Loesch Hair Experts et al.

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IN THE ~fA TTER OF LOESCI-II-IAIR EXPERTS ET AL.

ORDER, ETC., IN REGARD TO THE ALLEGED VIOLATION OF THE FEDERAL TRADE COl\Il\IISSION ACT Docket 6305. Complaint, Mar. 1fJ55-Decisio' , Nov. 14, 1957' Order requiring nn individual with place of business in Houston, Tex., from wl1ele he or his re)H'esentntives traveled to various cities to meet customers and prospects, along with his advertising agency, to cease representing falsely in advertisements insel'tecl in local newspapers announcing his aITivnl tlwt by use of his scalp preparations bacteria swarming beneath tile s(;alp would be killed; dandruff, itching, initation, and all local scalp disorders \\'OUlll be cured and the scalp l~ept healthy; excessive hair full 'vould be stopped, and nll types of baldnf'.ss prevented, new lwir induced to grow, and the hail' become thicker; requiring him to reveal that the enuse of "male-pattern " baldness, wlli('h accounts for approxill1ntely 95% of a1l cases, would not be favorabl~' infhwneell; and requiring him to cease representing falsely, b~. use of the word "Trichologist" and pictorinl representations, that he and his representatives had lwd competent training in dermatology having to do with treatment of scalp disordel's. illi'. Jlol'to' n N esm.ith for the Commission. lVelli' ng TVelling by 1111'. Richard 111. 1Velling, of Charlotte, N. for ,Villiam T. Loesch.

ill CGTCgOT Sewell by 111'1'. DO1.(,glass lV. 111 cGTegor of I-Iouston Tex., for ,Villiam B. Zimmerman.

INITIAL DECISION BY EVEImTT F. I-L-\YCHAFT, I-IEAJUNG EXAMINER I~TRODUCTORY STATEMENT The complaint in this case ,-ras issued ~larch 2, 1955, against the respondents named in the caption hereof. Among other things it was alleged therein that respondent Loesch was engaged in the business of Beijing and distributing various cosmetic and other preparations for external use in the treatment of conditions of the hair and sealp in interstate commerce; that in the course and conduct of such business respondents had disseminated or caused the dissemination of advertisements concerning said preparations for the purpose of inducing and which were likely to induce the sale of said preparations; and that respondent Zimmerman, trading as Zimmerman Advertising, prepared said advertisements. Typical of such statements and representations were certain statements with respect to the efficacy of the products and it was alleged that through the use of such statements, said respondents had represented that by the use of respondent Loesch's preparations bacteria swarming beneath 576 iFEDERAL TRADE COMMISSION DECISIONS Decision 54 F.

the scalp will be killed; dandruff, itching and irritation of the scalp will be permanently eliminated; an local scalp disorders will be cured and the scalp kept healthy; excessive hair fall will be stopped; all types of baldness, including hereditary baldness and spot baldness, will be prevented and overcome; new hair will be induced to grow; and the hair will become thicker. It was further alleged that by use of the \ford "trichologist" and by other means respondents had represented that respondent Loesch and his employees had had competent training in dermatology and other branches of medicine having to do with the diagnosis and treatment of scalp disorders affecting the hair and scalp.

It was further alleged in the original complaint that such advertisements were misleading in material respects and constituted false advertisements as that term is defined in the Federal Trade Commission Act. Respondents in their ans,yers denied the material allegations.

J\..after taking testimony in support of the above allegations, counsel in support of the complaint filed a motion to amend the complaint ,,-hic.h motion ,,-as granted :March 1 , 1956. As amended, the complaint. now alleges in paragraph nine that respondents products ,,-ill not stop excessive hair fall in the type of baldness known to dermatologists as male pattern baldness which type accounts for approximately 95% of all eases of baldness; ,,-i11 not in cases of male pattern baldness prevent or overcome baldness or have any favorable infiuence on its underlying cause; induce new hair to grow in such eases; or cause the hair to become thicker in such cases. It is further alleged in the amended complaint that respondents said advertisements are misleading in a material respect: in that they fail to reveal facts material in the light of the representntioDs made. 'The statements and representations in said advertisements have the c:apaeity and tendency to suggest nnd do suggest to persons ,,-ho have excessive hail' fall 01' who ale bald that there is a reasonahle probability that they are threatene(l ,,- ith 01' have a type of baldness which will be prevented 01' overcome by use of respol1dent Loesch's prcparntions. In the light of such statements and representations, said nc1vertisements are misleading in a material respect and therefore false because they fail to reveal the fact that the vast majority of cases of excessive hair fall and baldness are the beginning and more fully develoued stages of tlwt type of baldness known to dermatologists as mnle pattern baldness, and that in cases of that type l'espnndent Loesch's preparations will not stop excessive lwil' fall. prevent or overcome baldness or hnye any favorable influence on its underlying cause. In paragraph ten of the complaint as amended it is alleged that: The Hie by the respondents of the foregoing false nnd misleading statements and representations, clisseminated as aforesaid, ancl their failure to reveal the material facts set forth in subparagraph t,,- o of Parngrnph Nine, hn,e had , ,, LOESCH HAIR EXPERTS ET AL. 577 575 Findings and now have the capacity and tendency to mislead and deceive a substantial portion of the purchnsing public into the erroneous and mistaken belief that such statements nnd representations fire true and to cause thelll to purchase said preparations hereinabove referred to from respondent William '1'. Loesch because of such erroneous and mistaken belief. At the time the complaint ,vas amended, as aforesaid, the I-Iearing Examiner enter,red an order that the evidence theretofore taken in support of and in opposition to the allegations of the complaint be adopted and considered as evidence in support of and in opposition to the amended complaint to the same extent and eflect as such evidence had been originally taken under the amended complaint. Subsequent to the amendment of the complaint, testimony was taken on behalf of respondent ,Villiam B. Zimmerman but no testimony was taken on behalf of respondent ,Villiam T. Loesch. Counsel for both respondents filed motions to dismiss at the conclnsion of the taking of testimony. The order closing the taking of testimony was entered by the J-Iearing Examiner on October 16 195G. Subsequent to that date proposed fulc1ings and order were filed by all parties and oral argument was held on April 8 , 1957. Consideration having been given by the undersigned I-Iearing Examiner to all of the reliable, probative and substantia.) evidence in the record on all material issues of fact, law or discretion, the following findings, conclusions and order are hereinafter set forth: FINDINGS OF FACT AND LAW Respondent ,Villiam T. Loeseh is an individual doing business as Loesch flair Experts. with his oHicr and principal place of business located at 603 Avondale Avenue, Houston, Texas. Since September 1 , ID52, said respondent has been engaged in the business of selling and distributin~:L.- various cosmetic and other preparations for external use in the treatment of conditions of the hair and scalp. I-Ie causes said preparations when sold to be transported from his place of business in the State of Texas to purchasers thereof located in various States of the United States. At one time he had an office in St. Paul, :Minnesota here one of his representatives was located ,which he closed in truly 1954. Although respondent Loesch has sold his products in most of the States except. the Nevi England States most of his business has been done in what respondent desc.ribed as the Gulf Coast. States from 1\ ew :Mexico and Arizona in the ,Vest to the Atlantic Coast in the East, including particularly the States of Texas~ Tennessee, North and South Carolina and Florida. During 1 D5i~ sales of Loesch Products amounted to approximately $100 000 and in 1954 bebyeen $100 000 and $150 000. 578 FEDERAL T'TRADE COMMISSION DECISIONS Findings 54 F. Respondent "\Villiam B. Zimmerman has been for a number of years engaged in the business of conducting an advertising agency under the name or style of Zimmerman Advertising, \with his office and principal place of business at 603 Avondale Avenue, Houston Texas. lie represented respondent Loesch as advertising counsel during 1953, 1954 and until August 1955 and placed advertisements for respondent Loesch which he had helped prepare, and which had prepared for and which had been used by one Sidney J. l\1ueller the former employer and predecessor of respondent Loesch, against whom the Con1J11ission had issued an Order to Cease and Desist in December 1952 on charges similar to those involved in this case. Respondent Loesch's usual method of doing business is for either himself or one of his representatives to travel to various cities where they meet prospective as well as present clients or customers, in \which cities, shortly before being visited by respondent or his representative, advertisements are inserted by respondents Loesch and Zimmerman in local newspapers announcing their arrival. The following are some of the phrases or headlines in such advertisements: Save-your-hair clay set for tomorrow. Scalp specialist here to demonstrate new llOme treatment.

