Leo O. Johnson doing business as Johnson Hair & Scalp Clinic

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

Ix run Marrer oF LEO O. JOHNSON DOING BUSINESS AS JOHNSON HAIR & SCALP CLINIC ET AL, ORDER, ETC., IN REGARD TO TITE ALLEGED VIOLATION OF TITE FEDERAL TRADE COMMISSION ACT Docket 6497. Complaint, Jan, 18, 1956—Decision, June 10, 1958 Order requiring individuals with main office in New Orleans, La., and operating hair and scalp clinics also in several other States, to cease representing falsely in advertising that use of their hair and scalp preparations would prevent or overcome baldness or excessive hair loss or induce the hair to grow or become thicker, without clearly revealing that the great majority of cases of excessive hair fall and baldness are stages of male pattern baldness, and that in such cases the preparations would be of no value; and to cease representing that respondent Johuson was America’s foremost professional authority on hair and scalp disorders, and that respondents and their agents were trichologists, Harold A. Kennedy, Esq., for the Commission, James I, McCain, Esy., of New Orleans, La., for respondent Leo ©. Johnson, Iniman Decision py Ronerr TL. Piper, Hearne Exawixen STATEMENT OF THE CASE On January 18, 1956, the Federal Trade Commission issued its complaint against Leo O. Johnson, an individual doing business as Johnson Hair & Scalp Clinic, and William G. Thompson, Harry B. Hause, and Charles L. Anderson, individually (all except Hause hereinafter collectively called respondents), charging them with disseminating false advertisements in violation of sections 5 and 12 of the Federal Trade Commission Act. (hereinafter called the Act), 15 U.S.C. 41, et sey. Copies of said complaint together with a notice of hearing were duly served on respondents. Service was not obtained upon Harry B, Hause, and accordingly the complaint. against him will be dismissed without prejudice.

The complaint alleges in substance that respondents in connection with the operation of their hair and scalp clinics in various cities of the United States, disseminated or caused to be disseminated false advertisements by the United States mails and various other means in commerce, for the purpose of inducing the purchase of cosmetic preparations used by them in the operation of their clinics. Respond- 628577—60——_111 Findings 54 FTC.

ent Johnson appeared by counsel and filed an answer admitting the operation of the clinic in New Orleans, the sale of various cosmetics in connection therewith, and most of the advertising excerpts set. forth in the complaint, but denying any false advertisements or violations of the act. Respondents Thompson and Anderson neither filed answers to the complaint nor appeared at. the hearings, and accordingly are found in default and the facts with respect. to them are found to be as alleged in the complaint. Pursuant to notice, hearings were thereafter held at various times and places from September 26, 1956, to April 10, 1957, before the undersigned hearing examiner duly designated by the Commission to hear this proceeding. Prior to the commencement. of the hearings, a motion to amend the complaint and a corresponding motion to amend the answer thereto were granted.

The Commission and respondent Johnson were represented by counsel, participated in the hearings and were afforded full opportunity to be heard, to examine and cross-examine the witnesses, to introduce evidence pertinent to the issues, to argue orally upon the the record, and to file proposed findings of fact, conclusions of law, and orders, together with reasons in support thereof. Counsel supporting the complaint filed proposed findings of fact, conclusions of law, and an order, together with reasons in support thereof. Counsel for Johnson did not. file proposed findings of fact and conclusions of law, but in lieu thereof filed a brief, contending that the Commission lacks jurisdiction in the matter and requesting the dismissal of the complaint. for that reason. Both counsel waived oral argument. All of the findings of fact proposed by counsel supporting the complaint and the conclusions of law proposed by both counsel, respectively, not hereinafter specifically found or concluded are herewith specifically rejected.? Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT I. The Business of Respondents The complaint alleged, Johnson admitted, and it is found that. he is an individual doing business as Johnson Hair & Scalp Clinic with his main office and clinic located at 819 Richards Building, 837 Gravier Street, New Orleans, La., since on or about March 1, 1955. The 1 U.S.C. § 1007(b).

