YOUR SHARE OF RESPONSIBILITY FOR PRODUCT CLAIMS 157 and even Congress recognizes that reasonable latitude must be granted salesmen and advertisers in boosting their products. There are many successful ad- vertising claims which need no sup- porting proof. You all know the slogans: "The Pause That Re- freshes, .... L S M F T" (Lucky Strike Means Fine Tobacco), and "A B C" (Always Buy Chesterfield). However, when an advertiser rep- resents that his cosmetic will re- move skin blemishes, or his vita- mins will return grey hair to its natural color, or his soap will put new life into faSbtics, he had better be right. Nothing but the truth is more often than not dreary and unin- teresting and might often be mis- leading. Only last month the Su- preme Court in the Facts Magazine Puzzle Contest case said "Advertis- ing as a whole may be completely misleading although every sentence separately considered is literally true." One of the most frequently cited cases brought under the Food and Drug Act was decided adversely to the manufacturer because the Court found that while the representations on a label were technically true they were nevertheless false and mislead- ing. The difficulty arose in both of these cases when the manufacturers undertook to dress up the truth to make it look attractive. Perhaps I can make my point with greater facility if I state it another way, to wit, how easy will it be to disprove what you say? Modern methods of testing and appraisal are the weapons of skeptics and they are just as well known and available to manufacturers as they are to the government. Whether the manufacturer will pay the cost, however, is another thing, for the crusaders among the physiologists and dermatologists and the bio- chemists are not on the side of national advertisers, and conse- quently will not give their services as freely to manufacturers as they so often do when called by the Govern- ment to testify against you. The Ninth Circuit Court of Ap- peals observed in the recent Nue- Ova case that the Food and Drug Administration had almost un- limited professional resources with which to carry out its investigations. This is only partly true because the Government has a very limited scientific staff but with the help of the crusaders it can muster to- gether almost any time a squad of so-called "medical talent" to help support its cases. Most advertisers believe all that they say. They are converts rather than skeptics and as a result of this the Federal Trade Commission or the Food and Drug Administration, or both, constantly are charging that manufacturers are wrong, that their advertising is misleading or false, and that it must be stopped or modified or explained. The courts are very sympathetic with the enforcement of the Federal Trade Commission Act and the Food and Drug Act. The opinions of learned judges are full of references

158 JOURNAL OF THE SOCIETY OF COSMETIC CHEMISTS to the beneficent nature of these sta- tutes and doh't think the Govern- ment boys don't lay that on thick when they go out to round up a band of M.D.'s to testify against you. In contested cases under the Food, Drug and Cosmetic and Federal Trade Commission Acts, chances of success are remote unless there is some good factual basis for advertis- ing representations or label declara- tions. Even then your road will be a rough one, but at least you can stand on your feet and present your de- fense without apology. After many .years' experience in adjusting differences between these two Government agencies and ad- vertisers and manufacturers, I can tell you with a great deal of con- fidence that before spending a lot of money on test advertising cam- paigns you better be sure that what you say about your product is reasonably so, the usual latitude being given for legitimate trade puffery, if you can judge accurately what that is. The responsibility for product claims rests with the ad- vertiser and should not be delegated to or assumed by an advertising agency unless the agency wants to add a research laboratory, a staff of scientists and lawyers to their al- ready heavy burdens and become liable not only as disseminators of advertising but as primary offenders. Many manufacturers do not have the facilities for making their own scientific tests, at least not the kind that agencies like to talk about, such as the tests made by the well-known "independent experts." I know of no agency equipped to do such work. Yet time and again advertising cam- paigns are altered to meet some newly conceived competing phrase- ology, with no investigation into the new facts claimed. If you do not be- lieve this is so, take any class of widely advertised products and notice the great similarity in claims. Even the style and set-up is freely borrowed because the law does not protect a non-copyrighted advertise- ment, however unique, unless one is nearly a complete copy of the other• You can do your own testing like the fishing pole manufacturer who had one of his employ6es take one of his fishing rods out and try it and satisfy himself that it was good and thereafter advertised widely with the slogan "Best by Test." "These Testers are expert Casters, etc.," followed by an impressive set of tables which told that the fishing poles in question were over 400 per cent better in some obscure respect than the nearest competitor. The Federal Trade Commission made the Company discontinue these claims unless they added what was the truth, namely, that all of the tests had been made by an employee of the Company and not by inde- pendent testers. Such an investiga- tion is of very little value and the ad- vertising based upon it is just another variety of testimonial ad- vertising which is valuable only as the witness is qualified to judge taking into account his own bias or self-interest. This does not mean that competent tests made by a manufacturer of his own products