with sterilization, destroy all forms of bacteria. It is not an efficient, practical, and cer· tain sterilization medium and is not a safe substitute for heat sterili· zation.

PAR. 5. The use by the respondents of the foregoing false, deceptive, and misleading statements and representations, and others of a similar nature, disseminated as aforesaid, has had and now has the tendency and capacity to, and does mislead and deceive a substantial portion of the purchasing public into the erroneous and mistaken belief that such false statements, representations and advertisements are true and to induce a substantial portion of the purchasing public, because of such erroneous and mistaken belief, to purchase respondents' chemical solution "Bard-Parker Formaldehyde Germicide."

PAR. 6. The aforesaid acts and practices of the respondents, as here· in nJleged, are all to the prejudice and injury of the public and consti· tute unfair and deceptive acts and practices in commerce within the !ntent 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 the 28th day of March 1941, issued and served its complaint in this proceeding ·upon Bard-Parker Co., Inc., and Parker, 'Vhite & Heyl, Inc., charging said respondents with the use of unfair and deceptive acts and practices in commerce, in violation of the provisions of said act.

On April 15, 19-!1, the. respondents filed their answers in this pro· cee9,ing. Thereafter, a stipulation was enter:ed into whereby it was stipulated and agreed that a statement of facts signed and executed by the respondents and Richard P. 'Vhiteley, assistant chief counsel for the Commission, subject to the approval of the Commission, may be taken as the facts in this proceeding and in lieu of testimony in support of the charges stated in the complaint, or in opposition thereto, and that the said Commission may proceed upon said statement of facts to make its report, stating its findings as to the facts and its con· elusion based thereon and enter its order disposing of the proceeding without the presentation of argument or the filing of briefs, and without the filing of the trial examiner's report upon the evidence. Thereafter, this proceeding regularly came on for final hearing before the Commission on said complaint, answer and stipulation, said stipulation having been approved, accepted and filed, and the Commission having duly considered the same and being now fully advise4 in the premises, finds that this proceeding is in the interest of the public BARD-PARKER QO., INC., ET AL. 1305 1301 Findings and makes its findings as to the facts and its conclusion drawn therefrom.

FINDINGS AS TO THE FACTS .PAAAGRAPH 1. Respondent, Bard-Parker Co., Inc., is a corporation 'Wlth its principal office and place of business located at Danbury, Conn.

Respondent, Parker, White & Heyl, Inc., is a corporation or· ?anized and existing under the laws of the State of New York, with lts principal office and place of business located at Danbury, Conn. It is a subsidiary of respondent, Bard-Parker Co., Inc., and is engaged primarily as the selling and distributing agent for i.ts Principal.

.Respondents act in conjunction and cooperation with each other 'With respect to the acts and practices hereinafter set forth. PAn. 2. Respondents are now, and for more than 1 year last past, have been engaged in the sale and distribution of the following Bard-Parker products:

(a) A chemical solution designated "Bard-Parker Formaldehyde Germicide," sometimes referred to as "Bard-Parker Germicide" aud "n ·P Germicide."

(b) Instrument containers designed and intended to be used in c?nnection with the aforesaid "Bard-Parker Formaldehyde Germi- Cide," designated as "B-P Instrument Containers" and "B-P Sterilizers."

. (c) Instrument jars designed and intended to be used in connection with the said "Bard-Parker Formaldehyde Germicide" and designated as "B-P Instrument Jars." , Respondents cause their said products, when sold, to be trans- Ported from their place of l:iusiness in the State of Connecticut and from their place of business in the State of Pennsylvania, to the purchasers thereof at their respective points of iocation in the Various States of the United States other than Connecticut and Pennsylvania, and in the District of Columbia. Respondents maintain, and at all times mentioned herein have maintained, a course of trade in said products in commerce, among and between the Various States of the United States and in· the District of Columbia. PAn. 3 In the course and conduct of their aforesaid business the said respondents have disseminated and are disseminating, and have. cause<l and are now causing the dissemination of, false advertisements concerning their said chemical solution "Bard-Parker Formaldehyde Germicide" by the United States mails and by various means in commerce as commerce is defined in the Federal Trade Findings 33 F. T. C. Commission Act; and the respondents have also disseminated, and are now disseminating, and have caused ancl are now causing the disseminating of, false advertisements concerning their said product, by various means for the purpose of inducing, and which are likely to induce, directly or indirectly, the purchase of their said product in commerce, as commerce is defined in the Federal Trade Commjssion Act.

