A. Eicoff & Co

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

IN THE MATTER OF EICOFF & CO.

CONSENT ORDER, IN REGARD TO ALLEGED VIOLATION OF Tile FEDERAL TRADE COMMISSION ACT Docket C-2651. Complaint, Mar. 1!J75 Decision, Mar. , 1975 Consent order requiring a Chicago, Ill., advertising agency, among other thing" to cease disseminating advertising material or product packaging which fails to provide consumers with warning information regarding use of the product when necessary.

Appearances For the Commission: Stewart A. Btock and Marvin R. Lange. For the respondent: P. W. O'Brien and W. T. Braithwaite. 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 A. Eicoff & Co., a corporation, hereinafter referred to as respondent, has 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 intercst hereby issues its complaint stating its charges in that respect as follows:

P ARAGRAPII I. For purposes of this complaint, the following definitions shall apply:

1. "Commerce" means commerce as defined in the Federal Trade Commission Act;

2. "False advertisement" means false advertisement as defined in the Federal Trade Commission Act;

3. "Dark-Eyes" means the product "Dark-Eyes Lash and Brow Tint" in each formulation in which it is packaged and sold to the public. 4. "Product package" means the package in which "Dark-Eyes Lash and Brow Tint" is contained and sold.

PAR. 2. Respondent is a corporation organized, existing, and doing; business under and by virtue of the laws of the State of Ilinois, with its office and principal place of business located at 520 N. Michigan Avc. Chicago, Il.

PAR. 3. Respondent is now, and for all times relevant to this complaint has been, an advertising agency of C. B. Products, Inc., and now, and for all times relevant to this complaint, has prepared and placed for publication and has caused thc dissemination of the 5R4 F;DERAL TRADE COMMISSION DECISIONS Complaint 85 F.

television advertisements referred to herein, to promote the sale of a liquid eyelash and eyebrow darkener, sold and distributed by C. Produds, Inc., and designated as "Dark-Eyes Lash and Brow Tint. Said product is a "cosmetic" as that term is defined in Section 15 of the Federal Trade Commission Act.

PAR. 4. In the course and conduct of its aforesaid business respondent has disseminated, or has caused to be disseminated, in commerce, advertisements for the purpose of inducing, or which are likely to induce, the purchase of "Dark-Eyes " and has disseminated or has caused to be disseminated advertisements for the purpose of inducing, or which are likely to induce, the purchase, in commerce, of Dark-Eyes.

PAR. 5. Among the advertisements disseminated by means of television, but not all inclusive thereof, are the following: A. EICOFF & CO. 585 583 Complaint A. EICOFF & COMPANY aduertising. mariceling' 520 N. MICHIGAN AVE.. CHICAGO. ILLINOIS 60611 PHONE (312) 944 2300 Open on MLS of two women in bed- When a woman cries... You neuerreal1y room. Daughter opens box with wedd. know.. ing dress and holds up for mother to see.

Cut 10 CU of mother crying. She could be happy... orsad. Cut MS of girl, who also starts crying. But then, that what makes her a woman...and that malws her all the more beatltiful.

Zoom to CU of girl's face to show how cept if those tears make her mascara tears have made mascara run down her run. She can t stop those tears. face.

Cut to MLS as Mother hands tissue to but she should have used the unique girl who dabs away tears. eye make-up that won t run, smear wash off, or euen cry off for weeks and weeks.

Diss. to CU of Dark Eye. Pkg. chroma- It' s called DARK EYES. DARK EYES eyed over a calendar. SUPER. The is not a mascara... 1t' once- month Once- Month Eye Make- Up. eye cosmetic tint that could save you lots of tedious make-up time each week.

Viss. to MCU of girl lightly dabbing Here s what you do. First, apply a little uaseline on eyes and above brows. uaseline around your eyes. Viss. to display of pkg. and bottles. Then simply bnlsh your lashes gently Hand enters and dips brush into cap with DARK EYES 111. filed with liquid.

Cut to CU as girl applies Dark Eyes to and lei dry fora few minutes. lashes.