JOHNSON HAIR & SCALP CLINIC 1741 1739 Findings record further establishes, and it is found, that Johnson also had owned, operated, and/or controlled hair and scalp clinics in Detroit, Mich.; Erie, Pa.; Youngstown, Ohio; Canton, Ohio; and Rochester, N.Y. On or about January 31, 1955, respondent Anderson took over the Erie, Pa., clinic and operated it. under a franchise from Johnson until it was closed in August of 1955. On or about August 14, 1954, respondent Thompson took over the Canton, Ohio, clinic and operated it under a franchise from Johnson until December 1955. On or about January 31, 1955, Harry B. Hause took over the Youngstown, Ohio, clinic and operated it under a franchise from Johnson until it was closed in December of 1955. Johnson operated the clinic in Rochester during the year 1954. Johnson also owned and operated the clinic in Detroit during 1954 and 1955 until he sold it on October 1, 1955. Respondents Thompson and Anderson operated their clinics under franchise agreements with Johnson whereby they were required to and did use and adopt Johnson’s methods, procedures, preparations, advertising, and general business policies. All respondents cooperated and acted jomtly in performing the acts and engaging in the practices hereinafter found.

The complaint further alleged, the record establishes, and it is found that respondent Johnson is now, and all of respondents for the past several years have been, engaged in the sale and distribution of various cosmetic preparations for external use in the treatment of conditions of the hair and scalp. Respondents had said preparations compounded for them by the Klinker Manufacturing Co. of Cleve- Jand, Ohio, and caused said preparations to be transported from the place of their manufacture to respondents’ clinics located in other States of the United States. Since March 1956, Johnson has had his cosmetic preparations compounded by J. R. Keeny Co. of New Orleans, La.* Respondents have sold their various cosmetic preparations by two methods. First, respondents through extensive newspaper advertising have invited persons to come to their clinics for examination, diagnosis and treatment, whereupon a certain series of treatments were recommended. If such treatments were agreed to, the said preparations were used in the process of such treatments. Second, respondents have sold home treatment kits containing said preparations to persons induced to visit respondents’ clinics by said advertisements.

*The Commission's opinion (see p. 1748 below) states: “To the extent that [the remainder of this paragraph] may hold that the respondents’ use of preparations in the course of treatments constituted sales of such preparations. we do pot adopt it as a finding of the Commission."

Findings id F.T.C.

II. The Unlawful Practices A. The Issues Framed This proceeding is brought under sections 5 and 12 of the act, which in substance prohibit, zter alia, the dissemination or causing to be disseminated of any false advertisement by United States mails or in commerce by any means for the purpose of inducing, or which is likely to induce, the purchase of cosmetics.” The principal issues are whether respondents caused the dissemination of their advertisements hy United States mails or in commerce, and whether ov not such advertisements are false. B. Zhe Dissemination by United Ntates Mails and in. Commerce y As stated above, this was the only -issue raised in the brief of counsel for respondent Johnson, and respondents Anderson and Thompson are in default as to all issues. The record establishes, and it is found, that respondents, in connection with the operation of their various hair and scalp clinics which sold treatments and various cosmetic preparations allegedly designed to prevent and cure baldness, loss of hair and other hair and scalp disorders, caused the insertion In various newspapers, published in the respective cities in * Section 12 of the act provides as follows: “Sec. 12. (a) It shall he unlawful for any person, partnership, or corporation to disseminate, or cause to be disseminated, any false advertisement— “(1) By United States mails, or in commerce by any means, for the purpose of inducing. or which is likely tu induce. directly or indirectly the purchase of food. drugs, devices or cosmetics: or “(2) By any means, for the purpose of inducing. or which is likely to induce, directly or indirectly, the purchase in commerce of food, drugs, devices. or casinetics. “(hy The dissemination or the causing to be disseminated of any false advertisement within the provisions of subsection ca) of this section shall be an unfair or deceptive act or practice in commerce within the meaning of section 4." For the purposes of sections 12, 15. and 14. section 15 of the act defines the terms “false advertisement’ and “cosmetic” as follows : “(ad (1) The term ‘false advertisement’ means an advertisement, other than labeling. which is misleading in a material respect; and in determining whether any advertisement ix misleading, there shall be taken inte account tameng other things) not only representations made or suggested by statement. word, design. device. sound. or any combination thereef. but also the extent to which the advertisement fails to reveal facts material in the light of such representations 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. No advertisement of a drug shall be deemed to be false if it is disseminated only to members of the wedical profession, contains no false representation of a material fact, and includes, or is accompanied in each instance by truthful disclosure of, the formula showing quantitatively each ingredient of such drug.

