'Cutter Laboratories

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IN THE 1\:IA'ITER OF CUTTER LABORATORIES COMPLAINT, FINDINGS, AND ORDER IN REGARD TO TIIE ALLEGED VIOLATION OF SEC. :; OF AN ACT OF CONGRESS APPROVED SEPT, 26, 1914 Docket 1,:148. Complaint, Oct. 12, 1940-Deci&ion, Aug. _14, 1942 'Where a corporation, engaged in manufacturing and compounding its "Blacklegol" vaccine for blackleg In cattle, and in 'competitive Interstate sale and distribution that·eof from its place of business at Berkeley, Calif., or from its depots and branch offices in various cities to distributors, druggists, and veterlnm·ians; by means of advertisements In news11papers and periodicals, and by circulars, pamphlets and other advertising literature-- (a) Represented that "Biacklegol" was the first preparation which combined the filtrate of cultural aggressin and the organisms of concentrated bacterin, and that by reason thereof it was 100 percent efficient in giving immunity to blackleg;

'lhe facts being blackleg bacterin, wbi~b had been compounded and sold by 1t and its competitors for about 10 year.s prior to the advent of "Blacklegol" was such a combination, and "Biaddegol,'' In fact, was blackleg bacterin to Which bad been added aluminum hydroxide; its immunizing value, if any, over and above bacterin or concentt·ated bacterin (or bacterin from which the cultural aggressin or broth was removed) was dependent upon the addition of such chemical element; there Is no vaccine preparation known to science which can be considered 100 percent effective In immunizing cattle against said infections uisease, it appearing that administration of .any vaccine to cattle already infected ha.s no value in preventing death, and the natural resistance of an animal being also a factor which may affect the immunizing value of any vaccine preparation; and (b) Made false and deceptive representations which unfairly disparaged its ·competitors' products through representing, as aforesaid, that until the advent of "Blacklegol" the combination of the filtrate of cultural aggressin and the organisms of concentrated bacterin bad never been combined in a vaccine preparation, and that the efficiency of either, both of which were sold and distributed by its competitors, was equal to only 50 percent of Its own said 'product in producing blackleg Immunity in cattle; 'lhe facts being that, as above noted, said filtrate and organisms bad been combined In the vaccine blackleg bacterin for about 10 years prior to the advent of "Biacklegol"; and there was no scientific foundation for it.s representation that the efficiency of blackleg concentrated bacterin or blackleg 'W cultural aggressin was equal to only 50 percent of that of its own preparation; lth capacity and tendency to mislead and deceive a substantial portion of the purchasing public into the mistaken belief that such representations were true, thereby Inducing it, because of such belief, to purchase substantial quantities of said vaccine in preference to that of competitors; whereby traue was unfairly diverted to It from them:1 leld, That such acts and practices, under the circumstances set forth, were aU to the prejudice and injury of the public and competitors, and constituted'" Unfair methods of competition in commerce.

324 FEDERAL TRADE COMMISSION DECISIONS , Complaint 35F.T.C· '' As respects claim made In behalf of the manufacturer and seller of "Blacklegol"a vaccine which was recommended by it for use as a means of rendering cattle immune to blackleg and, like blackleg bacterin, was a combination of the filtrate of cultural aggressin and the organisms of concentrated bactet·in, with the addition of aluminum hydroxide--that concentrated bac· terln and cultural aggressin are only 50 percent efficient In producing imrnu· nlty to blackleg as compared with "Blacklegol": Conclusions reached from tests upon guinea pigs conducted with "Blacklegol" and with blackleg bacterin and certain blackleg vaccines sold and distributed by competitors, including at least one concentrated bacterin preparation (i. e., from which the cultural aggressin had been removed), did not warrant or substantiate claim of said ma1;1ufacturer and seller.

Before Mr. Randolph Preston, Mr. Edwa:rd E. Rea:rdon and lfr. John J. /(eenan, trial examiners. . · Mr. Floyd 0. Oollin,~, Mr. Merle P. Lyon, Mr. Oharles S. Oox and Mr. Root. N. McMillen for the Commissimi.

Boyk&n, J./ohler & Beckley and Mr. Robert H. Eckhoff, of San Francisco, Calif., for respondent.

