Evis Manufacturing Company

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IN THE MATTER OF EVIS MANUFACTURING COMPANY, ET AL.

ORDER, ETC., IN REGARD TO THE ALLEGED VIOLATION OF THE FEDERAL TRADI'; COMMISSION ACT Docket 6168. Cumplai11t, Feb. 1.954-Decision, Mar. 2.' , 1959 Order requiring sellers in San FI ancisco of the " Evis Water Conditioner " to cease representing falsely that the product had ally be)leficial effect on water, changed its physical behavior, solved hard water problems, removed unpleasant flavors and improved tne taste of beverages and food saved soap, removed grease and scale, along with a variety of other similar claims.

Before MT. Abner E. Lipscomb hearing examiner. MT. Edward P. Downs for the Commission. PilisbuTY, Madison SutTO of Washington, D.C. and San Francisco, Calif. , and Mr. Noble McCarlney, of Washington, D. for respondents.

FINDINGS AS TO THE FACTS , CONCLUSION AND ORDER Pursuant to the provisions of the Federal Trade Commission Act, the Federal Trade Commission, on February 5, 1954 , issued and subsequently served upon respondents, Evis Manufacturing Company, a corporation and Joseph T. Voorheis and Arthur N. 'Yells, individually and as offcers of said corporation, its complaint, charging said respondents with unfair methods of competition and unfair and deceptive acts and practices in commerce in the sale of a device for the conditioning of water, in v10Jation of the provisions of the Federal Trade Commission Act. Thereafter, on April 12, 1954, respondents submitted their answer to the complaint, denying the principal charges thereof and challenging certain of the interpretations of their advertisements contained therein.

Hearings were held in clue course. Evidence was received in support of and in opposition to the allegations of the complaint. The hearing- examiner filed his first initial dec.ision on April 27 1956, in which he ordered the complaint dismissed on the ground that the allegations thereof were not supported by reliable, probative and substantial evidence. The Commission, having- heard thc appeal of counsel in support of the complaint, including oral argument, vacated the aforesaid initial decision and remanded , , 1484 FEDERAL TRADE COM !ISSION DF:CISIONS Findings 55 F.

the proceeding to the hearing exan1incr for the reception of evidence of further scientifie tests of the Evis Water Conditioner. The examiner, after taking such evidence, filed a second initial decision on June 30, 1958 , again ordering the complaint dismissed.

Within the time permitted by the Commission s Rules of Practice, counsel in support of the complaint filed an appeal from the initial decision of June 30, 1958, and, the Commission, after considering said appeal, respondents' brief in opposition thereto, the oral argument on this appeal, and the ensure record herein rendered its decision granting the appeal and vacating and setting aside the initial decision.

Thereafter, this matter came on for fmal consideration by the Commission, and the Commission, being- now fully advised in the premises, makes the follOlving f1l1dings as to the facts, conclusions drawn therefrom, and order, which, together with the aforesaid decision on the appeal, shall be in lien of the initial decision of the hearing examiner.

FINDI!\GS AS TO THE FACTS 1. The corporate respondent, Evis l\Ianufacturing Company, is a corporation organized, existing and doing business under and by virtue of the laws of the State of California, with its offce and principal place of business at 40 Boardman Place, San Francisco, Calif.

The individual respondent Joseph T. Voorheis, ,vas president of the respondent corporation at the time of the issuance of the complaint but is nO\v deceased. Incli, idual respondent, Arthur N. We1Js, is vice president of the respondent corporation, and has formulated, directed and controlled the policies and practices thereof.

2. The respondents for more than one year last past have been engaged in offering for sale, selling and distributing, directly to users and through retail distributors, a product designated by them as the "Evis Water Conc1itioner. " Respondents at a11 times mentioned herein have maintained a substantial course of trade therein in commerce among and between the various states of the United States and in the District of Columbia. In the course and conduct of such business, respondents have been in substantial competition in commerce with other corporations and with partnerships and individuals engaged in the sale ,. , . .

EVIS MANUFACTURING CO., ET AL. 1485 1483 Findings and distribution of the various types of products intended for similar purposes.

