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Findings and orders in all cases involving food, drugs, therapeutic devices, and cosmetics issued subsequent to enactment of the Wheeler-Lea

Act-Continued

Dock

et

Name

Date of order

Product

Manner of disposition

Court review

Order affirmed.

4666
4682
4683
4686
4702
4704
4706
4711
4722
4725
4729
4730
4731
4733
4739
4741
4748
4749
4753
4755
4756
4759
4761
4766
4767
4811
4815
4816
4817
4818
4822
4824
4836
4847
4853
4858
4865
4866

Order modified.

Di-Function Co., Inc.
Kola Astier Corp
The May Department Stores Co. et al.
Baer Laboratories, Inc.
Hollywood Magic Garment Co.
George Von Nieda et al.
Arthur H. Ferber
E. Griffiths Hughes, Inc.
Milton Irwin et al
Montgomery Ward & Co., Inc.
Phil Howe et al.
Indian River Fruit & Vegetable Distributors, Inc.
Giroux Co., Inc.
Royal Lee
Bewley Mills
Automatic Electrical Devices Co.
Edwin Tom
Associated Distributors, Inc., et al.-
F. A. Stuart Co.
Zonite Products Corp.
Charboy Products, Inc.
The Dr. D. A. Williams Co.
Bertha M. Urban...
Philip Bartell.
The Jung Arch Brace Co.
Vivian S. Nash
Lekas and Drivas..
Thomas E. Collins.
Pow-A-Tan Medicine Co.
Ed. W. Arnold Co..
Samuel Perloff.
Fratelli Branca & Co., Inc.
J. R. Hodges.
William J. Cooksey.
Ulrici Medicine Co., Inc.
The electrovita Sales Co.
Leonard Block et al...
M. G. Neuman.

Nov.

2, 1942
June 24, 1943
Oct. 20, 1942
Sept. 7, 1942
Jan. 19, 1943
Jan. 26, 1944
Jan. 19, 1943
Apr. 25, 1945
Apr. 20, 1943
Oct. 12, 1942
May 6, 1943
June

6, 1944
Sept. 1, 1942
Feb. 28, 1945
Sept. 21, 1942
June 29, 1945
Oct. 19, 1942
May 18, 1943
Mar. 11, 1943
May 17, 1944
Jan. 20, 1944
Apr. 19, 1945
July 21, 1943
Jan. 23, 1945
May 2, 1945
Oct. 26, 1942
July 7, 1943
Oct. 27, 1943
Apr. 22, 1943
Dec. 20, 1944
July 10, 1943
June

9, 1943
July 27, 1943
Oct. 27, 1943
Oct. 18, 1944
Aug. 3, 1943
Apr. 30, 1944
June 1, 1944

Admission answer
Trial.
Stipulation as to facts.
Admission answer
Trial
Stipulation as to facts.
Trial
Stipulation as to facts.
Trial.
Stipulation as to facts.
Trial.
Admission answer
Stipulation as to facts.
Trial.
Stipulation as to facts..

do.
_do.

do.
Admission answer.
Stipulation as to facts.

Medicinal preparation.

do
Therapeutic device
Medicinal preparation.
Therapeutic device
Medicinal preparation.
Food
Medicinal preparation.

do.
Cosmetics.

do.
Food.

do.
Medicinal preparations-
Food
Therapeutic device.
Medicinal preparation.
Cosmetic
Medicinal preparation.

do.

do.
_do.
do.

-do
Therapeutic devices.
Cosmetic
Food.
Medicinal preparation.

do.
Therapeutic device.-
Food
Medicinal preparation.

do..
do.
do.
do.

do.
Medicinal preparation and

cosmetics.
Medicinal preparation..

do. Therapeutic device.

.do.

-do.

! Do.

Trial
..doc

do.
Stipulation as to facts.
Admission answer.
Trial

do.
Admission answer.
Trial.

do.
Stipulation as to facts.

do..
Trial.

.do
--do.
Stipulation as to facts.
Trial.

Order affirmed.

4868
4869
4882
4886

Michael E. Lee.
Georgie A. Coleman
C. H. Stemmons et al.
Delmar N. Randall.

Oct. 19, 1943
Aug. 20, 1945
June 27, 1944
Oct.

9, 1944

.do.
do.
do.--
do..