How to save and improve ~.our hail' demonstrated by expert here tomorrow. Take achantage of save your hair week nt your Loesch Hair Experts. Not the hair you lose tiwt makes you bald, says noted "do it yourself" trichologist.

Questions on hnil' eare nns,vf'ret1 free by expert. Yon can save your hair by home treatment nlHl care, says ,Y. T. Loesch, Director, Loesch Hair Experts. '1' 0 men growing balcl: I dare you to try Loesch do-it-yourself scalp treatment at my risk.

Hair specialist here tomorrow will shmy henv to save hair and prevent baldness.

There are pictorial representations in some of such advertisements of respondent Loesch in a white coat ,,-ith a pointer in his hand before an enlarged picture of the hair follicle in the scalp. A sample of the text immediately under such pictorial representations is as follo\ys:

One of the most common causes of hair loss, the blocke(l fol1iele is explaine(l to balding men by trichologist ,V. T. Loesch. I-lis organization is s€'IHling a hair expert here to advise men how to esenpe Llalc1ness by home treatment. In some of these advertisements are pictorial representations of persons "before and after" using "Loesch-type" preparations. Also in other advertisements explaining the "before-and-after" pictures of men who were partially bald and whose hair apparently had been restored are such phrases as:

LOESCH HAIR EXPERTS ET AL. 579 575 Findings For baWing heads like these a "Rave your hair day " has been announced. As long as you have some hair, trichologist 'V. T. Loesch, says you have an excellent chance to grow thicker hair by new methods of home treatment. In one such advertisement, which ~fr~ Loesch testified was sent throughout the United States, under the caption """\Vhat causes baldness " the following statement appears:

How many times have you henrd men attempt to explain their loss of hair with one of these remarks: " , baldness runs in my family so I just have to accept it" or ""~ell, it' s natural for a man to lose his hair ns he gets along in years" or " If you re going to be bald, you re going to be bald and there nothing you can do about it." So many men have said such things for so many hundreds of years, these old ideas fire still widely believed. But they are not supported by modern knowledge.

True, some men do inherit a scalp structure that may predispose to early bnlc1ness. But any such tendency can he overcome by proper hair care. * * * Actually the t\yO most common causes of baldness" says hair expert 'V. '1' Loesch "are neglect and mistreatment of the lwir This famous authority urges that you do not resign yourself to baldness unless you are already hahl. * * * About )2 million American men are alle~ad~' bald or soon will be. How many women fire bald no one cnn estimate. Certainly all of these men and women regret their condition.

Under the caption "Can Prevent Baldness" it is stated in this advertisement:

rhe shoeking truth is that most of these bald people need not have lost their hnil'. Although baldness cannot be "clll' e(l" it can most certainly be prevented. Our Loesch trichologists have developetl ll1etllods of self-ndministerec1 homp. treatment that are sueeessfu195% of the time. (Corn. Ex. G1\') In another advertisement in the Charlotte, North Carolina Observer in 1954 and which was sent all over the United States, containing many of the forgeoing statements, there appears under the caption "No Cure-All" the following language: Anel' many years experiellce in treating scalp disorders" continued Loesch we IHn.e developed scientific treatments that will correct your scalp trouble and give you a healthy scalp. Loesch emphasized that his treatment is neither " ma i 1 order" nor " cu I'e-a 11" . Different scalp condi tiol18 requ i I't~ c1 ifferent methods of treatment. "For that reason " he said "we do not recommend a treatment without first milking- a personal scalp examination. Hesults from hcnne trentl1lent are (jnickl~' noticeable * l1s11nl1y it takes just a f(~w weeks to cleanse the hail' of d:l11c1rllff (surface and imbellc1ed) , kill tlle bacteria s\yarming beneath tlJe scalp, correct local disorders and stop excess lw i r fa 11.

Under the caption Can PTevent Baldness appears the following statemen t :

In most calf~S baldness can be prevented(l if you get professional help before your hair loss goes too :rnr. * * * TIle important thing is don t put it off until your "hail' factories " close down-for life. (Com. Ex. 4 , 6-0) 580 FEDERAL' TRADE COMMISSION DECISIONS Findings 54 F. In the Bakersfield Californian in 1953 under the general caption low To Saye and Improve Your I-lair, Demonstrated by Expert Here Tomorrow:: and a subcaption ",Vho can be helped" the fol- Im,ing statement is made:

Loesch treatment cnn help nny man or woman whose scalp is still creating hail'. In most cases yon cnn at least save an(l improve what you have. Some d isordel's such as alopecia arcata (spot baldness) usunlly have complete l'ecm-ery if caught in time.

Dnnclruff, itching and irritation disal)pear during the first 30 clays of treatment. Hail' fall decreases rapicl1y.

If you have scnJp trouble, Loesch emphnsizes that the important thing is this: Don t: wait 'I/I/til. it' s too l((f;c. You cannot be helped when you are slickbnlc1 after years of gradual hail' loss. If you have a c1isense, of course, you should(l see a physician. (Loesch is llot a doctor) Actually, our biggest problem is not in doing what we claim to do " Loesch declares. \Ve satisfy more than nO% of OUI' clients. But overcoming the average man s initial skepticism is rea1J~' (liflknJt. ITe s US\wl1~- quite c1esperate--and cleHnitely bald ishbefore he nerves himself to see us. All the time he s losing hair, he justifies his neglect with one of the 01c1 notions about hail': That baJclness is hereditnry ; that men just have to lose hair ns they get along in years; that nothing can be done to stop hn ir loss.

What' s worse all the time he s losing Jw ir he keeps right on ",ith the bad habits of hair cure thflt cause l1im to los~~ hair. In an advertisement which l\Ir. Loesch testified.d was published in N asln-ille andl\Iemphis newspapers in 1954 under the. c.aption "Save. Your I-lair Specialist l\Iakes Unprecedented Ofler :' and under a I-louston, Texas date line, the following statements appear: Houston, Texas-Kmv you ('an stop excessive lw ir loss, prevent bahlne~s, eliminate c1:1I1l1ru1I, scalp itclJ and irritation. Now you can grow stronger healthier looking: hair.

