Sewell v. Federal Trade Commission
| Decision Date | 16 October 1956 |
| Docket Number | No. 14354.,14354. |
| Citation | 240 F.2d 228 |
| Parties | James H. SEWELL, doing business under the fictitious firm name and style of Burns Cuboid Company, Petitioner, v. FEDERAL TRADE COMMISSION, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Maury, Larsen & Hunt, George R. Maury, Los Angeles, Cal., for petitioner.
Earl W. Kintner, Gen. Counsel, Robert B. Dawkins, Asst. Gen. Counsel, Alvin L. Berman, Atty., F. T. C., Washington, D. C., for respondent.
Before POPE, FEE and CHAMBERS, Circuit Judges.
Sewell, petitioner here, and respondent before the Federal Trade Commission, has successfully built in and from Santa Ana, California, a large business in the manufacture and sale of an article which we can call a shoe insert. Its basic name is Cuboids. This is a derivation from the cuboid bone in the arch of the human foot. Various names are used in marketing like "Cuboid balancer" or "Doggies." A ready market for the device is found among the legion of Americans who complain about their feet.
The insert is ordinarily sold in department stores in metropolitan centers where representatives on the payroll of Sewell sell the product, usually for the account of Sewell, rather than the department store. Those who sell it have had some training in fitting shoes and selling corrective devices. Some sales are made by mail order after a customer has filled out a questionnaire which is intended to elicit his complaints. Some sales are made by stores that do not have a Sewell representative on the premises.
The insert is made on a license from an inventor named Burns, who apparently first marketed the device himself on a limited basis. The article moves in commerce among the states. There are about 200 different models of the same basic thing, which is made with two layers of leather with cork at various points in between the layers of leather. The difference in sizes of shoes accounts for many models. Then for each foot size a variety of thicknesses is manufactured.
The attack initiated by the Federal Trade Commission is on Sewell's advertising. We assume that Sewell would readily admit that his advertising has been a big factor in building his business: that the product has not entirely sold itself.
Some of the lines of Sewell's advertising which were the subject of the Commission's complaint were as follows:
After peripatetic hearings in various parts of the United States, the examiner filed a report which proscribed not only the foregoing claims, but which recommended that Sewell be forbidden to use advertising matter which he had discontinued four years previously. The Commission followed the examiner on the advertising set forth above shown to be in current use but refused to whip the dead horse of Sewell's discontinued advertising.1 Now, Sewell seeks review here.
Before the examiner, medical men, orthopaedic specialists, testified for Sewell's claims and against them. Sewell showed that medical doctors, presumably reputable, in great numbers regularly prescribe his device. He had much testimony that people are regularly pleased with the device. He showed that only three per cent of all purchasers take advantage of their "satisfaction guaranteed or your money back" offer.
But be the foregoing as it may, the Commission entered an order forbidding:
This court is satisfied that the Commission must be affirmed insofar as advertising claims assert that the device has a special effect on the cuboid bone of the foot or is a "scientific" device. That is a highly technical matter upon which experts testified both ways. There the Commission could take its choice.
On highly technical matters one's product claims, under the law, are at the mercy of experts, even though the group relied upon may ultimately be proved wrong. Yet that is the way the legal system works and must work.
On the other hand, we are not disposed to issue our mandate to cease and desist with respect to the general claims in the advertising on the assertions made with reference to "balance," "balancers," "improved health," "poise," "improvement of stance," "elimination of foot fatigue," "better posture," and "better foot action." In so holding, we do not believe we vary from the long established principles of reviewing orders such as we have here.
We think that the respondent Sewell by his witnesses demonstrated, simply stated, that people wearing shoes that do not fit their feet, for reasons inherent either in the customer's foot or his shoe, do very, very frequently get a better platform to walk on with the addition of Sewell's insert. Why, we cannot say with certainty. The Commission doctors who roundly condemned the device say there is no reason that the device should relieve one's foot ills. We do not think the doctors' opinion and their few case histories of failures of the device overcome the proof of frequent successful use. There is no proof the device ever did any damage. Some doctors suggested in certain cases it could. Further, we think after cross examination of the Commission's experts very little was left of their opinions on the "lay" claims of general efficacy.
We believe that if we concede that when often the addition of the device produces a better fitting shoe that every one of Sewell's claims naturally flows, except those based on the assertion of special effect on the cuboid bone or the device being scientific. A better fitting shoe should result in better foot balance, some relief from aches and pains, better poise and balance, better poise, posture and balance, better foot health and better comfort. And even housewife's drudgery ought to be lessened.
We think perhaps there are two basic mistakes in the case and which lead us to believe that the Commission was legally wrong in part and justify our declination to enforce the order in full. First, we believe in the testimony of the experts of the Commission, they have failed to start with the premise that Sewell fitter starts with. That is, that the shoe of the customer prospect for some reason does not fit the foot or the foot does not fit the shoe. Maybe a different shoe would often give the customer balance, relief from aches and pains, give him better posture and poise and stance. But if the customer gets it by a Sewell device, we see no objection to advertising that it does. (And in the main, we do not think the expert opinion meets the proof here of the generally satisfied customer.) The Commission experts apparently would proscribe entirely the use of the trial and error method of experimenting with devices to relieve one's foot aches and pains.2
Secondly, we think the examiner and the Commission have reduced generality to specificity, when it was not justified. For example, the approach to "balance" seems to have been in the sense of the physicist in the laboratory. We think there is in the vernacular lexicon a...
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