Petition for Review of Order of the Federal Trade Commission.
Before MAJOR, KERNER, and MINTON, Circuit Judges.
This is a petition for review of a cease and desist order, entered by the Federal Trade Commission, April 19, 1941. It is directed at petitioner's medicinal product, "D.D.D. Prescription," an external liquid application for the relief of itching. The controversy revolves largely around petitioner's advertising in newspapers, periodicals and by radio of the medicinal qualities of the product, which the Commission charged, found, and now contends was false and misleading, and calculated to deceive a substantial portion of the purchasing public.
There is no dispute but that the product affords relief for itching. There is a dispute as to the extent of the relief and whether it is merely temporary or permanent. Two doctors, both specialists in the field of dermatology, testified before the Commission, one for the Commission and the other for petitioner. The Commission's doctor appraised the value of petitioner's product in a limit manner, while the petitioner's doctor ascribed a beneficial attribute of wider scope.
Itching is defined by one of the medical witnesses as follows: "A peculiar stimulation of the cutaneous nerve terminals which is referred to the central brain as a sensation which nis unpleasant to the organism, and demanding certain physical response, wuch as scratching or rubbing."
Petitioner's product acts as an anesthetic on the nerve terminals and prevents transmission to the brain of the unpleasant, and sometimes distressing, sensation caused by itch. The medical testimony seems to be agreed that itching in itself is not a disease but is the result or symptom of a disease. The Commission admits, and so found, that petitioner's product has some value as an antipruritic, antiseptic and astringent with possible mild germicidal properties, but finds that the representations made by petitioner are grossly exaggerated, misleading and untrue.
Inasmuch as the Commission's findings and order depend largely upon petitioner's advertising matter used in connection with the sale and distribution of its product, it appears essential to set forth typical illustrations of such matter:
"Stop Itching Torture This Quick Way.
"For quick relief from the itching of eczema, blotches, pimples, athlete's foot, scales, rashes and other externally caused skin eruptions, use cooling antiseptic, liquid D.D.D. Prescription. Original formula of Doctor Dennis. * * * "
"Itch Stopped in a Hurry by D.D.D.
"Are you tormented with the itching tortures of eczema, rashes, athlete's foot, eruptions, or other externally caused skin afflictions? For quick and happy relief, use cooling, antiseptic, liquid D.D.D. Prescription."
"Itch of Eczema, Rashes and Other Externally Caused Skin ...