You can elo it yourself at home without paying a cent until you lun-e seen what the treatment will do. " That's the daring- offer now ma(le to Nashville men and women b~- Loeseh Bail' Experts of Houston. The story behind it is explninec1 by \V. T. Loesch this wa~' Cause of Trouble Here s what "-e found:

~lost hail' troubles are caused by clischarge of boc1~' waste through the scalp. Far from being bene1ieinl, as commonly supposed the so-ended 'natural oils (sehum) and perSIJiration an~ aetnnlly for11ls of toxic, acid-like matter thrown off by the system. It appears on your scalp as ' dandruff.' either in oily 01' dly form.

This fldd-like matter imbe(ls deep in the hair follicles. where it brings about excessive hail' fall a11(l weakens the hair t;rowing facilities!" This conclusion, Loesch snicl, is supported by recent experiments in a great university. They applied tire "natul' al oils" to a number of test animals and the animals lost theil' hair in ten to twelve days! LOESCH HAIR EXPERTS ET AL. 581 575 Findings Who Can Be Helped? Hard to believe? The new Loesch method of scalp treatment based on this discovery has " made believers " out of f/;jl/C of those ,,-ho tried it. Our methods will help anybo(/y hail' Loesch says Dandruff, itching and irri1:ntion disappear within ten clays. Hair loss slows clo""'11 thereafter and soon becomes normal. 'Vhere ~'ou are ah' eady slick-bnld, of course there isn t much chance to regTOW hail' but you can at least snye nnd impro\-e what hail' you IHne. (Com. Ex. 7) In pamphlets which are distributed to prospective customers respondent Loeseh but which ,,' ere not prepared by respondent Zim.merman, respondent Loesch makes the follmying representations: 'The following information presented by 'V. T. Loesch, Director of Loesch Hair Experts, Houston. Texas, is the composite result of the study of the problems, treatment and the subsequent n'gulated scalp hygiene of thousands of people in n hyelye-state area during the past nye years. This experience and obsen-ation has resulted in the de,elopment of simple home treatment methods which IUlye pl'oyen to be better than ninety-nve percent effectiH_~ in elill1inatillg dandruff, itching nnd irl'itntion nnd stopping excess bail' fall.

Under the caption "Cause of Baldness" the following statement is made in this pamphlet:

'Ye ha,e found that the main Cfl11Se of bahlness is wrapped up in one, small five-letter ,yord "sebum FO1' man~' years "sebnceons sebum " has been classified as " natural oil" nnd thought to be neck88nry to the hail' al1(l seal)). Aetnal1y this so-called natural oil and perf'piration are forms of toxic. acid-like matter thrown off hy your supposed.s~-stem. Inf'tea(l of benefitin~ your hail' an(l scali) af' commonly cullses dandruff, itchi I/!J a1/ di rritat 01/. It 'imbeds deep in the l/(/.h~ foZlicl.es 01/. top of tile scalp 'where it ca.-1I8es eiu:cssi.rc hair fall and rrru(l.l/a.71y 'Iceali:ens and 1"cnt IW U,I/ dcstrolls 0/ 71 (/ ir-fl /"0 Ie ill fI and hair rcplaciJl f/ faGil-it ics. The sic1es and back of the ~scalp are usually~' not afl'ected since the hair follicles there point in a clm,nWfll'Cl direction nl1owing the sebum to c1rain out of the hail' follicles. 'That is ,,' hy baldnesf' usufll1y occurs at the tops of the scalp where the sebum cannot clrnin off.

Under the caption "Heredity" the follo,,"ing statement is made in this pamphlet:

It. can t be snic1 positi,eJy that baldness is inherited. However, it is true that SOJne people inhcrit a \year,er thnn averng:e scalp structure and as a result they hah~ less resistance to the damaging \yor);: of sebum. It is also possible to hn,e a heavier inllerit an oyer-nhunc1ance of male sex hormone and Uf' a result or more acic1-lil,e discharge of f'elmm and perspirntion. .Any such tendency ean now usually be oyer come with proper scali) eare an/l hygiene. In ,,-ritincr to his clients after his visits respondent Loesch reminds them of the necessity of continuation of treatments and scalp hygiene.

Findings 54 F. You must remember that the constant discharge of body wastes and perspiration in the scalp is the main cause of most scalp trouble. If allowed to accumulate, it causes dandruff, itching and irritation and most of all is harmful to the hair growing and replacing facilities. I t should be relnovefl (I.S frequently as possible.

YonI' six: months series of progressive treatments are designed to. neutralize, dissolve and gradually remove the accumulation of these toxic body wasteR from deep within the hair follicles, At the same time, the treatments stimulate and strengthen your hair and scalp. You can help youi' condition by simply adjusting your scalp care to the condition in VO/l"!' sealp, rrhe mole perspiration and body ,vaste you have the more frequently you must shampoo. (COI11. Ex. J2) In the event the client does not appear for hjs 90-day check-up, he is again contacted by letter by respondent Loesch and ac1vjsed that jt js necessary for him to continue the "scalp hygiene" to keep his scalp in healthy condition. Again he is told: You must remember that the constant discharge of body "astes and perspiration in the scalp is the main cause of most scalp trouble (Usually~' evil1enced by an oily forehead and an excessively oily 01' dry, scaly scalp). If allowed to accumulate, it cnllses dandruff, itching and il"l'itation, and, most of all, it causes excessive lwirfall and is hnrmful to the hair-growing and replacing facilities. It should bc 1'cmoved as frequently as possible. Through the use of the foregoing statements and representations respondent Loesch with the assistance of respondent Zimmerman has represented dire.ctly and by implication that by the use of respondent Loesch's preparations: (a) bacteria swarming beneath the scalp will be killed; (b) dandruff, itching and irritation of the scalp will be eliminated; (c) all local scalp disorders wjl1 be cured and the scalp kept healthy; (d) excessive hair fall wjll be stopped; (e) all types of baldness including male-pattern-type baldness and spot baldness will be prevented; (f) new hair will be induced to grow; and (g) the hair will become thicker.

By the use of the word "Trichologist" and by pictorial representations of respondent Loesch as an expert lecturing on the hajr fol- Ecle in said advertisements, respondents have represented that respondent Loesch and his representatives have had eompetent training in dermatology, having to do with treatment of scalp disorders affecting the hair and scalp.