“({e) The term ‘cosmetic’ means (1) articles to be rubbed, poured, sprinkled, or sprayed on, introduced into, or otherwise applied to the human body or any part thereof intended for cleansing. beautifying, promoting attractiveness, or altering the appearance, and (2) articles intended for use as a component of any such article; except that such term shall not include scap.”

JOHNSON HAIR & SCALP CLINIC 1743 1739 Findings which such clinics were operated, of numerous advertisements concerning such treatments and cosmetic preparations. Without listing such publications in detail, the record establishes, and it is found, that respondents caused the publication of said advertisements in various of the leading newspapers in New Orleans, Detroit, Erie, Canton, and Rochester. The record further establishes that each of these leading newspapers had substantial circulation both out of State and by means of the U.S. mails.

Respondent. Johnson’s argument. on jurisdiction is that because he had abandoned all of his operations other than New Orleans prior to the issuance of the complaint, and because he had not.“caused” the dissemination of his advertisements by United States mails or in commerce, he was neither engaged in commerce within the meaning of the act, nor does the Commission have jurisdiction over him under section 12(a) (1) of the act. As noted above, section 12(a)(1) of the act prohibits the dissemination of any false advertisement. by U.S. mails, or im commerce by any means, for the purpose proscribed. It is respondent Johnson's contention that, although the newspapers in which he published his advertisements were distributed by U.S. mails and in commerce by other means, he had no control over such dissemination and therefore did not “cause” it within the meaning of the act. This contention has recently been answered by the Commission in its O-Jib- Wa decision,* where exactly the same argument was made. The Commission there said:

This contention is untenable. To accept the interpretation advanced by the respondents would impose sole responsibility for the false advertising of foods, drugs, cosmetics and therapeutic devices upon disseminating media and leave free therefrom the party primarily standing to benefit from such advertising. The record establishes, and it is found, that respondents caused the dissemination of their advertisements by United States mails and in commerce by other means.

C. Lhe False Advertisements The other principal issue is whether or not. such advertisements were false advertisements as defined in section 15(a) (1), supra, for the purpose of inducing or which were likely to induce, directly or indirectly, the purchase of cosmetics. As found above, respondents purchased their cosmetic preparations used in their treatments from the Klinker Manufacturing Co., except that after March of 1956, respondent Johnson purchased his cosmetic preparations from J. R. 3 0-Jib-Wa Medicine Co., docket No. G548 (1957). Findings 54 FLTC.

Keeny Co. The ingredients of the preparations purchased from Klinker were stipulated to be those set forth in the complaint, and the ingredients of the preparations purchased from Keeny are listed in Commission exhibits received: in evidence. Without listing here all of the many ingredients of such preparations, the record establishes beyond dispute and it is found that they are cosmetics, as defined in section 15(e) of the act, supra. Likewise, there can be no question and it is found that respondents’ advertising was for the purpose of inducing and did induce, directly or indirectly, the purchase of such cosmetics.

The complaint included excerpts from ten of respondents’ advertisements dealing with representations concerning baldness, the growing of hair, and various scalp disorders. All told, some 32 different advertisements published by respondents in the various newspapers previously mentioned were received in evidence. The complaint alleged that through the various statements and representa-. tions contained in the aforesaid advertisements respondents repre. sented, directly and by implication, that by the use of their cosmetic preparations, methods, and treatments itching of the scalp, dandruff, and irritations of the scalp would be permanently eliminated, and that in a great majority of cases, baldness and excessive hair loss would be prevented and overcome, new hair would be induced to grow, and users would be able to maintain a thicker head of hair. It was also alleged that by referring in such advertismg to Johnson as “America’s foremost. professional authority on hair? and by other means, respondents represented, directly and by implication, that. Johnson had had professional and competent training in dermatology and other branches of medicine having to do with the diagnosis and treatment of scalp disorders affecting the hair. The complaint further alleged that all of such representations were false, that such advertisements were misleading in material respects and constituted false advertisements as defined in the act, and that such advertisements also were false because of the failure to reveal facts material in the light of such representations, as also required by section 15(a) (1), supru. Without encumbering this decision with numerous excerpts from respondents’ advertising, suffice it to say that a careful examination of all of said advertising fairly reveals that respondents did represent in such advertising, directly and by implication, that by the use of their cosmetic preparations, methods and treatments itching of the scalp, dandruff and irritation of the scaly would be permanently 4 Commission exhibits 35 and 87 A and B.

