The Medical Messiahs:
A Social History of Health Quackery
in Twentieth-Century America

Chapter 14: Proprietary Advertising
and the Wheeler-Lea Act

James Harvey Young, PhD


"Something is very wrong when an advertising campaign, redolent with deception, can run its merry course across the country until it dies of exhaustion and is buried by its sponsors. Small wonder that sensible people shake their heads in wonderment when the Federal Trade Commission digs it out of its grave and orders it reinterred with solemn legality. Now, this may be racked up as a statistic of law enforcement, but in my judgment it has failed in its two essentials--protection of the consumer and protection of the, law-abiding competitors of the false advertiser. I say that the Commission had better concentrate on halting false advertising while it is still claiming victims, rather than wagging a wise finger at the misdeeds of yesteryear. . . . We're going to serve injured business and consumers with a squad car instead of a hearse."

— FTC Chairman Paul Rand Dixon, 1961 [1]


Twenty-five years after the publication of Your Money's Worth, the editors of Consumer Reports asked Stuart Chase to take a retrospective look at what had happened to advertising since he and F.J. Schlink had loosed their devastating blast. "The advertising of . . . patent medicines," Chase wrote, "was perfectly terrible in 1927, and it is terrible today." [2]

When Chase rendered this gloomy progress report in 1954, the Wheeler-Lea Act, intended to strengthen the Federal Trade Commission's policing powers over advertising, had been on the statute books for almost 16 years. That law, designed in part by members of the House of Representatives to prevent the Food and Drug Administration from gaining control of advertising, had indeed expanded the FTC's scope of coverage and increased the sanctions at the Commission's disposal. No longer were only the "unfair methods of competition" of the 1914 law illegal; illegal also by the 1938 amendment were "unfair or deceptive acts or practices in commerce." Thus, consumers could be protected explicitly and not merely as a by-product of protecting business competitors. New sections were also added aimed directly at false advertising of food, drugs, devices, and cosmetics. In determining falsity, not only were "representations made or suggested" to be taken into account. The law barred the failure of advertiser's to make affirmative disclosures necessary for consumer protection. In weighing advertising, the Commission must consider "the extent to which the advertisement fails to reveal facts material in the light of . . . representations or material [presented in an advertisement] with respect to consequences which may result from the use of the commodity . . . under the conditions prescribed in said advertisement, or under such conditions as are customary or usual." [3]

The Wheeler-Lea Act tightened procedures to speed up the date on which cease and desist orders of the Commission would become final and effective. A civil penalty was added for violation of an order, a fine of up to $5,000 for each violation upon conviction of the offender in federal district court. When orders had been carried to a circuit court and there affirmed, violators could be checked by contempt proceedings. With respect to foods, drugs, devices, and cosmetics, the Commission was authorized to apply to a district court for an injunction to stop advertising under way or planned, pending a resolution of the legality of the advertising through the Commission's usual procedures. For two types of advertising in the food, drug, device, and cosmetic field, criminal action was made possible by the new law. If the Commission believed that the commodity advertised might be "injurious to health," or that the advertiser intended "to defraud or mislead," the agency could turn the facts over to the Department of Justice. Upon conviction in court for such a violation, a maximum sentence of $5,000 fine, six months' imprisonment, or both, might be imposed. For second offenders these maximums were doubled.

These broadened definitions and increased penalties, as Congressman Lea saw his handiwork, would protect the consumer and check the unscrupulous advertiser without converting the FTC law "into a criminal statute" to harry the respectable businessman. But even before the law was passed critics wondered if it could do much good. The bill "is absolutely without teeth," charged Congressman Kenney during the House debate, and he and other opponents in the House and Senate sought to point out the weaknesses of the supposed strengthening amendments. No sanction could be levied, they said, until after a cease and desist order had been secured, a long and tedious process during which the advertiser could keep on until he had virtually milked his market through his false claims. Even securing an injunction would take much time. "The injunction may say 'Stop,"' Kenney asserted, ". . . but the disseminator has already stopped. His false advertising for the year has been done." The next year would bring a new kind of false appeal or a new product. Nor would the criminal provision really aid the consumer. Few nostrums posed actual physical danger to the user, and the Wheeler-Lea definition did not cover the kind of danger that came from using innocuous medications for serious ailments and thus delaying recourse to proper medical advice. As to deliberate fraud, FDA experience had shown the well-nigh insuperable difficulties of proving fraud in court. For these reasons, Congressman Chapman predicted, the criminal clause would see rare use. In short, the bill made "no substantial change" in advertising controls that had been in force for 20 years. Patent medicine racketeers would not be deterred. The citizen, falsely thinking he was being given enhanced protection, would be deceived. If the bill should pass, the worried Copeland told the Senate, "the consumers of this country will be raped." [4]

Part of this alarm was prompted by the desire of Copeland and other members of Congress to keep the regulation of advertising in the not-yet-enacted Food, Drug, and Cosmetic law. Their gloomy predictions nonetheless contained much truth. The Wheeler-Lea Act has not permitted the FTC to control the advertising of self-medication drugs with the rigor which the FDA, under its 1938 law, has regulated labeling. Stuart Chase has been by no means the only observer who upon looking, backward, has not seen as much improvement in patent medicine advertising as he could have wished.

