Neff v. Federal Trade Commission

• Citation: 117 F.2d 495
• Decision Date: 08 February 1941
• Docket Number: No. 4699.,4699.
• Parties: NEFF v. FEDERAL TRADE COMMISSION.
• Court: U.S. Court of Appeals — Fourth Circuit

117 F.2d 495 (1941)

NEFF v. FEDERAL TRADE COMMISSION.

No. 4699.

Circuit Court of Appeals, Fourth Circuit.

February 8, 1941.

D. H. Cotten, of Oklahoma City, Okl. (Charles Rowan, of Milwaukee, Wis., on the brief), for petitioner.

Martin A. Morrison, Asst. Chief Counsel, Federal Trade Commission, of Washington, D. C. (W. T. Kelley, Chief Counsel, William L. Taggart and James W. Nichol, Sp. Attys., Federal Trade Commission, all of Washington, D. C., on the brief), for respondent.

Before PARKER, SOPER, and DOBIE, Circuit Judges.

SOPER, Circuit Judge.

This case comes before the court on a petition brought under § 5 (c) of the Federal Trade Commission Act, as amended by the Act of March 21, 1938, 15 U.S.C.A. § 45, to review a cease and desist order of the Federal Trade Commission entered on July 16, 1940.

The petitioner, whose principal office is located at Miami, Oklahoma, is an individual doing business under the trade name of the Prostex Company. He is engaged in selling and distributing in interstate commerce a medicinal preparation for internal use, known as Glantex. In an advertising campaign carried out by means of magazines, radio, circulars and form letters, the public has been informed that Glantex possesses remarkable curative properties. It has been represented that the product is a quick acting remedy, which affords relief to those suffering from prostatitis, cystitis, urethritis, catarrhal conditions of the urinary tract, sugar diabetes, dropsy, illiocolitis, acute indigestion, ptomaine poisoning, gastritis, malaria and all forms of bowel trouble.

In its complaint filed January 4, 1938, the Commission charged that these statements were false and misleading, and therefore constituted an unfair method of competition within the intent of § 5 of the Act. After a hearing, it was found by the Commission that Glantex was not a safe, competent, and reliable remedy or treatment for any of the diseases set forth above, that its chemical composition was such that it could not be expected to produce any therapeutic effect upon any known disease or pathological condition, and that when taken internally it was nothing more than a laxative. Therefore, the petitioner was ordered to cease and desist from representing directly or indirectly that his preparation possessed any therapeutic value besides its laxative qualities. The petitioner now seeks to have this order set aside on the grounds that the findings of the Commission, on which its order is based, were not supported by substantial evidence as required by § 5 (c) of the statute.

The findings of the Commission as to the value of Glantex as a remedy was founded upon the testimony of six doctors who testified as expert witnesses for the Commission. It is true that none of these witnesses had any actual experience with the use of Glantex, nor had they conducted any clinical tests to ascertain just what results might be expected from it. Their conclusions were based upon a chemical analysis of Glantex, and their general knowledge of medicine. They all stated that it simply could not perform the cures claimed for it, and did not have any value as a remedy. Their testimony, standing alone, fully supports the finding of the Commission. But the petitioner contends that this evidence is completely nullified by the statements of his experts who had treated patients with his product and whose testimony, taken as a whole, tends to justify his extravagant claims. He argues that where there is direct testimony based upon...