Irwin v. Federal Trade Commission

• Decision Date: 17 July 1944
• Docket Number: No. 12646.,12646.
• Citation: 143 F.2d 316
• Parties: IRWIN et al. v. FEDERAL TRADE COMMISSION.
• Court: U.S. Court of Appeals — Eighth Circuit

143 F.2d 316 (1944)

IRWIN et al. v. FEDERAL TRADE COMMISSION.

No. 12646.

Circuit Court of Appeals, Eighth Circuit.

June 15, 1944.

Rehearing Denied July 17, 1944.

Frank A. Whiteley, of Minneapolis, Minn., for petitioners.

Joseph J. Smith, Jr., Asst. Chief Counsel, Federal Trade Commission, of Washington, D. C. (W. T. Kelley, Chief Counsel, and Eugene W. Burr, Sp. Atty., Federal Trade Commission, both of Washington, D. C., on the brief), for respondent.

Before STONE, WOODROUGH, and THOMAS, Circuit Judges.

WOODROUGH, Circuit Judge.

The petitioners, doing business as Associated Laboratories, have submitted their petition under 15 U.S.C.A. § 45(c), for review of a cease and desist order entered against them by the Federal Trade Commission on April 30, 1943. They pray for reversal of the order, and the Commission prays that it be affirmed and that this court command obedience to it.

The proceedings were instituted before the Commission by complaint reciting probable cause to believe that petitioners had violated the provisions of the Federal Trade Commission Act and that a proceeding in respect thereof would be in the public interest, and charging that petitioners were engaged in the business of manufacturing and selling and distributing in interstate commerce, "a device designated as Gordon Detoxifier, a rectal irrigator designed for cleansing the bowels and intestines", and that to promote its sale petitioners disseminated by mail and otherwise, a number of false, misleading and deceptive advertisements concerning the device and what may be done by the use of it. In paragraph three, the complaint set out in haec verba within quotation marks, specific statements alleged to be typical of those contained in petitioners' advertisements and charged to be false, misleading and deceptive, and in paragraph four, it was charged that by the use of the representations set out and others similar, petitioners represent directly and by implication that the use of the device, designated as "Gordon's Detoxifier," will thoroughly and harmlessly cleanse both the large and the small intestine; that its use will massage and strengthen both the large and small intestine and strengthen the tissues of the intestinal tract; that the injection of oxygen into the intestinal tract by said device will destroy the anaerobic germ; that its use will purify the blood stream; that its use, often in one treatment, will relieve the pain of rheumatism, arthritis, and of neuritis; that its use will reduce hypertension or high blood pressure with resulting relief of strain on the heart and on the brain; that its use will reveal to the patient himself, what foods to avoid in order to insure maximum efficiency in digestion; that its use will result in lessening the burden thrown on the liver and kidneys; that its use, in a few treatments, will relieve sinus and antrum complications; that its use will result in the reestablishing of a normal peristalsis or the natural muscular activity of the intestines; that its use will assist, by minimizing deposits of calcium and magnesium salts on the walls of the arteries, in preventing their hardening; that said device will send, in a scientifically controlled manner, a pulsating stream of water and air bubbles into the bowels and into the otherwise inaccessible small intestine; that most ailments originate in the small intestine; that the use of Ozone in said device accelerates the healing process and stimulates recovery; and that ailments and conditions such as appendicitis, arthritis, asthma, colitis, constipation, excessive fatigue, foul breath, headache, gall bladder complications, high and low blood pressure, indigestion, irregular heart, kidney and bladder complications, liver complications, lumbago, menopause disturbances, muddy or pimply complexion, migraine, nervousness, pruritis ani, rheumatism, sinus trouble, rundown condition, shortness of breath, sleeplessness, ulcers of the stomach and bowels, and ulcerated colitis, are almost invariably caused by intestinal toxemia or toxins in the intestinal tract, and that such diseases or conditions can be successfully treated by petitioners' said device.