Questionable advertising campaigns, as Congressmen forecast, have run their course while FTC procedures have slowly unwound, from complaint, to initial hearing before an examiner, to hearing before the full Commission; from testing the Commission's cease and desist order in a circuit court to final judgment on appeal in the Supreme Court. (In one celebrated case, it took the Commission 16 years to remove the "liver" from Carter's Little Liver Pills.) [5] When an order was finally confirmed in court, no penalty—save bad publicity—accrued to the offender if he stopped using the advertising complained about. By then he very often had changed to a new approach in any case, so FTC orders, as a Commissioner acknowledged, attacked "the misdeeds of yesteryear" instead of current distorted promises "still claiming victims." [6]

Nor did the injunction and criminal provisions of the Wheeler-Lea Act prove of outstanding significance in halting exaggerated therapeutic promises. Immediately after the law's enactment, the injunction did serve to stop a number of egregious nostrum advertisers, but then its use fell off. Only some 40 injunctions were secured during the decade and a half following 1938. Congressman Chapman's prediction concerning the rare use of the criminal clause proved sound: through 1960 criminal prosecutions brought under the law had numbered only two. These two potential weapons, as a Commissioner suggested, became "rusty through disuse." [7]

Like the FDA, the FTC has had an enormous task to perform with woefully inadequate resources and staff. Responsible for anti-monopoly policing across the whole complex span of the nation's economic life, charged with combatting unfair competitive methods and deceptive acts in every field of commerce, the FTC could devote only a small portion of its attention to the false advertising of proprietary remedies. Nor has Congress been generous in its financial support. In 1962 the Commission had only a quarter more employees than it had had two decades earlier [8].

Policy continuity with respect to false advertising has been a more difficult problem at the FTC than has policy continuity regarding labeling at the FDA. Food and Drug. Commissioners until 1966 rose through the ranks, acquiring experience and attitudes toward problems confronting the agency which they served as administrative heads of policy. Few Commissioners at FTC have been elevated from the permanent staff. Appointed from divergent backgrounds and reflecting differing perspectives, the Commissioners cannot provide the same type of continuing cohesive policy. Serving the FTC not only as a multi-member head but also as a sort of court, the Commissioners stand somewhat aloof from their career aides. In the 1920's and since that time a change in the Commission majority has sometimes brought a sudden shift in policy lines.

The two 1938 laws posed different standards for labeling and advertising, the latter much less severe. Whereas the FDA could attack labeling "false or misleading in any particular," the FTC could only combat advertising "misleading in a material respect." Thus a broad, grey border zone continued in which exaggerated advertising assertions retained legality. The Wheeler-Lea Act had not been intended to circumscribe puffery. Senator Wheeler had made that clear during the debate. The FTC's chief examiner reiterated the point soon after the law went into effect. This assurance was seldom absent from addresses given by Commissioners before trade association conventions [9].

Despite all the handicaps, the Commission made earnest efforts during the first few years under its new law to fight the most obvious evils. Since "advertising in the field of proprietary medicines," as Commissioner Robert Freer told the Proprietary Association, was "in large measure responsible for consumer and Congressional demand for stricter regulation," this category received major attention. Observers gave the FTC staff high marks for their diligence and zeal. Increased surveillance of advertising was launched, with attention for the first time to the foreign language press and increased emphasis on radio commercials—by this time the medium receiving the largest single share of advertising dollars. Campaigns attacked abuses in the promotion of alleged cures for obesity, arthritis, cancer, ulcers, and headaches. There was continued great reliance on use of the Commission's informal procedures, warning advertisers of their errors before launching official actions, settling cases by stipulations, thus avoiding the effort and expense of preparing cases for presentation before trial examiners. Indeed, large manufacturers sometimes complained that small manufacturers of similar products bargained therapeutic claims away by stipulation that might well have been retained had a proper fight been made. A batch of injunctions was secured against advertisers who failed to reveal harmful potentialities in their abortifacients, aphrodisiacs, and so-called cures for obesity and dipsomania. Disreputable device advertising also felt the pressure of action by the FTC. Although most of the actions launched aimed at the most disreputable fringe of proprietary advertisers, big names were not neglected. Listerine and Alka-Seltzer, for example, showed up in FTC complaints [10].