The said advertisements are misleading in material respects and constitute false advertisements as that term is defined in the Federal Trade Commission Act. In truth and in fact: (a) none of said preparations will cure bacteria beneath the scalp as they do not will elimi- exist there; (b) none of respondents said preparations nate dandruff, defined as an accumulation of scales on the scalp primarily due to shedding of top layers of the epidermis. Some of respondent I..oesch:s formulae will remove dandruff temporarily, LOESCH HAIR EXPERTS ET AL. 583 575 Findings that is, so long as the product is used by the customer; (c) none of his products will correct or cure all kinds of local scalp disorders itching and irritation; (d) none of respondent Loesch's products will stop excessive hair fall in the type of baldness known to dermatologists as "male pattern baldness " which type accounts for approximately 95% of an cases of baldness; (e) none of respondent Loesch's products will prevent or overcome any type of baldness or hair loss or have any favorable influence on the underlying causes. This is particularly true with respect to so-called spot or alopecia areata baldness which often accompanies dandruff and often a symptom of systemic disorders which need medical treatment by a physician. Usually the hair in such cases will return under normal conditions and none of respondent Loesch's products need to be used in order for such hair to be restored; (f) there some evidence that respondent Loesch's products will cause a fuzz known as lanugo or "puppy hair" to grow in some places but such fuzz is not recognized as hair and never grows to real hair; (g) none of respondent Loesch's products will actually cause hair to become thicker since the product will not cause new hair to grow. Some consideration has been given to the testimony of a number of user or c.onsumer witnesses who had attended respondent Loesch' c.linics and had taken respondent Loesch's treatment and who testifie,d generally to the efl'ec.t that excessive hair fall had been stopped and that dandruff had been eliminated, and some to the effect that the hair \yas thicker after using respondent Loesch's treatment and prep~Tations. :No finding is made with respect to such testimony, as it is beEeved that to the extent it is contrary to the testimony of experts, it is unreliable., and there is nothing to show that these users ha(1 experienced anything more than the use of a good shampoo and tonic.

1\either the respondent Loesch nor any of his representatives are qualified to refer to themselves as a "trichologist " who is a scienlist or person who studies the science of hair. Trichology is defined as the "science or study of the hair and its various disorders. is generally recognized as a part of the study of dermatology. ot her words before a person could pass himself oft' or hold out to the pubhc that he is a "trichologist " it would be necessary for him to quality himself as a dermatologist and neither the respondent nor any of his representatives had any such scientific training. all of the various ingre- The record contains a complete list of dients used by respondent Loesch in the formulae, which ingredients are prepared for him by the i\1erril1 Laboratory in St. Louis 1\1i8sO111'1. According to respondent Loesch there are two types of treatnlent: (a) for normal dandruft' condition; and (b) for an oily ::

584 FEDERAL TRADE CO1\IMISSION DECISIONS Findings 54 F. dandruff condition. Respondent Loesch represents in his advertisements that by cleaning the scalp and removing dandruff you will thereby help prevent baldness. It is also claimed that the product will neutralize fatty acids and help dissolve fatty acids and stimulate and destroy bacteria.

HO"\vever, according to reliable and competent expert opinion respondent Loesch's product in any of the formulae used will not kill bacteria and will not prevent itching and irritation of the scalp unless the cause of the irritation is removed by medication; and will not keep such scalps healthy or stop the excessive fall of hair; and positively will not have anyefl'ect in preventing or overcoming ,vhat is kno"\vn as male-pattern-type baldness or spot baldness known as alopecia areata. It. was admitted hmyever by some of such experts that. respondent Loesch:s preparations will temporarily remove loose dandruff but they would not permeate down into the follicles of the hair as represented in SOlne of the advertisements. It is also the consensus of expert medical opinion that a superficial infection of the scalp, known as seborrhea, or subaceous sebum, does not affect hail' gro"\vth or cause baldness of any type as represented by respondent Loesch in some of his publications and in correspondence ,vi t h customers. Some of these experts admitted on cross-examination that in using the various ingredients combined by the respondent in his formulae, one could expect. a feeling of improvement in the scalp as far as itching and the amount of dandruff' is concerned but this ,vould be temporary. There would be no died on the hail' gTo,vth ,vhatever.

Hesponclent Loesc.h's products or any other similar product cannot hate any eflect upon male- pattern-type baldness, for the reason that it is caused by three main mechanisms-heredity, hormonal balance and the age process. ~fale-pattern-type baldness is defined by a JTlcdical authority in dermatolog~7 as the "genetic make-up of the individual. In other ,words, his hair follieles are. destined to die after functioning a certain number of years. * '" * Yes, the cause as 1 stated it, is ,vhat he inherits from those ancestors. '" '" '" all yon can say is that the odds are very much in favor of a male child being born of parents whose ancestors who have male baldness ,,-ill also hate male. baldness. * * Respondent Loesch and his representatives are not doctors and arc' not educnted in such a manner as to qualify them to pass upon medical q1lE'stions nor to conc1l1c.t examinations of prospec.tiye C11StomeI'S as they are not. qualified to detennine the condition of the scalp: although ,,-hen tlH'y question the C'ustonwr 01' patient as to whether he. has alopec.ia., or alopecia areatn, or attempt to conduct the examination of the scalp of the clients or ask questions as to LOESCH HAIR EXPERTS ET AL. 585 575 Conclusions their physical condition, and whether they have had scarlet fever typhoid fever, diphtheria, measles, or other illnesses, they give the impression they are so qualified.

It is the consensus of reliable and competent medical opinion that an under-rstanding of the body as a whole and the diseases and disorders affecting it is necessary for the practice of dermatology, which relates to the diseases or disorders a:fi'acting the skin including the scalp and appendages, such as hair. Certainly only competent dermatologists are in a position to determine whether or not the so-called excessive hair fall or the itchy condition of the scalp are caused by some systemic disease, such as a fever, or whether it is a patehy type of baldness due to some other systemic condition. Furthermore, the representations made by respondent Loesch in advertisements and in correspondence ,,-ith his clients, as they are called, and the oral representations of said respondent and his representatives are false advertisements, as that term is defined in the Federal Trade Commission Act, in that they fail to reveal facts material in the light of the representations made. The statements and representations in said ach-ertisements have the capacity and tendency to suggest and do suggest to those .who are bald, that there is a reasonable probability that they are threatened \rith or have a type of baldness .which will be prcxc-nted or overcome by the use respondent Loesch~s prepflr:ltion~. In the light of such ~tatell1ents and representations, said advertisements are misleading in a material respect because they fail to reveal the fact that the vast majority of cases of excessive hair fall and baldness are the beginning and more fully developed stages of that type of baldness known to dermatologists as "male-pattern balc1ness ~: and tlutt in eases of that type, respondent Loesch:s preparations 'Till not stop excessive hair fall, nor will they prevent or overcome such baldness, or have any favorable influence on its underlying causes. The use by the respondent Loesch of the forgeoing false and misleading statements and representations, disseminated as hereinbefore desc-ribed, and his fa.ilure to reyea.l the material facts set forth above have had a.nd now have the capacity and tendency to, and do, mislead and deceive a substantial portion of the purchasing public into the erroneous and mistaken belief that such statements and representations an~ true, and to cause them to purchase said preparations from respondent Loeseh because of such erroneous and mistaken belief.

COXCLUSIO~S The aforesaid acts and practices of the respondents are all to the prejudice and injury of the public, and constitute unfair and de- 586 FEDERAL TRADE CO1vimission DECISIONS Conclusions 54 F.

ceptive acts and practices within the intent and meaning of the Federal Trade Commission Act.

