Wybrant System Products Corp.

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IN THE ~1ATTEn OF vVYBHANT SYSTEM PRODUCTS CORP. ET AL.

onder, ETC., IN REGARD TO THE ALLEGED VIOLATION OF THE FEDERAL TRADE CO:1\BnSSION ACT Docket 6fi2, Complaint, Nov, 1955-Decision, Moy, 1958 Order requiring operators in New York City of "The Wybrant System" involving treatment and sale of preparations to prevent baldness and grow hair, to limit to cases other than those of mule pattern baldness claims in advertising that use of their preparations and treatment would prevent or overcome excessive hair fall or baldness or cause hair to grow; and to reveal that the great majority of cases of excessive hair fall and baldness are stages of male-pattern baldness and that in such cases their preparations would be of no value.

llir. EJ arolcl A. It ennedy and ill 1"'. J e?'ome Garfinkel supporting the complaint.

Iio1O1oey Shnon by Afr. Edward F. 11o'lc'J'ey and ill'/'. Harold F. Baker and JIll'. John Bodner, J)' all of 'Vashington, D. , for responclen ts.

INITIAL DECISION BY JOSEPH CALL~n\T , I-IEARIXG EXAl\IINER The complaint in this proceeding was originally issued November , 1955, charging the respondents with the clissemjnation of false advertising for certain medicinal and c.osmetic preparations, allegedly nclvertised to prevent baldness, grow ne'" hair on bald heads and permanently eliminate dandruff and itching of the scalp. The language of the complaint brings the charges with the purview of section 12 of the Federal Trade Commission Act, the violation of which is made an unfair and deceptive act 'within the mea.ning of section 5 of the a.ct. The compla.int was amended by order of the hea.ring exmniner on ~larch 12, 1956, to charge that failure to reveal in the a.advertising that respondents' preparations liere ineffective in cases of male pattern baldness "-as of itself a e-anse of dee-eption it being a.llegec1 that cases of tha.t type constitute the vast majority of the cases of baldness.

Answer to the complaint as amended filed April 20, ID66, denied that respondents were engaged in the sale or distribution of cosmetics or medicinal products either in Jocal or interstate commerce; alleged tha.t their business was confined to tha.t of administering service trea.tments in their offices in New Yor1\: City; that a. very small amount of prepa.ra.tions were shipped from its N e1l York Findings 54 F.

City offices by the respondent corporation to dients in other states who had previously received treatments in a N e,," York City office of t,he pa-rtnership; alleged that the partnership advertised exclusively in two New York City newspapers inviting persons to come to the New York City offices for cliagnosis and treatment and for no other purpose; that the c.corporate respondent does no aclyertising; denied that such advertising as is done by the partner-rship is false and denied jurisdiction of the Commission over the acts and practices of respondents. In said ans,,"er respondents renewed motion to dismiss, previously made to the original c.complaint, before amendment which was denied.

Thereafter hearings were held in New Yor1\:, Philadelphia, and Chicago for the taking of evidence in support of the allegations of the complaint; in New York City and ",Vashington in opposition to the allegations of the complaint; in Chicago and 'Yashington, D. , in rebuttal and in 'Vashington, D. , in surrebuttal. I, ol1O'ying the hearing mentioned in sur-rebuttal the record '"as closed for the reeeption of e,'jdence. Subsequently the hearing examiner of his own motion reopened the hearing for the taking of additional testimony. In a motion to set aside the order reopening the case for further evidence, respondents made certain admissions which ma,de further hearings unnecessary. The record ,yas again closed insofar as the. taking of testimony '"as cone-erned. All parties ,were represented by e-ounsel and gi,-en full opportunity to and did introduee evidence pertinent to the issues examine and cross-examine witnesses and argue'. points of a'" and evidence. All parties ",were. given opportunity to and did file for the consideration of the hearing examiner proposed findings, conclusions, orders and the reasons therefor. .All such findings, conclusions and orders not hereinafter adopted found or concluded are hereby specifically rejected. Upon the e.entire record of the proceedings and from obselTntion of the ,witnesses while testifying, the hearing examiner makes the following findings as to the facts, c.onc1usions and order: FINDINGS AS TO THE F.\CTS AN"D COXCLUSlOXS A. The Business of Respondents The respondents in this proceeding are ",Villiam ",V. ",Vybrants ",Va,de ~f. ",Vybrants, two brothers and their mother Ac1e.l ,Yybrants doing business as a partnership under the trade name of "The ",Vybrant System " and ",Vybrant System Prod nets Corp., a New York corporation. The principal place of business of the partnership and the corporation are both located at 353 "'Vest 54th Street WYBRANT SYSTEM PRODUCTS CORP. ET AL. 1683 1681 Findings in New York City. The inchvidual respondents are the officers of the corporate respondent and direct and control its acts, practices and policies.

The sn.id partnership maintains six branch offices or treatment parlors in New York City ,,-here hair and scalp treatments kno",n as the "\Vybrant System Treatment" are given.

The corporate respondent bottles and sells shampoos and lotions (that are used by the partnership in the sc.alp treatments) to some of the members of the public. ,,-ho hate received hair and scalp treatments by the partnership at one of the six offices in Xew York City ,,-here sneh treatments are given. These shampoos n.nd lotions are found to be cosmetics ",within the intent and meaning of the Federal Trade Commission Act.

The gross receipts of the partnership for such treatments during the years 1953, 1954 and 1955 were respectively as follmys: $235 268. 84; $:383 936.90 and $461 8;35. 58. During the same. periods of time the corporate respondent made out-of-state sales of items fo!' use in connection ,with hair and scalp treatments to some of tl)(' Inembers of the public ,,-ho had received hair ami scalp treatments by the partnership at the partnership o1fices in K ew Yor1\: City as follo,,' 1955-Lotion No. $432; Shampoos $92; steamers and parts $70.75; vibrators and brllsh~~s $62,50; commercial steamers and parts $46.38; applicators for vibrators $4.50; total $718. 13. 195-!--Lotion X o. 2 , $337.50; Shampoos $00.2;'); steamers and palts $241; vibrators awl brushes $120 ;)(): conlln0.reia 1 steamer and parts $18 ; oil $4 ; total $820.2;3, 1 953-Lotion No. 2$:320; Shampoos $65.75: s1eamers and parts $73.50; vibrators and brushes $46. 75; oil $2. 50; total $508.50. The gross receipts of the corporate respondent. for the years 19;3;") 1954 and 195::1 were as follows: 1955 , $2;"5 987. 84; 1954 , $21 478.4G; 1953, $lG H51.4D, Hespondents hate admitted in an amendme,nt to their answer that subtracting the ont-of-State, sales of items by the corporate respondent for use in connection with hail' and sealp treatments for eae-h of the years 1955 1954, and 1953 given above, from the gross receipts of the corporate respondent for each of those years, given above leaves the amount of sales by the corporate respondent in the State of New York of the. items listed above, sold for use in connection with hair and scalp treatments. There is no evidence of the partnership selling any of the shampoos or lotions unless use of these preparations in giving the treatments mentioned be considered sales. :;, .;:

1684 FEDERAL TRADE CO:MMISSION DECISIONS Findings 54 F.

B. Dissernination of the Advertising The corporate respondent does no advertising. The partnership advertised extensively in the :l\1irror anew Yor1\: City daily newspaper in 1953 and in the :Mirror and the News, another New York daily newspaper in 1954 and 1955. Typical of representations contained in respondents said advertising are the following: wrap HAIR LOSS with six treatments or YOU PAY NOTHING Wybrant Guarantee:

With just six invigorating scalp treatments the Wybrant System will stop your abnormnl hair loss, overcome dandruff and itchy scalp and in general make your scalp feel better than it has in years * * * or your money will be promptly refunded ole 'l' here is nothing to buy or to do at home while taking our treatment (below before" and "after" pictures of a man s bald head) . Many clients want to do more than just stop excessive hair fall-they want to grow new hair on thin or bald areas. Vi'ybrant has been outstandingly successful in helping the majority of these clients. (Com. Ex. 4, ve been saying for a long time now that we can grow hair for the overwheiming majority of men. lve have surveys, testimonials and pictures 1JD prove it.

It' s easy to get started. You can come in at any time and get a free hair and scalp examination. And you can get an introductory treatment for only $1.00, It is a refreshing 45 minute treatment, coll.sisting of a triple shampoo, t". applications of the famous 'W:rbrant formula, two soothing steam sessions and 10 minutes of wonderful scalp massage. (Com, Ex. 1, Now who are these people? Are they selected clients who were suffering from .some mysterious ailment which cleared up over night while they happened to be treating at 'WYBRANT? No sir! They were suffering from normal baldness. (Com. Ex. 3.

The respondents' advertisements appeared in the city and suburban edition of the :Mirror and the metropolitan edition of the Daily Nmys. These editions circulated in New York City and within a, 50-mile radius of the city. The average daily circulation figures for the city a,nd suburban edition of the :Mirror in 1D53 were 742 656. This included circubtion in cities, towns, townships, and counties in New Jersey and Connecticut. In I-Iudson County, N. , a.lone such average daily circulation was 20 356. In Fairfield, Greenwich, New Canaan Ridgefield, Stamford, and \Vestport the a yerage daily circulation of the city and suburban edition was 4 31'3. The average daily circulation of the metropolitan edition of the Ne"\ts during 1955 'was 829 671. This included circulation in cities, towns, townships, and counties in New Jersey and Connecticut. In I-Iudson County, N. WYBRA...l\TT SYSTEM PRODUCTS CORP. ET AL. 1685 1681 Findings alone such daily circulation "' as 65 859. In Fairfield County, Conn., in the town above mentioned such daily circulation was approximately 480. These figures do not purport to be complete as to the circulation outside of the State of New York of the editions of the two newspapers carrying respondents' achertising. They are merely used to illustrate the fact that such out-of-the- State circulation was substantial There is no showing of substantial distribution by mail either in New York City or elsewhere of the editions of these papers carrying respondents' advertising. The evidence shows that respondents could not advertise in anew Yor1\: newspaper that confined its circulation to the State of New York, because no newspaper confined its circulation.

C. The PTepaTat-ions It was agreed in an amendment to respondents' answer that for the purpose of this case the composition of respondents' lotion No. or the \Vybrant formula described in the. complaint is as follows: ~T after --- - - -- -- - 97-980/0 A sulfated or sulfanatec1 surface active agent. Oil of Wintergreen. A trace of light carbon Gum. Perfume and/or other." essential oil-___----- The record shows that respondents' shampoo No. 5 mentioned in the complaint, from chemical analysis has the same composition as aneged in the complaint, which is 'Vater -------------------------------------------------------- approx. 900/0 approx. 10-11Alkanolamine-fatty acid condensate. Sonp, Perfume. Colol shampoos 6 The record further shows that the ingredients of the , and 8 mentioned in the complaint are basically the same as shampoo No. , the quantity of the ingredients varying for use with fine course, dry, and oily hair. These are an detergent base shampoos. D. J1lTisdicMon If respondents' advertisements are false and were disseminated for the purpose of inducing or were likely to induce directly or indirectly the purchase of respondents' preparations (lotion No. 2 and the shampoos), such is a violation of section 12 (a) (1) of the Federal Trade Commission Act.

Corporate respondents' gross receipts for the year 1955 were $25 CO11l1eC-987.84. These receipts consist of sales of items for use in tion with hair and scalp treatments both out of the State and within the State. Out-of- State sales for such items that year totaled $718. of which lotion No. 2 accounted for $432 and shampoos $92. Thus \ .

Findings 54 F.

lotion No. representeel approximately 60 percent of the out-of-State sales of such items that year and shampoos accounted for something over 12 percent. If sales of lotion No. 2 and the shampoos account for the same percentage of items sold within the State during that year for use in connection ,,'ith hair and scalp treatments such within the State sales of lotion No. 2 were approximately $15 592 and the within State sales of the shampoos were approximately $3 119. But the admission of respondents in regard to such sales within the State of New York do not. break the receipts down into clonal's and cents for each individual item as is done by testimony in regard to the out-of- State sales of sneh items. flowever in the absence of any evidence to the eontrary, the within and without the State sales of lotion Xo. 2 ere substantial and ,within and without the State sales of the shampoos cannot be considered negligible. The fact that sneh sales of lotion No. 2 and of the shampoos took pInee during the same period of time ,within ,yhieh the partnership \yas disseminating its advertising and "-ere only to persons ,,-ho had received treatment at the partnership offices leads to the inevitable eonc1usion that such sales were induced indirectly by the partnership ach-ertising. Lotion No. 2 was compollnded by respondents and its composition ,,' as regarded as a trade secret. It is therefore found that the dissemination of the advertising by the partnership ,,"'as likely to induce indirectly the purchase of lotion No. 2 and the shampoos from corporate respondent.l The fact that all of the advertising "as done by the partnership and the ' sales above mentioned ,,- ere by the corporate respondent of no moment. Under the evidence, for the purpose of this proeeeding, sales by the corporate respondent should be considered and are eonside.red the same as if t.hey had been made by the partnership. The members of the partnership owned and controlled the corporate respondent.

