George S. Mogilner and James Walker, trading as Merit Health Appliance Co.

Text (OCR of the scan at left; may contain errors)

IN THE MATTER OF GEORGES. MOGILNER AND JAMES WALKER, TRADING AS MERIT HEALTH APPLIANCE CO.

COMPLAINT, FINDINGS, AND ORDER IN REGARD TO THE ALLEGED VIOLATION OF SEC. 15 OF AN ACT OF CONGRESS APPROVED SEPT. 20, lou Docket ~5-93. Complaint, July 21, 19~1-Decision, Aug. 31, 194~ \Vhere two ludlvlduals, engaged In interstate sale a.nd distribution of their "Merit Short Wave Diathermy" therapeutic apparatus; by means of advertisements In newspapers whieb circulated widely In different States, and through advertising circulars and frequent radio broadcasts, directly or by lmpllcation- (a) Represented that the unsupervised use of their device by the iay public for Self-diagnosed conditions, through self-application in the borne, constituted n competent and effective treatment for numerous ailments, Including rheun:mtism, arthritis, neuritis, buri<itis, lumbago, sciatica, neuralgia, sinus trouble, and female disorders, and for the alleviation of paln resulting from ':r such conditions; and that use of the device was entirely safe and harmless; he facts being that while diathermy machines are in fairly common use among Physicians, particularly those who specialize In physical therapy, it Is their Practice never to employ diathermy until after thorough diagnosis and definite establishment of the fact that the condition Is one in which its use Is Proper, and never to leave application of the treatment, delegated, usually, to a trained technician, to the patient; physicians' use of diathermy In the treatment of ailments above set forth Is limited to chronic cases since use In acute cases has a tendency to aggravate rather than alleviate the pain; there are various specific conditions in which its use Is positively contraindicated, Including menstruation, pregnancy, tuberculosis, cancer, acute appendicitis, and gastric ulcers, while use or excessive use In other conditions may spread the infection and lead to gangrene and amputation of the limb; in cases In which the skin has lost sense of beat, appllcatlon may result In severe bmns; due to the Impossibility of a member of the lay Public correctly diagnosing his condition or determining the underlying cause of the disorder, necessary medical treatment may be delayed; and ln instances In which diathermy would be of therapeutic benefit, 1t Is Im- Possible for the layman to determine the method of application or frequency and extent of the treatment; and (b) Failed to reveal all the facts material in the light of such representations, Under prescribed or usual conditions, and that such device might safely be Used only after competent medical diagnosis has determined that diathermy , is Indicated, and has prescribed the frequency and extent of the tt·eatment, and the user has received adequate instruction by a trained technician in · . the use of the device;

'\With tendency and capacity to mislead and deceive the purchasing public Into ' the mistaken belief that said device possessed therapeutic values which it did not, and that It might safely be used indiscriminately by the lay pubic, Complaint 35F.T.C.

thereby causing said public to purchase substantial quantities of said device bee a use of such mistaken belief:

lleld, That such nets nnd practices, under the circumstances set forth, were ts all to the prejudice of the public, nud constituted unfair nnd deceptive ac and practices in commerce.

Before Mr. Miles J. Fu1"1Ul8, trial examiner. llfr. James L. Baker, Mr. John M. Russeli and Mr. R. P. Bellinger I II for the Commission. Dockweiler & Dockweiler and Iff r. Frank 1V. lV alden, of Los ,A.n· geles, Calif., for respondents~ Colli PLAINT Pursuant to the provisions of the Federal Trade Commission .Actl and by virtue of the authority vested in it by said act, the Fcdera Trade Commission having reason to believe that George S. :Mogilnel' and James ·walker, individuals, trading as Merit Health Applian~e Co., hereinafter referred to as respondents, have violated the provl· sions of the said act, and it appearing to the Commission that a pro· ceeding 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, George S. l\Iogilner and James Walke_r, are individuals, trading as Merit Health Appliance Co., with thell' office and principal place of business at 801-802 Foreman Building, 707 South Hill Street, Los Angeles, Calif., from which address they transact business under the above trade name. t PAn. 2. The respondents are now, and for more than 1 year las past have been, engaged in the sale and distribution of a certain device or apparatus designated as Merit Short \Vave Diathermy.· In the course· and conduct of their business, the respondents cause . ·r said device or apparatus, when sold, to be transported from thel place of business in the State of California, to purchasers thereof ~o· cated in various other States o£ the United States and in the Distrlct of Columbia.