3. In the course and conduct of their business, and for the purpose of inducing the purchase of their product, respondents have disseminated and caused to be disseminated advertisements jn newspapers, magazines, leaflets, circulars and other advertising media circulated among prospective purchasers of their product in the various states of the United States and in the District of Columbia. Among- and typical, but not all inclusive, of the statements and representations made in such advertisements and so published and circulated are the following: The Special Processed Cast Metal of the Evis Conditioner imparts a continuous catalytic effect on watel', water solids and entrained gases. This catalytic correction changes the physical behavior of water in many beneficial ways.

At Jong last The real answer to your costly HAHD WATER PROBLEM. l\ew home water conditioncr makes any ordinary water behave " softer, The amazing :'EW EVIS \V AFTER CONDITIONER that makes hard ,,,a tel' feel, last!' , and act saHer-without chemicals-"\vithout destroying natural mine1'als '" ., " that removes unpleasant odors and flavors :' removes old scale and prevents new scale ' saves fuel . 'f that gives silkysmooth qUlllity to "\vater for hail' , bath, dishes, hmndry, car wash that improves cofree and other food flavors.

Makes Even the Hardest Water Behave "Tame Makes Better Tasting Water. . . by reuu('ing or often Entirely Eliminating Unpleasant Odors and Flavors (even of chlorinated water). Pays for itself Surprisingly Qujck from Soap and Fuel Saving.s Alone! Saves loads of soap.

Treat yourself to the joys of a catalytically corrected Home Water Supply! l.arshness to hands is noticeably reduced. Easily Rinses away Troublesome Soap Scums. Dishes and Glassware Dry Free From Vlater Stains. Evis-ized Water Gets " ::ore Work" Qut of soap in most cases. Scale Vanishes from Wales' Hcaten, Pipes and 811O'\'\e1' Xozzles. Sanitary Drains Are Freed From Grease Coatings.

Keeps drains and sumps free from scum.

elimination of rust stain and scum.

to eliminate scale and corrosion problems. Eetal' ds pilting' of thl' metal.

Aius opel' ation of b2.sc-exchang-c softeners. Leach out alkali and salts with EVIS treated water and 1()thej' Natme will do the rest.

Finer J,awns-Faircr Flowers- Fatter Vegetables-Bumper Crops. Better Growth has been reported for " Alfalfa-Cotton1-:velons-Berries-GrHss-Flo\vcrs and many other types of agricultural and orchard products.

The remarkable growth of plants using EVIS-ized water, as against raw waier, particularly tomatoes and other potassium hungry plants, would . . .

1486 FEDERAL TRADE COMMISSION DECISIOKS Findings 55 F.

indicat.e that the EVIS mineral salt stripping ac tion on clay, provides potassium more abundantly to the plant.

EVIS Water Conditioners are being used with amazing results on cotton farms, alfalfa, orchards and in nurseries, greenhouses, and truck farms. Dense clay structures become fine textured, hard clods and lumps tend to weaken and the soil beeomes useful agricultllral1y. Improves texture of soil in lawns and gardens. one gallon of EVIS-ized water will do the job of at least two gallons of raw water; the evaporation rate is materially reduced. 4. Through the use of the foregoing statements and representations, and others of similar import not speciflca1ly sct out herein, respondents have represented directly and by implication that their product, the "Evis Water Conditioner: (a) Ts made of a special1ly processed cast metal and has a catalytic effect on water passing through it which changes the physical behavior of such water in many beneficial ways; (b) Wil solve hard water problems causing "hard" water to become soft and will make hard water fee! , taste and act softer giving it a silky-smooth quality for hair, bath, dishes, laundry and car \vash without the use of chemicals; (c) Will remove and reduce unpleasant odors and flavors in water, making it taste better, and improve the taste of coffec and other foods;

(d) Will require the use of less soap and will reduce the cost of heating water;

(e) Will eliminate or reduce the harshness of water to the hands and will cause dishes and glass\vare to dry without leaving water stains;

(f) Wil remove grease from drains and will prevent and remove scale from boilers, water heaters, pipes, shower llozzles and other parts of a water systcm ;

(g) Will pn- vent reduce and eliminate scum, rllst stains and corrosion and retard the pitting of metal; (h) Will improve the action of chemicals used for water softening purposes;

(i) Will !each out a1kai and salts in soil, wil improve the growth and production of various agriculturnl and orchard products and plants, and \vill improve the texture and structure of soil; and (j) Will reduce the amount of water required for agricultural irrigation.

