Fibre Glass-Evercoat Company, Inc.

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

IN THE ~latter OF FIBRE GLASS-EVERCOAT COThIP ANY, INC., ET AL. CONSENT ORDER, ETC., IN REGARD TO THE ALLEGED VIOLATION OF THE FEDERAL TRADE COl\Il\IISSION ACT Docket C-200. Colnlllaint, Scpt. .l96,?-Decision, Sept. .11 1962 Consent orller requiring Cincinnati sellers of a plastic metal mender designated Ever-Flex" to automotive distributors and jobbers for resale, to cease 478 FEDERAL TRADE ' COMMISSION DECISIONS Complaint 61 F.

representing falsely in advertising that their said product' was nontoxic and safe, and to cease selling it without adequate warning on containers of the dangers attendant on its use.

COMPLAINT Pursuant to the provisions of the Federal Trade Commission Act and by virtue of the authority vested in it by said Act, the Federal Trade Commission, having reason to believe that Fibre Glass-Evercoat Company, Inc. , a corporation, and Joseph Linder and Carl Friedman, individually and as officers of said corporation, and John Fielman and Cecil Wilson, individually, hereinafter referred to as respondents, have violated the provisions of said Act, and it appearing to the Commission that a proceeding by it in respect thereof would be in the public interest, hereby issues its complaint stating its charges in that respect as follows:

PARAGRAPH 1. Respondent Fibre Glass-Evercoat Company, Inc. is a ~orporation organized, existing and doing business under and by virtue of the laws of the State of Ohio, with its principal office and place of business located at 8500 Blue Ash Road, in the city of Cineinnati, State of Ohio.

Respondents Joseph Linder and Oarl Friedman are officers of the corporate respondent and John Fielman and Cecil Wilson are sales managers for said corporation. They forlllulate, direct and control the acts and practices of the corporate respondent, including the acts and practices hereinafter set forth. Their address is the same as that of the corporate respondent.

PAR. 2. Respondents are now, and for some time last past have been engaged in the advertising, offering for sale, sale and distribution of among other things, a plastic metal mender designated "Ever-Flex to automotive distributors and jobbers for resale to the consumer. PAR. 3. In the course and conduct of their business, respondents now cause, and for some time last past have caused, their said product when sold, to be shipped from their place of business in the State of Ohio to purchasers thereof located in various other States of the United States and in the District of Columbia, and maintain, and at all times mentioned herein have maintained, a substantial course of trade in said product in commerce, as "conunerce" is defined in the Federal Trade Commission Act.

PAR. 4. In the course and conduct of their business, and for the purpose of inducing the sale of their plastic metal mender designated Ever-Flex, respondents have made certain statements and represen- FIBRE GLASS-EVERCOAT CO. , INC. , ET AL. 479 477 Complaint tations in advertisements in magazines of national circulation, in catalogue sheets, and by other media, of which the following are typical: NEW non-toxic CREME CATALYST Ever- Flex * * Non-toxic * '" Creme or Liquid hardener '" * 100% Safe PAR. 5. By and through the use of the :aforesaid statements and representations, and others of similar import but not specifically set forth herein, respondents represented, directly or by implication: (1) That the creme hardener and the liquid hardener are nontoxic and safe.

(2) That the plastic metal mender is nontoxic and safe. PAR. 6. In truth and in fact:

(1) The creme hardener and the liquid hardener are not nontoxic and safe as the creme hardener contains benzoyl peroxide and the liquid hardener contains methyl ethyl ketone peroxide, both of which are primary irritants and sensitizers to the skin. The vapors from the methyl ethyl ketone peroxide may be harmful if inhaled. (2) The creme hardener or the liquid hardener must be combined with the putty to make the plastic metal mender and when this is done the product resulting therefrom may cause itching or skin irritation may be injurious when the vapors from the liquid hardener are inhaled and is not safe or nontoxic under all conditions of use. Therefore the stateJnents and representation set forth in paragraph 4 were, and are false, misleading and deceptive. PAR. 7. The benzoyl peroxide contained in the creme hardener may through prolonged or repeated contact with the skin irritate or sensiof contact should be flushed fromtize the skin and, therefore, in case the skin. Because it contains benzoyl peroxide, the creme hardener is toxic if taken internally and, therefore, should be kept out of reach of children. If the creme hardener is ingested, vomiting should be induced and a physician consulted. Because it contains benzoyl peroxide the creme hardener Juay be flammable if coming in contact with heat or flame. The label on the respondents' creme hardener is misleading in that it fails to reveal these material facts with respect to the consequences which may result frolll the use of said product as directed on the label for the putty and with respect to the conditions of storage of the creme hardener.