PAR. 4. Among and typical of the false, misleading, and deceptive statements and representations contained in said false advertisements, disseminated and caused to be disseminated by respondents. as hereinabove set forth, by the United States mails, in pamphlets, circulars, advertisements in medical journals and periodicals, letter· heads, and by other advertising literature, are the following: 1. Prior to the year.1939, as shown by Commission's exhibits 1 to 10, inclusive:

Studies on the Chemical Sterilization of Surgical Instruments. The Improved Bard-Parker Formaldehyde Germicide-a highlight in the cavalcade of protective Instrument sterilization methods. Specifically developed as a more efficient, practical and economical ~tern?ll· tion method that lnsurPs pre;;ervation of the factot·y new characteristics of delicate sur~lcal Instruments * * * ,Destructive Factor Eliminated by the Modern B-P Instrument .sterilization Medium.

Bard-Parker Germid<le provides effecth·p rust-proof sterilization. • • • often far exceeds the nominal coi<t of this invaluahle sterilizing medium.

BARD-PARKER INSTRUMENT CONTAINERS designed to afford added measures of lni~trnment protection during the sterilizing process. A compact container of heavy duty "PYREX" glass, designed for use with B-P Germicide to facilitate the rust-proof sterilization of fine surgical instru ments.

Of high germicidal potency • • • destructive to both vegetlltlve tmd spore forms of bactet·!a.

It Sterilizes.

B-P Sterilizer.

2. Subsequent to the year 1939, ns shown by respondents' exhibits Nos. A, B, C, and D:

Studies on thl' Chemlrnl StPrlllzation of Surglrnl Instruments. THE IMPROVED BARD-PARKER FORMALDEHYDE GERMICIDE A Highlight In The Calvnrnde of Protcctire Methods For the Preoperative Prl'parntlnn of Instruments.

Specifically developed as a more efficient, p1·actlcnl an(l economical diRinfectlng medium, capable of prolonging the factory-new characteristics of <leilcate surgical lnstrument~P-thus serving to safeguard the surgeon's or hospital's instrument inve;;tment.

BARD-PARKER CO., INC., E'l' AL. 1307 1301 Findings DESTRUCTIVE !!ACTORS El.JMINATED BY THE MODERN B. P. INSTRUMENT-DISINF'I!lOTING l!EDIUM. . Sterilization by boiling is known ;o produce a progressively destructive action ~Po~ keen cutting edges and points. The intense heat of autoclaving and boiling n °11 'JCOJlUrdize the temper of steel-the oil leaving a film which must be rinsed or wiped oft'. Most available chemical solutions of sufficiently high germicidal Potency, 8\H:h as formaldehyde U. s. P. carbolic acid, mercuric chloride, etc., e:x:ert a corrosive action on metal.

BA1!D·P--\RKER FORMALDEHYDE GERMICIDE PHOVIDFJS EFFECTI\'El RUSTPROOF PREPARATION OFTINSTRUMENTS . , he solution will not rust, conode or otherwise damage steel instruments, 1~ass, or heat treateu rubber, and is nondestructive to the keen cutting edges of l··P knives and scissors; the lulllens anu points of hypodermic and suture needles; ~tass syringes n.ud suture tubes • * "' throughout the disinfecting process. Dresei·ves the tempe1· of steel thus prolonging the useful life of instruments. PAn. 5. In like mn.nner and means in commerce, and for the same l?~lrpose, as is set forth in paragraph 3 hereof, respondents have also disseminated and are disseminating, and have caused and are now causing the dissemination of, false advertisements by the use of: I 1. Imprinted or raised lettering on the sides of the Bard-Parker . nstrument Containers, as illustrated in Commission's exhibits 1 to 9, Inclusive, and in respondents' exhibits A and B, respectively, such as B-P Sterilizer, and . 2. Photomicrographs of the cutting edge of surgical blades appearl~g in pamphlets distributed by respondents, as is shown by Commis- Sion's exhibit 1, 2, 3, and 9, respectively, and by respondent's exhibits A.. and n, respectively.

