Benjamin D. Ritholz

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

IN THE MATTER OF BENJAMIN D. RITHOLZ ET AL. TRADING UNDER THE NAl\1ES OF CHICAGO INVISIBLE CONTACT LEKS SERVICE, ETC.

. ORDER, ETC., IN REGARD TO THE ALLEGED VIOLATION OF THE FEDERAL TRADE COMMISSION ACT Docket 6155. 'Complaint, Dec. 30, 1953-Decision, Feb. , 1956 Order requiring eight individuals, engaged in the sale of corneal contact lenses from their main office in Chicago and numerous branch offices in other States, to cease representing falsely . in advertisements in newspapers, etc., that there was no feeling in the e:re when their contact lenses were worn and that they could be worn all day ,vithout discomfoi't; that their lenses wel' e safer than eyeglasses and provided better vision and that eyeglasses could be discarded upon purchase thereof; that their contact lenses were radically different from all others; and that the price of their lenses was reduced to $50 from $125 and $150, and that the lenses were of the latter value.

lrf r. Frederick M cll! anus for the Commission. Frank E. Arthur Gettle17wn and 11fti'. Ben1wn'vn D. Ritholz Chicago, Ill., for respondents.

INITIAL DECISION BY J. EARL COX HEARING EXAMINER The complaint charges that the respondents named in the caption hereof have violated the Federal Trade Commission Act by disseminating false and misleading advertising relating to corneal contact lenses which they manufacture and sell in commerce. Respondents filed an answer denying these charges. Thereafter hearings were held at which testimony and other evidence were received in support of and in opposition to the allegations of the complaint duly recorded and filed in the office of the Commission. Thereafter proposed findings were presented by counsel. Upon consideration of the entire record, the following findings are made:

1. Respondents Benjamin D. Ritholz Samuel J. Ritholz, Sylvia Ritholz, ~iorris L. R.itholz, Fannie Ritholz, Sophie Ritholz, Jacob Bedno and Anna Bedno, individually and as copartners trading under the names of Chicago Invisible Contact Lens Service, D. Invisible Contact Lens Service, Pittsburgh Invisible Contact Lens Service, Fort vVayne Invisible Contact Lens Service, Flint Invisible Contact Lens Service, Lansing Invisible Contact Lens Service King Optical Company, ~li(lwest Seientific Company, and other !l:51524-59- 782 FEDERAL TRADE COMMISSION DECIB:rONS Decision 52 F. T. C. names, are engaged in the sale of corneal contact lenses, having their principal place of business located at 1148 Chicago Avenue Chicago, Illinois. Respondents maintain numerous branch offices located in various cities scattered throughout the lTnited States including Atlanta, Georgia; Birmingham Alabama; l\1inneapolis 1\1innesota; ICansas City and Springfield, Missouri; South Bend and Fort Wayne, Indiana; and Lansing and Flint, l\iichigan. 2. Respondents are now, and for some years last past have been engaged in the manufacture and sale of eorneal contact lenses and other optical . supplies. Corneal eontact lenses are designed to correct errors and deficiencies in the vision of the wearers, and are devices, as "device is defined in the Federal Trade Commission Act. Respondents carry on their business through their branch offices in the following manner. Persons calling at the branch offices, unless they already have prescriptions, are referred to optometrists who examine the eyes of such persons, write prescriptions and charge fees for such examinations. The prescriptions then are taken by such persons to respondents' branch offices and are forwarded by the branch offices to respondents' main office or factory in Chicago, where corneal lenses are prepared in accordance with the prescriptions. The lenses are sent back to the various branch offices, and are there fitted to the eyes of. the individual customers. In transacting this business, respondents maintain a substantial course of trade in commerce. 3. In connection with their business respondents have disseminated advertisements concerning their said devices by the United States mails and by various other means in commerce, as "commerce" is defined in the Federal Trade Commission Act, including advertisements in newspapers, eirculars and pamphlets, for the purpose of inducing, and which were likely to induce, the purchase of said devices.