It. is also eontended that the use of respondents' preparations in givinp: treatments in their various oflices in X ew York City constituted sales of respondents' preparations. That is a diflerent. question to the one just decided or the questions decided in the ib- lr ((. ease s-upp((. and the case of l.T. T !u))nas JI anagem.en t eoJ'p. Such a finding is not believed necessary to a dec.ision in this case under the. p1e.nclings or the evidence, and is therefore. refused. 1 See cOlllll1, Opinion in the ~rflttpl' of O- Tib-Wa ~Iedicine Co" et a1, d ocket No. 6548, dated ,Tulle 27 , 1957, ~ (1952) CCll Tl'floe Cafe~. par, 67 , 251. WYBRANT SYSTEM PRODUCTS CORP. ET AL. 1687 1681 Findings E. A naZysis of ReJJi'eSel1tations Ai ade in the .Adl~er.tising The next question to be determined is what did respondents represent in the advertising.

The complaint alleges that by the representations in the advertising respondents have falsely represented that through the use of their prepa-rations (lotion No. and the shampoos mentiOl1.ed in the complaint) regardless of their exact formula in the homes of users and in conjunction ,with their method1s and treatments, dandruff and itching of the scalp ,,-ill be pe-rmanently eliminated, baldness and exeessive hair loss ,,-in be prevented and new hair "ill be grown on ba.ld areas in the majority of cases. In regard to baldness and excessive hair loss, it is also alleged that the advertisements are false because they fail to reveal that the vast majority of cases of excessive hair loss and baldness are the beginning and more fully developed stages of what is knmvn to dermatologists as male pattern baldness and that in eases of that type of baldness the use of respondents preparations regardless of their exact formula will be of no value. AJI of these allegations are denied.

1, Damlruff and itching The charge that respondents have represented that their prepnrations in conjunction with their methods and their treatnwnts ,will permanently eliminate dandruff' and itehing of the senl p may be disposed of first. The represenntation is that dandrufl' and itching or itehy senlp ,viii be " overcome~' and in other instances that danclruH "ill be "removed" and sealp iteh "relieved. Permanently eliminated" are the words of the complaint. They are not in the advertising. "The Commission cannot interpolate into the petitioners representations ,words not there and then find the petitioner guilty misrepresentation because the petitioners' product does not meet the Commission s revised representations." 3 To this hearing examiner overcome remove " and "relieve" are far from "permanently eliminate. To overcome" or "remove" dandrufl' and " relieve" itchy scalp does not mean that those who take respondents' treatment will never again have dandruff' or itchy scalp. The testimony of ,vitnesses on that point was not needed:! 2, Excessive hair fall, baldness and gro,yth of new hail' Respondents' advertising did not. represent. that the use of their excessive hair fall 01'preparations in the homes of users will prevent Jlltel'l/(/tioll(l11~ /lrt.8 Corp" v, 'l', c" 133 F, 2d SS~:, Zenith R/ldio Corp. '1' C" 143 F, 2d 2D, :;: :;:

Findings 54 F.

baldness and cause new hail' to grow on bald areas in a majority of cases. The representations ,were that respondents' treatments in which the preparations were used ,yould achieve these results. In the ilJatteJ' of T1IOmas AJanage17wnt Corp. , et aT. Docket No. 44225 the Commission held that similar advertising represented that "said preparations and treatments :;: would stop loss of hair, cause new hair to grow and promote the normal gro"\yth of hair on thin or bald spots. In that case, on the bas_is of such advertising andn. finding that it was false an order was issued directing respondents to cease and desist from disse.minating any advertisement in commerce, which representeel that respondents' preparations would prevent the abnormal loss of hair or indllce a normal gro,yth of hair on thin or bald spots. Later the IT.S. District Court found that similar advertising ,vas violative of the order to cease and desist. G It is therefore found that respondents' aclYert. ising represented directly and by implication that the use of respondents' preparations and treatment will prevent exc.essive hair fall and baldness and cause ney hair to grow in bald arc.fis in a majority of cases.

On the point of gro"\ying new hair respondents' advertisements are found to convey the. impression that ney full bodied hair will be. grown of like texture and color as the other hair on the head, in contrast with thin, fuzzy hair, called lrtnllgo hail' by the experts. Evidence on the Effect of Respondents ' P'l'cpClJ'atio?1s and T 1'eatment Three mecl ical experts ,were en lled to support the nllegations of the complaint that respondents' advertisements were false.. They were Dr. .John ,Y. Daughtery of Ne,y York City, Dr. Albert 1\1. Kligman of Philadelphia, and Dr. Adolph Rostenberg, Jr. of Chicago. opposition respondents offered two medical experts ",ho testified, Dr. Irvin 1. Lubmye of Net York City find Dr. 2\Ioses \Vhal'ton Young of ,11 ashington, D. , and 39 satisfied clients. In rebuttal, the testimony of one medieal expert, Dr. Rattner and LI: clients and former clients of respondents \\"rls received. One. expert on photography from the Federal Bnrean of I1westi!2'ation also testified in rebuttal in re!2'arcl to his cva.lllation of certain pictures put in evidence by respondents. Two photographic, experts also testifil'd in sur-rebuttal. ,:'"arions exhibits ,were also re.ceived in evidence in connection with the testimony of the ,witnesses, inelmling three published articles by Dr. Lubowe which ,were received by agreement for the opinions expressed 6 S4 C. Decisioll-8 p, 1305.

II S. v. Thomas Manogcme'llt CO1"P" ct aZ. 1952 cCll Trade Cases, par. 67,251. , WYBRANT SYSTEM PRODUCTS CORP. ET AL. 1689 1681 Findings in the articles by Dr. Lubowe. The qualifications of all experts are shown in the record.

In the cross-examination of the medical experts each side was allowed to read to the witness from the. writings of othet recognized experts, bllt the quotations so read were not considered as evidence unless the wit.ness agreed "ith tl1em.

