Ward Laboratories, Inc., et al.

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

IN THE MATTER OF WARD LABORATOllIES , r:,C., ET AL.

ORDER, ETC., IN REGARD TO THE ALLEGED VIOLATJOK O:F THE FEDERAL TRADE COMMISSJON ACT Docket GSV1. Compluint, Mu?/ 1955-Decisl, jl1ar. 4, 1959 Order requiring three associated New York City sellers to cease representing falsely in advertising that the common cause of baldness, or a significant one, is germ infection, and that use of their hair and scalp preparations would remedy sllch causes and remedy and prevent the common type of baldness, cause growth of new hair, and prevent excessive hair fall; and to cease representing falsely t.hat they owned or operated a laboratory, through use of the word "Laboratories " in their corporate names or otherwise.

Mm.ton Nesmith Esq. for the Commission.

T. Stanley Block Esq., oJ New York, N. for respondents. INITIAL DECISIO BY JAMES A. PUIICELL, HEARING EXAMINER Preliminary Statement The complaint in this matter, issued by the Federal Trade Commission on May 5 , 1955, charges the respondents named in the caption hereof, are engag"ed in the business of seIJing and distributing cos111etic and medicinal1 preparations in interstate commerce for external use in the treatment of conditions of the hair and scalp. The complaint cbarges specifically that the respondents, through the use and dissemination of false and misleading advertisements concerning their said preparations, for the purpose of inducing and \which were likely to induce the sale of said preparations to the public, falsely represented the eiIcacy of their said preparations as to their therapeutic effect for the prevention of baldness or partial baldness and that they will cause the growth of new hair and prev( nt excessive hair fall. It was further charged they represented that the common cause, or a significant cau, of ba1clness is due to germ infection and that use of their preparations will eflectively remedy and obviate the common or significant cause of baldness thus resulting in l1e\V hair growth and the prevention of excessive hair faci. Respondents Ward Laboratories, Inc., and Comatc Laboratories Inc., were i"urtber charged in said complaint with the false, mis- " in their Jeading and deceptive use oJ the word "laboratories Decision 55 F.

respective corporate names for the reason that said respondents do not o\\'n or operate a laboratory in connection with their said business.

On March 7, 1956, upon motion, the complaint was amended so as to allege the most common cause of baldness is not due to germ infection, as represented by respondents, but on the contrary is due to heredity, age and endocrine balance, such condition being commonly referred to as "male pattern baldness " and that the use of respondents' preparations wil not effect any of the claimed remedial actions preventing complete or partial baldness or excessive hair fall, nor will they cause the growth of new hair. Respondents' advertisements were further charged as false and misleading in that they failed to reveal facts material in the light of the representations made therein, such facts being that most cases of baldness or loss of hair is of a type known as "male pattern baldness" and when baldness is of this type respondents preparations are of no value in tbe treatment thereof. To the complaint, as amended, respondents filed their answer in which they admitted that their said preparations: Will not prevent ba1dne::s, will not cause the growing- of new hair and wil not prevent excessive hair fall, except where the aforesaid conditions arc caused by seborrhea.

In their original answer to the complaint prior to the amendment thereof, and reasserted in their answer to the complaint as amended, respondents set up, as an affrmative defense, that seborrhea is a significant or common cause of hair loss which may be controlled through use of respondents' preparations which latter would destroy the bacteria causing seborrhea and th effect the elimination of hair loss.

Upon the issues thus joined the matter proceeded to trial during the course of which testimony was received in support of and in opposition to, the charges of the complaint, aJl of which testimony has been reduced to writing, and, together with the evidence in the form of exhibits, has been duly filed in the offce cf the Commission in Washington, D. , as required by law. Proposed findings oJ fact and conclusions of law were submitted by aJl parties, oral argument thereon not baving been requested. Rulings on such findings and conclusions appear elsewhere of record, as required by law.

This matter being now before the hearing examiner for tinal determination based upon the record as an entirety, he having WARD LABORATORIES, INC., ET AL. 1339 1337 Decision presided at all hearings, observed all wit!,esses, considered and ruled upon all testimony and exhibits of record, finds that this proceeding is in the interest of tbe public and makes his findings as to the facts, conclusions of law based thereon, and order. During the course of the proceeding counsel representing all parties, being desirous of narrowing the issues and agreeing upon certain facts, thus obviating- the necessity of receiving testimony thereon, executed a stipulation reciting such agreed facts. The stipulation appears of record herein I as well also certain minor agreements entered into between counsel, which latter appear in the transcript of testimony. The advertising matter of respondents, forming the basis of this action and adverted to in the stipulation aforesaid, are likewise matters of record herein. The facts agreed upon, and those arrived at as a result of testimony and other evidence, are incorporated in the following: Findings as to the Facts 1. Respondent Ward Laboratories, Inc. , is a corporation organized, existing and doing business under and by virtue of the laws of the State of New York, with its offce and principal place of business located at J9 West 44th Street, New York, N. Respondents Emile E. Kling and .J oseph J. Seldin are individuals and president and secretary-treasurer, respectively, of Ward Laboratories, Inc. , with the same address as the said corporate respondent.

Respondent Comate Laboratories Inc. , and respondent Sebacin Inc., arc corporations, organized, existing and doing business under and by virtue of tbe laws of the State of New York, with their offces and principal place of business located at 20 West 45th Street, New York The individual respondents Emile E. Kling and J oscph J. eldin formulate and control the policies, acts and practices of the said three corporate respondents, including the acts and prac1ices hereinafter set forth.

2. The said respondents are nov\', and for more than two years last past have been, engaged in the business of selling and distributing cosmetic and medicinal preparations for external use in the treatment of conditions of the hair and scalp. Included among said preparations are (a) those sold by respondent Ward Laboratories, Jnc., under the following names: "Ward' s Formula 1 Com. E.xh. No. l.

2 Com. E.xh 3, 4 , 5 , 6, 7, and 8. Decision 55 F.

Medicine for the Scalp and Hair Ward' s Formula Medicinal Lubricant for Dry Scalp and Hair Ward' s Formula Medicinal Compound for Oily Scalp" and "Ward' s Formula Shampoo (b) tbose sold by respondent Comate Laboratories, Ine., under the following names: "Comate Yredicinal Scalp Formula Cornate IVfedicinal Emulsion Comate Scalp CondHioner/' " Comate Dry Scalp Shampoo " and "Comate Oily Scalp Shampoo; and (c) those sold by respondent Sebacin, Inc., under the following names: Sebacin Rasic Formula Sebacin Antiseptic Lubricant" and Sebacin Shampoo. " Said respondents cause said preparations \vhen sold, to be transported from their places of business in the State of Xew York to purchasers thereof located in the State of New York and various other States of the United States and in the District of Columbia. Said respondents maintain, and at all times mentioned herein have maintained, a substantial course of trade in said preparations behveen and among the various States of the United States and the District of Columbia. The preparations sold under the names of "Ward' s Formula Medicine for the Scalp and Hair Comate Medicinal Scalp and Hair Formula " and "Sebacin Basic Formula" are substantially the same product. The active ingredients for said proctuets are: Beta Napthol (or B- Hydroxynaptholene), Cinnamic Acid, Sodium Sulfocarbolate (or Phenolsulfonate), Alcobol 371;1% by volume. The preparations sold under the name of "Ward Formula Medicinal Lubricant for Dry Scalp and Hair Comate Medicinal Emulsion " and "Sebacin Antiseptic Lubricant" are substantially the same product. The active ingredients for said product are: Chloral Hydrate 27')c Sodium Phenolsulfonate (or Sulfocarbolate), Resorcinol Monoacetate, Sulfonated Castor Oil. The preparations sold under the names of "Ward' s Formula Medicinal Compound for Oily Scalp " and "Comate Scalp Conditioner" are substantially the same product. The active ingredients for said products are: Oxyquinoline Sulfate, Salicylic Acid l\entbol, Glycerine, Alcohol 84 'Ice by volume. The preparations sold under the names of "\'Yard' s Formula Shampoo Comate Dry Scalp Shampoo Comate Oily Scalp Shampoo " and "Sebacin Shampoo " are substantially the same product consisting of liquid soap.