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 Cutter Laboratories, a corporation, hereinafter referred to as respondent, has violated the provisions of the 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. Respondent, Cutter Laboratories, is a corporation, organized, existing, and doing business under and by virtue of th~ laws of the State of California, and having its principal office an place of business at Fourth and Parker Streets, Berkeley, Calif., and with depots and branch offices at Los Angeles, Calif., Chicago, 111., San Antonio, Tex., Seattle, 'Vash., Denver, Colo., Fort 'Vorth, Te~·, El Paso, Tex., Boise, Idaho, New Orleans, La., and other places. PAR. 2. Respondent is now, and has been for more than 3 years last past, engaged in the business of manufacturing, compounding, adver· tising, and selling a certain vaccine preparation containing drugs, described by it as "Blacklegol," and recommended by it for use as ~ means of rendering cattle immune to an ailment known as "Blackleg. Uespondent causes said preparation, when sold, to be transported frolll its aforesaid place of business in Berkeley, Calif., or from other points of location of respondent's depots or branch offices, to purchasers there· of located in the various States of the United States other than the CUTTER LABORATORIES 325 323 Complaint States in which are located the points of origin of the shipments. Respondent's said "Blacklegol" is sold to distributors, druggists, and l'eterinarians who in turn resell the same to the retail trade and other members of the purchasing public. Respondent at all times mentioned herein, has maintained a course of trade in said preparation in com- ~erce among and between the various States of the United States and In the District of Columbia.

PAn. 3. In the course and conduct of its said business, respondent is 1 :0~, and has been for more than 3 years last past, in substantial competition with other corporations, individuals, firms, and partnerships engaged in the sale and distribution of Blackleg Vaccines in commerce, b~bveen and among the various States of the United States and in the District of Columbia.

PAn. 4. In the course and conduct of its aforesaid business, the respondent has disseminated and is now disseminating, and has caused ~nd is now causing the dissemination of, false advertisements concern- Ing its said product by the United States mails, and by various other means in commerce, as commerce is defined in the Federal Trade Com- ~ission Act, and has also disseminated and is now disseminating, nnd as caused and is now causing the dissemination of, false advertise- ~ents concerning its said product, by various means, for the purpose of Inducing, nnd which are likely to induce, directly, or indirectly, 1the Purchase of its said product in commerce, as commerce is defined in th~ Federal Trade Commission Act. Among and typical of the false, !111sleading, and deceptive statements and representations contained In said false advertisements disseminated and caused to be disseminated ~s hereinabove set forth, by the United States mails; by advertisements Jn newspapers and periodicals, and by circulars, pamphlets, catalogs, and other advertising literature, are the following: Dlacklegol lOOo/o £>fficient.

Black!egol-the first lOOo/o efficient blackleg vaccine ever produced. Dlncklegol gives life immunity with one shot regardless of age. With the advent of Blacklegol, a double vaccination became unnecessary, even on the worst blackleg infected land.

Cattlemen * • * have found out by experience that they can vaccinate ~their Spring calves once with this Improved vaccine and then forget about luckleg. --~- BLACKLEGOL regardless ot age, one 5 c. c. dose protects for life I Dlacklegol Is not an aggressin nor bacterin. It is a blackleg vaccine entirely d!Jterent from any other blackleg vaccine ever marketed: and is the first vaccine to ever be definitely and unconditionally recommended tor the one dose 1mmuniza· tlon or suckling calves. · ,. Not a single calf has died of blackleg following immunization with Blacklegol b • * A statement which truthfully cannot be made about any other type of lackleg vaccine. ONE DOSE LIFE IMMUNITY IN SUCKLING CALVES. Dlacklegol-a vaccine so potent that not a single calf has died ot blllckleg following immunization at any age with Blacklegol. 326 FEDERAL TRADE COM..l\f!SSION DECISIONS Complaint 35F. T.C.

