YOUR SHARE OF RESPONSIBILITY FOR PRODUCT CLAIMS 159 are not good, valid tests if properly carried out. They are defective only where there is a lack of com- petence to do the work and the im- pression is given that some com- petent laboratory did it. In the case of Ox-O-Gas Company the respondent was engaged in the business of selling a solution ad- vertised for mixing with gasoline. The company claimed it increased power and mileage up to 33 per cent, eliminated carbon, cleaned the valves, and accomplished many other things all "Per Official Test by State and City of New York, Hud- son County Municipalities, Auto- motive Engine.ers, and Oil Con- cerns." Somebody complained, probably a competitor, the Com- pany resisted, and the Federal Trade Commission started a case. In deciding the case against the re- spondents the Commission said: "If acceptable the results of these tests would indicate that the product possesses substantial merit. The tests, however, appear not to have been made in a scientific manner and their accuracy is open to serious question." Last month the in- adequacy of alleged scientific tests of an absorbent preparation was the subject: of comment in a F.T.C. cease and desist order. The Government rightly looks behind the bald though impressive words referring to tests because they are no better than the experience of the one doing the testing. And this illustrates a point heretofore made. The use of the words "test" or "scientific tests prove" has been so contagious that you see it every- where and the Federal Trade Com- mission is determined that such will not be used unless the tests rise to the dignity of really scientific proof. The alternative to the fishing pole type of testing is to employ a recognized expert qualified by reason of training, experience, and equip- ment to establish through experi- mental procedure by trained ob- servations and accurate records that which you are willing to spend hundreds of thousands of dollars to proclaim to the world at large as facts. You can do such work in your own laboratories under the proper scientific auspices, or you can have it done in the outside labora- tory of some expert in the field. Once you have undertaken such a program of research don't throw your records away. In one noted case, an attorney for the Federal Trade Commission devoted thirty- five days to cross-examining one witness about the data in his voluminous exhibits, not because he believed that the work was not done, as the witness had stated on direct testimony, but because he hoped to find some flaw in his proof, some omission in his bookkeeping, or some typographical error that would en- able him to make a motion to strike out respondents' evidence, which motions, I am sorry to say, are be- coming standard equipment and looked upon with great glee in some quarters. If this is not so there is no reported case to the contrary. In order to be adequate for use in a trial, records of experiments must

160 JOURNAL OF THE SOCIETY OF COSMETIC CHEMISTS be accurate and complete, and I mean complete, because any single omission might make the entire work unavailable for your defense. These records should be complete in themselves they should leave noth- ing either to the chemist's memory or to the reader's imagination. For example, if you are marketing a cosmetic or medicinal preparation, or lotion for use on the skin, it must be free from irritant properties and be safe for use. There are many such on the market and in one case I ,tried, we used a summary of the scientific evidence produced in the laboratory. Before I could get the summaries in evidence, and to avoid their being stricken out, I had to produce the laboratory notebooks from which the summaries were pre- pared and the original slips of papers on which the original obser- vations were made. Some labora- tories keep their laboratory note- books in duplicating notebooks. This is highly satisfactory because it allows the introduction of one set in evidence and at the same time leaves a complete set in the labora- tory. If you want to know what I think about this requirement for original scraps of paper I will tell you that it is nonsense, but I do not make the rules. This requirement goes far beyond anything the New York State courts require but the alternative is that you run the risk of having your evidence stricken out. Producing original records is dan- gerous too, because I have dis- covered that laboratory notebooks contain all sorts of preliminary test data and in the hands of an opposing lawyer such can often be used to cast doubt on the final work done after optimum conditions for doing the experiments have been estab- lished. The Federal Trade Commission will make good use of the Facts 'Magazine puzzle deqision and I pre- dict you will hear and see quoted more and more often the words: "Advertising as a whole may be completely misleading although every sentence separately considered is literally true." It is more important, now than ever to be sure you are right in your advertising. A lot of great businesses have be- come great through strong and effective advertising. The most effective combination that I can think of is a team made up of scien- tific representatives of the adver- tiser and advertising copy wr•ter.