Ward' s Formula Medicine for the Scali' and Hair Comate :\1medicinal Scalp and Hair Formula" and "Sebacin Baf-ic Formula contain the same or similar active ingredients, the "'.Vard Formula" botte containing 5 oz. , the " Comate Formula" botte con- WARD LABORATORIES, INC., ET AL. 1341 1337 Decision taining 12 oz., and tbe "Sebacin Formula" bottle containing 16 oz. as part of a Sebacin package deal consisting of the formula shampoo and antiseptic lubricant.

That "Ward' s Formula Medicinal Lubricant Comate Medicinal Emulsion " and " Sebacin Antiseptic Lubricant" contain the same or similar active ingredients. "Sebacin Antiseptic Lubricant" and " Comate lVIedicinal Emulsion " contain more expensive perfume.

That "Ward' s Formula Shampoo Comate Dry Scalp Shampoo Comate Oily Scalp Shampoo " and "Sebacin Shampoo" contain different ingre(clients, all being classified in the general category of liquid soap.

3. In the course and conduct of their aforesaid business, the respondents have dissen1inated and have caused the dissemination of advertisements concerning said preparations by the United States mails and by various other means in commerce, as "commerce" is defined in the Federal Trade Commission Act, for the directlypurpose of inducing, and which were likely to induce, or indirectly, t.he purchase of said preparations; and respondents have also disseminated and have caused the dissemination of advertisements concerning said preparations, by various means, for tbe purpose of inducing, and which were likely to induce, direcUy , asor indirectly, the purchase of said preparations in commerce commerce" is defined in the Federal Trade Commission Act. Among and typical of the statements and representations contained in said advertisements, in periodicals, leaflets, circulars pamphlets and other advertising literature, disseminated and caused to be disseminated as hereinabove set forth are the following:

(a) Ward's Formula advertising:

SAVE YOUR HAIR Millions of trouble-breeding bacteria, living' on your sick scalp (see above) are killed on contact. Ward's Formula kills not one, but all four types of these destructive scalp germs now recognized by many medical authorities a significant cause of baldness. Kill these germs-don t risk letiing them kill your hair gTo\vth.

Once you re bald, that' s it, frienns! There s nothing yO\1 ran do. Your hail' is gone forever. So arc your chances of getting it back. But Ward' s Formula used as directed, keeps yom- sick scalp free of itchy dandruff, seborrhea, and stops the hair loss they cause. Almost at once your hair looks thicker, more attractive and alive.

...

Decision 55 F.

(b) Comate Formula advertising:

NOW! The Amazing Facts about BALDNESS AND WHAT YOU CAN DO ABOUT IT WARNING: The following facts arc brought to the attention of the public because of a widespread belief that nothing can be done about hair loss. This belief has no basis in medical fact. Worse, it has condemned many men and women to needless baldness by their neglect to treat certain accepted causes of hail' loss.

There are six principal types of hair loss, or alopecia, as it is known in medical terms:

1. Alopecia from diseases of the scalp 2. Alupecia from other diseases or from an improper functioning of the body 3. Alopceia of the aged (senile baldness) 4. Alopecia areata (loss of hair in patches) 5. Alopecia of the young (premature baldness) (j, Alopecia at birth (congenital baldness) Senile, premature and congenital alopecia cannot be helped by anything- now Jmown to modern science. Alopecia from improper functioning of the body requires the adv;ce and treatment of your family physician. HUT MA:-Y MEDICAL AUTHORITIES NOW BELIEVE A SPECIFIC SCALP DISEASE IS THE MOST COMMON CAUSE OF HAIR LOSS. (c) Sebacin Formula advertising:

KEW MEDICAL EVIDE:-CE SHOWS HAm CAN BE SAVED! MEDICAL AUTHORITIES BLAME GERM INFECTIONS FOR COMMON BALDNESS Washington, D. C. New hope was offered to men and \-'lomen suffering from the age-old problem of baldness, in recent testimony here by leading nermatoJogists.

, This impressive testimony by competent medical doctors now made public for the first time offers renewed hope for the treatment of sick scalps and the prevention of baldness. It was further stipulated' between counsel: In the coui"se and conduct of their business, respondents Ward Laboratories Inc. , and Comate Laboratories, Inc., used the word "laboratories " in their corporation names in soliciting the sale of and selling their said preparations. In truth and in fact respondents do not own or operate a laboratory in connection with their said business.

The stipulated facts appearing in numbered paragraphs one to four, next preceding, are hereby found as facts for the purposes of this decision. The remaining facts necessary to be found under the issues framed, being predicated of scientific or medical testi- 3Tr. 15. 16.

j;, WARD LABORATORIES, INC., ET AL. 1343 1337 Decision mony, are arrived at as a result of the evaluation of testimony produced by the parties in support of their respective positions. 5. It is found, as a fact, that from a reading of the various advertisements published and circulated by respondents of and concerning their various products, aJl as hereinabove set forth respondents have represented, directly and by implication, that the common cause, or a significant cause, of baldness is due to germ infection and that the use of their preparations wil (a) remedy the common cause, or a significant cause, of baldness; (b) remedy the common type of baldness; (e) prevent baldness or partial baldness; (d) cause the growth of new hair, and (e) prevent excessive hair faJl; that this finding is made upon analysis, evaluation and reasonable construction of the overall tenor and effect of said representations and the construction which would be placed thereon by the average reader, meaning thereby those members of the consuming public who would, or might, be misled thereby, and while there is no testimony as to public acceptance or interpretation of the said advertisements none such is necessary, it being the especial province of this Commission to avail of its expertise herein ua sponte without the necessity of supporting- testimony, and this has been consistently held to be an attribute of quasi-judicial and expert bodies such as this Commission.

6. It is further found as a fact that said advertisements are misleading in material respects and constitute false advertisements in that, contrary to fact, they represent that the common cause, or a significant cal:se, of baldness is due to germ infection. In truth and in fact the most common cause of baldness is due to heredity, age and endocrine balance, commonly referred to as male pattern baldness; that this type of baldness constitutes 95 of all cases of baldness and regardless of the exact formula or the combination of the ingredients or preparations, or the methodor of application of respondents' preparaUons, such will not remedy or cure the common cause, or a significant cause, of baldneBs; will not remedy or cure the common type of baldness; will not prevent baldness or partial baldness; wil not cause the g-rowth of new hair; and wiJ not prevent excessive hair fall. This examiner lays no claim to any spedal competence in the scientific fields of dermatology, trichology, endocrinology, bacteriology, pharmacology, cosmetology, physiology, cbemistry and anatomy, all of which are touched upon in this proceeding, and Decision 55 F. T.

has had to be content with the testimony and conclusions set forth by the experts. There is no lay testimony. In other words the examiner has acted as the finder of the facts portrayed and has carefully adhered to his special province in marshaling the evidence and making bis findings and conclusions based thereon. In order that tbe findings may be shown to be based upon demonstrable facts, reasonably arrived at, and to negate any thought that there has been an arbitrary selection of one segment of scientific thought over another, the ability so to do by this examiner being subject to cha1Jenge because of Jack of scientific competence, and further in order to support the specific finding of fact, which is now here made, that there is no controlling divergency of expert opinion in the instant matter, a review of the salient testimony a-nd evidence forming the predicate of these findings is in order.

