Gelb v. Federal Trade Commission , 144 F.2d 580 ( 1944 )

CLARK, Circuit Judge

(dissenting in part).

I think the Commission’s entire order was in its power; indeed, I go further and believe the Commission has the bounden duty to take, comparatively stern measures against this type of particularly crude, if not cruel, appeal to human vanities, both for the benefit of honest competitors (of whom at least several have already stipulated to forego such advertising) and, now since the extension of the Commission’s powers in 1938, for the direct protection of the consuming public. We held as much recently in dealing with “Rejuvenescence Cream” in Charles of the Ritz Distributors Corp. v. Federal Trade Comm., 2 Cir., 143 F.2d 676, a case to my mind! quite on all fours with this one. Here there' was ample expert evidence, if, indeed, it was needed beyond the teachings of common sense, that a shampoo "tint” (the word petitioners find somehow preferable to “dye”) could not restore “youthful color” — or, as they now say, in a palpable attempt to dissimulate, the "most youthlike color.” It is against this background that the claim “of reconditioning” of the hair and of “permanent” revivifying obviously must be read. Reading these blurbs together, with their natural and clearly intended significance, it seems to me improper to hold the Commission compelled as a matter of law to find a mere oil shampoo to be a reconditioning of the hair in any real sense. Of course, it is hardly claimed that the hair is really made “youthful” or “youthlike”; petitioners’ actual defense is that no one should be fooled —a defense repudiated every time it has been offered on appellate review, so far as I know, since it is well settled that the Commission does not act for the sophisticated alone. See extensive citations in Charles of the Ritz Distributors Corp. v. Federal Trade Comm., supra; Federal Trade Comm. v. Standard Education Society, 302 U.S. 112, 116, 58 S.Ct. 113, 82 L.Ed. 141; Sebrone Co. v. Federal Trade Comm., 7 Cir., 135 F.2d 676, 679. How much of a change in the advertising employed will be required in practice under our decree is far from clear, since it is coupled with an interpretation, technically accurate, but practically artificial, of “permanent.” I fear the emasculation of the Commission’s order goes so far that in all probability no consumer will notice any difference. Moreover, ambiguity lurks in permission to advertise a product as “harmless” if used in accordance with instructions contained in the package, while the label on the bottle warns (as legally it must under the Federal Food, Drug, and Cosmetic Act as amended in 1938, 21 U.S.C.A. § 361(a)) that it is harmful to certain persons or under certain conditions. Hence, even if we had control over the Commission’s choice of remedy, I should think it quite a mistake to exercise it here. But we have protested most strongly and steadily recently that we have no such control. Herzfeld v. Federal Trade Comm., 2 Cir., 140 F.2d 207; Parke, Austin & Lipscomb v. Federal Trade Comm., 2 Cir., 142 F.2d 437; Charles of the Ritz Distributors Corp. v. Federal Trade Comm., supra.