JB Williams Company v. FTC, 16969.

• Citation: 381 F.2d 884
• Decision Date: 11 August 1967
• Docket Number: No. 16969.,16969.
• Parties: The J. B. WILLIAMS COMPANY, Inc., and Parkson Advertising Agency, Inc., Petitioners, v. FEDERAL TRADE COMMISSION, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

381 F.2d 884 (1967)

The J. B. WILLIAMS COMPANY, Inc., and Parkson Advertising Agency, Inc., Petitioners, v. FEDERAL TRADE COMMISSION, Respondent.

No. 16969.

United States Court of Appeals Sixth Circuit.

August 11, 1967.

James H. McGlothlin, Washington, D. C., for petitioners, Michael S. Horne, Washington, D. C., on the brief, Covington & Burling, Washington, D. C., of counsel.

Miles J. Brown, Federal Trade Commission, Washington, D. C., for respondent, James McI. Henderson, Gen. Counsel, J. B. Truly, Asst. Gen. Counsel, Gerald J. Thain, Atty., Federal Trade Commission, Washington, D. C., on the brief.

Before WEICK, Chief Judge, CELEBREZZE, Circuit Judge, and WEINMAN^*, District Judge.

CELEBREZZE, Circuit Judge.

The question presented by this appeal is whether Petitioners' advertising of a product, Geritol, for the relief of iron deficiency anemia, is false and misleading so as to violate Sections 5 and 12 of the Federal Trade Commission Act.¹ At the conclusion of an administrative proceeding upon a complaint which charged Petitioners with engaging in unfair and deceptive acts, the Federal Trade Commission affirmed in part the findings of the Hearing Examiner that the Petitioners had violated Sections 5 and 12 of the Federal Trade Commission Act. Petitioners seek review to set aside the Order to cease and desist, issued by the Commission — Appendix, Table I.

The J. B. Williams Company, Inc. is a New York corporation engaged in the sale and distribution of two products known as Geritol liquid and Geritol tablets. Geritol liquid was first marketed in August, 1950; Geritol tablets in February, 1952. Geritol is sold throughout the United States and advertisements for Geritol have appeared in newspapers and on television in all the States of the United States.

Parkson Advertising Agency, Inc. has been the advertising agency for Williams since 1957. Most of the advertising money for Geritol is spent on television advertising. Several typical television advertisements are found in the Appendix to this Opinion in Table II.

The Commission's Order² requires that not only must the Geritol advertisements be expressly limited to those persons whose symptoms³ are due to an existing deficiency of one or more of the vitamins contained in the preparation, or due to an existing deficiency of iron, but also the Geritol advertisements must affirmatively disclose the negative fact that a great majority of persons who experience these symptoms do not experience them because they have a vitamin or iron deficiency; that for the great majority of people experiencing these symptoms, Geritol will be of no benefit. Closely related to this requirement is the further requirement of the Order⁴ that the Geritol advertisements refrain from representing that the symptoms are generally reliable indications of iron deficiency. On oral argument counsel for Petitioners stated that except for one minor objection to 1(i) of the Order, there were no objections to the requirements contained in 1(g) and 1(h) of the Order.

An understanding of the function of iron in the human body and how it is lost is essential to an understanding of the issues in this case and the medical testimony relating to these issues.

The human body does not synthesize iron. Consequently, all iron in the human must come from outside sources, normally from food. The adult body will have an average of 2.6 grams of iron for a small woman, and six grams of iron for a large adult male. The daily amount of iron in the average American adult diet has been estimated at from 7 mg. to 15 mg. Iron is generally conserved and reutilized.

Approximately 70% of all the iron in the normal adult is in the circulating blood as a component of hemoglobin, the red material in the red blood cells. In the creation of hemoglobin, iron is an essential major constituent. Hemoglobin carries oxygen which is essential for the functioning of cells throughout the body.

A minute amount of iron (one mg. or less) is lost each day in the feces, sweat, and urine. Blood loss, either present or past, accounts for the major loss of iron in the body. In the male, this is usually due to severe nose bleeds, bleeding from the gums, peptic ulcer, cancer of the stomach, cancer of the bowels and hemorrhoids. In the woman, the major cause of iron loss occurs from bleeding during the menstrual period, and iron given to the fetus during pregnancy. Inadequacy of iron in the diet and malabsorption of iron account for only a small amount of iron loss.