In arriving at a final determination the examiner has not only been persuaded by his personal observation of the respective witnesses \vhiJe testifying, as ,veil also the testimony itself as it appears in the printed transcript, but also has taken into consideration as determinative and persuasive factors, the professional backgrounds, education and experience of the respective witnesses. This being so it is felt that the last mentioned quaJifications of the individual witnesses should be stated and accordingly sllch are succinctly set forth and incorporated herein as "l'vlargjnal Note No. " immediately following these findings of fact, sllch note embracing pages 23 to 27 hereof. In dealing with testimony the names of vvitnesses have been used in order that the testimony may be related to the particular witness and, by reference to the l\Iarginal Note, his competency to express his opinions may be evaluated.

The Testimony Dr. Howa.nl T. Beh'/iiwn a ,vitness called by the Commission testified to his qualifications as an expert, such qualincations appearing in detail in IVlarginall\ote No. , hereinbefore referred to. After qualification the witness was examined on the voin: dire upon the conclusion of ,,,which counsel for respondents expressed himself satisfied with ihe competency of the witness. The ,vitncss testified that his specialty in the practice of medicine is confined to dermatology which concerns itself primarily with the diagnosis and treatment of the skin, both in health and in disease, and this includes the hair and scalp; that the matter WARD LABORATORIES, INC., ET AL. 1345 1337 Decision of diminished hair growth, excessive hair loss, baldness, dandruff itching and irritation of the scalp are all witbin the same field of witness' specialty and he is familiar with all of these eonchtions, having devoted bimself since 1939 to the practice of dermatology to the exclusion of the other branches of medicine; that be has averaged between 50 and J 00 patients a day for some years past in his private practice, exclusive of hospital work and clinics, and that between 25 and 50 percent of that. number were cases involving hair and scalp disorders. The subject of baldness, known to the profession as alopecia may be divided into two main groups, the first thereof to include all cases of congenital baldness, being baldness at birth or associated with congenital disturbances of some type. The second cat.egory would be acquired baldness or the type that occurs su bsequent to birth. This latter may in turn be separated into two main groups, that is, the group associated with scarring as well as baldness, and the other group being unassociated with scarring. Both of these major sub-groups may be further subdivided into the local and t.he systemic forms of baldness. Under' the local form may be found baldness due to various physical agents, such as heat, X-ray, atomic radiation, and chemical action or substances of that type, as well also virus ancl fungi of different types. The remaining subdivision in this category forms the clc- major and most important type of baldness which may be o scribed as "just plain ordinary baldness of the garden variety type" which is referred to as the male pattern baldness. The baldness caused by systemic reasons, such as syphilis, high fevers endocrine disturbances and things of that nature are not here considered because we are not concerned iherewith under the issues at trial in this matter. Witness testified that: "When we speak of baldness, the disease, what we primarily talk about is ordinary male pattern ba1rlness, common baldness; that this particular type of baldness constitutes at least 95 percent or more of an cases of baldness ami that all of the other types of baldness above described, come '\'thin the remaining 5 percent; that germ infection is not the cause of common baldness, otherwise known as the "male pattern type " nor is the matter of germ infection a significant cause of baldness.

vVitncss thereupon undertook to describe the causes leading up to baldness of the male pattern type ami said that it is his opinion, and there is "more or less" universal agrecment among Decision 55 F. T.

dermatologists, endocrinologists, anatomists and the jike on the subject that such is due to three things: 1. Heredity. In other words, certain racial groups, strains and familit.ies have a tendency toward this type of baldness; 2. H oTmanal balance. other words, the relationship between the circulating hormones primarily the male and female sex hormones; that it is known where an imbalance or preponderance of male, in contradistinction to Jemale, hormones is encountered, we generally fmd baldness, \which is the reason the disease is so named, it being primadly prevalent among men rather than yvomen; 3. Age. other words, with age there is a certain amount of hair loss which is gradual and occurs as time passes on. The witness is familiar with the llse, application and action of al1 of the ingredients used by respondents in the manufacture of their various preparations and, in fact, has used most of them in his practice; that he is of opinion there is no foundation for respondents' assertions concerning the effcacy of any of these ingredients, either singly or in combination, for the treatment and condition or cure of baldness of the common or male pattern type, nor would use of respondents' preparations remedy the common cause of baldness; that the said preparations will not cure or remedy a significant cause of baldness, nor remedy the common type of baldness, nor wil said preparations, in this vast majority of cases, prevent baldness or partial baldness, and likewise, such preparations will not cause nor facilitate the growth of new hair.

From the foregoing it \\Til be seen that this witness attributes 95 percent oJ all cases oJ baldness to the common or "male pattern " type. As to the remaining 5 percent witness said t.these cases could be attributed to several hundred causative Jactors but was of the firm opinion that adequate treatment thereof could only be devised and administered after full clinical examination and laboratory study of individual cases; that it is possible in certain instances in this percentage category some of respondents ' preparations might be of value, while in other instances they might, and possibly could, aggravate and worsen the conclition. On this line considerable testimony \\' as had \which is not here dealt with for the reason we are primarily concerned, under the issues herein, with that great body oJ cases of baldness comprising 95 percent plus and as to this percentage category respondents' preparations will have no effect in promoting hair restoration, hair growth, prevent falling hair or in any other WARD LABOHATORmS, INC., ET AL. 1347 1337 Dccision wise fulfilling the representations of respondents as disclosed in their advertisements.

Dr. 11 erbeTt Rattne? a witness called at the instance of tbe Commission, whose professional qualifications are set set forth in the Marginal Note No. 1 hereinbefore referred to, testified that he is engaged exclusively in the practice of dermatology ,,,hieh is that branch of medicine having to do with the care of the skin and its appendages, the latter being the nails, bail', and the adjacent mucous membrane; that from tbe time he began to specialize in dermatology, in the year 1927 , be has treated many cases of diminished hair gro\vth, excessive hair loss, ba1r1ness dandruff, itching and irritation of the scalp, al1 of such being \within his particular field; that the \Vitness sees and attends individuals with the foregoing ailments practically every working day.

Witness testified that ordinarily, when tbe term "baldness is used, it is taken to mean the "common garden variety " or male pallern type" of baldness; that there are differc,nt types and causes of baldness other than the male pattern type \which are roughly subdivided into "patchy " and " diffuse baIrIness " and the one "'with \which we arc principally here concerned is in the latter category; ihe patchy type of baldness can be due io several causes, some related to disease-alopecia areata, syphilis, pupus erythematous, folliculitis dcca1vans, (which latter is probably due to a germ) , ring\vorm in children and instances of this type. Then there is diffuse baldness, the male pattern type, the cause of which is not known but according to the witness it is "pretty evident" that such is due to endocrine imbalance which is inherited. Also in tde diffuse baldness cat gory this type appears at times fol1moving high fever, or the taking of certain drugs, or after the skin of the scalp has been inflamed by chemicals, but in these Jast mentioned instances the bald condition is temporary in nature and the h "ir recurs but this is not true of the male pattern baldness. witness gave as his opinion that the proportion of bald-headed people, or semi-bald people, which would come under the heading of the male pattern type in men is very close to 100 percent, and ,vas very positive in his statement reiterating that at least 99 percent or " very close to 100 percent" belong in the male pattern type and that all other patterns or varieties of baldness, other than the male pattern type, would be encompassed within one percent. \\Then speaking of these percentages Decision 55 F.

the witness was not influenced by the fact that baldncss occurs sometimes with women, but only very infrequently and would not change his opinion as above expressed; that some women "Tho are under' treatment for certain types of cancer receive the male sex hormones as part of the treatment as a result of which they may become bald as long as they are taking the medicine that is to say, the male sex hormone, and this is but another evidence of the reason why this widely prevalent condition of baldness is denominated "the male pattern type. Heferring to seborrhea as a causative factor of the maJe pattern type of baldness, as represented in respondents' advertisements the ,:vitness denies that such is a causative agent; that he has seen many patients with seborrhea ,\'ho arc not bald and, referring to himself as an example, testified: "J have a Jot of seborrhea where I have hair. Where I have a few hairs I still have scborrhea dermatitis; I do not lhave scborrheaJ wbere I am bald" ; that seborrhea and baldness are frequenlly associated, but not causatively, that is to say, many men who are bald also have seborrhea and many who are bald do not have seborrhea, and also many people who have seborrhea are not bald. The witness has never in his experience seen any instances in \which scalp germ infections \were the causative agent in the loss of hair in ihe common male pattern type of baldness; that germs may be the causative agent in certain types of patchy baldness but never in the common maJe pattern type; that these instances of patchy type of baldne s would fall within the one percent previously alluded to by the witness.