Among the statements contained in respondents' advertising matter, so eirculated, are the following:

(1) An amazing new invention by Hornstein of Budapest has startled the optical world. His invention is on file in the United States Patent Office. It is comprised of a tiny glass disk, smaller than a dime and it is radicallydifferent from all contact lenses, There is 110 feeling in the eye from ~t, Clinical tests on numerous persons in all walks of life ve?' long periods time give convincing proof that they can be worn all day long with complete comfort and that there is no feeling in the e~Te from them, * '" * (Emphasis supplied. J (2) Wear them every waking moment with ease and comfort. (3) Floating fluidless contact lens are a natural for you if you wear glasses. (4) Throwaway your glasses, (5) Worn by thousands from rising to bedtime, CHICAGO INVISIBLE CONTACT LENS SERVICE, ETC. 783 7.81 Decision (6) Wear new miniature "all da~'" corneal contact lenses. (7) . Safer and better than glasses.

(8) Can anyone be fitted with contact lenses? Almost anyone who wears glasses can secure the same or even better visual aid from Contact Lenses. (9) It takes very little time to become accustomed to them so that they may.be worn indefinitely.

(10) Remember you can now get these "all day" miracle lenses for $49.95 a pair. They are the identical lenses others charge $125 to $200. You can save yourself $75 to $150. * * * The price now is only $49,95. (11) Special introductory offer! $125 to $150 value reduced to only $50. 4. Through these and similar statements respondents have represented that:

(1) Respondents' lenses are a new invention and are radically different from other corneal lenses;

(2) There is no feeling in the eye when respondents' contact lenses are worn, and that they may be worn all day without discomfort to the wearer;

(3) . Said contact lenses are safer than eyeglasses; ( 4) Said contact lenses provide better vision than eyeglasses; (5) Persons who purchase respondents' contact lenses can discard their eyeglasses; and (6) Respondents' lenses are of a value of $150 to $200 and have been sold by them and others for that amount, but have been reduced by respondents to $50.

5. As to each of the aforementioned representations the facts (1) Respondents urge that the word "new is a relative termare: that it refers to something that has been in existence "but a short time. It is an indefinite expression. As was pointed out, we speak of the New Testament, although it is centuries old. ",Ve talk of new remedies, new eras and the new look-mostly in a most general way, without any specific period 'in mind. The word "new" does not earry any specific time limitation.

Various types of spectacles have been worn for centuries to give relief for defective vision. Certain types of contact lenses have been worn for several decades. Corneal contact lenses are of a later origin, and the Hornstein lens is one. of the more recent modifications of the eontact lens, so it is of comparatively recent origin. To describe it as "new" is therefore not beyond the bounds of the reasonable and ordinary application of that term. But respondents add that their lenses "are radically different from other corneal lenses. Here they are using terminology that does have specific connotation. The word "radically" means completely, thoroughly, fundamentally.. Respondents' corneal lenses are not radically different from other corneal contact lenses. 784 FEDERAL TRADE COMl-/ITSSION DECISIONS Decision 52 F. T. C.

Contact lenses fall into two general classifications-the scleral type which covers most, if not all, of the visible portion of the eyeball, and the corneal type, which covers a surface of the eyeball only slightly. larger than the cornea itself. There are several varieties of corm~ai lenses.

The Hornstein lens is a convex plastic disc. The central portion varying from 6 to 9 millimeters in diameter, is domed with a radius shorter than that of the cornea; surrounding this is a 3 to 5 millimeter flange which has a greater radius than the central portion making it somewhat flatter so that it conforms closely to the curvature of the eyeball; the edge is rounded so that it will not be irritating. The radius of the central dome.:shaped part of the lens may be varied to produce the necessary correction of vision required by the individual wearer. It also tends to create a vacuum, thus helping to hold the lens in place. Many of the other corneal lenses have a uniform radius of curvature and fit more closely to the eyeball throughout. There may be other variations in detail, but all operate on the same principle and serve the same purpose. All ean be made to provide the desired corrective effect on vision.