· Respondents maintain and at all time~ mentioned herein, ba"e maintained a course of trade in said device or apparatus, in commerce~ between and among the various States of the United States an in the District of Columbia. · PAR. 3. In the course and conduct of their aforesaid business the respondents have dissemil)ated and have caused the disseminatiol~ 0~ false advertisements concerning their said product by the Unite States mail and by various other means in commerce, as commerce is defined in the Federal Trade Commission Act; and respondents have also disseminated and have caused the dissemination of, false MERIT HE·ALTH APPLIANCE CO. 407 405 '·. Complaint 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 · conunerce is defined in the Federal Trade Commission Act. Among and typical of, the false, misleading and deceptive state- ~ents and representations contained in said false advertisements, ~tssen;tinated and caused to be disseminated, ns hereinabove set forth, Ythe United States mails, by advertisements in newspapers, by radio ~ontinuities, an~ by leaflets, pamphlets and other advertising litera- Ure are the following:

~ee $7.50 SINUS PAD L lth every DIATIIERMY purchaseu this week. OW MONTH RENTAL ;Im~l1' Short Wave Diathermy is now used in hundreds of homes, and Is Hleul.and most !!conomical way to treat stubborn ailments, such le as !!llthma . Pleurisy Arthritis ronchitis Sinus Neuritis l'rostate High Blood Pre~sure And Many Other Ailments.

Get the "proof of the pudtling." Rent a Merit Short 'Vave Diathermy for one ~~month and see for yourself what it willllo for you. SEND FOR FREE FOLDER, c' hort Wave Diathermy. in Your Home."

all at our office for FI1EE Demonstration, or arrpnge for a Demonstration 1 n Your Own Home. NO ODLTGATION. UENTED OR ~OLD ON EASY TERl\IS Office Hours 9-5 :30 P. l\I.

· · Manufactured and Solu Direct by ::\IEniT HEALTH APPLIANCE CO.

707 So. HILL ST.

l>h · Suite 801-802. one VA. WS2 ~IEniT SHORT WAVE DIATHERMY in Your Home th \Vny are more MERIT sets being used and installed In Callfornla homes : u.n the combination of all other makes put together? "'SINl1S-;-Specially designell mask for directing wurm, penetrating radio h a"Ves throug·h the sinuses. AllTHUITIS-Rheumatism ailments even chronic, ll"Ve shown marked response to lts permeating heat. Send for· Illustrated Literature, ot· Free Home Demonstration. llented or Sold on E:asy Terms.

1\fERIT IIE.-\LTII APrLIANCE CO.

, 707 S. Hill St., Los Angeles, Cal. · Phone: VAndike G682 Suite 801-802 · . F'tJLty GUARANTEED by the only home diathermy company In California owning Its own factory.

c Easy to use--1\Ierlt Short Wave Diathermy Is so simple that even n chlld 1111. operate lt.' ·b :No one can n1'J'ord to be without this health guard and all can enjoy the . cnefit of Short Wave Diathermy treatments in their homes. .,408 FEDE,RAL TRADE COMMJSSI,ON DE'CISIONS 35 :r. T. C. Complaint The application of heat stimulates certain chemical processes of the body· 0very The natural defensive powers of the tissues are assisted, repair and rec are hastened by natural healthful means. · dS • • • the therapeutic value of heat has long been known, the old metho e of application are Ineffective, uncertain and uncomfortable, • • • becaus t the heat does not penetrate to the deep-seated area involved. In a vain e y to secure deep penetration the skin is uncomfortably overheated and poss burned or blistered. of Now modern science provides-In Short Wave Diathermy-a means r· applying beat to diseased tissues that overcomes every objection to the unce turn methods of the past. . skin Short Wave Diathermy is pleasant and comfortable-the surface of tbe Is not unduly heated.

Short Wave Diatherlljy is safe-the burns and blisters of the old·fnshiOJied methods are absent.