Having had read to him a list of aji of the ingreclients comprised in the makeup of the everctl prep(1.r ltions of respondents here involved, the witne s said that he is familiar with many of them and in fact had used the same or similar ingredients in his practice and those which he h::H1 not so used he har! "looked " and yvas prepared to testify io the effects which could be expected frum their l1sag-€; that substantially all of theingredients are mild antiseptics, except meuthol which is used for its cooling effect, \""which are much like an after-shave lotion, and alcohol which has the effect of drying the Iudr; that glycerin and castor oil are simply vehicles and the various combinations of respondents are (letiignec1 to be mild antiseptics, to (1is::olve dandruff and ;'furnish a little hair clressing. The \Vitness was positive in hi,,, statement that none of the ingredients as listed, whether singly or in combination, wou1c1 WARD LABORATORIES , INC., ET AL. 1349 1337 Decision have any synergistic or additive effect the result of which in bis opinion would cure baldness or stop fallng hair, and in fact would have no effect whatsoever on common baldness of the male pattern type. He further testified that tbe use of respondents preparations wil not cause the growth of new hair; wil not prevent excessive bail' fa1! and wil not remedy any significant cause of common baldness.

Upon having read to him various of the respondents' advertisements sllch as:

l\JiJJions of trouble-breeding bacteria, living' on your sick scalp are ki1ed on contact. Ward' s Formula kills not one, but all four types of these destructive scalp germs now recognized by many medical authorities as a significant cause of baldness 'I' The witness gave as his expert opinion that said statement was false and misleading and not substantiated by his own experience or by any competent authorities within his field who are knmvn to the witness. The witness "vas equally positive in testifying concerning several of the other advertisements of the respondents and his criticisll1 ,vas based upon the same reasoning; that senile and premature and congenital baldness cannot be helped by anything known to medical science and that the loss of hail' or baldness due to scalp germs and infection are exceedingly rare and Jurther that the male pattern type of baldness has no relation \whatsoever to destructive scalp germs or infection. D,. Albert M. Kligman a rebuttal witness called by the Commission and whose qu::l1ifications appear herein in :Marginal Note No. 1. Upon conclusion of his qualification as an expert, respondents' counsel volunteered the statement: ::ay I state that I concede the qualifications ot. the doctor? The witness thereupon testified that his medical specialty is dermatology which is the study of the skin and its principal appendages, the hair and the nails; originally the witness was interested with mycrological investigation of fungus infection but in the past four or five years has paid particular attention to the stully of the hair, particular'y those studies relating to its anatomy and the physiology of hair growth. The witness has read the testimony of respondents' witnesses in this case. RefelTing to the testimony of respondents' witness Traub, he did not agree with the latter s finding as to the percentages of aJl causes of baldness and that, contrary to such testimony, said that considerably less than one-tenth of one percent of all of Decision 55 F.

the causes of baldness, in the opinion of the witness, is caused by infection; that there are many causes of baldness ranging over a great number of diseases in general, from constitutional and bereditary defects; mechanical causes such as the pulling of the hair; physical causes such as radiation and burns; chemical causes such as toxins, external or internal; allergy causes such as a drug reaction; psychosomatic causes involving emotional problems of the individual; infectious causes due to virus, bacteria fungi and the like, so that tbe cause of baldness is as wide as the subject of dermatology itself; that in his opinion the most " baldness, whicbcommon type of baldness is the "male pattern type he estimates to constitute 99 percent of all cases of baldness, and in fact is "very close to, and could be, 100 percent." According to tbe witness tbe male pattern type of baldness is an hereditary disorder, one which bas to be born with the genes that predispose toward its development, and when it emerges as a clinical symptom it is accompanied by the presence of other factors, such as age; coupled with the foregoing is the consideration of the endocrine and hormonal status of the individual; that this type of baldness does not appear until an individual has gone through his adolescence because baldness of this type requires the pre:;cnce of male hormone; that those \\'ho are castrate and genetically immature do not develop baldness; in addition there is a third condition which has to do with sex because this disease appears principally in males, but not exclusively; the male pattern type of baldncss may occasionally appear in females wbo inherit a double dose of these genes from both sides of the family, but this is rare.

Upon being asked if infection is a cause of the male pattern ; that type baldness the witness answered; " Emphatically no seborrhea is not a cause of the male pattern baldness, nor is the condition known as seborrhea dermatitis a causative agent; that in unusual cases certain types of bacterial diseases and some loss of hair but types of fungus diseases may contribute to the this loss is in no '.vay analogous to that which ensues in the male pattern type. The process of balding in the male pattern category takes place wholly independently of any infection of the hair roots and is not a consequence of inflammation due to skin irritation or infection; that the two conditions are markedly different because in instances of bacterial infection such would not be localized to a particular area and would show no definite pattern in the areas and have no characteristic way of developing but, WARD LABORATORIES, INC., ET AL. 1351 1337 Decision where it did make itself evident, would be characterized by exudation, by swelling, and usually crusting, pain and tenderness and an upheaval in the tissue, as a consequence of whicb the hair would be thrown off; that such described localized conditions are not prevalent in the male pattern baldness and have no physiological or other connection therewith. \Vhen respondents' witness Lewis was on the stand, there was introduced through him Respondents' Exhibit No. , being a brochure titled " Dandruff and Seborrbea" by McKee and Lewis published April 1938. The record shows that author McKee is deceased and coauthor Lewis is the same Dr. George M. Lewis who testified for the respondents. Under the accepted rule that tbe writings of an expert may not, ordinarily, be used to support his testimony as an expert witness, no weight is accorded this exhibit by the examiner wbo bas preferred to consider only the oral testimony of the witness as given on the stand. However the respondents, obviously laying store in the comments and summary contained in said brochure, this witness was asked to comment on said exhibit from a technical standpoint in which comments the witness said that he is familiar with the contents of the paper and that its g-general purport is to support the major finding of the authors to the efIee! that certain types of organisms tended to be associated with baldness which the witness declared to be an obsolete idea; that tbe experiments described in the paper were not carried out completely from a scientific standpoint in that it does not involve quantitative techniques, nor does it estimate the number of organisms which were isolated from the scalp during the experiments; that it is a rather "crude work" and not modern (1938); that the organisms recovered were not specifically designated by their scientific terminologies and as an instance tbe witness pointed out that tbe authors found "increased infections of scurf staphyloccus on the surface of the scalp," vvhich statement has no scientific basis for existence and that is not the manner in which experts designate organisms; that the \I.'ork is wholly insuffcient to aflord any basis in fact or significant information bearing upon the subject that any specific type of bacteria is associated with male type of baldness; that, so far as witness kno\vs, no one has clearly demonstrated that the microflora, (the bacteria flora), of the scalp of people with baldness is in any manner difierent than that of normal people; that the witness himself is well versed in the bac- Decision 55 F.

teriological field and teaches a course in bacteriology of the skin; specifically referring to the various catcgories of the staphylococcus, germs or substances as found on the scalps of the experimentees, referred to on page 136 of the aforesaid Respondents Exhibit l\ o. 5, the witness said that all of these are normal organisms which can be found upon sampling any population of men and that such are not indicative of, nor can they be related to, the male pattern baldness.

