Ward Laboratories, Inc. v. FTC
| Decision Date | 14 April 1960 |
| Docket Number | No. 118,Docket 25660.,118 |
| Citation | 276 F.2d 952 |
| Parties | WARD LABORATORIES, INC., et al., Petitioners, v. FEDERAL TRADE COMMISSION, Respondent. |
| Court | U.S. Court of Appeals — Second Circuit |
Martin J. Scheiman, New York City, for petitioners.
Gerald Harwood, Attorney, Federal Trade Commission, Washington, D. C. (Daniel J. McCauley, Jr., General Counsel, Alan B. Hobbes, Asst. General Counsel, Federal Trade Commission, Washington, D. C., on the brief), for respondent.
Before LUMBARD, Chief Judge, and MOORE and FRIENDLY, Circuit Judges.
Petitioners, Ward Laboratories, Inc., Emile E. Kling, and Joseph J. Seldin, individually and as officers of Ward, Comate Laboratories, Inc. and Sebacin, Inc. seek to set aside an order of the Federal Trade Commission (FTC) requiring them to cease and desist from allegedly false advertising of preparations sold by them and represented, in substance, as: (1) preventing baldness; (2) causing the growth of new hair; and (3) preventing excessive hair fall.
Little purpose is served by reviewing the expert medical testimony. Four physicians, expert in dermatology were called by FTC; two and a biochemist and toxicologist by respondents (petitioners here). The hearing examiner most carefully analyzed the testimony of all experts. His conclusion that "In truth and in fact the most common cause of baldness is due to heredity, age and endocrine balance, commonly referred to as male pattern baldness; that this type of baldness constitutes 95% of all cases of baldness and regardless of the exact formula or the combination of the ingredients or preparations, or the methods of application of respondents' preparations, such will not remedy or cure the common cause, or a significant cause, of baldness; will not remedy or cure the common type of baldness; will not prevent baldness or partial baldness; will not cause the growth of new hair; and will not prevent excessive hair fall," is supported by substantial evidence. Having so concluded, the examiner molded the order to cease and desist in the manner best calculated to eliminate the deception contained in the advertising.
Petitioners now raise several points of alleged error. There is no merit in their contention that "the findings complained of were arbitrary and capricious" and were based on "a conglomeration of disputed theory and medical disagreement." It is indeed a rare case where medical experts are called which does not involve disagreement. Here, however, the examiner is supported by clear and convincing testimony from well qualified witnesses. His decision and findings are the antithesis of "arbitrary and capricious."
The cease and desist order requires petitioners to disclose that their preparations will only be effective in baldness not of the male pattern variety and also to disclose that nearly all cases of baldness fall within the male pattern category.
Petitioners argue that "The provisions of the order requiring affirmative disclosure in petitioners' advertising are improper and unlawful." This argument presents a more difficult problem. Any requirement of an affirmative disclosure of a negative is always to be approached with caution. Merely because a remedy is useful for only one ailment is no reason to demand an accompanying statement of all the ills for which it is not beneficial. Even this principle, however, must yield where the advertisements are misleading because of failure to reveal facts material in the light of the representations made therein. In arriving at such a conclusion the advertisements ...
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