5. The record herein contains reliable, probative and substantial evidence, including the opinions of scientific and engineering EVIS MANUFACTURING CO., ET AL. 1487 1483 Findings experts, that the Evis Water Conditioner wjll not chang-e the physical behavior of water or beneficially affect water passing through it. Accordingly, the foregoing statements and representations are false, misleading and deceptive with the exception of the representation that the Evis Water Conditioner is made of a specially proeessed metal, as to which representation the allegtion in the complaint has not been proved. Otherwise and in truth and in fact respondents' product, the "Evis Water Conditioner :

(a) Does not change the physical behavior of water passing through it by catalytic effect or otherwise; (b) Wil not solve hard water problems or cause hard water to become soft or make hard water feel, taste or act softer or give it a silky-smooth quality for hair, bath, dishes, laundry or car wash;

(c) Will not remove or reduce unpleasant odors or flavors in water or make ,vater taste better, nor will it improve the taste of coffee or other foods;

(d) Will not reduce the amount of soap used or effect a saving of soap expenses, nor will it effect a saving of fuel expenses for heating water;

(e) Will not eliminate or reduce the harshness of water to hands or cause dishes or glassware to dry without leaving 'vater stains;

(f) vVill not remove grease from drains or prevent or remove scale in boilers, water heaters, pipes, shower nozzles or other parts of a water system;

(g) Will not prevent, reduce or eliminate scum, rust stains or corrosion, nor will it rdard the pitting of metal; (h) Will not improve the action of chemicals used for water softening purposes;

(i) Wil not leach out alkali and salts in soil, improve the growth or production of agricultural or orchard products or plants nor wil it improve the texture or structure of soil (j) Wil not reduce the amount oJ water required for agricultural irrigation;

(k) Will not nave any beneficial efiect on water. 6. The use by respondents oJ the foreg-doing- false, misleading and deceptive statements and representations, and others similar thereto, has had the tendency and capacity to mislead a substantial portion of the purchasing public into the erroneous and mistaken bc1ief that such statements and representations were Order 55 F.

true, and to induce a substantial portion of the purchasing public because of such erroneous and mistaken belief, to purchase respondents' product. As a result thereof substantial trade in commerce has been diverted to respondents from their competitors and injury has been done to competition in commerce among and between the various States of the United States and in the District of Columbia.

CONCLlJSION The acts and practices of respondents, as herein found, have been to the prejudice and injury of the public and of the competitors of respondents, and have constituted unfair methods of competition and unfair and deceptive acts and practices in commerce within the intent and meaning of the Federal Trade Commission Act.

ORDER It is ordered That respondent Evis Manufacturing Company, a corporation, and its offcers, and respondent Arthur N. Wells individually and as an offccr of said corporation, and said respondents' agents, representatives and employees, directly or through any corporate or other device, in connection with the offering for sale, sale or distribution of their product, known as the "Evis Water Conditioner " or any other product of substantially similar design or construction, whether sold under the same name or under any other name, in commerce, as "commerce" is defined in the Federal Trade Commission Act, do forthwith cease and desist from representing, directly or by impocation:

That their said product:

(a) Has a catalytic cited on water;

(b) Changes the physical behavior of water; (c) Will soive hard water problems;

(d) Win make hard water soh;

(e) Win cause hard water to feel, taste or act softer, or have any of the attributes or characteristics of soft water; (f) Will remove or reduce unpleasant odors or flavors from wa tel' ;

(g) Win make water taste better;

(h) Wi1 improve the taste of beverages or foods; (i) Wi1 require the use of less soap;

(j) Wi1 reduce the cost of healing water; , , EVIS MANUFACTURING CO., ET AI" 1489 1483 Opinion (k) wm eliminate or reduce the harshness of water to the hands;