In paragraph five, after asserting the falsity of petitioners' said advertisements, it is charged that,

"In truth and in fact, the use of respondents' petitioners here said `Gordon's Detoxifier' will not thoroughly and harmlessly cleanse both the large and small intestines. In fact, the frequent and repetitious use of said device may seriously interfere with the normal functioning of the lower bowels and may produce distinct harm by the removal of the normal protective mucous which should always be present on the surface of the mucosa of the lower bowels, thereby producing irritation. The use of said device will not massage and strengthen both the large and small intestines or any part of the intestinal tract. The injection by said device of oxygen into the intestinal tract will not destroy the anaerobic germ. The use of said device will not purify the blood stream and it will not relieve the pain caused by rheumatism, arthritis and neuritis. The use of said device will not reduce hypertension or high blood pressure and will have no effect on relieving strain on the heart or the brain. The use of said device will not reveal to the patient what foods to avoid in order to insure maximum efficiency in digestion. Its use will not lessen the burden thrown on the liver or the kidneys. Its use will not, in either a few treatments or in many treatments, relieve sinus and antrum complications. Its use will not result in the re-establishing of a normal peristalsis or the natural muscular activity of the intestine. Its use will not in any manner prevent the hardening of the arteries. Said device will not send a pulsating stream of water and air bubbles, in a scientifically controlled manner, into the small intestine. Furthermore, if water from said device should enter the small intestine the result of such penetration would not have a favorable effect on any disease or condition of the body, but might result in harmful or serious consequences. Most ailments do not originate in the small intestines. The use of Ozone in said device will not accelerate the healing process and stimulate recovery, and if a significant amount of Ozone is injected into the intestinal tract, serious injury to health may follow. The ailments and conditions such as appendicitis, arthritis, asthma, colitis, constipation, excessive fatigue, foul breath, headache, gall bladder complications, high and low blood pressure, indigestion, irregular heart, kidney and bladder complications, liver complications, lumbago, menopause disturbances, muddy or pimply complexion, migraine, nervousness, pruritis ani, rheumatism, sinus trouble, rundown condition, shortness of breath, sleeplessness, ulcers of the stomach and bowels, and ulcerated colitis, are not almost invariably caused by intestinal toxemia or by the presence of toxins in the intestinal tract and such diseases or conditions cannot be successfully treated by the use of respondents' said device. Furthermore, the effect of said device is limited to an injection of liquid into the lower intestinal tract and its therapeutic value is correspondently limited to that of an ordinary enema."

The complaint also charged that petitioners' use of the term "hydro-surgery" in describing their device or the effects thereof, in the treatment of diseases or conditions of the human body, is false and misleading in that said term falsely indicates that the use of the device accomplishes results similar to results accomplished by surgery. It also charged that petitioners' use of the name "Gordon's Detoxifier" is false and misleading as falsely indicating that said device will remove or destroy toxins in the human system. In conclusion, it was alleged that all petitioners' acts and practices aforesaid are to the prejudice and injury of the public and constitute unfair and deceptive acts and practices in commerce within the intent and meaning of the Federal Trade Commission Act.¹

The petitioners appeared and filed their answer to the complaint. They admitted that they were engaged in business as alleged in the complaint, and stated "that to the extent and as respondents have used in their advertising the specific details presented in the quotes in paragraph three and the statements set forth in paragraph four, such statements are true, and are justified by therapeutic results obtained by the use of their instrument." They denied generally the allegations of paragraph five of the complaint and specifically "that ailments and diseases referred to in paragraph five cannot be successfully treated by the use of respondents' instrument, when the generalization `successfully' is properly limited to the producing of an alleviation of the patient's complaint and a degree of recovery therefrom and a degree of restoration to health. The respondents further deny the allegation of paragraph five that the effect of said device is limited to an injection of liquid into the lower intestinal tract and its therapeutic value is correspondingly limited to that of an ordinary enema. In this regard respondents affirm that no competent observer who understands the nature of respondents' instrument and has observed its operation and the results obtained by it could honestly make the claim that the instrument provides only means for giving an ordinary enema."

They denied that any use by them of the term "hydro-surgery" is false or misleading, but affirm "that by the use of a mechanical appliance including water certain favorable results in the treatment of ailments are obtained, which is true, and that such use is a form of `hydro-surgery'." They also denied "that its use of its trade mark `Detoxifier' falsely indicates that respondents instrument will remove or destroy toxins in the human system. The word `Detoxifier' at the time...