A key driving force in this campaign against proprietary advertising was J.J. Durrett, FTC chief of medical opinions. While with the FDA, Durrett had earned the antagonism of proprietors by his forthright skepticism about the value of their wares. He had sought FTC cooperation in clamping down on manufacturers who promoted their salves and analgesics as preventives for the flu. Later disagreeing with his FDA colleagues over such issues as how vigorously to assail acetanilid-bromide pain-killers, Durrett left the agency, migrating to the FTC. He brought his strong opinions with him. Durrett's judgment, in the early Wheeler-Lea days, played a major role in determining which cases the FTC would launch in the health field and what strategy of attack the Commission would employ [11].

Durrett's presence at FTC, perhaps, as well as lingering resentments from the bitter jurisdictional battle for control of advertising, led to a coolness between the Commission and the Food and Drug Administration that lasted for a decade and a half. Commission lawyers tried drug cases unaware of FDA's regulatory position on the questions at issue. For some proprietary products, like acetanilid-bromide mixtures and antihistamines, the FTC sought more rigorous advertising restrictions than the FDA required for labeling. For other products, like arthritis-rheumatism remedies, the reverse was true. Not until the Eisenhower administration did the agencies negotiate a peace treaty that restored harmony and established a measure of liaison on policies in overlapping areas [12].

One of Durrett's prime objectives was to give the "affirmative disclosure" provision of the Wheeler-Lea Act meaning in practice. Proprietors thought Durrett much too extreme in insisting that their advertising warn the public of injuries that might occur and advise the public of benefits they must not expect from taking medicines. Both the Commission and the courts curtailed Durrett's eagerness. In 1947 a shift in the voting majority on the Commission brought a decision that warnings about possible hazards from the use of certain laxatives, headache remedies, and other self-medication drugs need no longer appear in advertising, at least until scientific data became clearer that substantial injury was possible. Three years later the Supreme Court refused to hear a circuit court judgment that also circumscribed the affirmative disclosure principle. The case involved a blood tonic, Oxorin Tablets, made by a manufacturer named Alberty. In this instance, the Commission had gone along with Durrett, ordering Alberty to limit claims for the tablets to conditions due to simple iron deficiency anemia, and then to add "that the condition of lassitude is caused less frequently by simple iron deficiency anemia than by other causes and that in such cases this preparation will not be effective in relieving or correcting it." Giving the Wheeler-Lea Act a narrow construction, the circuit court held that the Commission had not proved the need for this warning in order to prevent consumer deception. "There is a limit to the Commission's power," the judges ruled. "It is not given a general charter to police the expenditure of the public's money or generally to do whatever is considered by it to be good and beneficial." [13]

The FTC staff also encountered troubles regarding the nature of their evidence. Many early Wheeler-Lea cases had been won before the five-member board when the staff presented medical experts as witnesses who, though never having tested the products at issue, could assert from their pharmacological knowledge that the ingredients in the nostrums could not possibly possess the therapeutic effects claimed for them in advertising. But the Commission came to give less credence to such experts and greater weight to the opinions of satisfied users who asserted that, whatever the experts said, they had indeed been cured. Manufacturers also began to defend themselves at hearings by presenting the results of clinical trials. Doctors on the Commission staff might be persuaded that this scientific evidence was "inadequate, preliminary and inconclusive," but it sounded impressive and could not easily be countered by the statements of medical experts who themselves had not tested the drugs in clinical trials. The small scientific staff of the Commission had neither the time nor money for many such efforts, and it was hard to persuade reputable outside scientists to devote their energies to proving by tedious research the falsity of claims which, to them, seemed prima facie ridiculous. So cases were lost. In the Cystex case, for example, medical experts asserted that the drug possessed no value in treating kidney and bladder disorders. But the company presented medical witnesses who had run clinical tests which, they testified, had demonstrated some merit in the product. The Commission, in denying an order, told its staff that allegations must be supported with a preponderance of evidence. It was "carefully-designed, extensively-used advertising," Durrett wrote, that presented "the real problem confronting the Commission. . . . Such claims involved practically the entire range of knowledge developed by the medical sciences." [14]

These defeats were symptomatic of a general slackening of the earlier vigor with which the Commission had responded to. the Wheeler-Lea Act. The reformist New Deal days were gone, and the nation was enjoying postwar prosperity. President Truman's appointees to the five-member board were business-oriented. One of them, Albert Carretta, addressing the Proprietary Association, suggested his perspective in his title: "The F.T.C.—When Will It Assume the Role of the 'Friendly' Policeman?" In the past, Carretta believed, the Commission had leaned too far toward "abstract justice, untempered by the equities of fact and circumstance." In the friendlier atmosphere which Carretta desired, the number of medical advertising cases shrank. After 1950 no new campaigns were launched. The effort in that year, aimed at antihistamines promoted as cold cures, proved not a complete success: the Commission sought to attack the safety of these drugs for self-medication after the FDA had already authorized their use. Another sign of slackness in the Commission was evident: little effort was made to check on whether or not the more than 4,000 cease and desist orders outstanding were being obeyed. President Eisenhower's first appointee, Edward Howrey, who came as chairman, did seek to remedy this oversight. But being more interested in the anti-monopoly than the advertising phases of FTC's authority, Howrey restricted advertising surveillance and refrained from pressing new advertising cases. In 1954 the Commission did not issue a single new complaint in the drug field [15].