[graphic]

Stipulation as to facts

do..
Trial.
Stipulation as to facts

85257—46—11

4893 J. H. Camp.
4894 Ostrex Co., Inc., et al.
4898 The Carley Co.
4901 Home Diathermy, Inc., et al.--
4912 Standard Chemical Manufacturing Co.
4919

Hawkeye Sales, Inc., et al.
4923 McNeil Drug Co., Inc.
4925 M. L. Kay et al
4926 Beatrice Kornstein.
4927 The Adlerika Co.
4940 Roy A. Whipple et al..
4942 Max E. Heyman et al.
4966 L. R. Kallman.
4967 Helen E. Hoeck et al.
4980 Henry P. Kinneke...
4984 Francis R. Hillyard, Sr., et al.
4990 Donald N. MacDougall, et al.
5000 Bishop & Babbin, Inc.
5028 Harvest House
5037 Detroit Soda Products Co.
5039 Trans-Pac Services, Inc., et al.
5044 Mayo Brothers Vitamins, Inc., et al.
5051 All Rosenfeld, Inc., et al.-
5052 Montgomery Ward & Co.
5054 Kay Laboratories, Inc., et al.
5064 R. C. Miller
5072 Brooks Appliance Co.
5089 William H. Howe.
5091 Gladys Goldberg
5094 Imperial Drug Exchange et al.
5114 Valentine Greenewald
5132 A. T. Wilson
5137 Carlton Routzahn
5145 Rex Diathermy Corp
5146 Sylvia Pietri.
5216 Giljan Medicine Co., Inc., et al.
5227 Joseph Triner Corp
5236 George F. Hauptman.
5249 Gustave Goldstein..
5305 Olive L. Richards.
5307 William M. Stone
5355

Rejuvene Manufacturing Co.

June 27, 1944 Medicinal preparations
Mar. 21, 1945 Medicinal preparation
Oct. 18, 1944 Food
Jan. 13, 1944 Therapeutic device.
July 11, 1945 Medicinal preparations.
Jan. 18, 1945 do.
May 6, 1943 Medicinal preparation.
June 16, 1943 Cosmetic
Sept. 27, 1943

Medicinal preparation
July 11, 1945 do.
Nov. 30, 1943 do.
June 19, 1943 Therapeutic device.
Apr. 11, 1945 Cosmetics.
Jan. 20, 1945 Cosmetic
Oct.
5, 1943

Food..
Apr. 7, 1945 Therapeutic device.
Apr. 11, 1944 Food.
do.

.do.
Nov. 28, 1945 Health books.
June 26, 1944 Medicinal preparation.
June 7, 1944 do.
Feb. 9, 1945 Medicinal preparations.
Apr. 23, 1945 Cosmetics
Apr.
6, 1945

Medicinal preparations.
Dec. 21, 1944 Medicinal preparation.
Dec. 3, 1945 do.
Jan. 27, 1944 Therapeutic device-
Mar. 13, 1945 Medicinal preparation
Sept. 7, 1944

_do.
May 9, 1944

-do.
Oct.

1, 1945 Medicinal preparations.
July 12, 1945 Medicinal preparation.
Sept. 7, 1944 do.
June 26, 1944 Therapeutic device
Feb. 6, 1945 Cosmetic
May 10, 1945 Medicinal preparation.
June 27, 1945 --do.
Oct. 1, 1945 do.
Apr. 27, 1945 Cosmetics
Dec. 10, 1945 do.
Dec. 21, 1945 Therapeutic device
Nov. 28, 1945 Cosmetic

Analysis of cases in which findings and orders were issued subsequent to enact

ment of Wheeler-Lea Act, involving food, drugs, therapeutic devices, and cosmetics, showing manner of disposition and court's disposition of those

appealed Total number of cases.

462. Number disposed of on admission answers_

180, or 39 percent. Number disposed of on stipulations as to the facts_

97, or 21 percent. Number disposed of on admission answers and stipulations as to the facts--

277, or 60 percent. Number disposed of by trial.

185, or 40 percent. Number disposed of by trial which were not appealed.-. 141, or 76 percent. Number appealed to circuit court of appeals-

43. Number affirmed or petitions for review dismissed.

34. Number modified_

7. Number reversed..

2. Number of formal complaints dismissed or closed by the Commission

58. (Thereupon, at 11:55 a. m., Wednesday, February 27, 1946, the committee recessed until 10 a. m., Thursday, February 28, 1946.)