PAR. 5. Through the use of the statements and representations here· inabove set forth, and others similar thereto, not specifically set out . herein, respondent has represented that said preparation is 100 percent effective; and that the immunization effect from the use of said prep· aration is invariably unfailing or permanent. . PAR. 6. The foregoing representations are grossly exaggerated, Jlll~· leading and untrue. In truth and in fact respondent's preparation .15 not 100 percent effective; said preparation is neither invariably unfail· ing nor permanent; and there have been deaths from blackleg of animals treated with respondent's said preparation. PAR. 7. In the' manner aforesaid the respondent has made numerous unfair and disparaging statements concerning preparations of com· petitors which are designed, intended and used for the same purposes as respondent's said preparation. Typical of the unfair and disparag· ing representations so made by the respondent are the following: The .superiority o! Blacklegol can best be understood by comparing it with two well-known present day products-Concentrated Bacterin, and Cultural }..ggressin (Filtrate). • • • In each case we refer to ours as well as any other good bacterin or aggressin.

Cultural Aggressin 50% efficient.

Concentratf'd Bacterin 50% efficient.

• • • BLACKLEGOL is more potent than other types of vaccine-. This Is because a chemical contained only in Blacklcgol holds the vaccine in the animal's tissues until even the last drop has been used to produce immunity. Insist on Blacklegol-guaranteed to produce a greater immunity than any bacterin or aggressin ever marketed.

If you could measure vaccine potency it would look like this • • • Biacklt'g Pills • would scarcely fill the bottom of the cup; Aggressin • not more thad 11 quarter full; Bacterin • about two-thirds; Blacklegol to overflowing. • In each case we refer to ours as well as any other good bacterin, aggressin or pills· (Appearing underneath are pictures of tour glass measuring cups indicating tbc respective qnantlties referred to above, with the names "Blacklf'g Pills", "Ag· gressln", "Bacterin" and "Blacklegol" respe"Ctively appearing under said cups.) Progressive cattlemen will not be held to the old less potent, lers reliable pro\1· ucts such as bacterin and aggressin any more than they will put up with tne Model T "just as good" in place o! the V-8.

. • • • lllacklegol is so cultured that both organisms and supernatant are highly antigenic, thus producing a vaccine compared to which concentrated bllC" terin and cultural aggressin are only 50% efficient. P.m. 8. Through the use of the statements and representations here· inabove set forth and others similar thereto, not specifically set out herein, respondent has misleadingly and unfairly disparaged "bac· terin" nnd "aggressin" preparations of competitors by publishing the false assertion that immunity obtainable from said- competitive prepa· rations is only one-half that of respondent's said preparation; that said preparation assures immunity even to the last drop of said prep· CUTTER LABORATORIES, 327 323. Findings aration after the same is injected into the animal's tissues and that competitors' preparations do not produce such immunity. PAR. 9. The foregoing false, misleading, and disparaging representations as hereinabove set forth are exaggerated, misleading, and untrue. In truth and in fact there is no scientific basis for respondent's claim that competitive preparations, "aggressin" and "bacterin," are only 50 percent efficient or that respondent's said preparation pro- ~Uces as immunity double that of said competitive preparations; nor ls there scientific basis for respondent's claim that its said preparation P.roduces immunity to the last drop when injected into the animal's ~Issues, and that competitors' preparations do not produce such 1tn.munity.

PAR. 10. The use by respondent of the foregoing false, disparaging, deceptive, and misleading statements and representations with respect. to this preparation disseminated as aforesaid, has had and now has t~e capacity and tendency to and does, mislead and deceive a substan- ~a~ portion of the purchasing public into the erroneous and mistaken . ehef that such false statements and representations are true and to 111duce a substantial portion of the purchasing public, because of such erroneous and mistaken belief to purchase substantial quantities of respondent's vaccine in preference to that of competitors. As a result thereof injury has been done and is now being done by respondent to competitors and to competition in commerce, among and between the "arious States of the United States and in the District of Columbia. PAn. 11. The aforesaid acts and practices of respondent, as herein alleged, are all to the prejudice of the public and respondent's com- Petitors, and constitute unfair and deceptive acts and practices in commerce, and unfair methods of competition in commerce, within the intent and meaning of the Federal Trade Commission Act. · REPORT, FINDINGS AS TO THE FACTS, AND ORDER th Pursuant to the provisions of the Federal Trade Commission Act, e Federal Trade Commission on October 12, 1940, issued and subsequently served its complaint in this proceeding upon the respondent, Cutter Laboratories, a corporation, charging it with the use of llnfair 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 ~legations of the complaint were introduced by Floyd 0. Collins, erie P. Lyon, and Charles S. Cox, attorneys for the Commission, ~lld in opposition to the allegations of the complaint by W. Bruce 328 FEJDERAL TRADE COMMISSION DECISIONS Findings 35F. T.C.