Further examination of the ,,,itness went into extensive technical discussions and explanations for the opinions and conclusions he has expressed-such as microscopical examination of biopsies of the skin and hair ;"1 microscopical examinations of scalp scale culture, fungus, bacteria and micro-organisms; tbe effect, (in producing baldness), of the maJe chTomosomes and genes in the hereditary apparatus, and other testimony not necessary to be here review\ved hut a reading- of which serves to convince and render comprehensible to the lay mind the scientific hases for the reasonableness and truth of the testimony of this witness. Also extensive examination, both on direct and cross, was had of this witness which explored the subject of seborrhea dermatitis and its nonefIect in producing the male pattern type of baldness. No attempt is here made to relate or review any therapeutic effect of respondents' medicaments in this insignificant percentage of ca es. such constituting less than one-half of one percent, as opposed to the overwhelming percentage oJ cases of the male pattern type.

Dr. Pete? Flesch a witness called by the Commission in rebuttal, and whose qualifications are listed in Marginal Note No. 1 aforesaid, testified that he is a research physician in tbe fields of chemistry and (he physiology of the skin, specializing in certain aspects thereof such as the pigmentation of tbe skin, keratinization, hair growth and the development of new methods of research. After qualification of the witness by Commission counsel as an expert and examination 011 the voir dire by respondents counsel, the latter announced: "1 have no objections io the qualjfications of the \vitness.

This witness is the same person who conducted certain ex peri- ITlents and propounded certain theories upon which respondents \vitness, Dr. Traub, placed much reliance in his testimony and the general purport of the testimony of this witness, Flescb, is to 4 St!" testimony affectinl' Commission s Exhibit No. 14 which is a srhem&tic uncwir.g. made under the supervi ion of the witness, of a normal bair and ib sUr!ounuing tissllte. WARD LABORATORIES, IKC., ET AI, 1353 1337 Decision tbe eiTect that Traub had misinterpreted the results of the tests and experiments which Flesch had conducted and, based thereon , which were only theories, andhe had postulated certain theories which the witness Traub had construed to be definitive results which could be accepted as explanatory of the causative reason gist of this witness ' testi-for baldness in human beings. The mony is as follows: Witness had read and is familiar with the testimony heretofore given in this case by a1l of respondents witnesses and particularly with that of tbe witness Traub; that Traub was in error in making the following statements: I think the chemical evidence we now have from Flesch on this squalene and other fatty acids that are produced in excessive oily conditions of the scalp may be the thing that is important, is the important one in bringing about hair loss.

and further:

The only person who has done any extensive work (on this subject) has been Flesch, and his work nas been that of animals, but he definitively proved that rubbing-of this material in the skin of the animal, experimental animal produced a hair loss and alopecia, and jf that is the case, that max be the explanation of all of this type of common baldness. Witness said that his experiments could not be correctly interpreted to the cited that baldness, either in human or lower animals, is commonly caused by infection or that it is commonly caused by sebum or seborrhea; that his sturlies and experiments have failed to develop that there is anything commonly prescnt on the hair or the scalp, such as seborrhea, squalene and fatty acids, or any infection which explains the existence or the causation of the common type of baldness or which explains " \vhy one person gets baJd and the other fellow doesn; that be knows of no substance or factor of tbe human scalp or bail' whicb may be removed and thus change in any \vay, either by retardation postponement or the overcoming of the common type of baldness and that anyone who so interprets his experiments as so indicative is in error.

Tbe respondents offered testimony to thc following cited: Dr. Eugene F. TTr.LlV ,,,hose qualifications are set forth Marginal Kate No. J above referred to, a witness on behalf of tbe respondents, has specialized in the practice of dermatology for 86 years; that he has read and is familiar with the testimony of tbe witnesses on behalf of the charges of the complaint and fixes at approximately 90 to 95 percent the incidence of the infectious or so-called premature-senile-hereditary types of baJd- , Decision 55 F.

ness, although he did not undertake to separate or break down the percentages in the various subtypes; he discounts the hereditary factors, upon which Commission s witnesses laid great stress, by observing that he does not believe (aJnybody at the present time knows what 'hereditary factors' mean; he discounts the endocrine factor or theory, advocated by Commission witnesses, as causative of, or influencing, baldness because: " (jJ ust how much stress one can put on tbe different types of hormones that comprise the endocrine chain is hard to say, " but in evaluating the causes of many types of baldness, and contrary to the expressed opinions of Commission s witnesses, he places stress upon dandruff, seborroid dermatitis, pityriasis capitis and germicidal infections as significant causative factors; it is his testmany that loss of hair is attributable to large measure to germ infections which are present on the scalp and, especially so, in the presence of dandruff of the two types mentioned. A portion of this witness' direct testimony partook of baving read to him certain responses to questions and opinions expressed by Commission s witnesses, the net result of his answers tending to show that be was not in agreement with many of the opinions of Commission s witnesses, viz: That in his opinion, seborrhea particularly of the fatty type, is a causative factor of the male pattern baldness, although he was frank to say that there is no complete agreement among dermatologists that his opinion in this behalf reflects the consensus on this su bj ect; that he is of the opinion that germ infection is a significant cause of baldness which opinion he bases upon his clinical and medical practice as well also upon the work of those who are engaged in the field of scientific research on hair, as also the textbooks and pamphlets on thc subject, but did not cite any authoritative work in support thereof. Tbe witness further testified that in determining proper treatment for a bald condition it is essential to appraisc the individual case in order to properly diagnose and prescribe and that this is desirable, not only at the outset, but that continued supervision is important in order to determine what, if any, remedial progress is being effected; that in his practice be has made use of a "host" of local remedies, mostly of the mild antiseptic type which, coupled with their germicidal effects plus the attendant massaging of the scalp in their physical application the latter having a tendency to reduce skin tightness and tenseness thus improving circulation, contributing to a beneficient \ y WARD LABORATORIES, INC., ET AL. 1355 1337 Decision result in avoiding excessive hair failure. Specifically advertising to respondents' preparations, with which he testified he was familiar, both as to their composition and effect in use, witness classified all of them as "mild antiseptics" which, if used, would have a tendency to destroy the infection and as a result "improve the scalp situation." The witness was very frank in saying that as to baldness of tbe bereditary factor type: There isn t anything' to do about the endocrine factor so we arc left with the local management where we hope to achieve some result and, by the local treatment, of course use various preparations on the scalp. Upon being asked:

Q. Does that mean, doctor, that -you are relegated to the infectious type exclusively, for any remedial action? A. That's what it boils itself down to, sir. Q. Is that the way you \vish to express it? A. I think that' s about it.