AMEND FEDERAL TRADE COMMISSION ACT

THURSDAY, FEBRUARY 28, 1946

HOUSE OF REPRESENTATIVES,
COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE,

Washington, D.C. The subcommittee reconvened at 10 a. m., Hon. George G. Sadowski, chairman of the subcommittee, presiding.

Mr. SADOWSKI. The subcommittee will come to order.

STATEMENT OF WALTER B. WOODEN, ASSISTANT CHIEF COUNSEL,

FEDERAL TRADE COMMISSION Mr. SADOWSKI. Will you state your name and the organization you represent.

Mr. WOODEN. My name is Walter B. Wooden. I am one of the assistant chief counsel of the Federal Trade Commission, and have held that position since 1939.

During that time I have been in charge of the Commission's trial work, having to do primarily with combinations in restraint of trade, price-fixing cases, basing-point cases, and violations of the price discrimination sections and other sections of the Robinson-Patman Act.

In that connection, I have handled a number of such cases before the appellate courts.

Several months ago I was placed in charge of all of the appellate work of the Commission.

Prior to 1939 I had been an attorney on the staff of the Commission, ever since the Commission was formed in 1915.

Mr. Kelley pointed out to the committee yesterday that the necessary implication of any suggestion that the Commission decides its factual issues upon any basis other than that of the preponderance of the evidence was that the Commission was not intellectually honest in reaching those decisions. I want to call the committee's attention in that connection, to a particular case which illustrates how the Commission goes about reaching its conclusions on the facts.

This was a case that was decided on May 3, 1944, and is known as the Listerine case, Docket 4232. Only four Commissioners participated in that decision, Judge Davis being absent on account of illness, but there were four opinions, three of which united in dismissing the case,

In the concurring opinion of Commissioner Ferguson, he said, and I quote:

It is the duty of the Commission to decide issues of fact, whether or not medical or scientific questions are involved, by the greater weight of the evidence, the burden of proof being on the Commission.

.

Commissioner March, in his concurring opinion, concluded that, and I quote:

The allegations in the complaint are not sustained by the greater weight of the evidence.

Commissioner Freer also made a very detailed analysis of the evidence, pro and con, in his concurring opinion.

Commissioner Ayres, however, dissented from the majority as to what the weight of the evidence was in the case, and after he had analyzed it in detail.

I call this case to the committee's attention, because it affirmatively shows that the Commission does act upon the weight and the preponderance of the evidence. And that was a case that came up

before this bill was introduced. That case emphasizes and it illustrates the obvious fact that it is impossible for the several Commissioners to apply any rule other than that of the preponderating evidence without automatically questioning the good faith with which they acted in reaching their several conclusions.

Mr. REECE. May I interrupt, if the interruption does not disturb you?

Does the law require the preponderance of the evidence rule to be followed?

Mr. WOODEN. The law of good faith requires it, and it is implicit in

any trial tribunal. Whether it is requireá by statute or not, it is there and must be there unless you are willing to question the good faith of the tribunal in reaching its conclusion on the preponderance of the evidence.

Mr. REECE. But in the event a defedant felt that the preponderance rule had not been followed, would he have a right to appeal to the court for a determination of that question?

Mr. WOODEN. Of the preponderance ? Not under the statute as it now stands. And it is to be the burden of my statement that that should remain as it is.

Mr. REECE. That would seem to me to be really the important consideration involved in connection with this part of the bill.

Mr. WOODEN. It is.

Mr. REECE. There is frequently a difference of opinion among Commissioners, a difference of opinion among the judges on the bench, and, however conscientiously and capably a tribunal, commission, or judicial body, may undertake to adjudicate the questions at issue, the defendant, or litigant, may feel aggrieved, and he may have great interests involved; and concurrently, a public interest may be involved and what seems to me to be important in connection with the consideration of this bill, not so much the maner in which the Commission adjudicates and reaches its decision but whether the defendant or litigant, if he should feel aggrieved or feel his interests had been prejudiced, that he would have some right of appeal to the court for the determination of the issues involved in the case.

Mr. WOODEN. He has now the right of appeal, the same kind of appellate right that a defendant has from a jury verdict.

It seems to me very logical that if the verdict of a jury, supported by substantial evidence, is binding on the Appellate Court, that the verdict of a special agency, experienced and expert, should be given the same status.

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