Vaisey-Bristol Shoe Company, Inc.

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IN THE MATTER OF VAISEY-BRISTOL SHOE CmlPANY, INC., ET AL.

CQXSEXT ORDER, ETC. , IN REG.AHD TO THE ALLEGED VIOLATION OF THE FEDERAL TRADE C01\DUSSION ACT Docket 6493. COIJ)JlaJnt, Jan. 1956-Decision, JIay, 1956 Consent order requiring a corporate manufacturer of juyenile shops and its adycrtising agency to cease advertising' falsely ill ne\\'spapers, magazines etc., and by radio broadcasts, that said shoes were beneficial to the health of children, and to cease llsing tile word " l1health" in referring to the shoes. Before illr. Jmnes A. Purcell hearing examiner. lift. Daniell. 11flll'phy for the Commission. ilfT. Elm'llS L. Alor/roe of J\lonctt lo., for respondents. CO)IPLAIXT Pursuant to the provisions of the Federal Trade Commission Act and by virtue of the authority.y vested in it by saiel Act, the Federal Trade COlnmissioll having reason to ue.1ie\'e that 'T aisey-Bristol Shoe Company, lnc. a corporation, and Scun '/aisey an(l Joe JIeCaffery, individually and as offcers of Vaisey-Bristol Shoe Company, Ine. , and Iorry StormStorm Advertising Company, Inc. , a, c.orporation indidc1ually and as an offcer of Storm Advertising Company) Inc. all hereinafter referred t.o as respondents, have violated the provisions of said Act, and it appearing to the Commission that a proceeding by it in respect thereof \yould ue in the public interest, hereby issues its c.complaint, stating its charges in that respect as follows: , is PARAGRAl' H 1. Respondent Vaisey-Bristol Shoe Company, Inc. a corporation organized, existing and doing business under and by virtue of t.he la\vs of the State of Jlissouri, with its offce and principal phlce of business at 100 Fifth Street, .\lonett, Missouri. Respondents Sam Vaisey a,nel Joe ::IcCaffcry are president-treasurer and vice president-sales manager, l'cspectiveJy, of said corporate respondent ,,' aisey-Brist,ol Shoe Compcmy, Inc., and t.these individuals formulate direct and control the acts, policies and practices of said corporate respondent. Their addresses are the same as that of said corporate respondent.

PAR. 2. Respondent Vaisey- Bristol Shoe COlnpanYI Inc' is now and has been for more than one year last past engaged in the manufacture sale and distribution of juvenile shoes designated " Jumpingacks" in commerce between and among the various States of the United States and in the District of Columbia. VAISEY-BRISTOL SHOE CO. , INC. , ET AL. 1211 1210 Complaint This respondent causes and has caused its said shoes, when sold to be transported from its said place of business in the State of :Hissouri to purchasers thereof located in various other States of the United States and in the District of Columbia. This respondent maintains, and at all times mentioned herein has maintained, a substantia.l course of trade in its said shoes in commerce bebveen and among the various States of the United States and in the District of Columbia, and is now, and at aU times mentioned herein, has been in substantial competition in commerce \vi1.h other corporations, firms or businesses similarly engaged in the mannfa,cture, sale and distribution of shoes.

PAH. 3. Respondent Storm Advertising Company, Inc., is a corporation organized Bxisting and doing business under.r and by virtue of the la\vs of the State of :New York, with its office and principal pl,lC(' of business at 72 East Avenue, Rochester 'J, )Jew York. This respondent is an advertising agency and as slich is engaged in formulating-, selling and advising it.s clients on advertising. R.respondent iolTY Storm is thc president of said eOrpOl'lte respondent and larl1ubtes directs and controls the acts, pol icies and practices of said corporate resp0l1dent; his address is the same as that of said corporate respondent.

Theso respondents arc the advertising representatives of respondent Vaisey-Bristol Shoe Company, Inc. , and prepare, eelit and place nc1vertising material used by respondent Vaisey-Bristol Shoe Company, Inc., in promoting the sale of shoes, including the adn rtising matter hereinafter reierred to.