Dr. Gem.ge M. Lewi" a witness for respondent, testified that he is a practicing physician specializing in dermatology and has devoted extensive study to the hair and scalp. His curTic1tlu?n vitae is delineated in Marginal Note No. J aforementioned. Testifying concerning the various groups into which baldness may be categorized, witness gave the most common and largest to be that of alopecia prematura or the "ordinary type of baldness referred to in this proceeding as the "male pattern type, " saying that such group comprises from 90 to 95 percent of thc bulk of all loss of bail' , thus agreeing in this connection with the testimony of thc witnesses on behalf of the complaint. Witness places a1l other categories of baldness in the rcmaining 5 to 10 percent. However, from this point forward, in differing with the expressions of opinions by Commission s viTitnesses, this witness said that in tbe 95 percent group aforesaid the condition of pityriasis capitis and seborrhea dermatitis " are very important components of this disease syndrome " (otherwise baldnessJ, and then goes on to give a description of the several types of dandruff referred to and his theories of their causative importance in hair loss, basing his opinion on clinical experience and his contacts with his professional colleagues ano men with whom he has worked on this subject. Much of tbe testimony of the witness was given over to his methods of treatment of pityriasis capitis and seborrhea dermatitis which testimony is not here reviewed because, contrary to the views expressed by this witness on their causative importance, these views are considered to be at irre- 1356 FEDERAL TRADE COMMISSION DECISIO Decision 55 F.

concilable variance with the views on the identical subject expressed by Commission s witnesses, to wit, that these morbid conditions of the scalp arc not significant causes of hair loss in the male pattern type with which ,ve are here primarily concerned. The witness is familiar \with the component ingredients and recommended usage of the products of respondents, as hereinbefore described, has used the same or similar products in his own practice and summarizes their effects under two different actions (1) antisepsis and (2), stimulation, i.e. the agitation or manipulation of the scalp in the form of massage upon application of the product thereto. Of the two he believes the former is the more important in its action on the flora of the scalp and that the effect would be to diminish or eliminate the scaling or dandruff and in time to decrease the loss of hair. \Vitness gave as his opinion that in the insipient stages of the male pattern type of baldness he has "convinced himself" that local treatment is effective in preventing further loss of hair, but that once the hair fails out it is a complete loss. In the matter of self-diagnosis and self-treatment for hair loss by a sufferer, the witness is of opinion that particularized treatment is much more to be desired than the use of a generalized remedy which is claimed to be applicable to any and all conditions of hair loss and is of opinion that it would be better to consult a doctor than to attempt self-treatment with a universal formula.

vVithout in anywise intending to impugn the honest.y ane! rectitude, or to disp,llage the professional opinions of the preceding two witnesses as above epitomized, it is found, as a fact, that the views expressed are so at variance with the testimony of the Commission s wit.nesseEi, (to \which latter the examiner ascribes the greater weight), that he tine1s it impossible to attempt to reconcile the same and to accept the verity thereof in preference to the opinions expressed to the contrary. Dr. Louis C. Barail a \vitness called by the respondents, is a consulting biochemist and toxicologist. Through this witness the respondent unsuccessfully attempted to show the germicidal efficacy of the respondents' product, known as " 1ATarcl's Formula," in certain tests which were conducted by the witne=,s some six or seven years prior to the time of testifying, the witness being then an employee of the l:united States Testing Company. The obvious intent was an attempt to show that the product named as well also other products of the respondents here in issue, vv ere effcacious in the control of the various forms of dandruff and WARD LABORATORIES, INC., ET AL. 1357 1337 Decision scalp flora, thus tending to substantiate respondent' s representations concerning their products, provided the defense theory prevailed, that dandruff and germs are significant causes of hair loss, especially in the male pattern type of baldness. At tbe time of the making of the tests attempted to be proved, tbe witness had no personal knowledge of the correct chemical formulae of the products, either quantitatively or qualitatively; was unable to produce his laboratory notes concerning ihe experiments, the results of whicb be attempted to give, and his report based upon those experiments, upon being tendered in evidence was refused. No further attempt was made by respondents to avail themselves of the testimony of this witness wherefore his testimony is disregarded as having no \veight vvhatever in aid of a determination of the issues here involved. :\arginal Note No. 1 (Referred to on Pages 12 to 22) In support of the alleg-ations of the complaint the Commission called four witnesses, three of whom are practicing physicians in New York City, Chicago and Philadelphia, and the fourth a licensed physician in Hungary engaging in research specializing in dermatology. All of these witnesses are actively engaged in the field of dermatology and their respective qualifications are given as follows:

Dr. flour:anZ T. Behrman whose curriculum vitae appears of record as Commission s Exhibit No. , is a practicing physician specializing in dermatology in the city of Ne\\T York; an A. from the t:university of Pennsylvania, M.D. New York t:university College of Medicine; Research Fellow, University of Pennsylvania; internship, Beth Israel Hospital, New York City; gTadLlate study three-year special postgraduate course in dermatology at Bellevue Hospital in New York University College of Medicine; special training in the physics of dermatologic radio therapy and also in mycology, New York Skin and Cancer Hospital and Mount Sinai Hospital, K ew York; Fellow of the American Academy of Dermatology; American IVTedical Association; American Academy of Compensation lVIedicine and American Academy of Science; Fe1Jow in Dermatology, XC\V York Academy of l\1edicine; Diplomate, American Board of Dermatologists; member of the Committee on Cosmetics, American )1medical Association; Ne\v York County Medical Society; Eastern Medica! Society; :\letropolitan Medical Society; i\ ew York Physicians Medical Society; author of approximately 100 scientific articles on skin diseases; 1358 FEDERAL TRADE CO"IMISSION DECISIONS Decision 55 F.

coauthor of four books, one dealing with hair, one with skin, one on "Cutaneous :\1anifestations of Internal Disease" and a text on "The Scalp in Health and Disease; author of the chapters on skin and hair in "The Home Medical Advisor " by Dr. Morris Fishbein, and in Davis' Series on Medicine. This witness bas been actively engaged in the field of dermatology since completing bis internsbip in 1939 and is now so engaged. D1' IIeTbe1. t Rattne?" a practicing physician in the city of Chicago, Il., specializing in dermatology and whose curriculum vitae is of record berein as Commission s Exhibit No. 9 (A-B), as well also his bibliography consisting of some 54 articles and 7 books, all on the subj ect of dermatology or closely alled therewith. Witness received his M. D. in 1926 from Northwestern Medical School. At the time of testifying be was chairman. of the Seetion of Dermatology of the American Medical Association (1956-1957) ; since the year 1927, and currently, is exclusively engaged in the practice of dermatology; a diplomate of tbe American Board of Dermatology and Sypbilology; historian oJ the American Dermatological Assodation; member of the American Academy oJ Dermatology and Sypbilology; Society of 1nvcstigative Dcrmatology; Institutc of Medicine of Chicago; Chicago Medical Society; Society of Railroad Surgeons; dermatologist at Passavant Memorial and Cook County Hospitals and a consultant in dermatology at St. Vincent's Hospital, all of tbe State of Ilinois; consultant to the Veterans Administration Rescarcb Hospital; chairman of tbe Nomenclature Committee for Dermatology of the American Medical Association; editor of tbe Archives of Dermatology; chairman oJ tbe Editorial Committee of the Academy of Dermatology and Syphilology and author oJ the section on Dermatology of the Encyclopedia Britannica Year Book and has been so engaged in the latter for the past Jour years; Jormer president of tbc Chicago Dermatological Society.

