David L. Silver

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IN THE MATI'ER OF DAVID L. SILVER AND 0. C. COLWES, T:&ADING AS KAY'S CUT RATE AND AS KAY'S CUT RATE DRUGS COMPLAINT, FINDINGS, AND ORDER IN REGARD TO THE .ALLEGED VIOLATION OF SEC. I! OF AN .ACT OF CONGRESS .APPROVED SEPT. 26, 1914 Docket 4510. Complaint, May !"1, 1941-Decision, Oct. 14, 1941 'Where two Individuals engaged In interstate sale and distribution of various lllediclnal preparations; In advertisements through the mails, in newspapers, circulars, and other advertising literature, directly and by lmpllcation- (a) Represented that their "ll!adame Bea's Capsules" constituted a competent and effective treatment for delayed, unnatural, and suppressed menstruation, and that it was safe and harmless, through such statements as "Modern 'Women: Harmless prescription delayed periods. Don't be alarmed over delayed unnatural suppressed periods, Madame Bea's Capsules sold at Kay's Cut-Rate";

F'acts being that said product was not a competent or effective treatment for such ailment, and was not safe or harmless, in that it contained the drugs ergot, oil of savln, aloin, and hellebore in quantities sufficient to cause· gastro-intestinal distm·bances and excessive congestion and hemorrhage of the pelvic organs; where used to interfere with the normal course of pregnancy, might result in uterine infection causing blood poisoning; might also Produce a severe circulatory condition by constriction of the blood vessels and contraction of the Involuntary muscles, tending to cause abortion, and Inight result In severe poisonous effects upon the human system, in some instances resulting in loss of limbs or other serious and irreparable injury to health; and (b) Failed to reveal facts material in the light of representations in such advertisements, and that the use of said preparation, under prescribed or usual conditions, might cause aforesaid disturbances and serious and lrrep- W· arable Injury;

lth capacity and tendency to mislead and deceive a substantial portion of the Purchasing public into the erroneous and mistaken belief that their said Preparation possessed properties which It did not in fact possess, and ·that it Was safe and harmless when such was not the fact, and to cause such PUblic to buy substantial quantities of said preparation, as a result of such belief:11 eld, 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. William L. Taggart for the Commission. McGinnis & Mann, of Beckley, ,V, Va., for respondents. Complaint 33 F. T. C. Complaint 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 David L. Silver and 0. C. Colwes, trading under the names of Kay's Cut Rate and Kay's Cut Rate Drugs, hereinafter referred to as respondents, have violated the provisions of said act, and it appearing to the 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. Respondents are individuals operating under the laws of the State of West Virginia with their principal office and place of business in Beckley, ·w. Va. Kay's Cut Rate and Ka_y's Cut Rate Drugs are trade names used by respondents in the operation of their said business.

PAR. 2. Respondents are now and for more than one year las~ ~as~ have been engaged in the sale and distribution of various mediclna preparations. Among the various preparations sold and distributed by the respondents is a drug preparation advertised and sold as ":Madame Dea's Capsules."

Respondents cause their said preparati~n. when sold, to be tr~n~­ ported from their place of business in the State of West Virg~nlB to purchasers thereof located in various other States of the Unite~ States and in the District of Columbia. Respondents maintain, a~ at all times mentioned herein have maintained, a course of trade 10 their said preparation in commerce between and among .the various States of the United States and in the District of Columbia. PAR. 3. In the course and conduct of their aforesaid business, the respondents have disseminated and are now disseminating, and have caused and are now causing the dissemination of false advertisemen~s concerning their said product by the United States mails and by var\ ous other means in commerce, as commerce is defined in the Federad Trade Commission Act; and respondents have also dissemjnated an are now disseminating, and have· caused and are now causing th: dissemination of, false advertisements concerning their said pro~U~' by various means, for the purpose of inducing and which are hke { to induce, directly or indirectly, the purchase of thejr said prod~C in commerce, as commerce is defined in the Federal Trade Com~IS· sion Act. Among and typical•of the false, misleading, and decep~ve statements and representations contained in said false advertise· ments, disseminated and caused to be dissemjnated as hereinabove set forth, by the United States mails, by ad~ertisemcnts in news· KAY'S CUT RATEI, ETC. 1461 1459 Complaint Papers, and by circulars and other advertising literature, are the followin~:

Modern Women/ Harmless prescription delayed periods. Don't be alarmed over delayed unnatural suppressed periods. Madame Bca's Ca-psules sold at K.ay's Cut-Rate, . . PAR. 4. Through the use of the foregoing statements and representations, and others of similar import not specifically set out herein, ~he respondents represent and have represented, directly and by Implication,· that their preparation designated as "Madame Bea's Capsules" constitutes a competent and effective treatment for delayed, ?nnatural, and suppressed menstruation, and that sa.id preparation Is safe and harmless.