JOHNSON HAIR & SCALP CLINIC 1745 17389 Findings eliminated, and in the great majority of cases (in fact respondents advertised from 94 to 97 percent. of all cases) baldness and excessive hair loss would be prevented and overcome, new hair would be induced to grow, and users would be able to maintain a thicker head of hair.

A preponderance of the reliable and substantial evidence in the entire record establishes and it is found that all of these representations are false and misleading in material respects, and constitute false advertisements as that. term is defined in the act. After proving respondents’ representations and the particular cosmetics used by them in their treatments, counsel supporting the complaint called two expert witnesses, highly qualified doctors of medicine specializing in dermatology, both of whom testified unequivocally that, regardless of the exact. formulae or combination of cosmetic preparations and method of treatment used, respondents’ preparations anc treatments will not. permanently eliminate dandruff, itching, or irritation of the scalp, and in the great majority of cases will not. prevent or overcome baldness or excessive hair loss, will not induce new hair to grow, and will not bring about a thicker head of hair. They further testified that. the great, majority, 95 percent or more, of cases of baldness and excessive hair loss are the common type known as male pattern baldness, for which there is no cure or preventative, including that. used by respondents, known to science or medicine. Respondent. Johnson called four witnesses who had previously taken his treatments and used his cosmetic preparations, one of whom was a doctor of medicine but. not experienced in dermatology and admittedly unfamiliar with the causes and cures or preventatives, if any, for male pattern baldness. His testimony was in effect. that. of a user rather than that of an expert. All four of these witnesses said that Johnson's treatment. had had some beneficial effect. in preventing baldness and alleviating scalp disorders such as itching, dandruff, and irritation. The appearance of their scalps belied their testimony with respect to baldness and hair loss. In any everit, it is well established that such testimony based upon lay experience in individual cases is of little value as compared to expert. testimony based upon scientific knowledge. The courts have frequently held that such lay testimony is of slight value, and that scientific testimony is that which counts.’ The record establishes that respondents’ advertisements represented Johnson as a trichologist and as America’s foremost. professional &’ Fulton Co. ¥. F.7.C., 180 F. 2d 85 (CLA. 9, 1942): Irwin v. P.7.C., 143 FP, 2d 316 (C.A. 8, 1944) ; Bristol-Alyers Co. v. F.T.C., 185 FP. 2d 58 (C.A. 4, 1950) ; and cases cited therein, Conclusions b4 INTAC.

authority on hair, and that a trichologist is a dermatologist, a doctor of medicine specializing in diseases and disorders of the scalp. The record establishes that Johnson is not a trichologist, and has had no training in dermatology or any other branch of medicine. It is concluded and found that by such claims respondents falsely represented, directly and by implication, that Johnson had professional and competent training in dermatology and other branches of medicine having to do with the diagnosis and treatment of scalp disorders affecting the hair, and that such representations constitute false advertisements within the meaning of the act.