1J1. AlbeTt M. Kligman a practicing physician in the city of Philadelphia, specializing in dermatology, \vhose curriculum vitae appears heroin as Commission s Exhibit Ko. 12 (A and D) and whose publicat.ions are listed in Commission s Exhibit. Cia. 13 , C and D). Academic degrees: B.S., Penn State, 1939; Pb. University of Pennsylvania, 1942; M. , University oJ Pennsylvania, 1947; diplomate, American Board of Dermatology and Syphilology, 1951; current.ly associate proJessor of dermatology WARD LABORATORIES, IKC., ET AL. 1359 1337 Dccision in the Gradnate School of :vedicine of the L'university of Pennsylvania; member of the American Association for thc Advancement of Science; American Medical Association; Society for Investigative Dermatology and American Academy of Dermatology. In the last four or five years witness has given special attention to the study of the bair, particularly relating to its anatomy and tbe physiology of hair growth. Dr. Peter Flesch whose profession is that of a research physician and whose curriculum vitae appears herein as Commission Exhibit No. 15. There also appears, as Commission s Exhibit No. 16 (A B and C), a list of publications of this witness, many of said publications dealing with hair growth and tbe physiology and cbemistry of the skin, the majority dealing with the subject of dermatology in one fonn or another. Witness is at present engaged at the University of Pennsylvania, Department of Dermatology, in research involving the chemistry and physiology of the skin, including pigmentation of the skin, keratinization hair growth and the development of new methods in research; lecturcs on these subjects to the graduatc students of the University of Pennsylvania. \VhHe the witness is not a licensed medical practitioner in the State of Pennsylvania, he docs treat patients in his field but under the supervision of a licensed physicial sucb latter being Dr. Albert M. Kligman, a witness wbose qualifications have been set forth in the next preceding paragraph. Witness holds an M. D. degree from the Medical School of the University of Budapest, 1939; :vr.S. from the University of Chicago, J 943; research associate, Department of Pharmacology, University of Chicago, Cancer Society Fellow; Ph.D. in Pharmacology, University of Chicago; assistant professor of dermatology, lJniversity of Pennsylvania; author of a number of publications dealing with research in dermatology. The respondents called tbe following witnesses whose qualifications are reviewed:

Dr. HOlcanl T. Behrman. The qualifications of this witness have been hereinbefore reviewed, he having been originally called by the Commission. For the purpose of further exploring tbe witness' testimony in chief, the results of which are reported in the findings of fact, respondents called this witness as their OI\rn. D1' . George M. Lewis a practicing physician in the State of New York, specializing in dermatology and "whose curriculum vitae appears herein as respondents' Exhibit No. 4. Said exhibit likewise contains a list of the witness' publications in tbe form 1360 FEDERAL TRADE C01DIISSION DECISIONS Decision 55 F.

of books, chapters in books and articles in journals dealing with the subject of dermatology. Degrees and qualifications; M. University of Alberta, Canada, 1925; L. , 1925 , Medical College of Canada; F. , 1937, American College of Physicians; diplomate, American Board of Dermatology and SyphiJology; licensed to practice in New York State since September 1926. House physician, New York Skin and Cancer Hospital, November 1, 1925 to November 1 , 1926; feJlowsbip, New York Post-Graduate :vedical School and Hospital; attended University of Pennsylvania Graduatc School with special course in mycology and pathology, 1927; assistant atiending dermatologist and syphilologist, Skin and Cancer Unit, New York Post-Graduatc Hospital, 1928-1933; atiending dermatologist and syphilologist Skin and Cancer Unit of the same hospital, 1933-1939; assistant in radiology, New York Hospital, 1931-J932; assistant physician to out-patients, J 932-1910; attending dermatologist, St. Clare Hospital; visiting dermatologist, Welfare Hospital, New York City; attending physician, New York Hospital, consulting dermatologist to Memorial Hospital, James Ewing Hospital, both of New York; and Vassar Brothers Hospital, Poughkeepsie, N. consulting dermatolovist, Polyclinic Hospital, Ncw York City; instructor in clinical medicine, (dermatology) CorneJl University Medical CoJlegc; instructor, New York Post-Graduate Medical School, Columbia University; and professor of clinical medicine (dermatology) CorneJl University Medical College, 1919. Witness is a member of the New York County Medical Society; New York State Medical Society; American Medical Association; Xew York Academy of Medicine; J'lanhattan Dermatological Society (prcsident, 1944-1945) (1917-1918) (1956- 1957) ; American CoJlegc of Pbysicians; American Academy of Dermatology and Syphilology, (president, 1956); American Dermatological Association, Incorporated; Society for Investigative Dermatology, Incorporated; Mycolovical Society of America; American Board of Dermatology and Syphilology, Incorporated (president, 1954-1955), and a member of the editorial boards of Archives of Dermatolovy, Xew York State Journal of Medicine" and "Journal of Investigative Dermatology. Dr. Lewis C. Bumil of the State of New York, formerly a practitioner of medicine in France and Switzerland, now a consulting biochemist and toxicologist whose curriculum vitae, denoted by him as; "Principal activities of Dr. Lcwis C. Bm'ail Consulting Biochemist and Toxicologist " appear herein as re- WARD LABORATORIES , INC., ET AI,. 1361 1387 Decision spondents' Exhibit No. 6. A reading of this exhibit discloses that the witness asserts to an M.S. degree in chemistry and an M. with 30 years' experience in biological research. He also asserts to be a Jormer professor and lecturer at several universities and colleges including Columbia, New York, Fordbam and Temple Universities but no specific details thereof are furnished in the exhibit, nor does the testimony given by the witness enlarge upon his professional qualifications in this connection. His I' activities" according to this exhibit, and the professional societies of which he is a member are apparently more or less commercial in nature, involving sanitation, toxicology and operations research in the fields of biologicals, cosmetics, disinfectants, food products packaging materials, pesticides, pharmaceuticals and plastics. Dr. EU.Qene F. Traub a practitioner of dermatology for 36 years, presently residing in Cambridge, Md. , whose curriculum vitae appears herein as respondents ' Exhibit o. 1. This witness is also a practicing physician in tbe field of dermatology with offices in Ne\v York City; B. , Vniversity of Michigan, 1916 and , University of Michigan, 1918; internship, resident physician, University Hospital, Ann Arbor, l\ich ., 1919- 1920; internship and residency, New York Skin and Cancel' Hospital, and Skin and Cancer Unit, from 1921 to July 1 , 1947; has served as attending dermatologist in New York and Come1l Universities; clinical professor of dermatology and syphilology, Post-Graduate Hospital, Columbia L'ni\'ersity; professor of dermatology, University of Vermont, 1928-1949; medical director, Skin and Cancer Hospital of Philadelphia, 1954-1956; is at present professor of dermatology, New York Medical College; consulting dermatologist in the following hospitals-Central Islip Hospital, Meadowbrook Hospital, Nassau Hospital, Beth David Hospital, Wyckoff Heights Hospital, Prospect Heights Hospital and Cambridge Hospital, of Cambridge, Md. ; director of tbe Department of Dermatology in the following hospitals-Flower and Fifth Avenues Hospitals Morrisania Hospital, Metropolitan Hospital, Bini S. Coler :lfemorial Hospital and Home, Queens General Hospital, and Otisvi1le Hospital. At present is clinical proJessor of dermatology at Temple University, Philadelphia. A member of the American Dermatological Association; New York Dermatological Society; Fellow, New York Academy of Medicine; Fellow, American Academy of Dermatology; Fellow, American Medical Association; American Dermatologists and Syphilologists of Greater Kew 1362 FEDERAL TRADE CO"IMISSION DECISIONS Decision 55 F, York; a member of the Board of Directors of the Association of DermatosyphiJologists of Greater New York, and a diplomate of dermatology and syphilology, Compensation and Industrial Dermatoses. The said exhibit also includes a list of the various publications of this witness.

7. It is further found, as a fact, that respondents' advertisements are also misleading in a material respect and constitute false advertisements " as that term is defined in the Federal Trade Commission Act, by reason of tbe respondents' failure to reveal facts material in the light of the representations made therein. In advertising their C.OSTIlctic and medicinal preparations as a cure or remedy for destructive scalp germs or infections, which respondents represent are a significant or the most common cause of hair loss or baldness, they suggest that there is a reasonable probability that baldness is due to the presence of destructive scalp germs or infections and that their preparations wi1 be of benefit and constitute an effective treatment therefor. In truth and in fact, the instances in which Joss of hair or baldness is due to scalp germs or infection arc rare. In the great maj ority of cases, loss of hair or baldness is a male pattern type having no relation to destructive scalp germs or infection, and when baldness is of this type respondents' preparations will be of no value whatcvcr in tbe treatment thereof. Thus, there is no reasonable probability that any particular case of baldness is caused by a condition for which the respondents' preparations may be beneficial, and respondents' advertising is misleading because of failure to reveal tbe fact that in thc great majority of cases, loss of hair or baldness is of the type known as male pattern baldness and that when baldness is of that type, respondents' preparations are of no value in the treatment thereof. 8. Respondents Ward Laboratories, Inc., aml Comate Laboratories, Inc. , use the word "Laboratories " in their corporate names in soliciting the sale of and selling their said preparations. Through the use of the word "Laboratories " as aforesaid, the said respondents represent that they own and operate laboratories in conm-;ction v\with their said business. Such repre entations are false, misleading and deceptive in that said respondents do not own or operate a laboratory in connection with their said business.