The normal hemoglobin value is 12 to 16 grams for adult females and 14 to 18 grams for adult males. The loss of iron results in iron deficiency anemia when the hemoglobin level is below the acceptable range for a particular individual. Thus iron deficiency anemia results when there is a lack of sufficient iron for the synthesis of hemoglobin. Adequate red blood cells cannot be produced with an insufficient amount of hemoglobin. As noted previously, hemoglobin carries oxygen which is essential for the functioning of all body cells. Severe iron deficiency can be diagnosed when an examination of the blood shows that the red blood cells are pale (hypochromic) and the red cells are abnormally small (microcytic) from a lack of sufficient hemoglobin to color and fill them. Not all iron deficiency anemia is hypochromic and microcytic; when the anemia is mild, there may be no change in color of the blood or the cell size. Since the red blood cells are mass-produced in bone marrow, the most reliable test is to extract a sample of the bone marrow and examine it for iron content. This test is painful, requires skill, and is generally not done by the general practitioner.

We will first consider the Commission's finding that the Geritol advertisements falsely represent that the symptoms mentioned are generally reliable indications of iron deficiency anemia, and that the great majority of people who are tired and run-down are not so because of iron deficiency anemia.

Noted specialists in hematology, obstetrics and gynecology testified for both sides. Their testimony was not all in agreement. Doctors Dameshek, Goldsmith, McGanity, Fein, Moore and Arrowsmith testified that the symptoms presented in the Geritol advertising are common symptoms of many diseases and are not specific to iron deficiency anemia. These symptoms occur in most diseases, and most commonly occur in neurosis or nervous tension. Only in severe or perhaps moderately severe cases of iron deficiency anemia are these symptoms present. The Commission's finding that the Geritol advertisements create a false and misleading impression on the public by taking common or universal symptoms and representing these symptoms as generally reliable indications of iron deficiency or iron deficiency anemia, is supported by substantial evidence.

Petitioners maintain they were not given notice of this issue. This specific issue was not charged in the complaint, and Government counsel stated early in the proceeding that this issue was not present.

However, evidence bearing on the causal connection between the symptoms of tiredness and iron deficiency anemia was present throughout the record, and is clearly relevant in substantiating the small minority charge. Reading the entire testimony, we cannot find that Petitioners were unfairly prejudiced by this finding, nor can we find an objectional variance between the complaint and the Order. See Armand Co., Inc. v. Federal Trade Commission, 84 F.2d 973 (C.A.2, 1936); Colgate-Palmolive Company v. Federal Trade Commission, 310 F.2d 89 (C.A.1, 1962); Continental Wax Company v. Federal Trade Commission, 330 F.2d 475 (C.A.2, 1964).

The main thrust of the Commission's Order is that the Geritol advertising must affirmatively disclose the negative fact that a great majority of persons who experience these symptoms do not experience them because there is a vitamin or iron deficiency.

The medical evidence on this issue is conflicting and the question is not one which is susceptible to precise statistical analysis. The evidence presented a range estimated by the doctors to be from one percent to ten percent of the people in this country with iron deficiency or iron deficiency anemia. It is clear that the incidence of iron deficiency anemia is higher in women than in men. Doctors Dameshek, Adelson and McGanity testified that a majority of pregnant women do not develop iron deficiency anemia. Doctor Wintrobe and Doctor Beutler testified that iron deficiency anemia is the most common and most important nutritional deficiency.

Since the symptoms of tiredness, loss of strength, nervousness or irritability are universal, non-specific complaints, there was naturally a disagreement as to whether these symptoms are usually due to iron deficiency anemia, or are present when a person has iron deficiency anemia.

There was testimony that in severe or moderately severe cases the symptoms occurred as a result of iron deficiency anemia. The highest incidence of iron deficiency anemia was found to be in women in the child bearing age group. Doctor Dameshek said the presence of these symptoms was hardly ever due to iron deficiency anemia; Doctor Moore said the presence of these symptoms could be explained on a basis other than iron deficiency anemia, and that only in a minority of women were these symptoms due to iron deficiency anemia; Doctor Reznikoff did not accept these symptoms as being caused by iron deficiency anemia. Doctor Reznikoff testified:

"Q. * * * Doctor, in your observation, what are the symptoms of anemia, iron-deficiency anemia, I should say?

"A. Well, iron-deficiency anemia results in a deficiency of hemoglobin and hemoglobin has, as its main purpose, the transportation of oxygen to the tissues. So the symptoms would depend on what we call anoxia, or deficiency of oxygen. A patient showing anoxia would usually be short of breath, with the exertion that would previously not bother him. His

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