It is also concluded and found that respondents’ advertisements are misleading ina further material respect. and constitute false advertisements because of the failure to reveal facts material in the light of such representations, as required by section 15(a) (1), supra. Tn advertising their cosmetic preparations and treatments as a cure or preventive for baldness or hair loss, respondents represented that almost. every case of hair loss or baldness is caused by scalp disorders, and that. their preparations would be of benefit and constitute an effective treatment for such scalp disorders. The fact. of the matter is, as found above, that 95 percent or more of all cases of loss of hair or baldness is the male pattern type, having no relation to scalp disorders, for which there is no known cure or preventive and respondents’ preparations will be of no value whatever. It follows that respondents’ advertising is misleading because of their failure to reveal the material fact that in the vast majority of cases loss of hair or baldness is the type known as male pattern baldness, in the treatment of which respondents’ preparations are of no value. D. The Effect of the Unlarful. Practices The use by respondents of the foregoing false, deceptive, and misleacling statements and representations, disseminated as aforesaid, and the failure to reveal material facts as found above, have had and now have the tendency and capacity to mislead and deceive a substantial portion of the purchasing public into the erroneous and mistaken beliet that such statements and representations are true and cause them to purchase respondents’ preparations because of such erroneous and mistaken belief.

CONCLUSIONS OF LAW 1. The advertisements disseminated by respondents are false advertisements, as that term is defined in the act. JOHNSON HAIR & SCALP CLINIC 1747 1739 Order 2. Respondents’ preparations used in their treatments are cosmetics. as that term is defined in the act.

3. Respondents have caused, and respondent Johnson is causing, the dissemination of false advertisements by United States mail and by other means in commerce, for the purpose of inducing, which have induced, and which are likely to induce, directly or indirectly, the purchase of cosmetics.

4, The acts and practices of respondents hereinabove 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 act.

5. This proceeding is in the public interest, and an order to cease and desist the above-found practices should issue against respondents. ORDER It is ordered, That Leo O, Johnson, an individual doing business as Johnson Hair & Scalp Clinic, and respondents Charles LL, Anderson and William G. Thompson individually, 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, as set. ont im the findings herein, for use in the treatment of conditions of the hair and sealp, or any preparation of substantially similar composition, do forthwith cease and desist from: 1. Disseminating or causing to be disseminated by means of the U.S. mail, 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 said preparations, alone or in conjunction with any method or treatment, will: (a) Prevent. or overcome baldness or excessive hair loss, wnless any such representation be expressly limited to cases other than those known as 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 said male pattern baldness and that. in such cases respondents’ preparations will be of no value in preventing or overcoming baldness or excessive hair loss: (b) Induce new hair to grow, cause the hair to become thicker or otherwise grow hair, 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 1748 FEDERAL’ TRADE COMMISSION DECISIONS Opinion 54 FTC.

reveals the fact that the great majority of cases of excessive hair fall and baldness are the beginning and more fully developed stages of said male pattern baldness and that in such cases respondents’ preparations will not induce the growth of hair or thicker hair; (c) Permanently eliminate dandruff, itching or irritation of the scalp; and 2. Disseminating or causing to be disseminated by means of the United States mail, or by any means in commerce, as “commerce” is defined in the Federal Trade Commission Act, any advertisement. for the purpose of inducing, or which is likely to induce, directly or indirectly, the purchase of respondents’ preparations, which advertisement represents, directly or by implication, that respondent Johnson is America’s foremost professional authority, or one of America’s foremost professional authorities, on hair and scalp disorders, or that respondents, their agents, representatives or employees are trichologists or have had professional or competent. training in dermatology or other branches of medicine having to do with the diagnosis and treatment of scalp disorders affecting the hair. Tt is further ordered, That the complaint be, and it hereby is, dismissed without prejudice as to respondent Harry B. Hause. OPINION OF THE COMMISSION By Tarr, Commissioner :

Respondents are charged by the complaint, as amended, with violating section 12 of the Federal Trade Commission Act by disseminating false advertisements dealing with representations concerning the prevention of baldness, the growing of hair and the elimination of various scalp disorders.

The hearing examiner in his initial decision found that the allegations of the complaint. were sustained by the weight of the evidence and prohibited the practices with an order to cease and desist. Respondent Johnson has appealed from the initial decision. This case, so far as it relates to the respondents other than Johnson, was placed on the Commission’s own docket. for review. The only question raised on the appeal has to do with the sufficiency of the showing of the jurisdictional requirement of commerce under section 12.