1. Expert medical testimony (a) Dandruff and itching Every expert \rho \","fls asked the question agreed that respondents preparations alh1 their treatment \yillremove find overcome dandruff and relieve itching of the scalp. There was no evidence to the contrary. It is therefore found that the representations in the advertising in regard to the~;e t\yO conditions were true. (b) Excessive hair tall, baldness, ancl g1"owing new hair Dr. Da.ughtery, Dr. Kligman and Dr. Rostenberg an expressed the opinion that respondents' preparat,ioJlregardless of their formub and their treatment \\'ill not prevent brdc1ness or excessive hair loss or cause new full bodied hair to grow on bald areas in that type of baldness kno\vJl as male pattern baldness \which type comprises the great majority of an e~lses of baldness. The estimates given by them of the percent-age of an baldness that is male patterll baldness varied from SO to 03 percent. They further testified in eflect that male pattern baldness has its origin in heredity endocrine balance and aging, although the precise method of causation is unknown. Dr. Ll1bo\':e h~d made observations over a period of time of a number of client's of respo11Clents \vhile they were taking treatment. These cases numbered 2D to begin with, bllt )ateI' were reduced to because S of them failed to return for further tl'ertt:ment. lie said that 19 of the 21 had premntllre alopecia \which he recogl1ized ns the same thing as m~IJe pattern baldness. Basing his opinion on his observa, tion of thes2. 21 cases, he saiel respondents treatments did c.cause new hair to grow in bald areas c1111'ing the period of obselTation. Pictures of these 20 clients \were received in t'Tic1eJlce as respondents' exhibit A through S- i3. The pictures included "before rmd "after" pictnn~s of the 21 on \which he based his opinion. Dr. LllbO\ye made no clifl'erentiatioll between lanugo hail' and full bodied pigmented hair in his evaluation of these cases, J-Je further stated that one cannot make a. clinic.al scientific evaluation on that small number of cases. At another place in his testimony he said I cannot make a general Findings 54 F.

statement. )Iy conclusions are purely based on 19 patients, clients of premature alopecia.

Dr. Lubowe also "~as of the opinion that hair follicles, from which the hairs on the head grow may lie dormant for several years without producing hair and the,n be stimulated to reprodllce. He had in an experiment of his mvn, not connected with the 'Vybrant study, caused ionicles that had be.en dormant for 10 to 25 years to re.produce lutir in cases of total baldness by treating the patients with cortisone. Respondents' preparations contain no coli,isone and there is no relationship bet,,-een total baldness and male pattern baldness. I-Ie agreed that an atrophied fol1ie1e could not produce hairs, but sa-id that it was hard to determine whether the fo11ide is dormant or atrophied without pulling it out. lie further stated that there "-as a possibility that in the 21 cases studied for the \Vybrants, increased eireulation in the sealp due to the treatments may hate been a fHetor in causing dormant hail' follicles to gro"ne,,; Imir. H-e refused to state that was the c-n-use of hair regrmvth in the \Yybrant study, because he said there "-ere many factors that will affect the regro,vth or the stimulation of a dormant hail' follicle.

Dr. Lubmye s testimony on ,yhat re,spondents called t.he "Hair Fall Sun- " was disregarded. The methods used and ,,-hat "" done in this so-called S1l1Tey are shown in the evidence in regard to respondents' exhibit No. 6 for identification. The, exhibit, was rejected.

Dr. l\Ioses \Vharton Young testified as to the research he had concluded on the cause of male pattern baldness, I-Ie stated that based on his researeh, he "-as of the opinion that the hair falls Ollt from the top of the head in human males because there is insuffieient blood supply to maintain the growth and reproduction of the, hair in this area; that his studies indicated that in men ,,-ho had male paHern baldness the soft tissues of the scalp "-ere thinner than in men with good heads of hall' Oms reducing the vflsclllar bed. In other words the skill is tight. over the top oJ the head of n man with male pattern baldness and there is less blood flmying into the area to support the grmyth of hail'. I-Ie further said that anything that would increase the blood supply in that area ""ould be desirable, that mamml massage and heat would increase the flo"" stimulate the flmy of the blood supply to the. top of the, head. I-Ie disagreed with the experts "ho had testified in support of the allegations of the eomplnint to the eired. that male pattern baldness has its origin in heredity, endocrine brl1ance and aging. 'VYBRANT SYSTEM PRODUCTS CORP. ET AL. 1691 1681 Findings Dr. Young did not attempt to state what would be a. sufficient blood supply to sustain the gro,vth of hair on the top of the head or how much massage or heat would be needed. lie had never observed the ,Vybrant treatment in operation. "'hen asked on crossexamination whether he had any opinion as to whether the ,Yybrant System treatment grows lUlir he said he had never observed the treatment in operation; that his studies were started 15 years ago and made before he ever heard of the ,Yybrant ease. Dr. I-Ierbert HaHner testifying in rebuttal criticized Dr. Young theory and the sufficieney of the evidence to support his theory of the eflllse of male pattern baldness with which Dr. Rattner disagreed. He also stated the ,Vybrant treatment of applying heat and massage to the scalp would in his opinion cause the cireuhtion of the blood in the scalp to be stimulnted f\, fmy hours at most aft-eJ. each treatment. I-Ie further testified with reference to Dr. Lnbowe s clinical evaluation of the effect of the \Vybrant treatment on 21 patients 19 of whom had male pattern baldness, that such test ,,-as not. :l scientifieally good test; that for a c1 isease. as common as ordinary (mnle patten)) baldness "You should be able to get hundreds of people, before yon cnn make a test. I-Ie gate other testimony in c-riticism of another expe.I.iment. or snn-e,y oflered in evidence by respondents. Since the conclusion from the other experiment ,yas not n.dmittec1 in eyidenee, Dr. Hnttncr s eritic.ism of that experiment is not considered.

Dr. Hnttner also fig-reed with the other medical experts who testified in support of the allegations of the complaint., that male, lxlttern baldness has its origin in heredity, endocrine balance and aging. The complaint defines male pattern bnlc1ness ns t.hat type of baldness hflving its origin in heredity, endoerine ba.lance and aging, and alleges t.hat sllch type of lmldness comprises the vast majority of all cases of baldness; that respondents' preparations and t their treatments ",ill not pre'"ent baldness, e.xcessive JJair loss or cause, new hair to grmy in bald areas in cases of that type of baldness. It therefore bee-omes necessary to determine the preponclerance of the. mediea testimony on the allegation that male pnftern baldness has its origin in heredity, endocrine balance and aging.

The medical experts ,,'ho testified in sllpport of that allegation ,were all specialists in the field of dermatology. They all stated that excess hair loss and baldness come within the field of their specin lty. The evidence, shmys that each of them had come in contact ,with patients suffering from these conditions as a part oJ their 'york oyer n n11mber of years. Dr. Daughtery, Dr. Kligman, and Dr. Hat.tl1el' have been 528577 --60----108 Findings 54 F.

in private practice as dermatologists over a number of years. Dr. Rostenberg while not in private practice has seen stich patients regularly as they come into the hospital clinic. Dr. I\Jigman has done considerable research on hair and scalp problems. Their opinions were based in part on their experience. They also keep up with the literature in their field of specialization.

