Bristol-Myers Co. v. Federal Trade Commission
| Decision Date | 09 November 1950 |
| Docket Number | No. 6049.,6049. |
| Citation | 185 F.2d 58 |
| Parties | BRISTOL-MYERS CO. v. FEDERAL TRADE COMMISSION. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Gilbert H. Weil, New York City, and T. Justin Moore, Richmond, Va. (Isaac W. Digges, New York City, John W. Riely, and Hunton, Williams, Anderson, Gay & Moore, all of Richmond, Va., on brief) for petitioner.
Donovan Divet, Special Attorney, Washington, D. C. (W. T. Kelley, General Counsel, James W. Cassedy, Associate General Counsel, and A. B. Hobbes, attorney Federal Trade Commission, all of Washington, D. C., on brief), for respondent.
Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.
This case arises upon the petition of Bristol-Myers Company, a Delaware corporation, engaged in the manufacture and sale of Ipana tooth paste, to review and set aside a cease and desist order entered against it by the Federal Trade Commission pursuant to findings that in advertising the product it had engaged in unfair and deceptive acts or practices in violation of Sections 5 and 12 of the Federal Trade Commission Act, 15 U.S.C.A. §§ 45 and 52. The prohibitive provisions of the order, which are set out in full in the margin,1 forbid advertisements which fall into two main categories: (1) advertisements that claim that twice as many dentists in the United States personally use Ipana as any other dentifrice; and that more dentists recommend Ipana for their patients than any other two dentifrices combined; (Sections 1(a) and 1(b) of the Order); and (2) advertisements which claim that Ipana possesses therapeutic and prophylactic qualities in that when used with massage it stimulates circulation and imparts health to the gums and prevents "Pink Tooth Brush" and aids in the treatment of its causes. (Sections 1(c), 1(d), 1(e) and 1(f) of the order).
The Commission issued a complaint against the corporation and found upon substantial evidence that the corporation had represented in advertisements in the first category (1) that according to a national survey conducted in 1940 among thousands of dentists twice as many dentists personally use Ipana tooth paste as any other dentifrice; and (2) that more dentists recommend Ipana for their patients' daily use than the next two dentifrices combined. These advertisements were based upon the answers to a questionnaire sent by the corporation in 1940 to each of 10,000 dentists out of 66,000 in the United States picked at random from the subscribers to two dental magazines. The questionnaires asked the following questions: (1) What dentifrice do you personally use most often?, and (2) What dentifrice do you most often recommend to your patients? In reply 1983 questionnaires were received which contained 2467 replies to the first and 2364 replies to the second question. The replies exceeded the questionnaires in number because some dentists named more than one product in their answers. Of the 2467 replies to the first question 621 dentists replied that they used Ipana most often, whereas the four nearest competing products were preferred by 258, 189, 144 and 128 dentists respectively. In answer to the second question 461 dentists indicated that they most often recommended Ipana to their patients while the four nearest competing products were preferred by 195, 125, 106 and 94 dentists respectively. Of the 461 dentists who recommended Ipana to their patients 413 used it themselves and 48 did not use it. Other surveys conducted in 1941 and 1944 revealed substantially similar situations.
Based upon the results of the survey, the corporation published advertisements from which the casual reader would reasonably infer that careful inquiry amongst the members of the dentist profession had disclosed that a large majority of the dentists in this country not only used Ipana themselves but recommended it to their patients. Typical of these advertisements were the following:
We are of the opinion that these sweeping statements were not justified by the answers to the questionnaire and that in consequence, as the Board found, the advertisements were misleading and likely to deceive the general public. Certainly the average reader would not infer that the positive proof in the hands of the advertiser disclosed the personal preference of only 621 dentists and the customary recommendation of tooth paste to patients by only 461 dentists out of the 66,000 dentists in the United States, or that less than 20 per cent. of those who had been questioned had taken the trouble to reply, so that the use and practice of the remaining 80 per cent. were unknown. It may well be that an accurate estimate of public opinion or practice can be obtained by a sampling process or survey, but the record is devoid of information on this subject and in the absence of the proof of the scientific principles, if any, which underlie the practice, we must rely upon the impression which the advertisements would be likely to make upon the mind of a man of ordinary intelligence. This is not to express the opinion that all advertisements based upon surveys must be barred, but merely that the information in the possession of the manufacturer in this case was insufficient to support its advertisements, and hence that the action taken by the Commission in this respect was within its authority.
The remaining parts of the order were passed in respect to advertisements which represented to the public that the modern American diet consists of such soft well cooked foods that the gums do not get the exercise and stimulation which they need, and that massage with Ipana will provide such exercise and stimulation, and will make the gums firm and healthy, guard against Pink Tooth Brush, a bleeding of the gums sometimes due to disease, and prevent gum trouble generally.2 Sections 1(c) to 1(f) of the order were designed to prevent the dissemination of these statements. The order was based upon findings of the Commission that the preponderant weight of qualified dental opinion establishes the following facts: It is immaterial to the health of the gums whether the diet of a person is soft or coarse, and the modern American diet provides sufficient gum stimulation. The term "massage", as used by dentists, means a careful downward stroking or squeezing pressure applied to a quarter inch of the gum margin and teeth....
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