PAR. 5. The foregoing representations are grossly exaggerated, f~Ise, and misleading. In truth and in fact, respon<lents' preparation is not a competent or effective treatment for delayed, unnatural, or suppressed menstruation. Moreover, said preparation is not safe or harmless, as it contains the drugs ergot, oil of savin, aloin, and ?e!Iebore in quantities sufficient to cause serious ~nd irreparable Injury to health if said preparation is used under the conditions Prescribed in said advertisements or under such conditions as are customary or usual.

· . Such use of said preparation may result in gastro-intestinal disturbances, such as catharsis, nausea, and vomiting, with pelvic congestion, congestion of the uterus. leading to excessive uterine hemorl'~age, and in those cases where said preparation is used to interfere ~Ith the normal course of pregnancy, such use may result in uterine lllfection, with extension to other pelvic and abdominal structures ana even to the blood stream, causing the condition known as septicemia or blood poisoning.

Such use of said preparation may also produce a severe circulatory cond·t· · f h l Ion by the constriction of the blood vessels, and contraction o t. e involuntary muscles, often with poisonous effect upon the human system, and tending to cause abortion in some instances, and may :esuit in severe toxic conditions such as hemorrhagic, diarrhea and ~~ some instances producing a gangrenous condition o£ the lower llnbs, resulting either in possible loss of limbs or in other serious and irreparable injury to health.

6. The advertisements disseminated by the respondents con·8/)AR. Itute false advertisements for the further reason that they fail to ~Vea~ facts material in the light of the representations contained erem, and fail to reveal that the use of said preparation under the ~?nditions prescribed in said advertisements, or under such condi· tons as are customary or usual, may cause gastro-intestinal dis- Findings 33F.T.G.

turbances and excessive congestion and hemorrhage of the pelvic organs, and in the case of pregnancy may cause uterine infection and blood poisoning.

PAR. 7. The use by the respondents of the aforesaid false, misleadin(}',~ and deceptive statements and representations with respect to .their said preparation, disseminated as aforesaid, ·has had, and now has, the capacity and tendency to mislead and deceive a substantial portion of the purchasing public into the erroneous and mistaken belief that respondents' preparation possesses properties which it does not in fact possess, and that said preparation is safe and harm-. less, when such is not the fact, and the capacity and tendency to cause the purchasing public to purchase substantial quantities of respondents' preparation as a result of such belief. PAR. 8. The aforesaid acts and practices of the respondents 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 May 27, 1941 issued, and on :May 29, 1941 served its complaint in this proceeding upon David L. Silver and 0. C. Colwes, individually, and trading as Kay's Cut Rate and as Kay's Cut Rat~ Drugs, charging them with the use of unfair and deceptive acts and practices in commerce within the intent and meaning of said act. After the issuance of said cor.iplaint and the filing of respondents' answer, the Commission, by order entered herein, granted respondents' motion :for permission to withdraw said answer and to substitute 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 was duly filed in the office of the Commission. Thereafter, this proceeding regularly came on for final hearing before the Commission upon the said complaint and substitute answer, 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. Respondents are individuals operating under the laws of the State of 'Yest Virginia, with their principal office and place of business in Beckley, W. Va. Kay's Cut Rate and Kay's KAY'S CUT RAT.E, ETC. 1463 1459 Findings ·Cut Rate Drugs are trade names used by respondents in the opera· tion of their said business.

PAR. 2. Respondents are now and for more than one year last past have been engaged in the sale and distribution of various medicinal preparations. Among the various preparations sold and distributed by the respondents is a drug preparation advertised and sold as "''Madame Bea's Capsules." · Respondents cause tll.eir said preparation, when sold, to be trans· ported from their place of business in the State of West Virginia to purchasers thereof located in various other States of the United Stat~s and in the District of Columbia. Respondents maintain, and at all times mentioned herein have maintained, a course of trade in their said preparation in commerce between and among the vari· ous States of the United States and in the District of Columbia. PAR. 3. In the course and conduct of their aforesaid business, the respondents have disseminated and are now disseminating, and have caused and are now causing the dissemination of false advertise· ments concerning their said product by the United States mails and by various other means in commerce, as commerce is defined in the Federal Trade Commission Act; and respondents have also dissemi· nated and are now disseminating, and have caused and are now caus· ing the dissemination 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 Commission Act. Among and typical of the false, misleading and deceptive statements and representations contained. in said false .advertisements, disseminated and caused to be disseminated as hera. inabove set forth, by the United States mails, by advertisements in newspapers, and by circulars and other advertising literature, are the following:

Modern lVo:m.en/ Harmless prescription delayed J'('rlods. Don't be nlarm~>d over delayed unnatural suppressed periods. Madame Bca's Capsules sold .at Kay's Cut-Rate.