• • • the safest, pleasantest and most effective methods of treatment lver discov~red. Ill Outstandmg results have been obtained with Short Wav.e Diathermy the relief of suffering due to arthritis, neuritis, neuralgia, rheumatism, Inlll~ bugo, 'sciatica, hay fever, asthma, gout, bronchitis, sinus Inflammation all similar diseases. The value of Short Wave Diathermy cannot be over· Ill Now the Merit Short Wave Diathermy offers new hope for sufferers :tro agonizing pain, and various chronic disorders. · f{ec· ARTHRITIS-Every arthritic should know that .heat bas been most e HY tive In the relief of this dread disease. Short Wave Diathermy's proven abil 0 in relieving the anguish of arthritis, neuritis, rheumatism, •sciatica, Iumbllli and kindred ailments is well established. . y SINUS INFLAMMATION-The alleviation and relief to sinus sufferers b Short Wave Diathermy is truly amazing. y FOR WOl\1EN-In the aliments common to women, Short Wave Diatberlll bas proved to be a veritable blessing for relieving much pain and sutreriog~!J· This treatment is so simple that you can take it yourself in your borne wi out any assistance from anyone.

MERIT DIATHERMY CONTINUITY , We've all beard the wisdom of Benjamin Franklin expounded many tin1e8,: he wrote this: "Never leave 'til tomorrow, that which you can do today·1 Tbe habit of putting things off is all too common. Doubtless there are mao g listening to me today who have often said to themselves, "Someday I'm golll, to investigate this Merit Short Wave Diathermy and see if it can help we: t llut they have put it olf and put it off-meantime missing out on 'the ·comfo~e that awaits them. If you are one of those who have plapned to investigllcr this 1\ferit Short Wave Diathermy-DO IT TODAY. Why continue to sulf 9 untold agony when you can very simply alleviate your most painful conditl 0~8 by simply applying tw9 rubber pads to the sore and afflicted parts. This sen ul" a penetrating Internal heat down deep Into the sore and aching parts o:l' Y0 8 body. If you suffer from arthritis, neuritis, bursitis, sciatica, neuralgia, sinUf trouble or rheumatism In any part of your body, you may have a :tree trial 0 MERIT HEALTH APPLIANCE CO. 409 4os, ·.; Complaint the Merit Short Wave Diathermy In your home any days· from 9 A. :M:. 'tll 9. P, M., by calling t.hls number now • • • VAndike 5082 • • • VAndike OG82 • • •.

PAn; 4. By the use of the representations hereinabove set forth, und other representations similar thereto not specifically set out ~erein, respondents represent that their device or apparatus, adverhsed as l\ferit Short ·wave Diathermy, when used by the unskilled lay public in the treatment of self-diagnosed uiseases and ailments of. the human body by individual self-application in the home, is a Sct~ntific, safe, harmless, and effective means and method for the rehef, cur~, or treatment of rheumatism, arthritis, neuritis, bursitis, U11J.bago, sciatica, neuralgia, sinus trouble, and colds, painful menstruation, female disorders, chronic disorders, and many other ail- ~ents, and for the alleviation of pain resulting therefrom; and that Its Use will have no ill effects upon the human body . .1'he foregoing representations are grossly exaggerated, false and llltsleading. .

l?An. 5. The said device or apparatus is composed principally of a. high-frequency generator encased in a portable steel cabinet. The · Circuit is a modified Hartley Circuit, two Taylor T-4055 tubes, pushll.uU, plus the regula!" chokes for proper control. The power to the Cltcuit is furnished by a transformer of 1,300 volts (half wave), Plate supply, 7Y?-volt filament supply. The output is inductively ~ 0Upled and tun;d with a series variable condenser and the wave length is approximately 12 meters. The maximum power output is tjProximately ~20 watts calibrated on a photo-electric watt meter. nder ordinary lamp-load, it may be considered as 100 to 125 watts output. The power is transmitted to the user by two insulated t'~hber condenser pads, 7 by 9 inches or by two small pads, namely :~nus and cuff applicators 4 by 7% inches and 2 by 24 inches, respecl\'ely, used with one of the larger pads. No cable is used with this ~\'ice .. The application to the patient is made us~ally by placing ~ Condenser pads in such position that the power_ may pass between '! ,ltld condenser pads through the affected area o£ the body, at stated Intervals for ·varying periods o£ time. · . · 1'he individual self-application o£ said device by the unskilled lay fllblic in the home, under the co~ditions prescribed in said adverlsernent or under such conditions as are customary or usual, will not ~.ccornplish the results claimed by the respondents and is not a scientlflc, ·safe, harmless, and efiecti ve means and method to . be used by d~e Unskilled lay public for the relief, cure, or treatment o£ sel£lagnosed diseases and ~;~-ilments of the human body, or for the allevi- FEDE~AL TRADE COMMISSION DECISIONS410 Complaint 35F.T.C.