The main challenge to this evidence on the origin of male pattern baldness from a medical expert comes from Dr. ~fosesT\ThaTton Young. He is not a specialist in dermatology, nor does he practice dermatology. I-Ie sees only about 10 cases a year of male pattern baldness such persons coming to him from having read about his theories in the newspapers, although he did state he had observed hundreds of such cases in his research. His specialty is anatomy and neuroanatomy. The latter is that branch of anatomy ",hieh deals particularly with the nervous system, with the brain and nerves and associated struetures. He stated that his work with respect to the sea.lp had been limited to seientifie and anatomical investigation of the scalp and its associated struetures and not to treating patients or anything else. His explanation as to the ca.use of male pattern ba.ldness must therefore be regarded as purely theoretical, and in a field in which he has not specialized. 1-1is theory is rejected by the other experts mentioned, who are practical men and who come in contact with cases of male pattern baldness in the practice of their specialty. The only challenge to the testimony of Dr. Daughtery, Dr. Klig- Inan, and Dr. Rostenberg from a, medical expert on the Inck of effect of respondents' preparations and treatment in cases of male pattern baldness comes from Dr. Lubowe. I-Ie bases his conc.1usions solely on 21 cases and refuses to make a general statement. It is therefore found that a. preponderance of the medical expert. testimony establishes that male pattern baldness has its origin in heredity, endocrine balance and aging and that in eases of male pattern baldness, the use of respondents' preparations, regardless of their formula., and treatment will not prevent baldness or exeessive hair loss or cause new hair to grow on bald areas. There is no dispute among the experts that the great majority of all cases of excessive lulir loss and baldness are the beginning and more fully developed stages of male pattern baldness. The estimates range from 75 percent in the case of Dr. Lubm,e to over 95 percent by several of the experts who were called to testify in support of the complaint.

WYBRANT SYSTEM PRODUCTS CORP. ET AL. 1693 Findings 2. Lay testimony In addition to the medical testimony on the point of whether respondents' preparations and treatment will prevent excessive hair fall and baldness and cause new hair to grow on bald areas in a Inajority of eases, there is to be considered (1) the lay testimony of the 39 clients of respondents who testified in their defense (2) the lay testimony of the 14 clients and former clients of respondents who testified in rebuttal find (3) the testimony of the photogrnphic experts :Nil'. Shaneyfelt of the Federal Bureau of Investigation, ~1r. Hagget and 1\11'. DeVincent who testified about the "before" find "after" pictures of the 29 clients of respondents. The 21 cases, 19 of whom Dr. Lubowe sa.id had mnle pattern alopecia. and on "\Thich he based his opinions were a part of these 29.

The hearing examiner ga:ve careful attention to the testimony of the 39 clients of respondents who testified in their defense and to the testimony of the 14 clients and former clients of respondents who testified in rebuttal. I-Ie also observed the head and hair of each of these 53 lay witnesses. Of those who testified that they had thin hair on the top or crown of their head before starting treatment most of them still had thin hair in that area, but they said it was not as thin as before starting treatment. 1\10s1. of those who had frontal baldness before starting tremnent still had "high foreheads where they stated it had been bald or thinner before treatment. 1\10st of these witnesses 'There continuing trcntment and hopeful of better results than they had experienced up to elate. One of the most enthusiastic of these witnesses was a man who had started treatments approximately eight years before and "\vas still continuing them. I-lis head was nll110st complete.Jy bald on top but he was very hopeful that the very fe,w full bodied hairs and the fuzz there would eventually mature into a full head of normal hair. The hearing examiner is of the opinion that some of these witnesses had deluded themselves into believing \\'hat they wanted to believe. At the snme time it cannot be said that they all had deluded themselves. Out of this number some must have grown new hair of the same color and texture as their other hair while taking treatment, and decrease in hair fall after starting treatment must have oecurrec1 in a considernble number. I-Io\'\ever, it cannot said from the testimony of these witnesses that they had male pattern baldness before startin.Q' treatment, or that if they did that the decreased hair fall and new hair grown ,-rns the result of the 1Vy- ,, .. \ . .... , \.. Findings 54 F.

brant treatment. Dr. Lubmve himself said that many factors, including nutritional and metabolic. factors may playa part in stimulating a dormant hair folliele to produce new hair. The testimony of ~fr. Shaneyfelt of the Federal Bureau of Investigation and that of 1\11'. 1\lartin flag-get and :Mr. DeVincent in regard to the "before" and "after: photographs, respondents exhibits through 8- , and the other exhibits oflered in connection with their first mentioned exhibits remain to be discussed. 1\11'. Slmneyfelt seemed to think that the "before" and "after" photographs did not show any increase in the amount of hair, basing his opinion upon an examination of these exhibits and his experience in photography including his interpretation of photographs for the Federal Bureau of Investigation. :,\11'. I-Iagget and ~lr. DeVincent in their testimony including the exhibits ~.hmying "blmy-ups" of some of the original pictures c.onvinced the hearing exnminel' that the "after pid-lures did show more hair than the "before" pictures. These exhibits, respondents' exhibits, 8- through S- , included pictures of the 21 clients of respondents, 1 D of ,,-hom Dr. Lube\H~ testified had premature alopecia (male pattern bahlness). In view of Dr. Lubowe statement in regard to these cases, already disc'ussed, the guestion of whether the "after" pictures shmyed more hail' than the " before pictures becomes academic.

3. Pn'pollderance of the e,' idl'uce The conclusion is that considering' Loth thp, lnedjeal expert testimony, the by testimony and a11 the-' exhibits in e,-idence, the preponderance of all the evidence Supports the conclusion that the use of respondents ~ preparations rcganlless of tllejr formula and their treatment ,,-i1l not prevent baldness 01' excessin:, hail' fall 01' cause new hail' to grow on balll areas in cases oJ male pattern baldness, There "-as no lay testinlony offered to distllru the conclusions from the medical testimony that male pattern baldness has its Origin in heredity, endocrine balance and aging and that the great. ma- :jority of all eases of baldness arc of the male pattern type. x, /'JUt, OJ/CU8Wli8 As to ,,-whether the use oJ respondents' preparations and their treatlnent ",ill prevent excessin~ hail' fall and baldness and cause new hail' to grow in bald areas in other types of baldness than male pattern ualdness, is not inyolvecl ill this proceecLl1g. lJ"ncler the allegations of the c.omplai nt and the (widence. tllP questions remaining are: lJril;(.olllll'!Jl'rs Co" '1', C" 185 F, 2cl GS, WYBRANT SYSTEM PRODUCTS CORP. ET AL. 1695 1681 Findings (a) ,Vhether respondents' advertising is false because they llave advertised that their preparations, their methods and their treatment will prevent excessive hair fall and baldness and cause new hair to grow in bald areas, when the evidence shows such is not true in the great majority of all cases of baldness;