10. Diss. to CU of girl's eyes as she applies 10. Now, brush them again with DARK Dark Eyes # 2.. then wipes with cotton EYES # 2 and wipe with a moist cotton ball. ball. That s all there is to it. 11. Diss. to girl applying Dark Eyes to For eyebrows, apply DARK EYES the brow. same way. 12. Diss. to same girl in shower. Zoom into 12. Now, go ahead and shower... euen go CUofeyes. swimming as often as you like... DARK RYES won t wash oft.

13. Diss. to CU of same girl using cream on And, don t hesitate to cream your face. face... DARK EYES won t cream off. 14. Diss. to same girl in bed, just awaken- 14. But best yet, when you use DARK ing. EYES you wake up pretty euery single morning.

15. Diss. to CU display of product. 15. This complete VARK EYES kit wil SUPER: The Once- Month Eye keep your eyes beautiful month after Make- Up. also SUPER: $2. month... and itensts only $2. 00. 16. Diss. to wedding scene in church. CU of 16. So gel DARK EYES loday- the oncebride and groom. Groom lifts veil month eye make-up that won t run camera zooms to CU of girls face to smear, wash off, cream off or even cry show tears on cheek. oft. 'ja 79" c - ',s - 3U 586 F!;DERAL TRADE COMMISSION DECISIONS Complaint 85 F.

A. EICOFF & COMPANY advertising' marketitl 520 N. MICHIGAN AVE. ' CHICAGO, ILLINOIS 60611 PHONE (312) 944 2300 MS of man and woman in romantic It' s the moment YOU lie waited for.. dinner table setting with candlelight- and YOU wanted to 1001,- your loveliest. Man hands woman engagement ring. A romantic candlelight dinner.. and now, you Ore engaged.

Cut to CU of girl s face. She s weeping But just look at you with your ma. tears of joy and mascara is streaking. cara running down your face. Cut back to MS as man hands woman You can t stop those happy tears, but his handkerchief and she dabs at her you should have used the amazing eye eyes. make-up that won t run, smear, wash ff, or even cry orf for wee/Is and weeks.

Diss to CU of Dark Eyes phg chroma- It' s called DARK EYES. DARK EYES keyed Quer calendar page. Super: The is not a mascare.. it' s a Once- Month Once- month eye make-up. eye make-up that wil saue you hours tense make-up time each week.

Diss to display of pkgand bollles. Hand Just a few minutes ONCE A MONTH enters scene and dips brush into cap with DARK EYES and your eyes will filed with liquid. stay beautiful no malter what you do. Cut to CU of girl's eyes as she applies Here s how it works. Simply brush your Dark Eyes to her eyelashes. lashes gently with DARK EYES II 1 and lei dry fora few minutes.

Diss to CU of girl s eyes as she applies Then brush them again with DARK Dark Eyes tI 2,.. then wipes with colton EYES II and wipe with u moist colton ball. ball. It's fhateasy. Girl applies Dark Ryes to hereyebrows. For eyebrows, apply DARK EYES the same way.

Diss to same girl in shawer. 200m to Now, go ahead and shower... even go CU of eyes. swimming. . QS often as you like.. DARK EYES won t wash oft.

10. Diss to CU of same girl using cream all 10. And don hesitate to cream your face. face... DARK EYES won t even cream off.

11. niss to same girl in bed just awakening. But best yet, with DARK EYES you can wake up pretty every single morning.

12. Diss to CU display of product. Super: 12. This complete DARK EYES kit wil The Once- Month eye ma/w-up. keep your eye. beau tifu month after month...and it costs only $2. 00.

13. HCU of beautifully made-up eyes. One 13. So get carefree DARK r" YES clear tear (arms and trickles down today- the once- month eye mu/wcheek. that won t run, smear, wa.h off, cream off or even cry off.

D.. "_"'JUI' I UI v'J. uO' 583 Complaint PAR. 6. Through use of the advertisements set forth in Paragraph Five, and other advertisements not specifically set forth herein respondent has represented directly or by implication that the application process depicted and described in the aforementioned advertisements is the complete process for the application of "Dark- Eyes.

PAR. 7. In truth and in fact the application process depicted and described in the advertisements set forth in Paragraph Five and in other advertisements not specifically set forth herein is not the complete process for application of "Dark-Eyes." The instructions for application contained inside the product package include additional procedures including covering all working surfaces with newspapers to protect against spils and stains, and application of Vaseline Petroleum J elly to an areas of the skin around the eyes other than the. eyelashes and eyebrows to prevent the unwanted staining of those areas. Said additional procedures are precautions required for prevention of unwanted results.

