DDD CORPORATION v. Federal Trade Commission, 7694.

• Decision Date: 05 March 1942
• Docket Number: No. 7694.,7694.
• Citation: 125 F.2d 679
• Parties: D. D. D. CORPORATION v. FEDERAL TRADE COMMISSION.
• Court: U.S. Court of Appeals — Seventh Circuit

125 F.2d 679 (1942)

D. D. D. CORPORATION v. FEDERAL TRADE COMMISSION.

No. 7694.

Circuit Court of Appeals, Seventh Circuit.

February 12, 1942.

Rehearing Denied March 5, 1942.

Geo. I. Haight and Wm. E. Lucas, both of Chicago, Ill., and R. G. Sappenfield, of Geneva, Ill., for petitioner.

W. T. Kelley, J. J. Smith, Jr., Martin A. Morrison, Asst. Chief Counsel, Clark Nichols and James W. Nichol, Sp. Attys., all of Washington, D. C., for respondent.

Before MAJOR, KERNER, and MINTON, Circuit Judges.

MAJOR, Circuit Judge.

This is a petition for review of a cease and desist order, entered by the Federal Trade Commission, April 19, 1941. It is directed at petitioner's medicinal product, "D.D.D. Prescription," an external liquid application for the relief of itching. The controversy revolves largely around petitioner's advertising in newspapers, periodicals and by radio of the medicinal qualities of the product, which the Commission charged, found, and now contends was false and misleading, and calculated to deceive a substantial portion of the purchasing public.

There is no dispute but that the product affords relief for itching. There is a dispute as to the extent of the relief and whether it is merely temporary or permanent. Two doctors, both specialists in the field of dermatology, testified before the Commission, one for the Commission and the other for petitioner. The Commission's doctor appraised the value of petitioner's product in a limited manner, while the petitioner's doctor ascribed a beneficial attribute of wider scope.

Itching is defined by one of the medical witnesses as follows: "A peculiar stimulation of the cutaneous nerve terminals which is referred to the central brain as a sensation which is unpleasant to the organism, and demanding certain physical response, such as scratching or rubbing."

Petitioner's product acts as an anesthetic on the nerve terminals and prevents transmission to the brain of the unpleasant, and sometimes distressing, sensation caused by itch. The medical testimony seems to be agreed that itching in itself is not a disease but is the result or symptom of a disease. The Commission admits, and so found, that petitioner's product has some value as an antipruritic, antiseptic and astringent with possible mild germicidal properties, but finds that the representations made by petitioner are grossly exaggerated, misleading and untrue.

Inasmuch as the Commission's findings and order depend largely upon petitioner's advertising matter used in connection with the sale and distribution of its product, it appears essential to set forth typical illustrations of such matter:

"Stop Itching Torture This Quick Way.

"For quick relief from the itching of eczema, blotches, pimples, athlete's foot, scales, rashes and other externally caused skin eruptions, use cooling antiseptic, liquid D.D.D.Prescription. Original formula of Doctor Dennis. * * *"

"Itch Stopped in a Hurry by D.D.D.

"Are you tormented with the itching tortures of eczema, rashes, athlete's foot, eruptions, or other externally caused skin afflictions? For quick and happy relief, use cooling, antiseptic, liquid D.D.D. Prescription."

"Itch of Eczema, Rashes and Other Externally Caused Skin Troubles Stopped Quickly. "Use "D. D. D "Prescription."

"It's time to realize the D.D.D. Prescription will Stop the misery of an Itching Skin in a Jiffy! Try it for hives, eczema, winter rash and other externally caused Skin Itching."

"For the itching of skin irritations such as rashes, hives, and insect bites, as well as minor cases of ivy and oak poisoning, D.D.D. Liquid, ordinary strength, is recommended as an effective and ideal remedy."

Such advertising was found by the Commission to contain false, deceptive and misleading statements and representations as to the therapeutic value of petitioner's product, with the capacity and tendency to, and does, mislead and deceive a substantial portion of the purchasing public, and, as a result thereof, they are induced to purchase the product. Upon such findings, petitioner was ordered to cease and desist from representing, directly or through inference —

"(a) That respondent's preparation D.D.D. Prescription is a cure or remedy for eczema, or that it has any therapeutic value in the treatment thereof in excess of affording temporary relief from the symptom of itching;

"(b) That respondent's preparation, D.D.D. Prescription is a cure or remedy for pimples or hives, or that it has any therapeutic value in the treatment thereof, in excess of affording temporary relief from the symptom of itching;

"(c) That respondent's preparation has any therapeutic value in the treatment of any disorder of the skin caused by internal or systemic conditions, in excess of affording temporary relief from the symptoms of itching;

"(d) That said preparation has any therapeutic value in the treatment of blotches or rashes appearing on the skin, when due to systemic or constitutional conditions;

"(e) That respondent's preparation has any therapeutic value in the treatment of athlete's foot, insect bites, and cases of ivy and oak poisoning, in excess of that afforded by the temporary alleviation of the symptom of itching, or that afforded by the use of an antipruritic, astringent, antiseptic, and mildly germicidal agent;

"(f) Through the use of the words `and other externally caused skin eruptions,' or other words or phrases of similar import or meaning, in connection with diseases or conditions which may be of a systemic or internal origin, that such diseases and conditions are, in fact, solely of external origin or that respondent's preparation has therapeutic value in the treatment of such diseases and conditions regardless of their origin;

"(g) Through the use of the words `stop itching' or other words or phrases of similar import or meaning, that respondent's preparation will either permanently or temporarily eliminate the disease or condition causing the symptom of itching or has any therapeutic value in excess of that afforded by the temporary alleviation of the symptom of itching, or that afforded by the use of an...