The photomicrographs are designated (a) Edge of steel blade before sterilization; (b) Edge of steel blade after boiling iri water for five minutes, and : (c) Edge of steel blade after thirty-six hours in Bard-Parker Germi- Cide, respectively.

and are arranged in sequence so as to demonstrate the nondestructiye action of the aforesaid chemical solution on the cutting edge of surgical blades, as compared with the destructive action of sterilization by boilino-.,.

PAR. 6. Through the use of the statements and representations contained in said false agvertisements, as set forth in paragraphs 4 and 5 hereof, and others of similar import not specifically set-out herein, all disseminated and caused to be disseminated as aforesaid, respondents have represented directly, and are now representing indirectly and through implication and inference, that their said chemical solution ''Bard-Parker Formaldehyde Germicide" was and is an efficient, prac- Order 33F.T.C· tical and certain sterilization medium for the preoperative preparation of surgical and dental instruments and that it was and is a safe, prac· tical substitute for heat sterilization.

PAR. 7. The aforesaid statements and representations disseminated as aforesaid, are grossly exaggerated, false, and misleading. 'Vhi~e respondents' chemical solution, "Bard-Parker Formaldehyde Germ1• cide," has high germicidal and destructive bacteriological properties, it will not, in the light of present scientific knowledg~, when used in accordance with the usual and customary technique ordinarily asso· ciated with sterilization, destroy all forms of bacteria. It is not an efficient, practical and certa.in sterilization medium and it is not a safe substitute for heat sterilization unless the instruments, between usage, remain continuously immersed in the said solution for a period of eighteen hours.

PAR. 8. The use by the respondents of the foregoing false, deceptive, and misleading statements and representations, and others of a similar nature, disseminated as aforesaid, has had the tendency and capacity to, and does, mislead and deceive a substantial portion of the purchas· ing puqlic into the erroneous and mistaken belief that such false state· ments, representations and advertisements were and are true and to induce a substantial portion of the purchasing public, because of such erroneous and mistaken belief, to purchase respondents' chemical solution "Bard-Parker Formaldehyde Germicide." CONCLUSION The aforesaid acts and practices of the respondents, as herein found, 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. ORDER TO OEASE AND DESIST This proceeding having been heard by the Federal Trade Commis· sion upon the complaint of the Commission, the answer of the respond· ents, and a stipulation as to the facts entered into between the re· spondents herein and Richard P. Whiteley, assistant chief counsel for the Commission, which provides, among other things, that without further evidence or other intervening procedure .the Commission may issue and serve upon the respondents· herein findings as to the fads and conclusion based thereon and nn order disposing of the proceeding, and the Commission having made its findings as to the facts and con· elusion that said respondents have violated the provisions of the Federal Trade Commission Act.

BARD-PARKER CO., INC., ET AL. 1309 1301 Order t' It is ordered, That respondents, Bard-Parker. Co., I~c., a corpora- IOn, and Parker, White & Heyl, Inc., a corporation, thmr officers, representatives, agents, and employees, directly or through any corporate or. other device, in connection with the offering for sale, sale or distribution of the chemical solution "Bard-Parker Formaldehyde ~e.rmicide," or any other preparation of substantially similar compo- Sition or possessing similar properties, whether sold under the same ' n~rne or under any other name, do forthwith cease and desist from directly or indirectly:

b 1. Disseminating or causing to be disseminated any advertisement "y means of the United States mails, or by any means in commerce, as commerce" is defined in the Federal Trade Commission Act, which advertisement represents, directly, indirectly, or through inference, ~hat the said chemical solution Bard-Parker Formaldehyde Germidde 18 a sterilization medium for the preoperative preparation of surgical or dental 'instruments, or is a substitute for boiling or autoclaving of surgical or dental instruments, unless it is clearly and unequivocally stated in immediate connection with each such representation, in Words of equal conspicuousness, that any instrument to be sterilized ~lust remain continuously immersed in said chemical solution for not ess than 18 hours.

2. Disseminating or causing to be disseminated any advertisement b! any means for the purpose of inducing or which is likely to induce, directly or indirectly, the purchase in commerce as "commerce" is defined in the Federal Trade Commission Act, of said chemical solution, Bard-Parker Formaldehyde Germicide, which advertisement contains any of the representations prohibited in paragraph 1 hereof. It is further ordered, That the respondents shall, within 60 days ~after service upon them of this order, file with the Commission a report In Writing, setting forth in detail the manner and form in which they have complied with this order.

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