(I) WiJ! cause dishes or glassware to dry without leaving water stains;

(m) wm remove grease;

(n) wm prevent or remove scale;

(0) wm prevent, reduce or eliminate scum; (p) wm prevent, reduce or eliminate rust stains; (q) wm prevent, reduce or eliminate corrosion or retard pitting of metal;

(r) wm improve the action of chemicals used for water softening purposes;

(s) wm leach out alkali and salts in soil; (t) wm improve the growth or production of agricultural or orchard products or plants;

(u) WiJ! improve the texture or structure of soil; (v) WiJ! reduce the amount of water required for agricultural irrigation;

(w) Has any beneficial effect upon water. It iB hathe?' ordered That the complaint be, and it hereby is dismissed as to individual respondent Joseph T. Voorheis. It is lrtheT ordered That respondent, Evis IVIanufacturing- Company, a corporation, and respondent, Art.hur 1\". \Vel1s, individually and as an offcer of said corporation, shan, 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 Kern not participating.

OPINION OF THE COMMISSION By ANDERSON, Commissioner:

In this proceeding, which has been brought under Section G of the Federal Trade Commission Act, the complaint charges that the " Evis Water Conditioner " a device sold by the respondents, will not have any beneficial effect on \vater as represented by the respondents in their advertising. The hearing examiner filed an initial decision in this matter on April 27, 1956, in which he ordered the complaint dismissed. The Commission, having heard the appeal of counsel in support of the complaint from this initial decision, including oral argument, remanded the case to the examiner for the reception of Opinion 55 F.

evidence concerning further scientific tests of the Evis Water Conditioner. The examiner, after taking such evidence, fied a second initial deeision on June 30, 1958 , again ordering the complaint dismissed. He based his holding on the ground that the disposition of the proceeding must be controlled by the legal principle that when conflicting evidence is in such a state of balance that substantial doubt exists as to the conclusions to be drawn therefrom, the burden of proof has not been sustained and he who bears that burden must fail. Counsel in support of the complaint has appealed from the initial decision of June 30, 1958, dismissing the complaint.

The general issue to be decided here is whether considering all the evidence of record counsel supporting the complaint has established the allegations of the complaint with substantial reliable and probative evidence.

The Evis Water Conditioner is a simple appearing device. It is a product of metal construction having the appearance of an oversized pipe coupling "with an interior cross post integralJy cast in place. It is made of cast iron or bronze or similar metals and coated inside and out with zinc galvanizing. The device is intended to be fitted into water systems for the purpose of beneficially treating and conditioning water. The follmving are some of the daims that respondents have made for the Evis Water Conditoner in their advertisements: The Special Processed Cast Metal of the Evis Conditioner imparts a continuous catalytic eit€ct on ,vater, water solids' and entrained gases. This catalytic correction changes the physical behavior of water in many beneficial ways.

The amazing new Evis \Vater Condit.ioner . . . that makes hard water feel t.aste and act sofier-- witnout cnemica1s---without destroying natural minpra1 . . . t.hat removes unpleasant odors and flavors. . . removes old seale and prev('nt, s ne,\, scaJc . . . srl yes fn"J . . . t.hat gives silky-smooth qllality to water for hair, hath, di hes, Janndry, CRr wRsh. . that improves coffee and other food flavors.

Makes Even The Hardest 'Vater Behave " Tame I"~ The complaint alleges that the representations contained in these and other advertisements for the Evis Water Conditioner are false, misleading and deceptive because the device will not give the c1aimen beneficial results.