The respondents herein are Leo O. Johnson, an individual doing business as Johnson Hair & Scalp Clinic, the appellant, and William G. Thompson, Harry B. Hause, and Charles L. Anderson, individually. The complaint was dismissed as to respondent. Hause because service upon him was not. obtained. JOHNSON HAIR & SCALP CLINIC 1749 1739 Opinion The examiner's findings of fact. about which no issue has been raised might be summarized as follows:

Respondent Johnson is now, and all of the respondents for the past several years have been, engaged in the sale and distribution of various preparations, cosmetics within the meaning of the Federal Trade Commission Act, for external use in the treatment of conditions of the hair and scalp. Respondents have caused the publication of advertisements relating to their preparations and . their treatments in various of the leading newspapers in the cities of New Orleans, La., Detroit, Mich., Erie, Pa., Canton, Ohio, and Rochester, N.Y In such advertisements, respondents falsely represented : (a) That the use of their cosmetic preparations and treatments would permanently eliminate itching of the scalp, dandruff, and irritation of the scalp;

(b) That by the use of their preparations and treatments, in the great majority of cases baldness and excessive hair loss would be prevented and overcome, new hair would be induced to grow, and users would be able to maintain a thicker head of hair; and (c) That respondent Johnson had professional and competent training in dermatology and other branches of medicine having to do with the diagnosis and treatment of scalp disorders affecting the hair.

In addition, respondents’ advertisements are misleading because of the failure to reveal the material fact that the great. majority of cases of baldness, including excessive hair loss, are of the type known as male pattern baldness, in which cases respondents’ preparations are of no value.

Respondents’ advertising was for the purpose of inducing and did induce the purchase of their cosmetic preparations. The solitary issue raised on this appeal by respondent. Johnson is whether he did “cause to be disseminated” any advertisement by United States mail or in commerce by any means when, allegedly, without. his knowledge, consent, request. or control, the newspapers in which advertisements were inserted cid deliver some of the editions carrying such advertisements by mail and out-of-State. The main contention seems to be that appellant did not cause the methods and destinations of delivery.

TThe record shows that in New Orleans alone the distribution of the newspapers carrying respondents’ advertising by mail and out-of-State was as follows: Daily Times Picayune, by mail—8.937, out-of-State—17,060. Daily New Orleans States, by mail—128, out-of-State—4,163, Sunday Times-Picayune-New Orleans States, by mail— 1.666, out-of-State—40,095.

Opinion d4 FT.C.

The pertinent. portion of section 12 reads: It shall be unlawful for any person * * * to disseminate, or cause to be disseminated, any false advertisement— “(1) By the United States mails, or in commerce by any means * * *, [Emphasis supplied.] We believe that to cause the insertion of advertisements in newspapers is to cause the dissemination of such advertisements within the intent and meaning of section 12.7. The dissemination so caused will necessarily be the same as that of the publications in which the advertisements appear. No doubt the newspapers would have been circulated by the means normally employed and to the usual-destinations, whether or not. respondents placed any advertisements therein. The advertisements would not. have been so circulated, however, had not respondents caused them to be published. It appears to be reasonable to conclude, therefore, that. so far as the advertisements were concerned, respondents did cause them to be disseminated. Such a construction of section 12 is in full accord with the intent of Congress, as illustrated by provisions contained in section 14, as follows: (b) No publisher, radio-broadcast licensee, or agency or medium for the dissemination .of advertising, except the manufacturer, packer, distributor, or seller of the commodity to which the false advertisement relates, shall be liable under this section by reason of the dissemination by him of false advertisement, unless he has refused, on the request of the Commission. to furnish the Commission the name and post-office address of the manufacturer, packer. distributor, or advertising agency, residing in the United States, who caused him to disseminate such advertisement. No advertising agency shall be liable under this section by reason of the causing by it of the dissemination of any false advertisement, unless it has refused, on the request of the Commission, to furnish the Commission the name and post-office address of the manufacturer, packer, distributor, or seller, residing in the United States, who caused it to cause the dissemination of such advertisement. [Emphasis supplied.] Appellant's assertion that he had no knowledge of or control over the circulation of the papers in which he advertised does not. constitute a defense under the circumstances here shown. An advertiser is on notice, constructive or otherwise, that. metropolitan-sized newspapers such as the Times Picayune do or may circulate copies through the mail or in commerce, and, consequently, bears responsibility for such dissemination of his advertisement.