ation of pai~ resulting therefrom, and may cause severe electric burns . or other serious and irreparable injury to health. The said device does not constitute a competent treatment for co?· clition of acute inflammation of the nerves, such as neuritis, neuralgud and sciatica; acute inflammation of the muscles, such as lumbago an myositis; acute inflammation of the bursae, such as bursitis; acute inflammation of the joints, such as acute inflammatory arthritis; an~ rheu.m.atic pains associated with acute inflammatory conditions.?d the JOmts, bursae, p.erves, and muscles. Such treatment as afores::u may result in further swelling of the inflamed tissue, thereby increas· ing the congestion of the inflamed part and in spreading the inflaJll· mation to adjacent tissue and allowing the absorption of toxins, when present.

Short-wave diathermy is contraindicated in all cases of menstruation; pregnancy; gastric ulcers; acute appendicitis; in areas whe~e there is a probable malignancy; and where there is a hemorrhngJC diathesis.

Furthermore, the use of this device for the relief of pain due to neuralgia or neuritis, which may often be symptoms of some deeper, underlying disease or cause (such as pains due to tuberculosis of the joints, syphilis, and other infectious processes, or. to tumor or cancer~' may cause serious injury to health and also delay proper dill.gnosJS and treatment.

The application of Merit Short Wave Diathermy in treating con· ditions of acute sinus trouble may result in further increasing con· gestion of the mucous membranes of the sinus~s, nose, and throat, an~ facilitate extension of the infections and. increased · absorption ° bacterial toxins. . In those areas of the skin where the sense of heat has b~en Iosh due to injury or impairment of the peripheral nerves, th~ application of said device may result in severe tissue destruction and severe burns· Cancer or tuberculosis of the spine may evidence itself by severe pains in the knees and the application of diathermy by the untrained layman may delay proper diagnosis and treatment, The application of this device for the treatment o£ pain in_ the extremities in the presence of advanced blood vessel changes of t?e . legs or arms, when given in ex~ess dosage, will cause serious injuries . and· may lead to gangrene and neeessitate amputation of the legs or arms.

There are many diseases and conditions in the treatment Qf which,. diathermy would be contra-indicated. There are other condi.tions in which the efficacy o£ diathermy is dependent upon the method 11nd · MERIT HEALTH APPLIANCE CO. 411 405 Complaint ~ration of its use. In both of these classes of cases, the use of diad'e~my may aggravate rather than relieve such conditions. Many cont lt:ons, including some of those for which respondents recommend hell.' device, are sometimes symptomatic or indicative of underlying systemic disorders for which diathermy would have no therapeutic ~value and may even be injurious. It would be impossible for a memt er of the lay public to correctly diagnose his ailment or condition or io determine the underlying cause of such disorder. It would also be drnpo~sible for such person to correctly determine the method and uratron of the use of diathermy. Consequently, the use of diathermy requires the diagnosis of the ailment or condition by a competent Itl.medical authority to determine if diathermy is indicated and the rnethod and duration of treatment which should be prescribed. Pan G. In addition to the representations hereinabove set forth, the respondents have also engaged in the dissemination of false advertiseients in the manner above set forth, in that said advertisements so lsseminated fail to reveal all facts material in the light of such repre- ~entations or material with respect to consequences which may result ro,m the ·use of said device or apparatus, under the conditions prescribed in said advertisements, or under such conditions as are custo- ID.ary or usual, and that the use of sai_d device may result in serious lin,~ irreparable. injury to health.