Beckley and Robert H. Eckhoff, attorneys for the respondent, before Randolph Preston, Edward E. Reardon, and J. J. Keenan, trial ex· aminers of the Commission theretofore duly designated by it, and baid testimony and other evidence were duly recorded and filed in the office of the Commission. • (f Thereafter, the proceeding regularly came on for final heann, before the Commission upon said complaint, the answer thereto, tes· timony, and other evidence, report of the trial examiners upon the evidence, and exceptions filed thereto, briefs in support of the com· plaint and in opposition thereto, and oral argument of counsel; and the Commission, having duly considered the ·matter and being now' fully advised in the premises, finds that this proceeding is in the i_n· terest of the public and makes this its findings as to the facts and 1ts conclusion drawn therefrom.

FINDINGS AS TO THE FACTS PARAGRAPH 1. Respondent, Cutter Laboratories, is a corporation organized, exi,sting, and doing business under and by virtue of the laws of the State of California and having its principal office and place of business at Fourth and Parker Streets, Berkeley, Calif., and with depots and branch offices at Los Angeles, Calif. i Chicago, Jll.; San Antonio, Tex.; Seattle, Wash.; Denver, Colo.; Ft. Worth, Tes:.; El Paso, Tex.; Boise, Idaho; New Orleans, La.; and other places. PAR. 2. Respondent is now, and for several years last past has been, engaged in the business of manufacturing, compounding, and selling, among other products, a certain vaccine preparation desig· nated "Blacklegol" and recommended by it for use as a means of ren· dering cattle immune to an ailment known as blackleg. Respondent causes said preparation, when sold, to be transported from its place .of business in Berkeley, Calif., or from other points of location ?f respondent's depots or branch offices, to purchasers thereof located tn various States of the United States other than the States in which are located the points of origin of such shipments. Respondent's said Blacklegol is sold to distributors, druggists, and veterinarians, who in turn resell the same to the retail trade and to other members of . the purchasing public. Respondent maintains, and at all times wen· tioned herein has maintained, a course of trade in said preparation 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 said business, responde~t is now, and for several years last past has been, in substantial competl' tion with other corporations and with individuals, firms, and partner• CUTTER LABORATORIES 329 Findings !:'hips engaged in the sale and distribution of blackleg vaccines in commerce between and among the various States of the United States. nnd in the District of Columbia.

PAR. 4. In the course and conduct of its aforesaid business, for the Purpose of inducing the purchase of its product Blacklegol, respond· ent has disseminated false, deceptive, misleading, and disparaging fitatements and representations with reference to said product, by lll.cans of advertisements inserted in newspapers and periodicals and by circulars, pamphlets, and other advertising literature. Among and typical of such false, deceptive, misleading, and disparaging repre- !:lentations are the following:

. 1. That respondent's preparation Blacklegol is 100 percent efficient ln giving immunity to the disease of blackleg. 2. That the efficiency of certain other vaccine preparations known ns blackleg concentrated bacterin and blackleg cultural aggressin is equal to only 50 percent of that of Blacklegol in producing immunity frotn the disease of blackleg. . • PAR. 5. Blackleg is an infectious disease caused by a microbe which IS found in the soil of certain localities and is one of the most prevalent ttnd widespread of the infectious diseases of cattle. The organisms causing blackleg live in the ground and enter the body with feed, '"after, and through wounds in the skin. The infection is very acute nnd runs a very short course, usually with fatal results. The charac· teristic lesions in blackleg are swelling in one or more quarters and '"hen the skin is removed from the swollen area, the tissue underneath the skin is swollen, contains gas, and is dark in color. The disease is Q~ such short duration that the infection in an animal is usually not discovered until after death has occurred. The procedure followed in th~se areas where blackleg infection is pr~valent is to vaccinate the animals before weaning or before exposure to infection. There have been a number of vaccine preparations developed in ~n effort to combat this disease~, ~he first of which was blackl~g vaccine, e~eloped around 1890, corisistmg of powdered muscle tissue from ?animals which had died from blackleg and which contained the organ- 18.lll.s of blackleg in a spore form. This vaccine had Jhe effect of gJ."ing the animal a mild case of blackleg, to which it could establish ~ntural immunity, but was rather d~~;ngerous to use as it might produce l' e_~th from blackleg if too great a quantity were given or if the e1nstance of the animal to blackleg was below normal. The next form of blackleg vaccine was a product known as blackleg ~~tural aggressin, made from the tissue of animals which 'had died of 'I'ackleg. The juices were pressed out of the muscle tissue and ster- I lZed by filtration and administered hypodermically under the skin. 330 FEIDERAL TRADE C01U.llSSION DECISIQN.S Findings 35F.'1'.C· The next product developed was known as blackleg cultural aggres~in or filtrate, which was made by growing blackleg organisms in a sult· able broth, from which the organisms were filtered out, leaving the filtrate, which was injected under the skin. The next step was the production of blackleg bacterin, in which the blackleg organism was grown in broth and sterilized by the addition of chemicals, and both the broth and the organisms were inject.ed. There have been modifications of the bacterin, such as concentration and improvements in growth methods. Concentrated bacterin is the blackleg bacterin from which the broth has been removed, leaving the hlackleg organisms.

Blackleg vaccine, blackleg cultural aggressin, and blackleg bacterin, both whole and concentrated, are sold by the respondent and by many ()fits competitors.

In 1934 the .respondent developed a vaccine which it designated "Blacklegol," which was also known as "Blackleg Antigen," and, mo~e recently, as "Blackleg Bacterin, aluminum hydroxide adsorbed." 'flue product i£ identical with blackleg bacterin, with the exception that aluminum hydroxide has been added, which has the effect of cau::ing the vaccine to be absorbed by the cells of the tissue in smaller amounts, in a sort of delayed process similar to the effect produced by a succes· sion of small doses over a period of time.

In the nse of the vaccines, blackleg cultural aggressin, and blackleg bacterin, it was customary in badly infested areas to give two separate injections of the vaccine, the first before the weaning period and ~he second after th.e weaning period, although in cases where injection was given after weaning period, one injection was usually considered to be sufficient to establish immunity, particularly in the case of blacl~ leg bacterin. In the case of Blacklegol, the respondent recommended only one vaccination because of the adsorption effect produced by the aluminum hydroxide.

PAR. 6. In connection with the representation that its preparatio~ Blacklegol is 100 percent efficient in giving immunity to the disease? blackleg, the respondent has issued statements and representations 1r advertisements and periodicals and in pamphlets, of which the fo • lowing is a typical example: · Guaranteed to Produce a Greater Immunity than Any Bacterin or .Aggressin Ever Developed. • til The superiority of Blacklegol can best be understood by comparing it wi two well-known present day products-Concentrated Bacterin, and Cultural Ag· ·gressln (Filtrate).* Cultural .Aggressin Is made by growing blackleg organisms In a broth-lil<e medium (bacteria food) and then filtering the organisms out, leaving the filtrated which after further processing Is called Cultural .Aggressin (or Filtrate) and use us a vaccine.

• In each case we reter to ours as well as any other good bacterin or aggressin. CUTTER LABORATORIES 331 323 Findings Concentrated Bacterin is made by much the same process-up to a certain Doint! Blackleg organisms are grown in a broth-like medium. Then the organisms are separated from the Cultural Aggressin; but in this case it is the Cultural Aggressin which is thrown out, while the organisms and the small amount of fluid remaining at·e further processed, called Concentrated Bacterin, and used as a vaccine.