(2) Individuals differ, physically and psychologically. Some can wear the corneal lenses manufactured and sold by respondents with a reasonable degree of comfort. There is some sensation or feeling when contact lenses are first fitted, to which the wearer may later become insensitive, or which, on the other hand, may increase to such a degree that the lenses cannot be worn for any a pprecia ble length of time. Some persons cannot wear contact lenses at all; some can wear them for a few hours only: ",while others, fewer in number, can wear them all day, even to the extent of discarding the eyeglasses formerly used. There is a wide variation in this respect, depending upon individual idiosyncTflsies. There is general rule applicable to all.

(3) Some persons, after becoming accustomed to corneal contact lenses, wear them for all purposes in place of eyeghlsses and discard the eyeglasses they had previously used; others use them for appearance' sake when engaged socially or professionally, retaining their eyeglasses for non-public occasions; still others use them in sports which involve physical eon tact because the eorneal lenses, being of plastic, do not break or shatter as eyeglasses might. Again the question of comfort arises, and it cannot be said lenses ean aiseardas a. general rule, that purchasers of corneal their eyeglasses.

( 4) As to comparative safety, there is likewise no generally appJieable rule. As stated above corneal lenses, being of plastic CHICAGO INVISIBLE CONTACT LENS SERVICE, ETC. 785 781 C.conclusions will not shatter or easily break; they are less exposed to the danger of being struck by foreign objects than eyeglasses; they do not become fogged by sudden changes of temperature, and are not affected by perspiration, rain or other dampness. On the other hand, they may slip out of position at critical moments and, if not properly fitted, may cause abrasions and trauma. For all persons and all purposes they are not safer than eyeglasses. (5) Eyeglasses provide opportunity for a wider range of adjustments than do corneal contact lenses because of the variety of simple lenses that may be used and because of the availability of dual corrections through the use of bifocal combinations. In some cases, particularly those involving malformation of the cornea contact lenses provide improvement of vision not possible through the use of eyeglasses. It cannot be said of either device that in all instances and under an circumstances it is best. (6) Respondents' corneal lenses do not have a value of $150 or $200, nor any other value b1 excess of that which respondents regularly and customarily charge, which, according to the evidence varies from $4:9.95 to $75.00 per pair. There is n~o evidence to establish that identical lenses have been sold by respondents or by others for from $125 to $200. It does appear that there is much variance in the price which a purchaser may be required to pay for corneal contact lenses. Before a purchaser may procure respondents' lenses he is usually obligated to consult an ocuEst, optician or optometrist for examination and prescription. Respondents advertised prices do not include these services, nor does the record show what these additional services ordinarily cost. A person with impfdred vision might visit an oculist, optometrist or optician and be charged $125, $150 or more for complete services including examination, prescription, treatment if necessary, lenses fitting services and further necessary adjustments. He might charged much less. Since the type and quantity of services that are furnished with lenses may vary widely, no basis exists for making price comparisons, and faulty conclusions may be drawn from the statements made by respondents.