P .He 'J. Respondents act in conjunction and cooperation with one another in the performance of the acts allll practices hereafter alleged. PAR. 3. In the course and conduct of their business and for the pnrposc of inducing the purchase of said shoes, respondents have made, and are nO\"\ making, many statelnents and representations concerning the nature and usefulness of said shoes by means of radio broadcasts, advertisements in newspapers and magazines, folders circulars, catalogs, labels on carions in which the shoes are contained and other a.advertising media. Among and typical of such statements and representations in said advertisements are the following: Jumping-Jacks '" * '" to guide little feet t.through the formative years * * '" to help steady young steps, g-l1ide little feet into proper ,valking hflbits! Freedom to grow and develop- a!'snred by .Jumping-Jael;:s' finer ofter, flp:dble leathers '" It '" help tiny feet grow normally! '" '" I/ . Tumving-Jacks '" * * t.hat' s the pair the doctors say they ought to wear Tiny arch and tiny toes stay strong and healthy while they grow! .... ..... .. Complaint 52 F.

what better assurance that your young prewalker s feet wil grow straight and strong in flexible Jumping-Jacks Shoes! helps bones and muscles grow straight and strong. preventing foot defects! II '" '" the healthful protection of Jumping-Jacks Yes, that's where good health starts, right on the ground with healthy feet! to help prevent foot defects, promote better health habits. Yes, your child's feet wil grow healthier, if they grow unhampered in Junior Jumping-Jacks.

'" oj '" normal, healthy arch! Only Jumping-Jacks let your youngster s feet develop this way.

helps your youngsters walk straighter! PAR. 6. Through the use of the statements and representations herein above set forth and others of similar import not specifically set out herein, respondents have represented, directly or by implication, that the wearing of Jumping-Jacks Shoes wil guide little feet through the formative years and into proper walking habits, assures that the feet wil grow straight and strong and will develop normally, causes the arch and toes to stay strong and healthy, helps bones and muscles to grmv straight and strong, promotes better health habits prevents foot defects, helps youngsters walk straighter, improves and promotes the health of the feet and the general health; that respondents' shoes incorporate therapeutic and corrective devices and contain health features.

PAll. 7. The aforesaid statements and representations are false, misleading and deceptive. In truth and in fact, respondents' shoes will not guide little feet through the formative years or into proper walking habits, will not have any significant beneficial effect on walking habits, cannot assure that the feet will grow straight or strong or will develop normally, will not have any significant beneficial effect on the growth or development of the feet, do not cause the arch or toes to stay strong or healthy, do not help bones or muscles to grow straight or strong, do not promote better health habits, do not prevent foot defects, do not help youngsters walk straighter, do not improve or promote the health of the feet or the general health; respondents' said shoes do not incorporate any therapeutic or corrective devices nor do they contain any features to justify representing them as a health product.

PAR. 8. The use by respondents of the foregoing false, deceptive and misleading statements and representations with respect to their shoes has had thc tendency and capacity to mislead and deceive a substantial portion of the purchasing public into the erroneous and mistaken belief that said statements and representations were true and to induce them, because of such erroneous and mistaken belief to purchase substantial quantities of respondents' shocs and has placed , VAISEY-BRISTOL SHOE CO. , INC. , ET AL. 1213 1210 Decision in the hands of dealers in said shoes means and instrumentalities whereby they may deceive and mislead the purchasing public in the respects stated herein.

PAR. 9. The aforesaid acts and practices of respondents, as herein alleged, are to the prejudice and injury of the public and respondents competitors and constitute unfair methods of competition and unfair and deceptive acts and practices in commerce within the intent and meaning of the Federal Trade Commission Act. INITIAL DECISION BY JAMES A. PURCELL , HEARING EXA nner The con1plaint in this proceeding, issued January 12, 1956, charges the respondents Yaisey-Bristol Shoe Company, Inc., a corporation existing by virtue of the laws of the State of l\1:missouri with its offce and principal place of business located at X o. 100 Fifth Street Monett, Missouri; and Sam Vaisey and Joe .YlcCaffery, individuals and as offcers of Vaisey-Bristol Shoe Company, Inc., the address of the latter to coincide -with that of the foregoing corporate respondent; and Storm Advertising Company, Inc. , a corporation existing and doing business under and by virtue of the la -ws of the State of New York, with its offce and principal place of business located at 72 East Avenue, Rochester 4, New York, and J\10rry Storm, individually and as president of the corporate respondent Storm Advertising Company, Inc., with the same address as that of the Storm Advertising Company, Inc., ,with unfair methods of competition and unfair and deceptive acts and practices in commerce -within the intent and meaning of the Federal Trade Commission Act.

Respondent Yaisey-Bristol Shoe Company, Inc., is cngagcd in the manufacture, sale and distribution of juvenile shoes designated Jumping- Tacks in commerce bet-wcen and among the various states of the United States and in the District of Columbia; and respondent Storm Advertising Company, Inc., is an advertising agency and as such is engaged in formulating, selling and advising its clients on advertising and in this capacity acted as advertising representative of Vaisey-Bristol Shoe Company, Inc. in the preparation, editing and placing of advertising material more particularly set forth in the complaint herein, which said advertising constitutes the basis for the initiation of this action.