Ihe said advertisements are further false, as aforesaid in that said bdvertisements also fail to conspicuously re~eal that tl~e device may e. safely used only after a competent medical authonty has deter- ID.Jned, as a result of diagnosis, that diathermy is indicated and has r~escribed the frequency and amount of application of such diathermy ~eatments and the user has been adequately instructed in the method0 · operating such device by a trained technician. PAn 7. The use by the respondents of the foregoing false, deceptive ~n~ Inrsleading statements and representations with _respect to their tle\'Ice or apparatus, disseminated us aforesaid, h!!.s had and now has tle capacity and tendency to, and does, mislead and deceive a substanbla~ portion of the purchasing public into the erroneous n.nd mistaken t el~ef that such statements, representations and advertisements are rue and induces a portion of the ·purchasing public, because of such erroneous and mistaken belie£, to purchase the respondents' said deviceor apparatus. Pa~. 8, The foregoing acts and practices of the respondents as herein 1~ ll:'ged, are all to the prejudice and injury of the public and constitute llfair anq deceptive arts and practices in commerce within the intent 11J.ld ~1meaning of the 'V:ederal Trade Commission Act. Findings 35F.'f.C. • REPORT, FINDINGS AS TO THE FACTS, AND ORDER . •. • Pursuant to the pro~isions of the Federal Trade Commission A.ct, · the Federal Trade Commission, on July 21, 1!)41, issued and subse· quently served its complaint in this proceeding upon the respondent~, Georges. Mogilner and James ·walker, individuals, trading as Mer~ Health Appliance Co., charging them with the use of unfair an deceptive acts and practices in commerce in violation of the pr~­ visions of that act .. After the filing of respondents' answer, testl· mony, and other evidence in support of the allegations of the co~· plaint were introduced by the attorney for the Commission, and .1° opposition thereto by the attorney for the respondents, before a trial examiner of the Commission theretofore duly designated b~ it, and such testimony and other evidence were duly recorded ~n filed in the office of the Commission. Thereafter, the proceeding regularly came on for final hearing before the Commission on the complaint,· the answer thereto, testimony and other evidence, repor1 of the trial examiner upon the evidence, and briefs in support of an in opposition to the complaint (oral argument not having been re· quested); and the Commission, having duly considered the matter and being now fully advised in the premises, finds that this proceed· : ing is in the interest of the public and makes this its· findings .ns to the facts and its conclusion drawn therefrom. FINDINGS AS TO THE FACTS PARAGRAPH 1. The respondents, George S. Mogilner and J arnes Walker, are individuals, trading under the name Merit Health A.Pd · pliance Co., with their office and principal place of business locat~ . at 707 South Hill Street, Los Angeles, Calif. They are engaged..J.ll the sale and distribution of a therapeutic device or apparatus deslg· nated by them as Merit Short Wave Diathermy. PAn. 2. In the course and conduct of their business respondent£ <:cause their device, when sold, to be transported from their place ? business in the State of California to purchasers thereof located 1~ various other States of the United States and in the District 0 f Columbia. Respondents maintain and have maintained a course 0 trade in their device 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 'business, and for the purpose of promoting the sale of their product,· respondents have inserted advertisements in Los Angeles newspapers which have a wide circulation not only in the State of California but in other MERIT HEALTH APPLIANCE CO. 413 405 Findings StaU!s of the United States as well. Respondents have also distrib- Uted advertising circulars by means of the United States mails to ~tn~rous prospective purchasers located outside the State of Calirrna. Frequent use of radio broadcasts has also been made by respondents in advertising their device.

Among and typical of the many statements and representations appearing in respondents' advertisements are the following: MERIT SHORT WAVE DIATHERMY IN YOUR HOME Is the ideal and most economical way to treat stubborn ailments, such as Asthma Pleurisy Arthritis llronchitls Sinus Neuritis l'rostate High Blood Pressure Any 1\!any Other Ailments 0. Get the "proof of the pudding." Rent a l\Ierlt Short Wave Diathermy for n.e tn llo month and see for yonrSflf what it wUl do for you. SEND FOR FREE tlo 0RLET, "Short Wave Diathermy in Your Home." Free home demonstran on request.

RENTED OR SOLD ON EASY TERMS • • • MERIT SHORT WAVE DIATHERMY IN YOUR HOME.

· th Wny are more MERIT sets being. used and installed in California homes ~n the combination of all other makes put together? di ll'~US-Specially designed mask for ARTHRITIS - Rheumatic ailments threcung warm, penetrating radio waves even chronic, have shown marked re- . rough the sinuses. sponse to its permeating heat. Send for Illustrated Literature, or FREE HOME DEMONSTRATION • • • the• •• • The application of heat stimulates certa.ln chemical processes of an. body, The natural defensive powers of the tissues are assisted, repair ~ recovery are hastened by natural healthful means. or • • the therapeutic value of heat has long been known, the old methods the application are inffectlve, uncertain and uncomfortable • • • because to heat does not penetrate to the deep-seated area involved. In a vain effort hu Secure deep penetration the skin Is uncomfortably overheated and possibly ;ned or blistered.

or • • Now modern science provides-in Short Wave Diathermy-a means 1111 applying heat to diseased tissues that overcomes evet·y objection to the an. certain methods of the past. • • • Short Wave Diathermy is pleasant l:>t d comfortable-the surface of the skin Is not unduly heated. Short Wave llr ll.thermy is safe • • • the burns and blisters of the old-fashioned methods e absent . ~'\'. • • the safest, pleasuntest, and most e1'1'active methods of treatment er discovered.