CONCLUSIONS On the basis of the facts of record as established by substantial reliable and probative evidence, the conclusion must be reached that much of respondents' advertising is false and deceptive. Their lenses are not radically different from other corneal contact lenses; there is some feeling in the eye when they are worn, particularly when first worn; in some instances, corneal contact lenses may be 52 F. T. C. Orderworn without discomfort all day; in some instances eyeglasses may be discarded; in some instances contact lenses are safer and provide better vision than eyeglasses, but these are individual instances, and not of universal or even general occurrence as respondents' advertising would lead a prospective purchaser to believe. The prices advertised by respondents are not reduced prices, nor are identical. lenses sold by others for from $150 to $200. The use by respondents of the foregoing advertisements, and the false, deceptive and misleading statements contained therein, has had and now has the capacity to mislead and deceive a substantial ,portion of the purchasing public into the erroneous and mistaken belief that such statements and representations were and are true lenses be-and into the purchase of respondents' corneal contact cause of such erroneous ana mistaken belief. The acts and practices of respondents herein found to be false and deceptive 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. Accordingly, Samuel J. Ritholz It is ordered That Benjamin D. Ritholz, Sylvia Ritholz, J\iorris L. Ritholz, Fannie Ritholz, Sophie Ritholz Jacob Bedno and Anna Bedno, trading under the names of Chicago Invisible Contact Lens Service, D. C. Invisible Contact Lens Service, Pittsburgh Invisible Contact Lens Service, Fort \Vayne Invisible Contact Lens Service, Flint Invisible Contact Lens Service, Lansing Invisible Contact Lens Service, King Optical Company, their Midwest Scientific Company, or any other name or names, representatives, agents and employe~s, directly or through any corporate or other device, in connection with the sale of contact lenses, do forthwith cease and desist from directly or indirectly: 1. Disseminating or causing to be disseminated any advertisement means in commerce by means of the United States mails or by any as "commerce is defined in the Federal Trade Commission Act which advertisements represent, directly, indirectly or by implication :

(a) That there is no feeling in the eye when respondents' contact lenses are worn;

(b) That respondents' corneal contact lenses can be worn all day without discomfort;

contact lenses is always (c) That the wearing of respondents' safer than the wearing of eyeglasses;

(d) That respondents' contact lenses provide better correction eyeglasses except in the cases of those of defective vision than persons who have malformation of the cornea; CHICAGO INVISIBLE CONTACT LENS SERVICE , ETC. 787 781 Decision (e) That eyeglasses can always be discarded upon the purchase of respondents' corneal contact lenses;

2. Disseminating or causing to be disseminated any advertisement, by any means, for the purpose of inducing or which is likely to induce, directly or indirectly, the purchase in commerce, as commerce is defined in the Federal Trade Commission Act, of said contact lenses, which advertisement contains any of the representations prohibited in paragraph 1 hereof. It is further ordered That the aforesaid respondents, in connection with the offering for sale, sale and distribution of contact lenses in commerce, as "commerce" is defined in the Federal Trade Commission Act, do forthwith cease and desist from representing: 1. That the difference between respondents' and all other corneal contact lenses is radical or fundamental; 2. That the price at which respondents' corneal contact lenses are offered for sale is a reduced price, unless such price is substantially less than the price at which the same lenses were being sold by respondents immediately prior to the announcement of such reduced price;

3. That any price at which respondents' contact lenses and services precedent and subsequent to the acquisition thereof are offered for sale represents a saving, unless such price is lower than that at which similar contact lenses and services are being offered by others in the same competitive area.

DECISION OF THE COMl\HSSION AND ORDER TO FILE REPORT OF COMPLIANCE Pursuant to Section 3.21 of the Commission s Rules of Practice the initial decision of the hearing examiner shall, on the 9th day of February 1956 become the decision of the Commission; and accordingly, It is ordered That respondents Benjamin D. Ritholz, Samuel J. Ritholz, Sylvia Ritholz J.\tlorris L. Ritholz, Fannie Ritholz Sophie Ritholz, Jacob Bedno and Anna Bedno, individually and as copartners trading under the names of Chicago Invisible Contact Lens Service, D. C. Invisible Contact Lens Service, Pittsburgh Invisible Contact Lens Service, Fort \V ayne Invisible Contact Lens Service, and other names, shall, within sixty (60) days after service upon them of this order, file with the Commission a report in writing setting forth in detail the manner and form in which they have complied with the order to cease or desist. 788 FEDERAL TRADE COJ\1J.\tlISSION DECISIONS Complaint 52 F. T, C.