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 |
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.
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.
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
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 ...
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