PAR. 8. Therefore, the statements and representations set forth in Paragraph Six are false and misleading in a material respect and constitute false advertisements and unfair or deceptive acts or practices in commerce.

PAR. 9. By use of the advertisements set forth in Paragraph Five and other advertisements not specifically set forth herein, respondent has presented demonstrations of the process of application of "Dark- Eyes." For the reasons set forth in Paragraph Seven, said demonstrations substantially vary from and disregard the precautions set forth in the instructions for application of " Dark-Eyes" which are contained within the product package.

PAIL 10. Therefore, the advertisements set forth in Paragraph Five and other advertisements not specifically set forth herein, negate the importance of closely following said instructions for application of Dark-Eyes" and detract from the effectiveness of said precautions and constitute ' false advertisements and unfair or deceptive acts or practices in commerce.

P Alt. 11. In the course and conduct of its aforesaid business, and at all times mentioned herein, respondent has been and now is, in substantial competition in commerce with other advertising agencies. PAR. 12. The aforesaid acts and practices of respondent, as herein alleged, including the dissemination of false advertisements, as aforesaid, were and are all to the prejudice and injury of the public and of respondent' s competitors, and constituted and now constitute unfair methods of competition in commerce and unfair or deceptive acts or 588 FEDERAL TRAm; COMMISSION DECISIONS Dpcision and Order R5 F. practices in commerce, in violation of Section 12 and/or 5 of the Federal Trade Commission Act.

DECISION AND ORDER The Federal Trade Commission having initiated an investigation of certain acts and practices of the respondent named in the caption hereof, and the respondent having been furnished thereafter with a copy of a draft of complaint which the Bureau of Consumer Protection proposed to present to the Commission for its consideration and which if issued by the Commission, would charge respondents with violation of the Federal Trade Commission Act; and The respondent and counsel for the Commission having thereafter executed an agreement containing a consent order, an admission by the respondent of all the jurisdictional facts set forth in the aforesaid draft of complaint, a statement that the signing of said agreement is for settlement purposes only and does not constitute an admission by respondent that the law has been violated as alleged in such complaint and waivers and other provisions as required by the Commission rules; and The Commission having thereafter considered the matter and having determined that it had reason to believe that the respondent had violated the said Act, and that complaint should issue stating its charges in that respect, and having thereupon accepted the executed consent agreement and placed such agreement on the public record for a period of sixty (60) days, and having duly considered the comment filed thereafter pursuant to Section 2.34(b) of its rules, now in further conformity with the procedure prescribed in Section 2.34(b) of its rules the Commjssion hereby issues its complaint, makes the following jurisdictional findings, and enters the following order: 1. Respondent A. Eicoff & Co., is a corporation, organized, existing, and doing business under and by virtue of the laws of the State of Ilinois, with its office and principal place of business located at 520 N. Michigan A ve., Chicago, Ill.

2. The Federal Trade Commission has jurisdiction of the subject matter of this proceeding and of the respondent, and the proceeding is in the public interest.

ORDER For the purposes of the order the following definitions apply: 1. "Directions for use" means the directions or instructions for the application, use, or storage of a product or its packaging which are ... ... ..

5R3 Decision and Order contained in the "labeling" (as defined in Section 201(m) of the Food Drug and Cosmetic Act, as amended) of such product. 2. "Type A precaution" means an affirmative action relating to application or use (but not storage) of a product, prescribed by the directions for use of the product (whether stated affirmatively or negatively) for the purpose of avoiding or reducing a risk to person or property, and applicable to all or substantially all users of the product. By way of illustration and not limitation, the following are examples of Type A" precautions: "Apply petroleum jelly to skin before use. not use until petroleum jelly is applied to skin. Shake well before using" (if this is prescribed for the purpose of avoiding or reducing a risk to person or property J.

