Erickson v. FTC, 12635.

• Decision Date: 19 November 1959
• Docket Number: No. 12635.,12635.
• Parties: David W. ERICKSON, doing business as Erickson Hair and Scalp Specialists, Petitioner, v. FEDERAL TRADE COMMISSION, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

272 F.2d 318 (1959)

David W. ERICKSON, doing business as Erickson Hair and Scalp Specialists, Petitioner, v. FEDERAL TRADE COMMISSION, Respondent.

No. 12635.

United States Court of Appeals Seventh Circuit.

November 19, 1959.

Franklin M. Lazarus, Frank E. Gettleman, Arthur Gettleman, Chicago, Ill., for petitioner.

Alan B. Hobbes, Assistant General Counsel, Henry G. Pons, Attorney, Federal Trade Commission, Washingon, D. C., Daniel J. McCauley, Jr., General Counsel, Washington, D. C., for respondent.

Before HASTINGS, Chief Judge, and SCHNACKENBERG and KNOCH, Circuit Judges.

HASTINGS, Chief Judge.

This is a petition to review and set aside an order of the Federal Trade Commission requiring petitioner, David W. Erickson, doing business as Erickson Hair and Scalp Specialists, to cease and desist from falsely advertising petitioner's medicinal and cosmetic preparations in violation of the Federal Trade Commission Act, 15 U.S.C.A. § 45 et seq.

The Commission's complaint charged petitioner (respondent below) with disseminating, through the United States mails and by various means in interstate commerce, false advertisements concerning his preparations, all to the prejudice and injury of the public; it further charged that such conduct constituted unfair and deceptive acts and practices within the intent and meaning of the Federal Trade Commission Act. Petitioner answered the complaint, admitted the composition of his preparations and the fact that he advertises, denied generally the other allegations, and included an averment that the acts and practices complained of were not in violation of the Federal Trade Commission Act.

Hearings were held, and evidence was presented by both parties. The Hearing Examiner issued an initial decision and a proposed order to cease and desist, and petitioner appealed to the Commission. Upon consideration of briefs and oral argument, the Commission denied the appeal and adopted the Hearing Examiner's findings and proposed order. That part of the order we are asked to review directs petitioner forthwith to cease and desist from:

"1. Disseminating or causing to be disseminated by means of the United States mails or by any means in commerce, as `commerce\' is defined in the Federal Trade Commission Act, any advertisement which represents directly or by implication:

"(a) That the use of said preparations alone or in conjunction with any method of treatment will:

"(1) Permanently eliminate dandruff, itching or irritation of the scalp,

"(2) Cause fuzz to be replaced with long or strong hair,

"(3) Prevent or overcome excessive hair loss or baldness or cause new hair to grow, or cause hair to grow thicker or otherwise grow hair, unless such representations be expressly limited to cases other than those known as male pattern baldness and unless the advertisement clearly and conspicuously reveals that in the great majority of cases of baldness and excessive hair loss, respondent\'s said preparations and treatments are of no value whatever,

"(b) That respondent, his agents, representatives or employees have had competent training in dermatology or other branches of medicine having to do with the diagnosis and treatment of scalp disorders affecting the hair, or are trichologists.

"2. Disseminating or causing to be disseminated by any means, any advertisement for the purpose of inducing or which is likely to induce directly or indirectly the purchase of said preparations in commerce, as `commerce\' is defined in the Federal Trade Commission Act, which advertisement contains any of the representations prohibited in Paragraph 1 hereof."

From the record before us we find that the following relevant facts were well established. Petitioner's principal place of business is in Chicago, Illinois, from which he distributes through interstate commerce home treatment kits of various medicinal and cosmetic preparations designed for external use in the prevention of baldness, the growing of hair and the elimination of various scalp disorders. The total value of his business from his Chicago office is from $60,000 to $80,000 annually.

In conducting his business petitioner or his representative visits various cities throughout the United States where he conducts a so-called hair and scalp "clinic," usually in the room of a local hotel. Prior to visiting a particular city, petitioner places an advertisement in a local newspaper of that city inviting prospective customers to call on him for free consultation and advice about their hair and scalp problems. A substantial number of such newspapers are distributed in interstate commerce. Petitioner accepts for treatment 95% of the persons who respond to his advertisements and, when agreeable to the prospect, sells him a home treatment kit containing his various preparations which is mailed directly to the purchaser from petitioner's Chicago office.

In some of these newspaper advertisements petitioner refers to himself as a "trichologist." A typical advertisement purports to be a newspaperman's report of an interview with petitioner and contains a picture of petitioner attired in a type of white jacket customarily worn and associated with members of the medical profession. The picture shows petitioner pointing to what appears to be a clinical chart depicting the human scalp with relation to hair and hair follicles. In this advertisement petitioner states that he has directed some of the largest "clinics" in the United States and Canada. Two of the Commission's expert medical witnesses testified that to bear the title "trichologist" properly, a person should be a dermatologist. Petitioner has had no medical training, and his college education was limited to one semester in "marketing."

Without attemping to quote further from the several exhibits before us, we thing it is fair to say that in his advertisements petitioner represents that he can, without qualification, through the use of his preparations and method of treatment prevent or overcome baldness, cause hair to grow thicker, cause new hair to grow, cause fuzz to develop into longer and stronger hair, and permanently eliminate dandruff, itching and irritation of the scalp. The uncontradicted medical evidence of record shows that neither petitioner's preparations nor any others will accomplish these results.

The Commission's qualified medical witnesses testified that most cases of baldness are accounted for by a condition known as male pattern baldness. It is said to be...