ADVERTISING UNDER THE FEDERAL TRADE COMMISSION ACT 181 categories in that if either the advertising or the products move in com- merce the jurisdiction of the Commission over the advertising is clearly spelled out. It is on this basis that the Commission has issued several Complaints and Orders to Cease and Desist (1) based upon the dissemination of de- ceptive advertising by United States mails or otherwise in commerce in connection with the intrastate sale of drug preparations. These have been cases where the sales of a product have been confined to a single State, and where jurisdiction has been asserted solely on the dissemination of the advertising in commerce. A fundamental question, in any discussion such as this, is just what con- stitutes a false advertisement. Pertaining to cosmetics, we find a definition in Section 15, as follows: "The term 'false advertisement,' means an advertisement, other than labeling, which is mis- leading in a material respect " and continues by explaining that an advertisement may be misleading because it fails to reveal material facts. This definition, then, clarifies rather than limits an extremely broad and general authority to prohibit any claim which is found to be misleading in a material respect. The statute does not spell out in detail those specific claims which are unlawful. Rather, the Commission is left with a free hand to consider all manner of representations in the light of the pertinent evidence and on that basis order discontinuance of claims considered mis- leading. It is obvious, then, that advertising need only tell the simple, whole truth if it would avoid violating the Act. IEarlier this year, Chairman Earl W. Kinruer suggested that all those having a responsibility for advertising would do well to screen copy in the light of the following principles--common sense rules of thumb which have received direct support from the courts over a period of years: 1. Advertisements must be considered in their entirety and as they would be read by those to whom they appeal. (Ford Motor Co. vs. Federal Trade Commission, 120 F. 2d 175 (6th Cir. 1941)). 2. Advertisements are not intended to be carefully dissected with a dictionary at hand, but rather to produce an impression upon the or- dinary purchaser. (Newton Tea & Spice Co. vs. United States, 288 Fed. 475 (6th Cir. 1923)). 3. Advertisements as a whole may be completely misleading although every sentence separately considered is literally true. (Donaldson vs. Read Magazine, Inc., 333 U.S. 178 (1948)). 4. Whether or not the advertiser knows the representations to be false, the deception of purchasers and the diversion of trade from competitors is the same. (Gimbel Bros., Inc., vs. Federal Trade Commission, 116 F. 2d 578 (2nd Cir. 1941)). 5. A deliberate effort to deceive need not be proved to prohibit •he use of advertising which misleads as an unfair method of competition or un- fair or deceptive act or practice within the meaning of the Federal Trade

182 JOURNAL OF THE SOCIETY OF COSMETIC CHEMISTS Commission Act. (Federal Trade Commission rs. ztlgoma Lumber Co., 291 U.S. 67 (1934)). 6. Laws are made to protect the trusting as well as the suspicious. (Federal Trade Commission rs. Standard Education Society, 302 U.S. 112, 116 (1937)). 7. Advertising representations which are ambiguous will be inter- preted in such a way as to accomplish the purpose of the Federal Trade Commission Act, which is to prevent the making of claims which have the tendency and capacity to deceive. (United States rs. 95 Barrels of Vinegar, 265 U.S. 438). Let me refer to a specific case (2) now pending for the taking of testimony before a Hearing Examiner. There the formal Complaint charged that representations such as that the preparation "is a super-powerful skin food concentrate that gives natural nourishment to undernourished skin tissues" and "With this new nourishment, the skin is once again able to work for natural, youthful-looking beauty" are false and misleading because said preparation does not constitute a skin food, nor will it rejuvenate the skin of the user thereof. I invite your attention to the fact that the complaint charges that this particular preparation is not a skin food, and will not rejuvenate the skin. This illustrates the statement made a few minutes ago to the effect that the Commission considers advertisingrepresentations in the light of the evidence pertinent thereto--considers these issues on a case by case basis. Ob- viously, a variation in formula can result in a variation in allowable ad- vertising representations, for example. In another case (3), an advertiser was ordered, in connection with the sale of a specific named product, or any other product of substantially similar composition or possessing similar properties, to cease and desist from repre- senting that said product will change the structure of the hair, or will change naturally straight hair to naturally curly hair. In still another case (4), an advertiser was ordered to stop representing that its product or any one similar thereto will cure dandruff or that it will have any lasting effect on dandruff or dandruff symptoms except during the regular use thereof. Those of you who had hoped for a list of specific "do's and don't's" re- lating to substantive claims for effectiveness of products can see that the problem cannot be simplified to that degree. You, when called upon for advice, may find previous decisions of the Commission interesting and even helpful, but must ultimately draw your conclusions from the formula- tion of the product and its established effectiveness under conditions of use, and then apply your experience and expertise to decide whether the lay consumer would be misled by proposed advertising. You¾ professional training and experience are far better guides than I can offer you here today. For example, the Commission issued a complaint