PAR. 8. In the conduct of their business, at all times mentioned here- , respondents have been in substantial competition, in commerce with corporations, firms and individuals in the sale of plastic metal Decision and Order 61 F.

l11.enders of the same general kind and nature as that sold by respondents.

PAR. 9. The use by respondents of the aforesaid false, misleading and deceptive statements, representations and practices and failure to warn the purchasing pubhc on the labels of the product of the dangers attendant to the use of the product have had, and now have., the capac~ ity and tendency to mislead members of the purchasing public into the erroneous and mistaken belief that said statements and representations were and are true and that there is no danger in use of the product and into the purchase of substantia.l quantities of respondents' product by reason of said erroneous and n1mistaken beliefs. PAR. 10. The 'aforesaid acts and practices of respondents, as herei~, alleged, were, and are, all to the prejudice and injury of the public and of the respondents competitors and constituted, and now constitute unfair n1ethocls of competition in commerce and unfair and deceptive acts and practices in commerce in violation of Section 5 of the Federal Trade Commission Act.

DECISION AND ORDER The Federal Trade Commission having initbted an investigation of certain acts and practices of the corporation named above, and the respondents named in the caption hereof having been furnished thereafter with a copy of a draft of complaint which the Bureau of Deceptive Practices proposed to present to the Commission for its consideration and which.h, if issued by the Commission, would charge the respondents with violation of the Federal Trade CO1llinission Act; and The respondents and 'counsel for the Collln1ission having thereafter executed an agreement containing a consent order, an adlnission the respondents of all the jurisdictional facts set forth in the aforesaid draft of complaint, a stateJnent that the signing of said agreeJnent is for settlement purposes only and does not constitute an admission by the respondents that the law has been violated as alleged in such complaint, and waivers and provisions as required by the Commission rules; and The Comnlission, having reason to believe that the respondents have violated the Federal Trade Commission Act, and having determined that cO1nplaint should issue stating its charges in that respect, hereby issues its complaint, accepts said agreeJl1ent, makes the following jurisdictional findings and enters the following order: 1. Respondent, Fibre Glass- Eyercoat Company, Inc., is ft corporation organized, existing and doing business under and by virtue of the laws FIBRE GLASS-EVERCOAT CO. , INC., ET AL. 481 477 Decision and Order of the, State of Ohio, with its office and principal place of business located at 8500 Blue Ash Road, in the city of Cincinnati, State of Ohio. Respondents, Joseph Linder and Carl Friedman are ofilcers of said corporation and John Fielman and Cecil ""Vilson are sales managers for said corporation and their address is the Sillne as that of the saidcorporation.2. The Feclern,l Trade Commission has jurisdiction of the subject n1ntter of this proceeding and of the respondents, and the proceeding )s in the public interest.

ORDER is ordered, That respondent Fibre Glass-Evercoat Company, It Inc., a corporation, and its officers, and respondents Joseph Linder and Carl Friedman, individually and as officers of sa.icl corporation and John Fielman and Cecil 'Vilson, individually, and i'respondents representatives, agents and employees, directly or through any corporate or other device, in connection with the offering for sale, sale or distribution in commerce, as "coll1merce ~ is defined in the Federal Trade Commission Act, of a plastic metal mender designated "Ever- Flex/' or any other product of similar composition 01' possessing substantially similar properties, under whatever name sold, do forthwith cease and desist from:

1. Representing, directly or by implication, that the creme hardener or the liquid hardener or the plastic metal mender is nontoxic or safe or will not cause itching or skin irritation. 2. Using a label on the container for the creme hardener which does not set forth in a clear and conspicuous manner the following statements:

CAUTION: I(eep away from heat or flame. Keep out of reach of children. If taken internally, induce vomiting; consult physician. A void prolonged or repeated contact with skin. In case of contact, flush skin with water. It 'lsfurther ordered That the respondents herein 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 this ora-er.

482 Ii'EDERAL TRADE COMMISSION DECISIONS Complaint 61