1109749"'--43-vol. SIS--29 Findings 35F.T.C· OUTSTANDING RESULTS have been obtained with Short Wave DiatheroJY In the relief of suffering due to arthritis, neuritis, neuralgia, rheumatismd lumbago, sciatica, bay fever, asthma, gout, bronchitis, sinus inflammation 80,. similar diseases. The value of Short Wa"l"e Diathermy cannot be overest mated • • •.

NOW THE MERIT SHORT WAVE DIATHERMY OFFERS NEW HOPE FO~ SUFFEREHS FROM AGONIZING Pain, AND VARIOUS CIIHONIC Dl ORDERS • • • ARTHRITISo-Every arthritic should know that heat has been most effe~ tive in the relief of this dread disease. Short Wave Diathermy's proven abilito in relieving the anguish of arthritis, neuritis, rheumatism, sciatica, Jumbag ' and kindred ailments is well established. • * • • • • SINUS INFLAMMATION-The alleviation aml relief to sinus sufferers bf Short Wave Diathermy is truly amazing. • • • y FOR ·women-In the ailments common to women, Short Wave DiatbcrJll has proved to be a veritable blessing fm· relieving much pain and suffering. • • • ADVANTAGES OF HOME TREATMENT ,, THERE WHEN YOU NEED IT-the old axiom "au ounce of prl'\'entioll. etc., holds true today. Therein lies one of the chief advantl~ges of havlJl~ l\IERIT SHOR'l' WAVE DIATHEHlllY in your borne right when you ne~s it. When the ailment is in its Initial stages It is there-ready to use and uf application may prevent further progress of the disease. MERIT sho"i!C W A vg DIATHERMY can be used by every member of the family. CHUO· Vl' CASES-Better results are often obtainable with MERIT SHORT Wf> " DIATHERMY in yo\]r home, as you can apply Its beneficial heat waves two. e or three times a day if necessary. Home treatments can be taken at a um most convenient to yourself. It is indispensable for invalids. RESTFUL: Short Wave Diathermy treatments are relaxing. When treatments are tal>e at home you can enjoy the full benefit of total relaxation. As this is c·ngoW ducive to good sleep, it is most desirable to take treatments just before goJ (e to bed. EASY TO USE-l\IERIT SHORT WAVE DIATHEHl\lY is so !;lllltl that even a child can operate it. .. . . • • • No one can afford to be witlwnt this health guard and all call enjoy the benefit of Short Wave Diathermy treatments in their homes. • • • • • • • We've all heard the wisdom of Benjamin Franklin expounded many tiJlles,:, he wrote this: "Never leave 'til tomorrow, that which you can do today· The habit of putting things off is all too common. Doubtless _there are IJlll?~ 1listening to me toouy who have often said to themselves, ''Someday going to Investigate tbls Merit Short Wave Diathermy and see If it can help me." But they have put it off and put It off-meantime missing out on tllle ' t.comfort that awaits them. If you are one of those who have planned to inves gate this lllerit Short Wave Diathermy-DO IT TODAY. Why continue t~ suffer untold agony when you can very simply alleviate your most patnfll MERIT HEALTH APPLIANCE CO. 415 405 Findings ~on!litions by simply applying two rubber pads to the sore and afflicted parts. 'rhls sends a penetrating internal heat down deep into the sore and aching Darts of your body. If you suffer from arthritis, neuritis, bursitis, sciatica,n .h eurulgia, sinus trouble or rheumatism in any part of your body, you may ave a free trial of the Merit Shott Wave Diathermy in your home any day !rotn 9 A. M. 'til 9 P. M., by calling this number now • • • VAndike 5682 • • VAn dike 5682 • • • .