The usual tests show Evis treated water to be no different from untreated water from the same source. The device allegedly changes something physical in the water, but the record shows that it does not change the usual physical factors like specific EVIS MANUFACTURING CO., ET AL. 1491 1483 Opinion gravity, boilng point, viscosity or surface tension. The Evis 'Vater Conditioner is not magnetized or radioactive and it does not contain electrical particles. It makes no chemical change in the water. Arthur N. Wells, the inventor, during his testimony, described the effect of the device in the following words: After the water has passed through the conditioner, there is a change that har taken place and the way that change app('ars to be exhibited is in the manner in which the water1" behaves with fine particles and at surfaces, you might say, that what is changed in the water is its behavior in the interface which applies g"eneraJly to the contact between a fluid and any other substance. The effect allegedly produced by the use of the Evis Water Conditioner, according to witness Wells, is thc result of the crystal1line structure of the device rather than its chemistry. testified, in effect, that the elements contained in the unit are the same as those found in ordinary cast iron (or ordinary bronze in the case of the bronze unit), but that special processing somehow adds elements. On the advice of counsel, the witness would disclose neither the process nor the identity of the elements added, contending that this information involves trade secrets. It is not clear from his testimony whether the clements said to be added by the special processing can be detected by spectra analysis.

While the usual laboratory tests will not disclose any effect of the Evis Water Conditioner upon water (or apparently distinguish the metal in the device from other similar metal), the claimed rlijlerence in the water can be detected, lVr. Wells testified, along the lines of the phenomenon. This apparently means the observing of the results in a field test under usual operating conditions. A test recommended in respondents' literature is to try the feel of two specimens of dirt or mud, one of which has been mixed with Evis treated water and the other mixed with untreated water. The specimen made with Evis treaied water is supposed to feel "smooth, slippery and disintegrated" compared to the other specimen.

Evidence Received in Support of the Complaint The evidence received in support of the complaint includes a showing that 3 000 installations of the Evis Water Conditioner were failures (by virtue of an admission of counsel), but, more important, a considerable showing in the form of testimony and other evidence covering studies, experiments ancl tests of the device. With a few exceptions the witnesses testifying for the Opinion 55 F.

complaint were men with extensive engineering or scientific backgrounds; they qualify as experts in their respective fields. A wide variety.y of scientific tests and studies of the Evis Water Conditioner have been made. These include analyses made of the composition or structure of the device itself as well as tests and experiments on Evis treated water.

Council in support of the complaint introduced twenty-one witnesses, other than the individual respondents and an Evis distributor, all of whom gave opinion testimony based upon their education and experience, or general experience, together vvith experiments and laboratory tests performed with the Evis WatCl Conditioner.

The witnesses included those who had performed tests of the Evis Water Conditioner for the Department of Water and Power in the city of Los Angeles, the City of Los Angeles Harbor Department, and the Southern California Gas Comp,my. The results of the various experiments and tests so made \\'ere all negative, including tests as to whether the device changes the hardness of \vater, aids in the operation of base exchange softeners, improves the taste or odor of water, removes scale, and otherwise beneficially affects water.

Tests were conducted at the U.S. Department of Agriculture by Dr. Lowell E. Allison, a soil scientist, to dctcrmine any effect of Evis treated ,.vater on soil properties and plant growth. Dr. Allison s testimony was that he could detect no significant differences bet\veen the Evis treated water used and the control water in laboratory experiments and that Evls treated ':\late1' made no differencc on plant life. This highly trained and experienced scientist testified that he saw no value in the Evis treatment; so much so t.hat he would not further pursue the investigation.

Hugo de Bussiere:;, a chemical engineer of long experience, made a number of experiments with Evis treated ,vater, He testified that he was primarily interested in the "dielectric constant " a measure of the internal molecular structure of a substance, and tested for charaderistics of the water which might change if the dielectric constant changed. He carried out vario\ls chemical, spectrographic and other tests. His test.imony \Vas that there is nothing about the Evis 'Vater Conditioner that \vould cause fundamental changes in the character of the water. Dr. George D. Wagner, Jr. , Junior Spectroscopist, Washington EVIS MANUFACTURING CO., ET AL. 1493 1483 Opinjon State College, ran a series of infrared spectro-analyses of Evis treated and nontreated water. Such tests are designed to determine if samples of a compound are identical so far as molecular structures are concerned. Dr. Wagner testified that the tests showed the molecular structures of Evis or non-Evis treated water to be the same.