To repeat !-the Cultural Aggressin is thrown away to make Concentrated llacterin, and the Concentrate<} Dacterin is thrown away to make Cultural Aggressin! (Note illustrations on the left.) It seems silly doesn't it? But It isn't, or at least it wasn't until the Introduction of Dlacklegol! The difficulty lay in the fact that scientists knew how to culture blackleg organisms so that either the organisms or the filtrate would be fairly high in immunizing value, but never both at the same time. The answer to that problem took years to work out. Hundreds of experilllents were made, in which thousan<ls of laboratory animals were used. A srno.n fortune was expended, but the answer was worth it as it brought forth Blacklegol-the first 100% efficient blackleg vaccine ever produced. IIave you ever heard of a case of blackleg following Elacklegol? It's possible; In fact, our laboratory examination proved it did happen in one case, and it may have in others, although we were able to trace the pt·esence or the blackleg organism in only this one of the dozen odd reports of losses Which have come in during the past three years. Accept these dozen odd as actual losses and with the millions of calves succe!'sfully vaccinated with Dlacklegol, · lllathematlcally you still have more chance of winning the Irish Sweepstakes than you have of losing a ·calf from blackleg if you vaccinate with Dlacldegol! · By means of the statements hereinabove set forth and others similar thereto not specifically mentioned herein, the respondent represents that Blacklegol is the first preparation which has combined. the filtrate of cultural aggressin and the organisms of concentrated b~cterin, and that, by reason of this combination, lllacklegol is 100 percent efficient in giving immunity to the disease of blackleg. In truth and in fact, Blacklegol is not the first vaccine preparation which has combined the filtrate of cultural aggressin and the organisms of concentrated bacterin, but, instead, this combination is the method by \\"which blackleg bacterin is made. Blackleg bacterin had been com- Pounded and sold by the respondent and by respondent's competitors for approximately ten years prior to the advent of Dlacklegol, and Blacklegol is, in fact, blackleg bacterin to which has been added .; aluminum hydroxide, and its immunizing value, if any, over and ·r above bacterin or concentrated bacterin is dependent upon the addition of the above chemical element. There is no vaccine preparation known to science today which can be considered to be 100 percent efficient or effective in the immunizing of cattle against the infectious disease of blackleg. The administration of any vaccine preparation to cattle already infected with the blackleg organism has no value in preventing death from the disease. Furthermore, the natural re- 332 FEIDERAL TRADE COl\IMISSION DECISIONS Findings 35F. T.C.

sistance of the animal, or luck of such natural resistance, is a factor which may affect the immunizing value of Blacklegol or any other vaccine preparation.

PAR. 7. In connectioi1 with the representation by the respondent that efficiency of certain other vaccine preparations known as blackleg concentrated bacterin and blackleg cultural aggressin is equal to only 50 percent of that of Blacklegol in producing immunity in cattle to the disease of blackleg, the respondent has issued false· and deceptive statements and representations in advertisements and periodicals and in pamphlets, which unfairly disparage products sold and distributed by its competitors, of which the following is a typical example: The reason for the superiority of macklegol over the older type.s of blacldeg vaccines ls twofold FIRST: It Is produced In such a way that both the organisms and their by-products of growth are high In immunizing value. Hitherto scientists · knew how to culture the blackleg organism so that the ot·gaulsms themselves would be high ln immunizing value (concentrated bacterin) ; or so that tbe supernatant fluid containing the by-products of growth (cultural aggressin) would be high In immunizing value; but were unable to mnl•e cultures in which both would have high protective value. This problem was solved by Cutter research bacteriologists. "' "' "' Blacklegol is so cultured that both organtsms and supernatnnt fluid are highly antigenic, thus producing a vaccine compared to which concentrated bacterin and cultural uggre~sln are only 50% efficient. lly means of the statements hereinabove set forth and others similar thereto not specifically mentioned herein, the respondent represents that until the advent of lllacklegol the combination of the filtrate of cultural aggressin and the organisms of concentrated bacterin ha~ never been combined in a vaccine preparation, and that the efficiency of blackleg concentrated bacterin and blackleg cultural aggressin, both of which are sold and distributed by respondent's competitors, is equ~l to only w percent of that of m_acklegcil in producing immunity 1U cattle to the disease of blackleg. In truth and in fact, the filtrate of cultural aggressin and the organisms of concentrated bacterin bad been combined in the making of the vaccine blackleg bacterin f~r approximately ten years prior to the advent of lllacklegol. There IS no scientific foundation for the repre!:entation that the efficiency of blackleg concentrated bacterin or blackleg cultural aggressin is equ~l to only 50 percent of that of respondent's preparation lllacklegol 111 producing immunity to the disease of blackleg, either because of th~ combination of the filtrate of cultural aggressin with the organisms 0 concentrated bacterin or because of the inclusion of the chemical element aluminum hydroxide in respo~dent's preparation. · Certain tests upon guinea pigs were conducted with respondent's preparations lllacklegol and blackleg bacterin and certain blackleg vaccines sold and distributed by respondent's competitors, including' CUTTER LABORATORIES 333 Order at least one concentrated bacterin preparation. 'Vhile some greater efficiency is claimed for Dlacklegol in certain lower level or minimum dosages as a result of these tests, the conclusions reached do not warrant or substantiate respondent's claim that concentrated bacterin or cultural aggressin are only 50 percent efficient in producing immunity to blackleg as compared with Blacklegol. In fact the nature of the tests conducted does not warrant the claim of any definite percentage ·of immunizing value for Blacklegol over and above competitors' prod- Ucts so far as field dosage is concerned in the actual administration of these products .