Respondent Zimmerman is joined herein as a respondent in the follo"ing order because of his close relationship to respondent Loesch, and the assistance he gave respondent Loesch in preparing the printed matter contained in the advertisements and the placing of such advertisements in newspapers. I-lis activities in connection with the affairs of other so-caned hair experts, including S. J. l\lueller against. whom the Commission issued a complaint and order to cease and desist in 1952, and the interchange of advertisements under his copyright between respondent Loesch and others are sufficient reason for holding that he should be included in the order to cease and desist in this case. Authority for the foregoing opinion as to inclusion of respondent Zimmerman in the order is found in the ease of Fleming and Sons, Inc. Commission Docket 5264; Foster &, l\iilbourne Co. , et aI., Docket 5937; and Carter Products Inc. , et aI., Docket 4960, in which cases the orders to cease and desist included the advertising agent. The legal finding that respondent Loesch had violated the Federal Trade Commission Act is supported by numerous decisions including particularly the following: Ii ayr Ohen'deal 00., Inc. , et al. Doeket 6157, yrhich became the decision of the Commission in April 1956. That ease involved a product somewhat similar to re.spondenfs and also somewhat similar allegations. An order was entered requiring the respondents to cease and desist disseminating advertisements representing among other things that the use of respondenfs preparations "ill cause hair to grow on bald or partially bald heads; or that it has any etrect upon dandruff other than a temporary removal of dandrutr scales. This is the only decision where the question "as litigated. It ,vas decided after testimony had been taken, both in support of and in opposition to the allegations of the complaint, and represents the deliberate opinion of the Commission. The Commission, however, has issued a number of orders to cease and desist in eases where an agreement "-as entered into between the Commission and the respondents authorizing the issuance of an order to cease and desist. Included among these is an order to cease and desist against Sidney J. l\fueller trading as ::\fueller I-Iair Experts, Docket 5977, hereinbefore referred to as a predecessor and formeT employer of the respondent Loe.set1 and as a client of respondent Zimmerman. In that ease the order required the respondent to cease and desist the dissemination of advertisements which represented that the l\1 ueller preparations "auld have any etrect in preventing or overcoming baldness; cause hair to grow thicker in spots where it is thin; kill bacterin, beneath the scalp; cause the scalp to LOESCH HAIR EXPERTS ET AL. 587 575 Conclusions be energized to grow new hair; cause the permanent elimination of dandruff, itching, dryness, or oiliness of the scalp; or cure all scalp disorders, keep the hair healthy; or enable the individual to maintain a thick head of hair.

In another case, in the matter of Hair Experts, Inc. et aI., Commission Docket 5757, decided in 1950, the respondents therein engaged in a busi~ess quite similar to the one involved in this case. The.y 'v ere required among other things, to cease and desist disseminating advertisements representing that their product would cause hair to grow when growth had ceased and resulted in thin hair or partial baldness, or that the germicides included in the preparation would penetrate beneath the skin surface, kill bacteria there laeated and destroy bacilli on the scalp surface; that their said preparations would prevent baldness, grmv hair on bald heads and enable an individual to maintain a thick growth or hair for life. That order also required the respondents to cease and desist repre. senting themselves as "trichologists" or using an~! similar name which may tend by implication, either directly or indireetJy, to eonvey the idea or inference that such men have had competent training in dermatology or other branches of Jnedicine having to do with the diagnosis and treatment of scalp disorders aft'eetjng the. hair. Although these two last-named decisions were not litigated, but were based upon an agreement between respondents and the Commission, they indicate the opinion of the Commission ,with respect to such practices.

,With respect to the legal finding that the representations made by respondent Loesch in advertisements and in correspondenee with his clients, as well as the representations of said respondent and his representative, are false advertisements as that term is defined in the Federal Trade Commission Act, in that they failed to reveal facts material in the light of the representations made; that is, the fact that the vast majority of cases of excessive hair fall and baldness are the beginning and more fully developed stages of that type of baldness known to dermatologists as male pattern baldness, referenee is made to the following language of Section 15 (a) of the Federal Trade Commission Act, as amended, with respect to food drugs, devices or cosmetics.

The term "fa)se nclvertisement" means an arlYertisement, other thnn labeling, which is mis)eacling in a material respect; nncl in (1etel'mining wl1either any flclYe1.tisement is mislead1ing, there shall be taken into nC:CO1111t (nmong other thing-s) not on)y representations made 01' sl1gg-f'!'tecl b~' statement:. word, (lp!'=i:zn device. so11l1cl, 01' an~' combination thereof !Jllf. 0180 tile (,;TtClit to which tile ocl'L:crtisemellt fails to rerf,ul. facts material. ill Illt 71'1/111 of SI/ch J'(:,-pr('s(:lItatiolls or material ,with respect to conse(jllences "hid1 m~~' 1'1-'!'=lllt from tile llse of tile common(lit~' to which the nc1yertisement relates IIII(1er nip conditions prescrilwd 528577-60- ,,,, Conclusions 54 F.

in said advertisement, or under such conditions as are customary or usual. (Emphasis s supplied) The Courts have recognized the obligation on the part of the Commission to observe that portion of the statute. For instance the Court of Appe.als for the Seventh Circuit in the case of L. Heller cO Sons, In. et al. v. FedeTCd T1'ade 007n?nission 191 F. 2d 954 decided in 1951, held:

1Ve commence our study of the instant case with the knowledge that the Commission may require ntt1r1l1ative disclosures wl1ere necessary to prevent deception, and tlwt failure to disclose hy mark or label material facts concerning merchandise, which, if l\:nown to prospective purchasers, would influence their decisions of "bethel' 01' not to purchase is an unfair trade practice violative of S 5 of the Federal Trade Commission Act. (Citing the case of JIaskelite Jlall/l.lacting Companl/ v. Federal 'Trade Commission 1:27 F. 2cl 7G5. The Albepty case, 182 F. 2d 36, the United States Court of Appeals for the District of Columbia Circuit, presented the question and the Court made the following comment:

Tlle Commission must final either of two things before it can require the attirmative clause complained of: (1) that fai1un~ to make such statement is misleading because of the eonseqnences from the U8e of the product, 01' (:2) that failure to make snell statement is misleading lJeeause of the thin;8 in the ad vertisemen In that ease, the Court found that there was no such finding by the Commission. I-Io"ever, in the present case there is suflicient evidence to warrant the finding that respondent Loesch had full kno'.yledg" e of the nature of male-pattern-type baldness ",which in one or two advertisements he recognized as "slick bn)dness" but as to which he gave the definite impression the use of respondents product, if taken in time, ,vould prevent such baldness from developing. The ",hole impression gi,'en by respondent to prospec.ts ,,-as that if they ,,'ould use his preparation and keep their scalps clean they ould thereby prevent the development of baldness of any kind including male-pattern- type.. This, according to reEable medical authority is false and misleading.

