Carter Products v. Federal Trade Commission, 10008.

• Decision Date: 02 February 1951
• Docket Number: No. 10008.,10008.
• Citation: 186 F.2d 821
• Parties: CARTER PRODUCTS, Inc., et al. v. FEDERAL TRADE COMMISSION.
• Court: U.S. Court of Appeals — Seventh Circuit

186 F.2d 821 (1951)

CARTER PRODUCTS, Inc., et al. v. FEDERAL TRADE COMMISSION.

No. 10008.

United States Court of Appeals Seventh Circuit.

February 2, 1951.

William L. Hanaway, New York City, and Breed, Abbott & Morgan, New York City, for Petitioners.

W. T. Kelley, General Counsel, James W. Cassedy, and Donovan Divet, Special Attys., all of Washington, D. C., A. B. Hobbes, Washington, D. C., for Federal Trade Commission.

Before MAJOR, Chief Judge, DUFFY and LINDLEY, Circuit Judges.

DUFFY, Circuit Judge.

Petitioners ask us to review and set aside a cease and desist order entered by the Federal Trade Commission against petitioners, charging them with engaging in unfair and deceptive acts and practices in commerce in violation of the Federal Trade Commission Act, 15 U.S.C.A. § 45.

Petitioner Carter Products, Inc., sells and distributes in interstate commerce a deodorant cosmetic preparation called Arrid. The other petitioner is Carter's advertising agency. By means of various types of advertising, petitioners have represented that Arrid "safely stops underarm perspiration * * * instantly stops perspiration one to three days * * * remember, it stops perspiration and keeps it stopped * * * for one to three days," and also, "If you want complete under-arm protection, you must keep the armpits dry as well as odorless. Arrid cream will do both for you, and do it safely." Petitioners also advertised that Arrid is harmless and will not irritate the skin even if used after shaving, and that by stopping the flow of underarm perspiration altogether, the collection of odor-creating body secretions in the armpits is prevented. The Commission found that the foregoing statements and representations are grossly exaggerated, false, deceptive and misleading. The Commission also found that certain of said advertisements meant that the application of Arrid to the area of skin under the arms will terminate and bring to an end the flow of perspiration in that area for one to three days.

Although often used interchangeably, the terms "sweat" and "perspiration" are not identical, and do not define or describe the same thing. Located beneath the surface of the skin are glands known as sweat glands, each having an opening or duct at the surface of the skin, referred to as the mouth of the sweat gland. "Sweat" is the substance which is formed in the sweat glands before it appears on the surface of the skin. In a general sense, "perspiration" means any secretion which passes through the skin, which would include a secretion which passed through at a place where no sweat glands were located. In a more restricted sense, and as the term generally is used, "perspiration" refers to the secretion of the sweat glands after it passes through the skin and appears on the surface thereof, plus accumulated dirt or debris which has collected on the skin from various sources, and when both are left on the surface of the skin, the combination generates an odor characterized as the odor of sweat. Perspiration is either sensible (which can be seen or felt) or insensible (which can neither be seen nor felt).

The principal active ingredient of Arrid is aluminum sulphate, an astringent. When applied to the skin it tends to cause a swelling which contracts or closes the mouths of the sweat glands, and thus reduces the flow of such glands. Later the swelling gradually decreases, permitting sweat to flow again from the glands.

The Commission found that the extent of the reduction of the flow of sweat depends upon the temperature, the humidity, the physical activity of the individual, and the degree of tendency to perspire peculiar to the particular individual. The Commission further specifically found, "The use of `Arrid' will not terminate or bring to an end the flow of underarm perspiration. Its use will not absorb perspiration to the extent of keeping the armpits dry. It will not keep the armpits dry or free from the odor of perspiration for one to three days. This preparation is not harmless, and its use will cause skin irritations, and dermatitis in some people. If used after shaving `Arrid' is not safe and harmless, but is capable of irritating the skin, and of aggravating irritation."

Petitioners were ordered to cease and desist from disseminating in commerce any advertisement which represented "(a) that the application of said preparation stops underarm perspiration, or that it will be more than temporarily effective in reducing the flow of perspiration; (b) that said preparation will be more than temporarily effective in keeping the armpits dry or odorless; (c) that the use of said preparation immediately after shaving will not irritate the skin¹; (d) that the said preparation will be more than temporarily effective in preventing the accumulation of odor-creating body secretions or excretions in the armpits; (e) that said preparation is safe or harmless to use, without disclosing it may cause irritation of sensitive skin."

As a product having antiperspirant properties Arrid does have some merit. All witnesses who testified on the subject agreed that Arrid did stop the appearance of perspiration on the surface of the skin of most people for certain periods. Two doctors testified the use of Arrid would have this effect for three to six hours; another stated it had such effect for a minimum of three to four hours; one doctor testified that such effect would continue six to fourteen hours, and another doctor from four to twenty-four hours.

Sweat glands function most of the time in at least some small degree in all human beings, but much of the time the secretion produced is so small in amount that it dries off too quickly for a person to see or feel any of the secretion. However, we are not here concerned with whether it is possible to stop entirely the functioning of the underarm sweat glands, which would seem theoretically impossible. Petitioners did not use the word "sweat" in their advertising. The reasonable interpretation of the average person reading their advertisement that Arrid would stop perspiration was that they were representing that Arrid would stop the appearance and odor of moisture on the underarm skin. Their use of the word "stop" was ambiguous, however. If we say a person is dead because he has "stopped breathing," there is a connotation of permanence about the word "stopped"; but if when driving an automobile a person "stopped for a traffic light," the connotation of "stopped" would be of a temporary nature. Dictionary definitions of "stop" include "to cause to cease; to suppress; check; hold back; to arrest the progress or action of."

As stated heretofore, the evidence discloses that the use of Arrid will reduce the appearance of perspiration on the skin for a number of hours, to a point where it cannot be seen or felt. Of course the length of time that this situation prevails differs with each person and the existing circumstances. But the statement in the advertisements that Arrid will stop perspiration from one to three days was unjustified, as well as that its use would stop the flow of underarm perspiration "altogether."

Petitioners insist that they have never claimed that Arrid produced a permanent antiperspirant effect. Arrid is marketed in jars containing slightly more than one ounce of the product. Directions for use have appeared on packages and labels of Arrid, as follows (since 1939):

"Cover arm pit. Rub gently until cream vanishes. Wipe off excess. Use daily if necessary." Also, "Use frequently as you find necessary." And (since 1946), "Use daily for constant protection."

Petitioners argue that they made no greater claim than that the product, when used as directed, would stop the appearance of perspiration on the surface of the skin for a reasonable length of time. However, this contention of petitioners cannot be sustained. Petitioners did a considerable amount of advertising over the radio. At the first contact between buyer and seller, the buyer had no means of knowing that the directions printed on cartons and jars containing Arrid called for "daily" use or "as frequently as * * necessary." The same would hold true as to newspaper or magazine advertising. The law is violated if the first contact or interview is secured by deception, Federal Trade Comm. v. Standard Education Society, 302 U.S. 112, 115, 58 S.Ct. 113, 82 L.Ed. 141, even though the true facts are made known to the buyer before he enters into the contract of purchase. Progress Tailoring Co. v. Federal Trade Comm., 7 Cir., 153 F.2d 103, 104, 105. See also: Aronberg v. Federal Trade Comm., 7 Cir., 132 F.2d 165, 169.

Thus we are here confronted with a situation where the distributors of Arrid, a product of some merit, made claims in their advertising which were too sweeping and too broad in their scope. Further, petitioners' use of the word "stop" was ambiguous. The approach of the Commission is to interpret "stop" as connoting...