Appellant in his argument. relies heavily upon certain decisions which interpret. the word “cause” as it. is used in the criminal statutes respectively involved. In our opinion, such cases are inapposite be- 20-Jib-Wa Medicine Co., ct al., docket No. 6548 (decided June 27, 1957), petition to review pending, C.A. 6. .

JOHNSON HAIR & SCALP CLINIC 1751 1739 Order cause of the differences in the purposes of the various statutes and their provisions as well as the differences in the factual circumstances. The initial decision contains the following finding: “Respondents have sold their various cosmetic preparations by two methods. First, respondents through extensive newpaper advertising have invited persons to come to their clinics for examination, diagnosis and treatment, whereupon a certain series of treatinents were recommended. If such treatments were agreed to, the said preparations were used in the process of such treatments. Second, respondents have sold home treatment. kits containing said preparations to persons induced to visit. respondents’ clinics by said advertisements.” To the extent that this may hold that the respondents’ use of preparations in the course of treatments constituted sales of such preparations, we do not adopt. it. as a finding of the Commission. The record herein does not contain sufficient evidence to make a ruling on the question. Reference is made to the Commission's decision in the matter of Wydrant System Products Corporation, et al., docket No, 6472 (May 1958), which ease we set forth our views on this subject and included therein factors to be considered in any such determination. It is our further opinion that the order contained in the initial decision requires some modification, The prohibition concerning representations about. professional standing and traiming should be limited in its application to practices promoting the sale of preparations. Tu addition, the evidence and findings justify a requirement that. respondents reveal in their advertisements that the great majority of all cases of excessive hair fall and baldness are the beginning and more fully developed stages of male pattern baldness and that in such cases respondents’ preparations will be of no value. The order in the initial decision will be modified accordingly. The appeal of respondent Leo O. Johnson is denied. Commissioner Gwynne did not participate in the decision of this matter.

FINAL ORDER This case having come on for final consideration upon the record, including the appeal of the respondent Leo O. Johnson 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 : It és ordered, That the following order be, and it hereby is, substituted for the order contained in the initial decision : It is ordered, That Leo O. Johnson, an individual doing business as Johnson Hair & Scalp Clinic, and respondents Charles L. Anderson Order BA FTC.

and William G. Thompson, individually, 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, 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 U.S. mail, 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 said preparations, alone or in conjunction with any method or treatment, will: (a) Prevent. or overcome baldness or excessive hair loss, unless any such representation be expressly limited to cases other than those known as 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 said male pattern baldness and that in such cases respondents’ preparations will be of no value in preventing or overcoming baldness or excessive hair loss;

(b) Induce new hair to grow, cause the hair to become thicker ov otherwise grow hair, 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 said male pattern baldness and that in such cases respondents’ preparations will not induce the growth of hair or thicker hair: (ce) Permanently eliminate dandruff, itching or irritation of the scalp: and 2. Disseminating or causing to be disseminated by means of the U.S. mail, or by any means in commerce, as “commerce” is defined in the Federal Trade Commission Act, any advertisement. for the purpose of inducing, or which is likely to induce, directly or indirectly, the purchase of respondents’ preparations, which advertisement represents, directly or by implication, that. respondent Johnson is America’s foremost professional] authority, or one of America’s foremost professional authorities, on hair and scalp disorders, or that respondents, their agents, representatives or employees are trichologists or have had professional or competent. training in dermatology or other branches of medicine having to do with the diagnosis and treatment of scalp disorders affecting the hair.

JOHNSON HAIR & SCALP CLINIC 1753 1739 Order It is further ordered, That the complaint be, and it hereby is, dismissed without prejudice as to respondent Harry B. Hause. It is further ordered, 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.

It is further ordered, That the respondents shall, within sixty (60) days after service upon them of this order, file with the Commission a report, in writing, setting forth in detail the manner and form in which they have complied with the order to cease and desist. Commissioner Gwynne not participating.

Decision 04 F.T.C.