.PAn. 8. The use by the respondent of the foregoing false, deceptive, .lll.lsleading, and disparaging statements and representations with respect to its preparation, has had the capacity and tendency to mislead llnd deceive a substantial portion of the purchasing public into the el1·oneous and mistaken belief that such false statements and representations are true and to induce a substantial portion of the purchasing Public, because of such erroneous and mistaken belief, to purchase ~Ubstantial quantities of respondent's vaccine in<'preference to that of Its competitors. As a result, trade has been diverted unfairly to the respondent from its competitors who are engaged in the sale and distribution of various blackleg vaccines in commerce among and between the various States of the United States and in the District of Columbia.

CONCLUSION The acts and practices of the respondent as herein found are all to the prejudice and injury of the public and of respondent's com- P~titors, and constitute unfair methods of competition 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 Commis- Sion on the complaint of the Commission, answer of the respondent, te~timony and other evidence taken before trial examiners of the ComllJJssion theretofore duly designated by it, in support of the allegations ?f said complaint and in opposition thereto, report of the trial exam- Iners upon the evidence and exceptions filed thereto, briefs filed in supllort of the complaint and in opposition thereto, and oral argument of t::ounsel; and the Commission having made its findings as to the facts llnd its conclusion that said respondent has violated the provisions of the Federal Trade Commission Act:

. It i8 ordered, That the responde~t, Cutter Laboratories, a corporabon, its officers, representatives, agents, and employees, directly or ~09749m--43--vol.3~----24 :334 FEIDERAL TRADE COMMISSION DECISIONS 35 F. 'f. C. Order -through any corporate or other device, in connection with the o:fferi~lg' for sale, sale, and distribu~ion of its vaccine preparation nm~ desJ~: nated "Blacklegol" or "Blackleg Bacterin Aluminum Hydroxide .! :sorbed" or any other product of substantially similar composition or possessing substantially similar properties, whether sold under tl~e same name or under any other name in commerce as "commerce" 1~ defined in the Federal Trade Commission Act, do forthwith cease an ·desist from :

(1) Representing in any manner, either directly or by implication, that respondent's preparation Blacklegol is 100 percent efficient or .100 percent effective in giving immunity to the disease of blackleg.. (2) The use of statements or representations which unfairly dis· parage vaccines sold and distributed by respondent's competitors or which represent, ·eithetr directly or by implication, that the efficienc~ -or effectiveness of blackleg concentrated bacterin or blackleg cultn.ra .aggressin is equal to only 50 percent of that of respondent's preparation _Blacklegol in providing immunity to the disease of blackleg. {3) The use of any specific percentage to designate the immunizing' value of respondent's preparation Blacklegol or its comparative immud niziug value with other preparations unless such percentage is base upon controlled experiments sufficient to definitely establish the per· centage value claimed.

( 4) The use of the terms "100 percent efficient" or "50 percent e~· -cient," or any other percentage or comparative percentage, in descnb· ing manufacturing procedure or production wastes, in such a way 115 to imply that such percentages apply to immunizing effectiveness. It is fwr~her ordered, That the respondent shall, within GO days aft~r service upon it of this order, file with the Commission a report lil writing, setting forth in detail the manner and form in which it has complied with this order.

LOUIS A. WALTON CO. ET AL. 335 Syllabus