3. "Type B precaution" means all actions, except "Type A" precautions, proscribed or prescribed by the directions for use of a product for the purpose of avoiding or reducing a risk to person property, including but not limited to the following categories of actions: (By way of illustration and not limitation, examples of "Type B" precautions are given after each category. (a) Actions relation to storage of a product. ("Refrigerate after opening. Store in a cool dry place. Keep out of reach of children. (b) Actions prescribed or proscribed for fewer than all or substantially all users of a product. ("If you have sensitive skin, wear gloves. not use if you have kidney disease.

(e) Actions to remedy problems which may arise in less than every instance of application or use. ("If product gets into eye, rinse out with water. If a rash develops, see a doctor. If product drips onto painted surface, wash off immediately.

(d) Actions proscribed, whether stated affrmatively or negatively, in the directions for use. ("Do not use near open flame. Use only in well ventilated areas. For external use only. Do not puncture or incinerate container.

It is ordered That respondent A. Eieoff & Co., a corporation, its successors and assigns and said respondent's officers, agents, representatives, and employees, directly or through any corporation subsidiary, division or other device, in connection with the advertising, sale, offering for sale or distribution of any drug, cosmetic or device, as those terms are defined by the Federal Trade Commission Act forthwith cease and desist from directly or indirectly: A. Disseminating, or causing to be disseminated by means of the United States mails or by any means in commerce, as "commerce " is defined in the Federal Trade Commission Act, any advertisement, or 590 joi'DERAL TRADE COMMISSION Dr:CISIONS Decision and Ordcr 85 F.

any product package, which relates or depicts any portion of the application process or method of use of such product without relating or depicting, in conjunction therewith and equally conspicuously, each Type A" precaution which is set forth in the directions for use of such product; Provided, however That it shall not be a violation of this provision to present no more than a single stil depiction of any action in the application process or method of use of such product, so long as (a) nothing in said stil depiction in any way negates, is inconsistent with, or detracts from the effectiveness of any of the "Type A" or Type B" precautions set forth in the directions for use of such product and (b) there is no representation, directly or by implication, that the entire application process or method of use of such product has been depicted.

B. Disseminating, or causing to be disseminated, by means of the United States mails or by any means in commerce, as "commerce " is defined in the Federal Trade Commission Act, any statement or representation, including but not limited to statements or representations in advertising or contained on or within the product package, or visual depiction, which, directly or by implication, contradicts, negates or is inconsistent with the disclosure required by Paragraph l(A), above, or in any way obscures the meaning of such disclosure. C. Disseminating, or causing to be disseminated, by any means, any advertisement or any statement made on the product package, for the purpose of inducing or which is likely to induce, directly or indirectly, the purchase of such product in commerce, as "commerce" is defined in the Federal Trade Commission Act, which fails to contain the disclosures required by Paragraph I(A), above, or which contains any representation prohibited by Paragraphs I(A) or I(B) above. It is ordered That respondent A. Eicoff & Co., a corporation, its successors and assigns and said respondent's officers, agents, representatives, and employees, directly or through any corporation subsidiary, division or other device, in connection with the advertising, sale, offering for sale or distribution of any product, forthwith cease and desist from directly or indirectly:

A. Disseminating, or causing to be disseminated by means of the United States mails or by any means in commerce, as "commerce" is defined in the Federal Trade Commission Act, any advertisement; or any product package, which relates or depicts the application process or method of use of such product which in any way negates, is inconsistent with or detracts from the effectiveness of any of the "Type A" or Type B" precautions set forth in the directions for use of such product. . . _._ , .'.L.L'.L , a,,,.nu.L'-'' - _u 591 Complaint by any means, any B. Disseminating, or causing to be disseminated, advertisement or any statement made on the product package, for the purpose of inducing or which is likely to induce, directly or indirectly, the purchase of such product in commerce, as "commerce" is defined in the Federal Trade Commission Act, which contains any representation prohibited by Paragraph Il(A), above.

It is further ordered That the respondent shall forthwith distribute a copy of this order to each of its operating divisions. It is further ordered That the respondent notify the Commission at least thirty (30) days prior to any proposed change such as dissolution assignment or sale resulting in the emergence of a successor corporation, the creation or dissolution of subsidiaries or any other change in the corporation which may affect compliance obligations arising out of the order.

It is further ordered That the respondent herein shall, within sixty (60) days after service upon it of this order, file with the Commission a report in writing setting forth in detail the manner and form in which it has complied with this order.