After the issuance of said complaint the respondents entered into an agreement for consent order with counsel in support of complaint disposing of all the issues in this proceeding, which agreement was duly approved by the Director and Assistant Director of the Bureau of Litigation. It was expressly provided in saiel agreement that the signing thereof is for settlement purposes only a,nd docs not constitute 451G24--59--- Decision 52 F.

an admission by respondents that they have violated the law as alleged in the com plaint.

By the terms of said agreement, the respondents admitted all the jurisdictional allegations of the complaint and agreed that the record herein may be taken P$ if the Commission had made findings of jurisdictional facts in aecordance with such allegations. By said agreement the parties expressly waived a hearing before the hearing exam iner or the Commisslon; the making of findings of fact or conclusions of law by the hearing examiner of the Commission; the filing of exceptions and oral argument before the Commission, and a11 further and other procedure before the hearing examiner and the Commission to 'which the respondents may be entitled under the Federal Trade Commission Act or t.he Rules of Practice of t.he Com- 111881011.

By said agreement, respondents further agreed that the order to cease and desist issued in ac.cordance with said agreement shall have the same forc.e and effect as if made aft.er a full hearing, presentation of eddence and findings and conclusions thereon, and specifically waived any and all right, po\vcr or privilege to c.challenge or contest the validity of such order. ')i It as further provided that said agreement, together -with the complaint: shall constitute the entire record herein; that the complaint herein may be used in c.onstruing the te.rms of the order issue.d pursuant to said agreement; and that the said order may be altered modified or set aside in the manIler provided by the statute for the orders of the Commission.

The hearing examiner has considered such agreement and the order therein contained, and, it appearing that said agree,ment and order provides for an appropriate disposition of this proceeding, the same is hereby accepted and is ordered filed only upon becoming part of the Commission s decision in aecordance with Section 3.25 of the Rules of Practice.

Consonant with the terms of said agreement the hearing examiner makes the following findings as to jurisdictional facts: 1. That thc Fcdcral Trade Commission has jurisdiction of thc subject matter of this proceeding and of the respondents named therein.

2. That the named respondent in the complaint: Sam Vaisey is properly named Samuel B. Vaisey, a.nd that the named respondent in the complaint, Joe McCaffery, is properly named Joseph A. Mc. Caffrey. Both of the foregoing misnomers, as described, are to be remedied by issuanee of the hereinafter contained order bearing the names of the respondents as corrected.

VAISEY-BRISTOL SHOE CO, ) I:\C. , ET AL. 1215 1210 Decision 3. That this proceeding is in the public interest, wherefore the following order is issued:

ORDER It is ordel'ed That the respondent Vaisey-Bristol Shoe Company, Inc. , a corporation, its oflcers and respondents Samuel B. Vaisey (otherwise known as Sam Y aisey), and Joseph A. lcCaffrey (otherwise known as Joe )IcCaflery), individually and as oHicers of re spondent Vaisey-Bristol Shoe Company, Inc., and Storm Advertising Company, Inc. , a corporation, its offcers and lorry Storm, illdividually and as an offcer of respondent Storm Advertising Company, Inc., their representatives, agents and employees, directly or through any corporate or other device, in connection with the offering for sale, sale or distribution in commerce, as "commerce" is defined in the Federal Trade Commission Act., of respondents' shoes designated Jumping-Jacks " or any other shoes of similar construction, irrespective of the designation applied thereto, do fortlndth cease and desist from:

1. Hepresenting, directly or by implienJ.ion, that the wen ring of respondents' said shoes:

(a) '\Vill guide the feet through the fonnntiye years or into proper walking habits, or \vill have ally significant beneficial effect on alkjng habits;

(b) 'Vill assure that the feet grow straight or strong or develop Ilormally, 01' \vill have any significant beneficial effect on the gro ur development of the feet;

(c) 'Will cause the arch or toes to stay strong or healthy; (d) 'Vill help bones or muscles to grow straight or strong; (e) ,Will promote better health habits;

(f) Will prevent foot defects;

(.9) '\Vill help youngsters walk straighter; (h) ,Will improve or promotc the he,dth of the feet or the geneml health.

2. Using the word "health" or any other word or term of similar 1leaning alone or in combination with any other word or words, to designate, describe or refer to respondents' shoes in such manner as to import or imply that respondents' shoes incorporate therapeutic or corrective devices or contain health features. DRCIE' ION OF THE C01.DIISSION AND ORDER TO FILE REPORT OF COMPLIANCE Pursuant to Section 3.21 of the Commission s Rules of Pmctice, the initial decision of the hearing examiner shall, on the 2nd day of May, 1956, become the decision of the Commission; and, accordingly: Decision 52 F.

It is ordered That the respondents herein 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 and desist. MAHLER' , INC. , ET AL. 1217 Decision