testimony of the medical Turning not, to the conclusion that the experts should be the basis for a finding, reference is made to the decision of the United States Court of Appeals for the Fourth Circuit in the case of Bristu(;-Jiye?' 8 Cmnpany v. Fede?'Cd Trade 00171lnission in 1850, 185 F. 2d 58. In that. case the Court held: 'YHS jnstitlec1 in giving preference to the testi- In 0111' opinion tlle Commission ,....110. mony of the experts ",110 supportec1 the al1efl"ations of the complaint and field to so far as tlh~ evidence SllO'YS, 'nie~ tlle lJel'Sons lwst qualitiecl in the 1"01'111 a trustworthy jnc1~Jl1ent upon the' matters under iiln~sti g-at:inll. Opinion evicknce \):1s\:,tl on the general mctlical and phnrnwcolog:icnl j,;w,vle(l1,:"e of fI\1ali- LOESCH HAIR EXPERTS ET AL. 589 575 Order fied1 experts has often been held to constitute substantial e,ic1ence, even if the experts have had no personal experience with the product. The Court then goes on to say:

* * * and this has been clone even where witnesses who hacl personally observed the effects of the product testified to the contrary. In accordance with the foregoing findings and conclusions the following order is entered:

ORDER 1 t is 01'de1' That respondent 'Villiam T. Loesch, an individual doing business as Loesch Hair Experts, or under any other name and respondent 'Villian1 B. Zimmerman, an individual doing business as Zimmerman Advertising, or under any other name, and respondents: agents, representatives and employees, directly or through~ any corporate or other device, in connection with the offering for sale, sale or distribution of the various cosmetic or other preparations being sold, as set out in the findings herein, for use in the treatment of conditions of the hair and sealp, or any preparation of Sll bstantia11y similar composition, do forthwith cease and desist from:

1. Disseminating or causing to be disseminated by mea.ns of the as "commercernited States mail, or by any means in commerce, is defined in the Federal Trade Commission Act, any advertisement which represents, directly or by implication, that the nse of said preparations alone or in conjunction with any method or treatment will :

(a) Kin baeteria. beneath the scalp;

(b) Cause elimination of dandruff, itching or irritation of the scalp;

(c) Cure all local sealp disorders 01' keep the scalp healthy; (d) Prevent or overcome excessive hair fan or baldness, unless such representations be expressly limited to eases other than those knmvll to dermatologists as male pattern baldness, and unless the achertiseme.nt clearly and conspicuously reveals the fact that the baldness are thegreat majority of cases of excessive hair fall and beginning and more fully developed stnges oJ said male pattern baldness, and that respondent Loesch's said preparations will not in such cases stop excessive lwir faJ1 , prevent or oyen'ome bnJdness or ha.ye any favorable influence on its underlying eanse; cause the hair to become thicker (e) Inclllee nev hair to grow or or otherwise grow hair in cases of impaired hair growth, unless eases other than thosesnch representations be expressly limited to 590. FEDERAL TRADE COMMISSION DECISIONS Opinion 54 F.

arlSll1g by reason of male pattern baldness and unless the advertisement clearly and conspicuously reveals the fact that the great majority of all cases of excessive hair fall and baldness are the beginning and more fully developed stages of said male pattern baldness and that said preparation will not in such cases induce the growth of hair or thicker hair.

(f) Have any beneficial effect on itching scalp or other skin irritations or ailments in excess of affording temporary relief of scaling and itching.

2. Disseminating or causing to be disseminated by any means any advertisement for the purpose of inducing, or ,,-which is likely to induce, directly or indirectly the purchase of said preparations in commerce, as "commerce~' is defined in the Federal Trade Commission Act, which advertisement contains any of the representations prohibited in Paragraph 1 above, or which fails to comply with the :affirmative requirements of subparagraphs (d) and (e) of Para- :graph 1 hereof, or which advertisement uses the word "trichologist" ,or any other terms or words of similar import and meaning to designate, describe or refer to the respondent ,Villiam T. Loesch or any of his representatives who have not had competent training in dermatology or other branches of medicine having to do with the diagnosis and treatment of scalp disorders afl'acting the hair. OPINION OF THE CO:l\nnSSION By ANDERSON, Commissioner:

The complaint, as amended, charges dissemination of false advertisements for inducing the sale of preparations for the home treatment of hair and scalp conditions. N amec1 as parties to this proceeding are respondent ,Villiam T. Loesch, doing business as Loesch I-Iair Experts, and respondent ,Villiam B. Zimmernwn, ",ho has conducted an advertising agency under the name of Zimmerman Advertising. The latter participated in the preparation of certain printed matter including new spa per nchertisements for the preparations and handled their placement. \with ne\,"spapers for c1issernination. In his initial decision, the hearing examiner helel the charges \"ere sustained by the evidence and the initial decision s order contains proscriptions against use by the respondents of the acts and practices "",hieh ,,"ere found unln "TfuL The respondent ,Villiam T. Loesch filed appeal from that decision as permitted under' 9 3. 22 of the review hereof, the Commission s Rules of Practice, and, pending its Commission has stayed the effective date of the initial decision as to respondent ,Villiam B. Zimmerman, who fil(:~d no appeal Unless other,ise designated, the term "respondent " as used hereinafter refers to tlw rpsnonc1ell1, 'Villifll11 T Lop.c;('h LOESCH HAIR EXPERTS ET AL. 591 575 Opinion The respondent's initial contacts "ith prospective purchasers are secured through newspaper advertisements. Typical advertisements offering the treatments announce the arrival of a Loesch representative or staff trichologist and invite those having hair troubles for free examination and discussion of hair problems. The products consist of shampoos and other preparations for external scalp use. Orders secured by the representatives are filled by shipment from the respondents place of business in I-Iouston, Texas. I-lis sales territory includes the Gulf Coast states and various southeastern states.

The appeal urges that the hearing examiner erred in sustaining the charges which allege that certain of the advertising statements constituted representations that the Loesch preparations permanently eliminate dandruff, itching and irritations of the skin. In this connection, the brief emphasizes that the ',ord "permanently " does not appear in the text of relevant advertising statements and that their import must be understood as limited to claims of beneficial results while treatment progresses and ,,-hen succeeded by a regimen of improved scalp hygiene, including continued use of the preparations. The advertising, however, has included statements that dandruff itching and irritations disappear within 10 days and that the products will eliminate those disorders. ,Ve think the prom.ise implicit those and other relevant advertising statements is one of permanent correction of such conditions rather than temporary alleviation. Inasmuch as any benefits afforded by the shampooing and mild bacteriostatic effects of responde.nfs preparations on dandrufl' and associated irritations are temporary and limited to period of use, the hearing examiner properly concluded that the advertising statements relevant to this aspe.ct of the charges have constituted false advertisements.

In related vein is the appeal's contention that the advertising statements do not represent or imply, ns found by the hearing examiner, that all local scalp disorders "ill be cured through use of the Loesch treatment. In this connection, the appeal asserts that the word "air' has not appeared in the advertising, that a cliscla.imer of the treatment being a "cure-an" does appear, and that. the advertisements must be construed as representing only that benefit s win be afforded in selected cases. Not all the advertisements have contained that disclaiming la.nguage, hmyever. Fllrt hermore, thl:'. statement to the treatment being neither mail-order nor cure-al1 llsunlly has appeared in emphasis of additional.l representations that difierent scalp conditions necessitate different treatments, and that a free personal) examination by respondents representative is afl'orded before any treatment is recommended. The advertising has offered .