(b) ,Vhether respondents failure to reveal in their advertising that the great majority of all cases of baldness are of that type in ,,' which their preparations and their treatment will be oJ no value for the. purposes mentioned above, is itself a cause of deception, and (c) ,Whether the Commission has authority to require respondents to make the revelation mentioned in (b) above, in their adver6sing. Under (a) above the advertising of the partnership is misleading in a material respect and therefore false ach-ertising within the intent. and meaning of the Federal Trade Commission .Act, because it does not limit their claims for their preparations and their treatment to cases of baldness and excessive hair fall other than those coming within the classification of male pattern baJclness. The advertising further emphasizes that they can help 7 out of 10 cases of baldness coming to them, that they cnn grow hair for the overwhelming majority of men and that the people for whom they have grown hair were snffering from normal baldness. By this type of advertising respondents have represented that their preparations and their treatment will prevent baldness and exc.essive )wir fall and cause hair to grow in bald areas, in cases of male pattern baldness. This '\yas definitely false advertising in view of the preponderance of the evidence in this proceeding, and it is so fOllnd, Under (b) a.bove it is found that the statements and representations in said achertisements have the capacity and tendency to suggest and do suggest to persons "-)10 have excessive hair fall or VdlO nre bald that there is a reasonable probability that they are threatened with or have a type of baldness .which '\\"ill he preTented or overcome by the use of respondents' preparations and their tre, atment. and to spend their malley the.refol'. This being tTne ~ it follmys that failure of respondents to reveal in their advertising that t)le grent majority of an cases of exc.essive hair fall and baldness are the beginning and more flll1y developed states of mnle pattern bnldness which '\yin not he helped by respondents' preparations and their treatment is itself a cause of deception.

In c.onsidel'ing whether the Commission has authority to require respondents to make the reveJation mentioned in the advertising, the conrt has held that the Commission mny require affirmative disclosures ,,-here necessar~y to preyent deception in eases brought under 1696 FEDERAL TRADE COMl\lission DECISIONS Order 54 F.

section 5 of the Federal Trade Commission Act, not involving foods drugs, eosmetics or device-s.

Section 15 (a) of the act. in defining a false advertisement of food drugs, devices and cosmetics provides as follows: The term "false advertisement" means an advertisement, other than labeling, which is misleading in a material respect; and in determining whether any advertisement is misleading, there shall be taken into account (among other things) not only representations made or suggested by statement, word, design, device, sound, or any com bin a tion thereof but also the extent to 'Which the advertisement fails to reveal facts material ,in the Ught of sii,ch relJreSentations or material with respect to consequences ",which may result from the use of the commodity to which the advertisement relates under the conditions prescribed in said advertisement, or under such conditions as are customary or usual. (Underscoring supplied.J In the Alberty ease \) which involved the dissemination of advertising for drugs the court said in eHect that the Commission could not require such an affirmative disclosure in advertising, because there had been no finding in that ease, that failure to make such disclosure \Vas in itself a cause of deception. I-Iere there is such a finding based upon evidence in the record. The complaint, as amended, also alleges in this proceeding that failure to make such revelation was in itself a CHuse of deception. So it is concluded that in this proceeding the Commission has authority to require respondents to reveal in their advertising disseminated in commerce that the great majority of all eases of excessive hair fall and baldness are of the type known as male pattern baldness and that in that type of baldness, respondents' preparations and their treatment ,viii not be of value in preventing excessive hair fail, overeoming baldness or causing new hair to grow in bald areas, The aforesaid acts and practices of respondents, Adel ,Vybrants ,Villiam ,V. ,Vybrants, and ,Vade :,M. ,Vybrants, as herein found are all to the prejudice and injury of the public and constitute unfair and deceptive acts and practices within the intent and meaning of the Federal Trade Commission Act.

OIWER It is orcleTed That respondents ,Vybrant System Products Corp. a corporation, and Adel ,Vybrants, ,Villiam ,V. ,Vybrants, and ,Vade 1\1. ,Vybrants, individual11y and as oHicers of saiel corporation, and as copartners trading as The ,Vybrant System, and respondents agents, representatives and employees, directly or throllgh any Corporate or other device, in connection with the otrering for sale. , sale or distribution of their lotion No. also 1\:n0'"\"n as the ,Vybrant Haskelite Manufacturing Co, v. 127 F. 2d 165. 9182 F. 2d 36.

WYBRANT SYSTEM PRODUCTS CORP. ET AL. 1697 1681 Opinion formula, or their shampoos, the compositions of which are set out in the findings herein, for use in the treatment of conditions of the hair a.nd scalp, or any preparation of substan6ally similar composition, do forthwith cease and desist from: 1. Disseminating or c.ausing to be disseminated, by means of the United States mails, or by any means in commerce, as "commerce is defu1ed in the Federal Trade Commission Act, any advertisement which represents, directly or by implication, that the use of any such preparations, alone or in conjunction with any method or treatment, will prevent or overcome excessive hair fall or baldness or cause new hair to grow, unless any such representation 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 tha.t the great majority of cases of excessive hair fall and baldness are the beginning and more fully developed stages of male pattern baldness find that in such cases said preparations will be of no value in preventing or overcoming excessive hair fall or baldness or in causing new hair to grow. 2. Disseminating or c.ausing 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 any such preparations in commerce, as "commerce~' is defined in the Federal Trade Commission Act, which advertisement contains any representation prohibited in pa-ragraph 1 above, or which fails to comply with the affirmative requirements of paragraph 1 above. OPINION OF THE coj)nnSSION By TAIT, Commissioner:

The complaint, as amended, charges respondents, by its language with violating sections 12(a) (1) and 12(a) (2) of the Federal Trade Commission Act through disseminating, or causing to be disseminated false advertisements.lo The advertising claims involved include those which represent that respondents' prepa.rations and treatments will prevent baldness and grow hair. The hearing examiner in ' initial decision filed September 30, 1957, helel that the allegations of the complaint (with several exceptions not involved in the appeals) 10 SEC, 12(a). It shall be unlawful for any person, partnership, or corporation to disseminate, or cause to be disseminated, any false ad'l'ertisement- (1) By V, S, mails, or in commerce by any means, for the purpose of inducing, or wblch is likely to induce, directly or indirectly, the purchase of food, drugs, devices or cosmetics; (2) By any means, for the purpose of inducing, or which is Ilkely to induce, directly or indirectly, the purchase in commerce of food, drugfi, dedccs, or cosmetics. Opinion 54 F.

ere sustained by the eyidenec, and ordered respondents, except the c.corporate respondent, to cease and desist the advertising found to be unlawful. Counsel for respondents and eonnsel in support of the complaint hnye filed c.ross-appeals.