9. Thc use by tbe respondents of the foregoing false and misleading statements and representations, disseminated as aforesaid, has bad and now has the capacity and tendency to mislead , WARD LABORATORIES, INC., ET AI,. 1363 1337 Conclusions and deceive a substantial portion of the purchasing public into the erroneous and mistaken belief that such statements and representations are true and into the purchase of said preparations because of such erroneous and mistaken belief. CONCLUSIONS 1. The aforesaid acts and practices of respondents, as 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 Federal Trade Commission Act. 2. Respondents urge dismissal of the complaint on the asserted ground that "the Commission does not have the power to support the scientific opinion which happened to favor its complaint and to thus arbitrarily disregard the opposing equally valid medical opinion " citing in support thereof C. v. Lambert Phannacal Co. 38 F. C. Dec. 726 (Docket No. 4232). A reading of the lengthy memorandum opinions of the several commissioners, which are largely review\vs of the voluminous expert testimony in the case, does not bear out the construction which respondents place thereon as grounds for dismissal, and nowhere does it appear that the case was dismissed solely because of conflicting scientific or medical opinions, (albeit such existed), but rather dismissal was occasioned by failure of the Commission to sustain the burden of proof. That this is troe is apparently borne out by one of the commissioners of the majority .who, in his concurring memorandum, said:

It is the duty of the Commission to decide issues of fact, whether or not medical or scientific questions are involved, by the greater weight of the evidence-the burden of pmof being on the Commission. In my opinion * . the allegations of the complaint have nut been sustained by the greater weight of the evidence.

This quotation is a fair statement of the duty of the Commission to arrive at appropriate findings after due appraisal of all relevant evidence and irrespective of conflict of opinions of \vitnesscs, which conflicts are prone to occur in all cases involving the inexact sciences, as here, which is exactly the reason why they are called tbe " inexact sciences." Were it otberwise any complaint would have to be dismissed where the respondent could nll1ster suffcient experts to raise the cry of "conflict." However administrative proceedings, unlike criminal cases, do not have to be proved beyond a reasonable doubt but merely "as supported 1364 FEDERAL TRADE CO !MISSION DECISIONS Order 55 F.

by and in accordance with the reliable, probative, and substantial evidence" of record.

This view of the law of evidence as here applicable g-ave rise to tbe statements of the examiner contained in the first and second paragraphs on page nine of this decision. 3. As a corollary of the foreg-doing reasoning, and consonant with the opinion in Uni1Je1"al Camera COTl'omtion v. lV. 340 U. S. 474 et seq., directing- that the " substantial evidence rule, (above referred to), to support an order must be based upon the "entire record" which, perforce, includes evidence contra that introduced in support of tbe charges of thc complaint, it was considered apropos to set forth in fair detail all pertinent evidence in order to disclose that all defense matter has received the due consideration which it merits.

4. It wil be obscrved that the order hereto appended, (par. 1 (b)) requires affrmative disclosure that respondents' products under certain conditions therein set forth, will have no value in preventing baldness or excessive hair loss. As authority therefor see:

Sec. 15 (a) (1) F. C. Act; Paul v. C. J 69 F. 2d 294 , 295; Dorfman v. C. 144 F. 2d 737 , 739; Haslcelde Mfg. Co. F.TC. J27 F. 2d 765 , 766; The Elmo Cmnl'nny, Inc. D. 5959 (48 C. 1379) ; Amer. Libra1.y of World Vdemt"re D. 5811 (49 C. 220) ; The Thorlcon Company, D. 6004 (49 F. C. 613) ; Aberly l'. C. 182 F. 2d 36 89. In the AlbeTt!! case the Court decided that a condition precedent to requiring an affrmative disclosure is a specific finding- that failure to make such disclosure is misleading because of the things claimed in the advertisement. Such a definitive finding will be found herein under " Findings of Facts " paragraph No. , page 28.

ORDER It is ordered That the respondents, Ward Laboratories, Inc., a corporation, and its offcers, and respondents Emile E. Kling and .Joseph J. Seldin, individually and as offcers of Ward Laboratories, Inc., and Comate Laboratories, Inc. , a corporation, and its offcers, and Scbacin, Inc. , a corporation, and its officers, and respondents' agents, representatives and employees, directly or through any corporate or other device, in connedion with the offering for sale, sale or distribution of their cosmetic and medicinal preparations designated as Ward' s Formula :Yledicine for the WARD LABORATORIES, INC., ET AL. 1365 1337 Order Scalp and Hair, Ward's Formula Medicinal Lubricant for Dry Scalp and Hair, Ward's Formula Medicinal Compound for Oily Scalp, Ward' s Formula Shampoo, Com ate Medicinal Scalp Formula, Com ate Medicinal Emulsion, Comate Scalp Conditioner Comate Dry Scalp Shampoo, Comate Oily Scalp Shampoo, Sebacin Basic Formula, Sebacin Antiseptic Lubricant, and Sebacin Shampoo, or any other preparation or preparations of substantially similar composition or possessing substantially similar properties under whatever name or names sold, do forthwith cease and desist from, directly or indirectly:

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 t.he Federal Trarle Commission Act, any advertisement which represents, directly or by implication, that the llse of said preparations alone or in conjunction with any method of treatment wil:

(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 \vill 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 othenvise 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 tbe 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 wiJI not induce the growth oJ hair or thicker hair.

2. Disseminating, or causing to be disseminated, by any means, for the purpose of inducing, or \which is likely to induce directly or indirectly, the purchase in commerce, as "commerce is defmed in the Federal Trade Commission Act, of said preparations, any advertisement which contains any of the representations prohibited in paragraph 1 above, or which fails to comply with the aflrmative requirements of paragraph 1 above. 3. Lsing the word "Laboratories " or any other word of simi- Order 55 F.

lar import or meaning, as a part of or in connection with the respondents' corporate or trade names, or otherwise representing, directly or hy implication, that respondents own or operate laboratory unless and until such a laboratory is actually so owned and operated.

OPINION OF THE COMMISSIOr\ By GWYNNE, Chairman:

The complaint charges respondents with the use and dissemination of false and misleading advertising in the sellng and distdbuting of cosmetics and medical preparations in interstate commerce for use in tbe treatment of conditions of the hair and scalp. After a hearing, the examiner found against respondents and entered an order accordingly. Hespondents' appeal therefrom bas been presented both in written brief and oral argument. No new legal propositions have been raised in this appeal. The hearing examiner made detailed findings of fact which are supported by the record.

The appeal of respondents is denied. The initial decision is adopted as the decision of the Commission. FI:-AL ORDER This matter having he en heard on tbe respondents' appeal from the hearing examiner s initial decision, and the Commission having filed its opinion denying the appeal and adopting the initial decision as the decision of the Commission: It is O,.de1. That the respondents, Ward Laboratories, Inc. a corporation, Emile E. Kling and J osepb J. Seldin, individually and as offcers of Ward Laboratories, Inc., and Comate Labon\tories, Inc. , and Sebacin, Inc. , corporations, 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 tbe order to cease and desist contained in the aforesaid initial decision. Tile FAIR 1367 Findings