Various tests and experiments conducted at Washington State College, Division of Industrial Research, some of which were in the laboratory and others on field or practical installations, failed to show thet the Evis Water Conditioner was of any value in the treatment of water. Dr. Albrook, director of Industrial Research, Washington State College, and Dr. Mark F. Adams, a research chemist of the same institution, in effect so testified. The tests made at vVashington State . \were designed to sho\v among other things, \vhether the Evis Vy' atel' Conditioner would change the hardness of water, whether it would affect the formation of scale in coffee makers and ,,'whether it would affect the amollnt of soap used in dislnvashers.

Dr. Robert Weast, an associate professor of chemistry, Case Institute of Technology, conducted tests to determine if the Evis Vlater Conditioner would remove scale from ,vater pipes. He testified that, in his opinion, the unit does not remove scale from previously scaled pipes.

Dr. James Irvin Hoftman, Chief of the Surfacc Chemistry Section and Assistant Chief of the Chemistry Division of the National Bureau of Standards, performed tests wit.h the Evis Water Conditioner. He tef-Jified that based upon his scientific knowJedgc and the experience he had had with the Evis Water Conditioner it would have no effect upon water.

Since the remand of this ease, extensive testing of the Evis Water Conditioner was undertaken by the Engineering Experiment Station of the University oJ Virginia. Dr. Lewis B. J ohnson, Jr. , and Dr. Robert Gildea, who "worked on and \were re- , that. sponsible for these experiments, both testified, in substance the Evis unit will not. alter the characteristics of water and that it. will not produce the hencHcial effects claimed for it. The evidence so adduced clearly confirms the scientific showing made prior to the ren1and.

The hearing examiner has Riven little \\reight to the evictence receiver1 in support of the complaint. In many instances of tests or studies being made, hc questions the results because of the doubt raised on c.ross-examination about whether the Evis unit Opinion 55 F.

was properly installed. Apparently, not all of the experimentors followed instructions for installation in every particular. This may have a bearing on the fairncss of the tests in some cases but we do not think that a suhstantial part of the scientific evidence should be largely discounted for such a reason. Manufacturers' instructions should be followed, of course, to achieve the results claimed for a product, but in this case the "instructions have varied from time to time and apparently are not all contained in anyone document. A step indicated as essential in on2 instruction sheet, for example, may not even be mentioned in another. Under such circumstances, the failure to follow the omitted instruction should not necessarily put doubt on the experiment. Moreover, respondents' witnesses who testified as to claimed beneficial results, admitted in many instances that no particular instructions were followed. Also, respondents in their literature suggest that Evis treated water can be procured simply hy running tap water through the Evis Water Conditioner, the implication being that an elaborate hookup is not essential. In addition, certain of the expert witnesses who had experimented with the Evis Water Conditioner testified that failure to follow detailed instructions would have made no difference in the result.s. This testimony and the admission of i\lr. Wells, in substance, that he had no scientific principle to explain the claimed effect of the Evis device, places on the respondents some burden of shmving the necessity for the detailed instructions, and no such showing was made. In view of all these considerations failure to follow installation instructions in some particulars should not substantially detract, at least in most instances, from the weight of the showing based on the tests and studies. The scientific evidence and testimony such as that above 1'8ferred to supports the allegations of the complaint, and it is substantial. This evidence is strong-, dear and persuasive. 'raken altogether it \vouJcl be of compelling significance under any circumstances. Here we have the opinions of men of broad training and experience, which opinions were based on studies in the laboratory and field as \veil as upon general experienc.e. Their qualifications generally are beyond challenge. The hearing examiner discounts the impact of this hody of testimony for various reasons (incJucling the installation question mentioned above), but in most of the cases his reasons do not stand close analysis. He dismisses Dr. Allison s (U. S. Department of Agriculturc) testimony, for example, because the tests on soil were not per- EVIS MANUFACTURING CO., ET AL. 1495 1483 Opinion formed under conditions comparable to those obtaining in practical use, as he found, and because of admitted slight differences in favor of the Evis Water Conditioner. There is no basis for a conclusion from Dr. Allison s testimony that the differcnccs had any scientific significance. Moreover, there is every indication that Dr. Allison, who tested the Evis Water Conditioner at the request of an Evis representative, knew what he was testing for, in making these experiments and that he did, in fact, give the device a completely fair test. The real substance of his entire testimony is that the Evis Water Conditioncr has no value. The examiner erred, we think, in holding that such docs not constitute probative evidence on the issues in this proceeding. Another example of the examiner s rejection of highly significant evidence concerns the experiments conducted by Dr. George D. Wagner, Jr., of Washington State College. These experiments were of the greatest importance. Dr. \Vagner s analysis by infrarcd spectrogram disclosed that the molecular configuration oJ Evis treated and non-Evis treated water "were identical. Jt is apparently this characleristic of the water, if any, that is or should be changed if there is any effect to be obtained in the Evis treatment, yet the tests showed no difference. The hearing examiner, ho\vever, found that the cross-examination vitiates the basis on \which Dr. Wagner s conclusions rest, nnl1ifying the persi1asive force of such conclusions. This evaluation of the testimony, Ive think, is entirely erroneous. The hearing examiner refers to the cross-examination of Dr. \Vagner in \which the witness admiUed that his spectrogram would reveal "very little dif- , the same ference" between a compound in suspension in \vater compound in solution in water and the same compound in the but Dr. Wag-- colloidal state in water. This is true, if important, ncr also said that he doubted you would ever find the compound in solution one time and in suspension another. He testified: " have never heard of such a thing. " Moreover, the respondents claims for Evis treated water apparently are not based on any contention that the state of the compounds in such water differs in these respects from the state of the compounds in non-Evis treated \v2.ter; thus, the fact that the spectrogram may not reveal such differences docs not appear to be important. For about the same reasun, there is no apparent significance to the fact that the infrared examination win not reveal certain types of compounds. The examiner also makes the ubservation that the tests Opinion 55 F.