The respondents are ,Yybrant System Products Corp., a corporation, and ~-,\.del ,Yybrants, ,Villiam 'V. ,Yybrants, and ,Vade )1. ,Vybrants. Adel ,Yybrnnts is the mother of ,Villianl and ,Yade. The three ,Yybrants are named in the complaint indiyidnally and as officers of the said corporation and also as copartners, trading and doing business as "The ,Vybrant System. :: This partnership and the corporation both have their principal place of business at ;:153 ,Yest 54th Street, New York, N.Y. The individual respondents control the stock.k of the corporation and direct and control its policy.ies and practices. Six branch onites 01' treatment parlOl s are mn into.ined by The ,Yybrant System in e,," York City where hail' :md scalp treatments are given.

The achcrtisements involved in this proceeding \were published under the name "The ,Yybrant Sys1em :~ and appeared in t,,-o Kew Yor1\: papers \with interstate. distriblltion, the )Jirror and the News. The out-of-St.ate circulation of t,these papers was found to be 5ubst.antia 1. The record sho\ys SOlne distribution by mail of the. editions of the. papers carrying respondents: nclyertising. For instance, there is evidence of the. circulation of at least 225 copies of these editions by mail. This Hchertising i'represents directly and by implication that the llse of respondents' prepHratlons and treatment \will prevent exeessiye. hail' fall and baldness and \\'i11 cause ne\\' hair to gTO\Y in a. majority of cases, The C'ol'porato respondent. bottles and sells shampoos and lotions to IwTsons \\"ho have received The ,Yybrant System hair and scalp treatments. These are the. same preparations or some, of the same prepa.ratiol1s that are used for the treatments. Sales of such preparations, fonnel to he cosmetics \\'within the intent Hnd meaning of the Federa 1 Trade Commission -\ct, include, sales made. outside of the State, of Ne\\" Yor1\:.

HESl'O:\'DEXTS' .,, \Pll\L One of the. principal contentions of the respondents is that. there has been n. failure to prOH' the jurisdictional requirement of intel'state commerce. under section 12. In nrQ'ninQ' that t here has been no Lshowing the achertisements 'H're disseminated in corrunercp for the purpose or with the likelihood oJ inducing a p11lcl:Ise ,,-within the meaning of section 12, respondents appeal' to be relying largely upon ... .. ........: . , _ ... . :: , 'VYBRANT SYSTEM PRODUCTS CORP. ET AL. 1699 1681 Opinion their position that the advertisements relate solely to a treatment which, as such, is not. covered by the statute, and which was not advertised to sell the preparations.

The record, we believe, contains sufficient evidence to satisfy the jurisdictional requirement not only of section 12(a) (1), but also of section 12 (a) (2). Respondents ach-ertised in newspapers with interstate distribution. Respondent corporation sold preparations to purchasers in interstate commerce. The testimony of many witnesses shows that as a direct result of the advertisements, prospective clients ere induced to eal1 at an office of The ",Yybrant System for tren,tment of the hair and scalp. It is also shown by the testimony that. such persons after beeoming clients purchased respondents' preparations for home use. The preparations were in fad sold only to clients or former clients. It is apparent that purchflses "-ere indllced indirectly as a result of the aclvertJsing, regardless of whet,her the advertisements mention t,he preparations. From such sh0'ving it follo\vs that the minimum statutory requirement of a likelihood of the purchase of preparations is met. Under 12 (a) (1), there is here sho\yn the disse.minaUon of advertisements in interstate commerce ,which \were at least "likely to induce, directly or indirectly, the purchase of * * * eosmeties. Under 12(n) (2), there is shown the dissemination of advertisements ,which ,,"ere fit least "likely to induce, directly or indirectly, the purchase in commerce of * * * cosmetics. It is also llrged that eonnsel snppolting the complaint failed to prove that respondents' ach- ertisements contain any false representahems and that t.he examiner erroneously evaluated the evidence. ",Vhat the examiner essentially fmmel ,yas that the weight of the evidence supports a conclusion that the, use of respondents: preparations and their treatment will not prevent baldness or excessive hair fall or callse new hail' to grow in cases of male pattern baldness. In so finding, it appears that he carefully considered all the evidence inelnding the testimony of expert. medical \vi tnesses for and against the allegations of the complaint. It. is our opinion Owt he properly weighed this eyidenee and that his findings in respect t,hereto are fully supported by the record.

1~_ 1 . lfina.lly, ()ll !I?~:!l~_ ~PP~, ~XX~~ ~le~l1.s n~~Etta! ~~i~~_ in ruling that passages from medical treatises were inadlp~s?ible , evic1en It(~si;o)1(1ej;Ts-ofre'i e~;T~l~;;~~i~I?~~' l:i;ts from books on dermntoloo'v L""tlef:ei.j_hn"_"_"""-~"'hl~'d-hbv-fl1'""""'-h-n_"""h""_-e)1:i-" s-" '\~1'i Hen"" In- \Ye1f~i~e-c:6'ii1izedii 11 thorities. , The examiner refused to admit the ex5~erpts . because the nuthors "-ere not. present, for cross-examination. RespOJldents argue y. , Opinion 54 F.

tl1~tihi~.._rlJliDg._ c()nflicts,n_ th the holding in Dolcin Oorporation et al. Federal Trade 001n'lnission 219 F. 2d 742 (1954), cert. denied 75 S. Ct. 571 (1955). The Commission does not so understand the Dolcin decision. The c.court there stated that: When used to prove the truth of their contents scientific writings are clearly hearsay and are rejected as judical evidence in all but a few jurisdictions. It ,""rent on to say that cogent arguments ean be made in favor of their use, but rec.ognized the difl1c.ulty under the hearsay rule. "Yet that objeetion " the court said lnay. ~J.argely obviated by requiring el;tS ~n tl1~ field who willthe introducti?~~_ ..c?! the~rtie1es rougll~xi)' themselves, be suj?ject to cross-examination. 0 such pro~_ed~1~e was foll~~e4. h~re.in. :Mol'eovel', not only did the eonrt iilD~lc.in note that the examiner should havea certain broad chscl'etion in this coni~ection, it c1idnot l'e,verse t11e decision because of tl~e exclusion of the scientific "Titings. It stated that it ,,'ould do this only ,yhere substantial justice so requires and that it would hesitate in most cases to say that a. rule almost universal in the courts would, in an administrative proceeding, deny the parties substantial justice. Under the eircumstances, 'lye cannot find that the examiner committed error here in refusing to admit the seientifie "'iTitings. APPEAL OF COUNSEL SUPPORTING THE CO)IPLAINT Counsel first takes exception to the examiner s failure to find that the use of respondents' preparations during the course of a'\Vybrant treatment involves a sale and a purchase of such preparations. This is a distinct question from that relating to the sale of preparations in bottles for home use. It appears that the treatment consists not only of a.applying preparations to the hair and scalp but some additional service as well, such as brushing and massaging. The issue here raised is one of fact which can be resolved only upon eonsideration of a11 relevant circumstances. It is not determinative of the question that some preparations are used in the giving of treatments and that such are necessary to the sought-after results. Rather, we believe the answer lies in the essential character of the transaction; that is, does it consist mainly of a transfer of goods or is it basicaIl:y the rendering of a service in which the use of preparations is purely to be con- incidental thereto? In resolving such a question, fadOl's sidered would include the following:

(a) The significance of the preparations in the overall performanee with reference to purposes and eflects ; WYBRANT SYSTEM PRODUCTS CORP. ET AL. 1701 1681 Opinion (b) The percentage of the lllonetary value of the preparations used ili to the total cost of the entire treatment to the client; ( c) The importance of the skill of the operator giving the treatment compared to the importance of the. functions of the preparations; and (d) The necessity for taking office treatments as the only way to obtain desired preparations, when such are considered by potential purchasers to be efficacious in themselves and apart from the treatments.

Because of an insufficiency in the record, we make no ruling as to whether the use of preparations in connection with an office treatment may or may not constitute a sale; the holding here is simply that the evidence is not such as to permit a decision on the question one way or the other. In the matter of Gilbert 8. Bishop, d/b/a Bishop Hail' Experts docket No. 6554 (:J\1ay 1958), it was not necessary to decide any such question since preparations were sold in bottles for home use to clients in connection with visits for office treatments.

It is also argued that the examiner should not have limited his findings and order with respect to hair growing claims to bald areas alone. This point is wen taken since, as the record clear,dy sho. male pattern baldness is a condition in which the hair follicles gradually atrophy and disappear. In the earlier stages there may be a thinning of the hair on the scalp, but no bald areas. The weight of the evidence supports a finding and conclusion that not at any stage of male pattern baldness, whether or not there is a bald area, win respondents' preparations and treatment eallse the growth of new hair. ,With respect to the order it is urged that respondents should be required to disclose in connection with claims for the prevention of baldness and the gro\"\th of hair that their preparations win have value in the "great majority" of cases rather than merely the majority" of eases. ,Ye believe the record sho\"\ing of estimates of male pattern baldness as eonstituting from 75 to 95 percent of the eases, which was found to constitute the great majority, clearly justifies a requirement of disclosure that such is the great majority. In further connection with the order, it is counsel's contention that the examiner should have ac1ditionany proscribe.d dissemination by the United States mail. ,Ye agree. Since some distribution by mail of the papers carrying respondents' advertising is sho\"\n by the evidence, the prohibitions of the order should include dissemination by this means.

Order 54 F, Counsels final contention is that the examiner improperly dismissed the complaint as to the respondent ",Vybrant System Products Corp. The examiner found, improperly, we believe, that the corporate respondent does no advertising. In this instance we have a partnership composed of the individual respondents and a corporation in which the individual respondents are the officers and controlling stockholders. It is ,yell settled that a corporation can act only through its Rgents, In view of the circ.umstanees in this record, it c.cannot be assumed that ,,-hen the officers of the corporation acted they were Rcting solely as copartners in n. distinct and separate enterprise.

All the sales of the preparations here involved for home use "'ere made to dients of The ,Vybrant System. Thus, it is clear that to the extent that the advertising attracted clients, it 'VRS such as to result in be,nefits to the corporation. ~Ioreover, the testimony is to the effect that in the regular eOllrse of business, orders for preparations (although not every such order) are taken by employees of the partneris clear, therefore, thatship and turned over to the corporation. It the corporation Rnd the partnership were not. acting independently so fell' as there existed R program of advertising which.h brought in clients and so far as such clients thereafter became purchasers from the corporation. The efiect ,yas an adoption by the corporation of the advertising of the partnership. In our opinion, these factors in conjunction with the close identification in O\vlwrship and control as between the pminership and the corporation in this ease justify a. conel usion that the practices herein involved of the copa rtnel's ,were i1\ fact the practices of the corporation, the latter acting through its responsible for theagents, the officers. Thus, the corporation is n 1so advertising and sholllc1 be named in the order. Hespondents' appeal is denied and the appeal of counsel supporting the complaint is granted in part, and denied in part as indicated herein. The findings, eonelllsions, and order in the initial decisioll are modified to eonforl11 with this opinion. FIN AL onder Counsel for the respondents and counsel in support of the complaint having respectively filed their cross-appeals from the init.ial decision of the hearing examiner, and the matter having been heard on briefs and oral argument; and the Commission having rendered its decision denying the appeal of respondents and granting in part and denying in part the appeal of counsel in sllpport of the complnillt, and modifying certain findin~'s and conelllsions of the initial decision in the WYBRANT SYSTEM PRODUCTS CORP. ET AL. 1703 1681 Order manner indicated in the accompanying ophlion and further directing modification of the order to cease and desist contained in the initial decision:

I t is ordered That the following order be, and it hereby is, substituted for the order contained in the said initial decision: ORDER It is ordered That respondents ",Yybrant System Products Corp. a corporation, and Adel ",Yybrants, ",Villiam ",V. ",Yybrants, and "'Vade ~1. ",Yybrants, individually and as officers of said corporation, and as eopmtners trading as The ",Vybrant System, and respondents' agents representatives and employees, directly or through any corporate or other device, in connection with the of Ie ring for sale, sale or distribution of their Jotion No. , also 101Own as the 1Vybrant formula or their shampoos, the compositions of which are 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 forth- ,with cease and desist from:

1. Disseminating or causing to be disseminated, by means of the United States mails, or by any means in commerce, as "commerce is defined in the Federal Trade Commission Act, any advertisement which represents, directly or by implication, that the use of any suell preparations, alone or in conjllnct.ion with any method or treatment will prevent or overeome excessive hair fall or baldness or cause new hair to grow, unless any such representation 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 cases of excessive hair fall and baldness are the beginning and more fully developed stages of male pattern baldness and that in such cases said preparations will be of no value in preventing or overcoming excessive hair fall or baldness or in causing nm" hair to grow.

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 any such preparations in commerce, as "commerce" is defined in the Federal Trade Commission Act, which advertisement contains any representation prohibited in paragraph 1 above, or which fails to comply with the affirmative requirements of paragraph 1 above.

It further O1ylered That the respondents shall, within sixty (60) days after service upon them of this order, file with the Commission Order 54 F.

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 fl.l1'thel' onlered That the initial decision of the hearing examiner, as modified by the Commission, be, and it hereby is, adopted as the decision of the Commission.

MARTIN BERDY 1705 Decision