Opinion 54 F.

the Loesch products expressly as scientific treatments that correct scalp trouble and as giving a healthy scalp and one of the "Quick Results" stressed in advertising is correction of local disorders. In our view, the hearing examiner correctly concluded that the advertising reasonably represents and implies that the preparations will cure all types of scalp disorders and will keep the scalp healthy. Because the evidence clearly shows that benefits are not afforded in all such conchtions by use of the products, the hearing examiner additional holding that those representations are false has sound record basis.

The complaint, as amended, additionally charged that the aclyertising has falsely represented that the preparations will stop exeessive hair fall, overcome. and prevent aU types of baldness and induce growth h of ne'" and thicker hair. The hearing examiner in efiect held these allegations sustained and found that no benefit would be a:fl'orded in the type of baldness known to dermatologists as male pattern baldness. Acc-ording to the evidence, this type accounts for !)5% or more. of all baldness. In contending that the hearing examiner erred in concluding that claims ofprodl1ct effieacy for overcoming all types of baldness "'ere. implicit in the advertising, the appeal states that any impressions in that respect. are. ",holly dispelled by the advertisements' additional statements disclaiming benefits in cases of "slick" baldness.

That certain of the advertisements do admit a probable Jack of hair restorative power for the preparations for those "slick-bald after veals of .QTadl1ul hail' loss" does not, serve to disclaim merit in ove.rcoming male pattern baldness, save perhaps for persons ,,-ith completely denucle,d scalps. One. of the advertisements promises that the user can "at least save and improve" the hair he has and the home treatment is represented as satisfac.t-ory or successful in 90% or !)5% of cases of use. In illustrations contained in certain of the advertisements, the scalps portrayed feature barren or thinned areas ranging from small to substantial. It seems clear, therefore, that the advertising has promised and implied that the preparations will overcome and prevent all types of baldness including the male pattern variety.

The appeal also contends that tlw advertising ebims of efficacy in preventing baldness have support in the Jaet that certain of the dermatologists called as witnesses by counsel supporting the complaint testified that they successfully treated selected eases of hair loss. The import of their testimony in that respect did not include cases of male pattern baldness, hmyever, and those witnesses were unaninlOus in their vimys that the respondents formulas have no .

LOESCH HAIR EXPERTS ET AL. 593 575 Opinion therapeutic effect in eases of loss attended by male pattern conditions. In alopecia areata., the so-called spot-type of baldness, the hair oft-en returns spontaneously. )Iassage or shampoos sometimes are resorted to by dermatologists as one aspect of its management. The course of male pattern baldness, on the other hand, is not affected by anything applied to the scRIp. Although its causative factors have not been finally determined by medical science, the great ",eight of the e.videnee establishes that dandruff is not one of them. lIenee, the hearing examiner s conclusions as to the falsity of the res Jonc1ents foreo'oin!!' re Jresentations hate full J1)ort in the record and this aspect of the appeal is denied. 1\.. companion and closely related charge to the foregoing one presents the legal issue of ,,-whether the achertising is false through aneged failure to reveal facts material in the light of other statements and claims contained in the advertising. Section 15 of the Federal Trade Commission Act, as amended, relates to the advertising of certain products, including cosmetics and drugs. False advertisements, as there defined, include not only those ,which are misleading in a material respect through representations made or su!rgested bv ,words and statements or throu~h their failure to reveal consequences of use, but also those acl\-ertisements ,vhieh are misleading due to ;(the extent to whicll the advertisement. fails to reveal facts materiar' in the light of other representations there made. On the basis of that provision of law, the complaint, as amended, alleges falsity of the advertising through failure to reveal, in the light of its other representations of product merit, that the vast majority of the cases of excessive hair fall and baldness are the beginning or more fully developed stages of male pattern baldness, and that in such cases the Loesch preparations ,,-ill not stop excessive hair fall prevent or overcome baldness, or have any favorable influence on its underlying cause.

As previously noted, the. advertising has falsely represented that those sllfl'ering from hair loss can at least save and improve their remaining hair, the treatments being oHered ns satisfactory or successful in 90% and 9;5 % of cases of use; and the advertising hns been key-noted by the additional false theme. that most of the twelve million ..American men already or soon to be bald need not have lost their hair and that baldness was "most certainli' preventable. These advertisements patently have served to engender beliefs among persons with excessive. hair fall or baldness that there was great probability that they "\were threatened with, or had a type of baldness which would be overcome or prevented by the preparations. Not only does the record show that male pattern ba.ldness represents 95% or upwards of all baldness among males Opinion 54 F.

but it also supports informed determinations that beneficial effects for the remaining 5% or less of cases of hair loss are afforded by the respondents preparations only in some instances. Because these limitations unquestionably are highly material in the light of the advertisements' other representations respecting hair fall or loss and no adequate revealing statement in respect thereto has been included in the advertising, it follows that such advertisements are false as a matter of law.

Ordinarily, excessive hair fall occurring in any stage of male pattern baldness readily is so identified and diagnosed by the dermatologist; and its course and the true facts concerning its relative frequency in scalp conditions are an old and familiar story to physicians. This does not hold true, ho"\\eyer, for members of the purchasing public. Therefore, only if the order includes a provision requiring an appropriate revealing statement relevant to the therapeutic limitations of the respondents preparations will the deception lurking in any future achertisements offering them in even selected conditions of hair loss be effectively eliminated. In its absence, such advertisements inevitably "\yould serve, contrary to the true facts, to suggest and represent to persons suffering from excessive hair loss that there is a reasonable probability that they are threatened with, or have, a type of baldness favorably influenced by the preparations' use. 'Ve think that the hearing examiner s ruling sustaining this charge has sound legal basis and is in conformity with the public policy underlying the Act. 'Vhile we concur in the initial decision s findings on this aspect the relevant provisions of the order appear to require modification. Such order "\\ould require a revelation to the effect that a majority of the cases of excessive hair fan and baldness are the beginning or more fully developed states of male pattern baldness. As expressly found in the initial decision, however, the vast majority of such cases fall in the male pattern baldness category. The order is being modified accordingly.