were made on water in the static state rather than the dynamic. Here again, this would not seem to be of any significance. Evis treated water, for example, is represented as being effective in the washing of clothes and in such a case the water is static in the sense that it is not moving through a pipe. In our opinion the testimony of Dr. iNagner is probative and reliable evidence and entitled to substantial weight.

Dr. James Hoffman of the National Bureau of Standards testified that based upon his scientific knowledge and the experience he had had with the Evis Water Conditioner, it could have effect upon ,vater. The examiner founel, hmvcver, that the probative value of Dr. Hoffman s testimony on direct is lessened because he did not preclude the possibility, at some future date of a change being effected in the physical behavior of water, in a water system, by contact at the interface with a specially processed metal, by means of the energy inherent in such a system. He held that the change which respomlents claim to have effected in the behavior of water by passage through their device has not been proven irnpossiblc. This, we think, is lTIuch too high a standard of proof. Dr. Hoffman has clearly testified that the Evis Water Conditioner will not beneficially affect water. To the extent that he may have admitted the possibility of any claimed effect, it was under the qualification that it would be beyond his comprehension if it could be done. He testified on the basis of present day kno\vledge and his experience \viih the Evis clevice. In our vie\v, his testimony should not suffer merely because, as a man of science, he admits the possibility of an occurrence, however remote.

The complaint contains ihe general allegation that, contrary to respondents' represenbltions, the Evis Water Conditioner not made of a special11y processed metal and it does not change the physical behavior of water p:-.ssing through it by catalytic effect or ot.herwise. In our opinion, counsel supporting the complaint has failed to prove that the Evis device is not made of a specially processed metal. A number of witnesses testified to the effect t.hat analvses showed that the ";\st iron Evis Water Conditioner was substantially the same as ordinary cast iron. From the record it is not clear, however, whether it follows from this that special processing was not llsed. But this is of small moment. The essence of the general allegation is that the Evis V,later Conditioner, special procee;sing or not, will not change the EVIS MANUFACTURING CO., ET AL. 1497 1483 Opinion physical behavior of v,tater passing through it. Expert \vitnesses testified in substance that hard water, or water loaded with minerals, and the objectionable effect of such water, could not be changed except by chemical means. As the examiner even has observed, if such opinion be correct, the Evis device, which admittedly causes no chemical change in the water passing through it, would be worthless. As heretofore indicated, we give much more weight to the opinions expressed by the experts than has the examiner. \Ve believe that there is substantial evidence to support the general allegation above referred to except as to special.l processing of the metal. This evidence in turn like,:vise supports the specific allegations of the complaint. In addition t11e1' 8 is substantial evicknce otherwise to support most if not aJl of the specific allegations.