• PAR. 4. Through the use of these representations and others of a s~rnilar nature, respondents have represented, directly or by implicatlon, that the unsupervised use of their device by the lay public for :e~f-diagnosed conditions through self-application in the home contltutes a competent and effective means and method for the treat· ~ent of numerous ailments, disorders, and conditions of the human bou~, including, among others, rheumatism, arthritis, neuritis, Urs1tis, lumbago, sciatica, neuralgia, sinus trouble, and female dis- ~.rders, and for the alleviation of pain resulting from such condi. 10lls; and that such use of the devi<;e is entirely safe and harmless; · PAn. 5. Medical diathermy may be defined as the therapeutic use ~£ heat generated in the tissues of the body by artificial means. :tespondents' device is what is known as a short-wave diathermy lllachine. The essential part of the device is a high-frequency generator which is encased in a portable steel cabinet. The electric Power generated by the machine is transmitted to the user through rufbber condenser pads which are attached to the machine by means0 . tl cords. The pads are intended to be placed on the aff~cted area of le body in such position that the power generated by the machine Passes between the pads and through the affected area. The resist- ~nce of the tissues of the body to the power produces the heat which orrns the basis for the therapeutic value of the machine. PAn. 6. Diathermy machines are now in fairly common use among Physicians, particularly among those who specialize in physical thern~y. Such machip.es, however, are used with caution, it being recog· ~lZ~d. by the medical profession that they possess definite potend1.ahhes for harm and that there are numerous conditions in which ~athermy is positively contraindicated. Diathermy is n~v~r em- 0Yed by physicians until after a thorough diagnosis of the patientf las been made and it has definitely been established that the patient's ~hndition is one in which the use of diathermy is proper. Moreover, e application of the treatment is never left to the patient but is ~arefully supervised by the physician, the application usually being elegated to a trained technician. · tl Generally speaking, diathermy is used only in those cases where le condition is chronic. It is not used in acute conditions, which are Usually accompanied by inflammation resulting from congestion· Findings 35 F. T. C. due to an engorgement of blood. The effect of diathermy in s~ch cases is to increase the congestion of blood at the affected area, with the result that the patient's condition is definitely aggravated rather than improved. The congestion of the inflamed area may cause the · inflammation to spread to adjacent tissues, and may also cause t~e absorption by such tissues of any infection which may be present Ill the affected area. Likewise, diathermy is always avoided in cases where there is a hemorrhagic condition or even a tendency to hemor· rhage.

While diathermy is occasionally used by physicians in the tr~at· me~t of rheumatism, arthritis, neuritis, bursitis, lumbago, sciatica, neuralgia, sinus trouble, and female disorders, its use is limited to those cases in which the condition is chronic rather than acute. lt is not a competent or effective treatment for any of these specific ai.l· ments, or for any other ailment, which is in the acute stage or Ill which acute inflammation is present. In all such cases, moreover, the use of diathermy has a tendency to aggravate and inc:r;ease the pain rather than alleviate it, this being due to the increased conges· tion and inflammation resulting from the treatment. Among the specific conditions in which diathermy is positively contraindicated are menstruation, pregnancy, tuberculosis, cancer, acute appendicitis, and gastric ulcers. · . . In cases of acute sinus trouble, the use of diathermy may result Ill increasing the accumulation of pus in the sinuses, which in turn may cause the extension of the infection to Other organs of the body. The excessive application of diathermy for the treatment of p11ins in the arms and legs, in the presence of advanced blood vessel changes, may lead to gangrene and necessitate amputation of the arm or ·leg· Another danger which attends the unsupervised use of diatberi11Y by the layman is that cases are fairly frequent in which certain ar~ns of the skin have lost the sense of heat. In such cases, the application of the treatment is likely to be excessive and may result in severe burns.

Moreover, many disorders and conditions of the body, including some of those for which respondents recommend their device, nre frequently but symptoms of more serious, underlying disorders for which diathermy would have no therapeutic value and might even be injurious. For example, neuralgia and neuritis may be symptom11S of tuberculosis of the joints, syphilis, or other infectious processes, or tumor or cancer. Also, cancer in the spine and tuberculosis in the spine may evidence themselves by pain in the knees or elbows or oth~r . parts of the body. It is impossible for a member of the lay pubhc correctly to diagnose his condition or determine the underlying cause MERIT HEALTH· APPLIANCE CO. 417 405 Order ~i the disorder, and, in consequence, necessary medical treatment may e delayed. Even in those cases where diathermy would be of ther- :~eutic benefit, it is impossible for the layman correctly to determine t e method of application or the frequency and extent of the treatment.

PA.R. 7. The Commission therefore finds that the representations lnade by the respondents with respect to their device, as set forth in :Paragraphs 3 and 4 hereof, are misleading and deceptive, and con 8 t' itute false advertisements.