The appeal also excepts to the initial decision s holding that through use of the word "trichologist" in designating the respondent and his traveling agents, and by other means in the advertisements the respondent has falsely represented that he and his employees have had competent training in dermatology and other branches of medicine having to do "\\ith diagnosis and trea,tment of scalp disorders affecting hair. "Trichology is defined variously as the science of treating the hair and as the branch of medicine having to do with the hair, its anatomy, growth and disease. As found in the initial decision, respondent and his associates lack such sci- LOESCH HAIR EXPERTS ET AL. 595 575 Opinion entific training. Conclusions that the respondent's use of the word trichologist" has had the capacity and tendency to deceive are nowise refuted by the fact that some of the advertisements have contained statements to the effect that :Mr. Loesch is not a doctor or that those suffering hair loss from organic disease should be treated by a physician. Not all of the advertisements have contained statements in that regard, and those noting the respondent not to be a doctor contain no similar statement regarding his traveling representatives usually designated in advertising as staff trichologists. "'\Ye also are of the view that in the context in which the foregoing statements have appeared they nowise serve to eliminate impressions necessarily engendered by the "trichologist" designation. Such impressions unquestionably have been corroborated and enhanced by additional designations of the respondent's representatives as scalp specialists, the connotation" of which is not dissimilar, together with the advertising s pictorial matter portraying Loesch white-coated personnel engaged in diagrammatic lectures on the hair growth mechanism. 1Vhile concurring in and adopting the initial decision findings on this aspect, we are of the view that the relevant paragraph of the order should be modified in order, among other things to limit its legal application to practices promoting s::des of the preparations in commerce and in the interest of deleting n provision relating to matters elsewhere covered in the order. The appeal also excepts to certain procedural and evidentiary rulings by the hearing examiner which the appealing respondent contends constitute arbitrary and capricious limitations on his right of cross-examination. The hearing examiner s action requiring counsel to conclude cross-examination of one of the scientific witnesses by 6 P.:M. on the date when he appeared was made in the "interest of expediting the hea-rings and, in the situation there presented, clearly represented an exercise of the hearing officer s sound discretion in the conduct of the proceedings. Furthermore, after the hearing examiner granted a motion by staff counsel for amendment of the complaint, an opportunity to examine the witness further was duly extended but subsequently waived by counsel. The foreclosed line of questioning challenged under related exceptions concerns a conference between counsel supporting the coms ap-plaint and a medical witness on the day prior to the latter pearance as a witness. The doctor was questioned by counsel for the respondent on cross-examination respecting any discussion which occurred concerning the scientific views of an earlier witness; and after answers to several questions on the matter were received the hearing examiner remarked that the questions implied that counsel Opinion 54 F.

supporting the complaint had told the medical witness how he was to testify and improperly impugned the motives of staff counsel. In this aspect of the cross-examination, the witness had stated in effect that the classification of the different forms of baldness to which he had testified constituted his sincere and independent views on the subject. No question was pending at the time of the hearing examiner s remarks and his ruling was a general one. As we interpret that ruling, it in no sense foreclosed counsed from propounding specific questions expressly directed to ascerta.ining ,,-whether the witness voiced scientific views at his prehearing interview or elsewhere which departed from those expressed by him when subsequently examined. It seems clear, therefore, that the ruling in sense denied the respondent the right to examine the witness fully on matters of credibility, including possible bias, motive or interest as long as the form of interrogation did not imply that the witness testimony was inspired by improper conduct by counsel supporting the complaint. The same considerations are controlling to onr conelusion that no undue restriction was presented respecting the crossexamination of another wi tness by reason of the hearing examiner , that hisstatement, in response to inquiry by respondent's counsel ruling would be the same in the event the same type of questions were adopted there.

The last exception to procedural matters urges prejudicial error in connection with the hearing examiner s ruling excluding another question on cross-examination as immaterial. The question, in eiJect requested an estimate of the percentage of eases of excessive hair loss in which loss would stop, or hail' growth recur, under medical treatment by that physician; and the question apparently excluded the 95% or more eases of hair loss due to male pattern baldness or or deal.h of the due to other disorders characterized by atrophy papilla, that is, the hair growth mechanism. Although two other medical witnesses were permitted to ans,yer inquiries similar thereto that circumstance does not render the instant. ruling erroneous, however. The proportion of the relatjyely small percentage of cases of excessive hair fall due to the various causes not excluded under the question, including disease and certain other systemic factors, which may respond to treatment. by a trained and experienced physician in no sense an index to the efEeac.y of products solely intended for external use. The ruling as to the immateriality of those matters c.onvinced acc.ordingly cannot he regarded as erroneous. ,Ve are aspect of the from our examination of all matters urged under this appeal that the exceptions are lacking in merit. LOESCH HAIR EXPERTS ET AL. 597 575 Order The appeal is denied accordingly and the initial decision, as modified under our accompanying order, is adopted as the decision of the Commission.

FIN AL ORDER This case having come on for final consideration upon the record including the appeal of the respondent ",Villiam T. Loesch from the initial decision of the hearing examiner, and the Commission having rendered its decision and determined, for reasons stated in its accompanying opinion, that said initial decision should be modified. 1 t is onle'J' That the following order be, and it hereby is, substituted for the order contained in the initial decision. ORDER 1 t is O'J'dated That respondent ",Villiam T. Loesch, an individual doing business as Loesch Hair Experts, or under any other name and respondent ",Villiam B. Zimmerman, an individual doing business as Zimmerman Advertising, or under any other name, and respondents' agents, representatives and employees, directly or through any corporate or other device, in connection with the offering for sale, sale or distribution of the various cosmetic or other preparations being sold, as set out in the findings herein, for use in the treatment of conditions of the hair and scalp, or any preparation of substantially similar composition, do forthwith cease and desist from: 1. Disseminating or causing to be disseminated by means of the United States mail, or by any means in commerce, as "commerce" is de.fined in the Federal Trade Commission Act, any advertisement which represents, directly or by implication, that the use of said preparations alone or in conjunction with any method or treatment will:

(a) Kill bacteria beneath the scalp;

(b) Cause elimination of dandruff, itching or irritation of the scalp;

(c) Cure all local scalp disorders or keep the scalp healthy; (d) Prevent or overcome excessive hair fall or baldness, unless such representations be expressly limited to cases other than those knmvn to dermatologists as male pattern baldness, and unless the advertisement clearly and conspicuously reveals the fact that the great majority of eases of excessive hair fa)) and baldness are the beginning and more fully de.yelopec1 stages of said male pattern baldness, and that respondent Loesch:s said preparations will not in such cases stop excessive hair fall, prevent or overcome baldness or have any favorable influence on its underlying cause; Order 54 F.

( e) Induce new hair to grow or cause the hair to become thicker or otherwise grow hair in cases of impaired hair growth, unless such representations be expressly limited to cases other than those arising by reason of male pattern baldness and unless the advertisement clearly and conspicuously reveals the fact that the great majority of all cases of excessive hair fall and baldness are the beginning and more fully developed stages of said male pattern baldness and that said preparation will not in such cases induce the growth of hair or thicker hair.

(f) Have any beneficial effect on itching scalp or other skin irritations or ailments in excess of affording. temporary relief of scaling and itching.

2. Disseminating or causing to be disseminated by any means any advertisement for the purpose of inducing, or ,,-which is likely to induce, directly. or indirectly the purchase of said preparations in commerce, as "commerce" is defined in the Federal Trade Commission Act, which advertisement contains any of the representations prohibited in Paragraph 1 above, or ~which fails to comply \with the affirmati ve requirements of su bparagra phs (d) and ( e ) of Paragraph 1 hereof, or which advertisement uses the word "trichologist" or any other terms or words of similar import and meaning designate, describe or refer to the respondent ,Villiam T. Loesch or any of his representatives who have not had competent training in dermatology or other branches of me,dicine having to do with the diagnosis and treatment of scalp disorders affecting the hair. It is further orde?' That the respondents, ,Villiam T. Loesch and ,Villiam B. Zimmerman, shall, \within sixty (60) days after service upon them of this order, fiJe 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. It ,is further ordered That the initial decision of the hearing examiner, as modified herein, be, and it hereby is, adopted as the decision of the Commission.

COLLINS HAIR AND SCALP EXPERTS, INC., ET AL. 599 Decision