Jt is obvious that counsel supporting the complaint has made a shmving ,,,ith reliable, substantial and probative evidence that the Evis \Vater Conditioner will not perform as claimed. \Ve do not think that counsel has shown it is impossible for the Evis unit to produce beneficial results, nor do we think such proof, if it could ever be made in a case of this nature, is necessary. Not all of the evidence in support of the complaint is strong; not al1 of it is free fl'0111 defects. Taken in its entirety, however, it covers the views of many scientific and engineering experts in the vm'ious J'related fields an(l it is almost wholly adverse to the Evis Water Conditioner. The views expressed were not simply opinions based on general experience alone. In almost every case, experiments or tests were performed. Some \were in the laboratory and some involved practical installations. In these circumstances, it is evident that the shelving of counsel in support of the complaint must be given substanti::l weight. :F' inally, we hotel that under the circumstances of this case, the responoents Vv.ere not privi1eg-ed to stand upon their refusal to disclose the composition of the metal in the Evis \\T after COl1cli- Unner and the claimed special processing thereof as trade secrets; and their failure to introduce the evidence thus within their immediate knmvledge and control, if existing an:'l\vherc, relative to such factors which might explain the claimed effects of the device on water, is strong eonflrmation of the charges in the complaint. Cha.rlc" of the Hitz V'isl. C01"). v. Fedeml Trade r'n'mnissio?1 143 F. 2cl 676, 679 (1944). Opinion 55 F.

Respondents' Evidence Respondents' evidence is almost entirely connected with the testimony of users of the Evis Water Conditioner. Some evidence was introduced by the respondents which was of a scientific nature, but it appears to be of litte, if any, significance. Mainly this was testimony taken concerning a series of tests run Pcninsula Laboratories, Mountain View, Calif. The tests, which included a '''ashing machine experiment, were supervised by Howard I.'ranz, a research chemist and a partner in Peninsula Laboratories, and conducted by Chemists Gloria Sirine and Walter Hasbrook, Jr. The testimony relating to these tests was clearly inconclusive as a scientific matter. Mr. Franz, for example, would not testify that any of the results observed were caused by the Evis unit, nor would the witnesses Sirine and Hasbrook, Jr., do so.

In any event, respondents do not press their cause on the basis of any scientific evidence. They apparently concede that the effect resulting in the benefits to be derived from the use of their devke, if any, is a scientific mystery. Respondents' evidence is largely that of the user testimony and the related exhibits. An examination of this evidence shows that a number of usen; including operating engineers and others, believed that they obtained bencficial results from the use of the Evis Water Conditioner. \Vhile a number of the "\vitncsses testified about observing results in parallel practical experiments, it nevertheless appears that the observations were not of tests under scientifically controlled conditions. Anyone of a number of factors not connected with the Evis V\Tater Conditioner could have caused any differences which may have been noted. This evidence, while relevant, must be considered and weighed in the light of alj the surrounding circumstances. In some cases, such testimony may be more important than in others, particularly ,,,here there is scientific evidence of considerable ,,,eig-ht on both sides of the question. Cf, In the matter of Pionee?'s, Inc. Docket No. G190 (decided May lG, 195G). That is not the situation in this proceecting. The scientific evklence in the record almost entirely supports the alJegat.ions of the complaint. The user evidence, in these circumstances, is of relatively litte value. In conclusion, we hold that the record contains reliable, probative and substantial evidence supporting the allegations of the EVIS MANUFACTURING CO., ET AI.. 1499 1483 Opinion complaint with the exception heretofore noted and that it was error for the hearing examiner to dismiss the complaint. The appeal of counsel in support of the complaint is granted. Accordingly, the initial decision is vacated and set aside, and our findings as to the facts, made on the whole record including the initial decision, and conclusion and order to cease and desist are issuing in jieu thereof.

Commissioner Kern did not participate in the decision of t.his mat.t.er.

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1500 FEDBHAL TRADE CO !MISSION DECISIONS Decision 55 F.