Pan, 8. The Commission finds also that respondents' advertise- ~ents are false for the further reason that they fail to reveal all of e facts material in the light of the representations made therein, and fail to reveal the consequences which may result from the use of res:pondents' de~ice under the conditions prescribed in the advertisements or under such conditions as are customary or usual. 'I11e advertisements are false also in that they•fail to reveal that respond- ~nts' device may safely be used only after a competent medical author- ~ty has determined, as a result of diagnosis, that diathermy is indi~ a.ted, and has prescribed the frequency and extent of the treatment, ~nd the user has received adequate instruction by a trained technician ln the use of the device.

Pan. 9. The Commission finds furthe~ that the use by the responde~ts of these false advertisements has the tendency and capacity to ~lslead and deceive a substantial portion of the purchasing public lnto the erroneous and mistaken belief that respondents' device possesses therapeutic values which it does not in fact possess, and that ~Uch device may safely be used indiscriminately by the lay public, and ~e tendency and capacity to cause such portion of the public to pure ase substantial quantities of respondents' device as a result of the !!rroneous and mistaken belief so engendered. CONCLUSION 'lhe acts and practices of the respondents as· herein found are all to the prejudice of the public and constitute unfair .and deceptive ~cts and practices in commerce within the intent and meaning of the ederal Trade Commission Act.

ORDER TO CEASE AND DESIST . 1'his proceeding having been heard by the Federal Trade Commis- 81011 upon the complaint of the Commission, the answer o£ respondents, testimony and other evidence taken before a trial examiner of CO~IMISSION DE·CISIONS418 FEDERAL TRADE 35F. T.C. Order the Commission theretofore duly designated by it, in support of the allegations of the complaint and in opposition thereto, report of t~le trial examiner upon the evidence, and briefs in support of and 111 opposition to the complaint (oral argument not having been re· quested), and the Commission having made its findings as to the. f~cts and its conclusion that the respondents have violated the provisi0115 of the Federal Trade Commission Act.

It is ordeTecl, That the respondents, George S. Mogilner and James Walker, individually and trading as l\Ierit Health Appliance ~o., or trading under any other name, and their agents, representatl~es and employees, directly or through any corporate or other deV'lce, in connection with the offering for sale, sale or distribution of re· spondents' device designated ".Merit Short ·wave Diathermy," or any other device of substantially similar character, wheth~r sold under t~J: same name or under any other name, do forthwith cease and deslS from directly or indirectly :• 1. Disseminating or causing to be disseminated any ad~·ertisements by means of the United States mails, or by any means in commerce, as "commerce" is defined in the Federal Trade Commission A-ct, which advertisement represents, directly or by implication, (a) that respondents' devic~ is safe or harmless. . (b) that respondents' device constitutes a competent or effectrve treatment for, or will alleviate pain resulting from, rheumatism, arthritis, neuritis, bursitis, lumbago, sciatica, neuralgia, sinus trouble, female disorders, or any other ailment or disorder of the human body, unless such advertisement is specifically limited to those ca~e: in which the condition is chronic rather than acute, and in. wine 1 there is an absence of acute inflammation.

2. Disseminating or causing to be disseminated any advertisement by means of the United States mails, or by any means in comme~c~, as "commerce'' is defined in the Federal Trade Commission Act, wlnc 1 advertisement fails to reveal clearly and conspicuously that respo~ldl ents' device is not safe for use unless and until a competent medlcuf authority has determined, as a result. of diagnosis, that the use 0 diatherll_ly is indicated, and has prescribed the frequency and rate of application of the treatments, and the user has been adequately instructed by a trained technician in the use of such device. 3. Disseminating or causing to hi:\ 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 "com~1erce': 19 defined in the Federal Trade Commission Act, of respondents' device, which advertisement contains any representation prohibited in pura· MERIT HE,ALTH APPLIANCE CO. 419 graph 1 hereof or which fails to contain the warning set forth in :Paragraph 2 hereof.

It i& further ordered, That the respondents shall, within 10 days ~after service upon them of this order, file with the Commission an lnh~erim report in writing stating whether they intend to comply with t ls order, and, if so, the manner and :form in which they intend to Cotnply; and that within GO days after the service upon them of this Order, the respondents shall file with the Commission a report in ~writing _setting forth in detail the manner and form in which they ave complied with this order.

Complaint