PAR. 4. Through the use of the foregoing statements and rep· resentations, and others of similar import not specifically set out herein, the respondents represent and have represented, directly and by implication, that their preparation designated as "Madame Bea's Capsules" constitutes a competent and effective treatment for delayed, unnatural and suppressed menstruation, and that said preparation is safe and harmless.

PAR. 5. The foregoing representations are grossly exaggernted, false and misleading. In truth and in fact, respondents' prepara- 1464. FEDERAL TRADE CO.MMISSION DECISIONS Conclusion 33 )i', '1'. c. tion is not a competent or effective treatment for delayed, unnaturalt or suppressed menstruation. Moreover, said preparation is not safe or harmless, as it contains the drugs ergot, oil of savin, aloin, and hellebore in quantities sufficient to cause serious and irreparable injury to· health if said preparation is used under the conditions prescribed in said advertisements or under such conditions as are customary or usual.

Such use of said preparation may result in gastro-intestinal disturbances, such as catharsis, nausea, and vomiting, with pelvic congestion, congestion of the uterus, leading to excessive uterine hem· orrhage, and in those cases where said preparation is used to interfere with the normal course of pregnancy, such use may result in uterineinfection, with extension to other pelvic and abdominal structures and even to the blood stream, causing the condition known as septicemia or blood poisoning.

Such use of said prepara.tion may also produce a severe circulatory condition by the constriction of the blood vessels, and contraction of the involuntary muscles, often with poisonous effect 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 of the lowerlimbs, resulting either in possible loss of limbs or in other serious and irreparable injury to health.

PAR. 6. The advertisements disseminated by the respondents constitute false advertisements for the further reason that they fail to reveal facts m~terial in the light of the representations contained therein, and fail to reveal that the use of said preparation under theconditions prescribed in said advertisements, or under such conditions as are customary or usual, may cause gastro-intestinal disturbances and excessive congestion· and hemorrhage of the pelvic organs, and in the case of pregnancy may cause uterine infection and blood poisoning.

PAR. 7. The use by the respondents of the aforesaid false, misleading and deceptive statements and representations with respect to their said preparation, disseminated as aforesaid, has had, and now has, the capacity and tendency to mislead. and deceive a substantial portion of the purchasing public into the erroneous and mistaken belief that respondents' preparation possesses properties which it does not in fact possess, and that said preparation is safe and hann· less, when such is not the fact, and the capacity and tendency to cause the purchasing public to purchase substantial quantities qf respondents' preparation as a result of such belief. KAY'S! CUT RATE·, ETC. 1465 1459 Order 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 ofthe Federal Trade Commission Act. ORDER TO CE.;\SE AND DESIST This proceeding having been heard by the Federal Trade Commission upon the complaint of the Commission and the answer of the respondents, in which answer the respondents admit all of the material allegations of fact set forth in said complaint, and state that they waive all intervening procedure and further hearing as to said facts, and the Commission having made its findings as to the facts and its conclusion that said respondents have violated the provisions of the Federal Trade Commission Act.

It is ordered, That the respondents David L. Silver and 0. C. Colwes, individually, and trading as Kay's Cut Rate and as Kay's Cut Rate Drugs, or trading under any other name or names, their representatives, agents and employees, directly or through any corporate or other device, in connection with the offering for sale, sale or distribution of their medicinal preparation known as Madame Bea's Capsules, or any other medicinal preparation or product of substantially similar composition or possessing substantially similar properties, whether sold under the same name or any other name, do forthwith cease and desist from directly or indirectly :

1. Disseminating or causing to be disseminated any advertisement by 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 or by implication, that said preparation constitutes a competent or effective treatment for delayed, unnatural or suppressed menstruation, or that said preparation is safe or harmless; or which advertisement fails to reveal that the use of said preparation may cause gastro-intestinal disturbances and excessive congestion and hemorrhage of the pelvic organs, and in cases of pregnancy may cause uterine infection and blood poisoning. 2. Disseminating or causing to be disseminated any advertisement by any means for the purpose of inducing or which is likely to indue?, directly or indirectly, the purchase in commerce, as "commerce'.' IS defined in the Federal Trade Commission Act, of said preparation, Which advertisement contains any of the representations prohibited in paragraph 1 hereof, or which advertisement fails to reveal that the use of said preparation may cause gastro-intestinal disturbances and Order 33F.T. C.

excessive congestion and hemorrhage of the pelvic organs, and in cases of pregnancy may cause uterine infection and blood poisoning. It is further ordered, That respondents shall, within 10 days after service upon them of this order file with the Commission an interim report in writing, stating whether they intend to comply with this order, and, if so, the manner and form in which they intend to comply; and that within 60 days after the service of this order, respondents shall file with the Commission a report in writing setting forth in detail the manner and form in which they have complied with this order.

POWER & GANG MOWER MANUFACT'URE'RS' .AS'S''N., ET AL. 1467 Syllabus