During these days, a drug trade reporter later noted, the FTC was "a headless, drifting agency which acted desultorily and seldom hurt anybody very much." The Commission had done "little more than play around with a situation which affects the pocketbooks, and sometimes the health, of a large proportion of the U.S. population." Frustrated staffmen in the agency did not believe the law had been given a "real tryout." [16]

In such a regulatory atmosphere, quackery was emboldened and customarily cautious advertisers were severely tempted. As in the depression, competitive pressures led to a progressive inflation of therapeutic claims. When one promoter in a given product line, taking a chance that the FTC might remain passive, promised greater benefits, other promoters had to follow or risk losing their share of the market [17].

Even in the period before the FTC's relaxed enforcement, proprietary advertisers had developed ways of expanding their persuasiveness with little legal hazard. They sought to keep their exaggerations minor instead of "material." "The careless and false advertisers," an early critic noted, "may tell as many little fibs as they please just so they do not put in a big whopping misstatement of a material fact." They talked about "the irrelevant as if it were pertinent," made "factual statements" that did "not apply to the product or the situation described," and especially used "weasel words in small print." Qualifying phrases proliferated, which might protect the advertiser if hailed in by the FTC but still escape a would-be customer's attention, statements like "In the absence of organic trouble, this will build your blood back to normal" and "Perhaps your kidneys are to blame." Ads might ask in large type, "What do doctors prescribe for headache?," and then print in even larger letters the name of the proprietary. The link forged in the consumer's mind could well survive the more revealing story given in small type below these headlines [18].

Radio offered still more opportunities for evading the spirit while abiding by the letter of the law. "The spoken word," a critic noted, "can be made to say one thing and mean another." He asked his readers to listen for "the sly formula of implication and innuendo" which radio commercials exhibited, including precautionary statements which the "Federal Trade Commission has obviously requested the advertiser to insert and the advertiser has obviously instructed the announcer to 'kill' by inflection." [19]

And then came television, bringing, as a Commissioner said, "the pitchman off the street into our parlors." Beginning in the late 1940's, TV advertising became by 1955 a billion-dollar business. To the hard-sell spoken word was added visual impression, and proprietary manufacturers became inveterate users of the medium. Reaching back into the ancient days of patent medicine promotion, they revived symbols of evil from the devil's dark domain, and now the fiendish creatures wiggled. Spectators peered inside the body, watched limp intestines undulate with vigor when plied with laxatives, observed the exciting race of pain-relievers from stomach to brain, harkened to white-coated actors impersonating doctors. And TV advertising paid off: one "relaxant capsule," an agency executive said, had gotten sales results within a few weeks that in pre-TV years would have taken ten years to achieve. Grumbling about the ubiquity of television advertising began to be heard in many quarters, and some of its specious therapeutic counsel, one pharmacologist said, was "as potentially dangerous as a loaded gun." [20]

All American advertising had boomed mightily since the depression days, when the basic utility of this form of economic enterprise had been seriously questioned by Chase and Kallet and Schlink. In the postwar decade alone-while FTC resources were inching up-the total volume of advertising had trebled, reaching an annual expenditure of ten billion dollars. A new storm of protest was rising, but little of the critique would strike at the fundamental usefulness of this social institution as the "guinea pig" muckrakers had done. Few commentators would blast all advertising as "economic waste." "As capitalism itself has grown more productive (and popular) in the U.S.," a writer in Fortune asserted, "it has come to be more generally accepted that advertising has a good deal to do with the rising U.S. standard of living." Even Stuart Chase had mellowed. "Advertising has an important task," he acknowledged, "in a high energy economy." Except for several product categories, advertising was "less lethal" than when he and Schlink had written Your Money's Worth. Radicals had stopped attacking it "with loud rebel yells." Advertising, in short, had won its war with its severest critics, by making some concessions, by counterpropaganda, and especially by continuing to develop "weapons of persuasion" in the technique of appealing to customers which were more effective in selling without being so assailable on rational grounds as violations of the "truth." [21]

While under heavy fire during the depression, the advertising industry constantly augmented the sums it spent on psychological research, becoming by 1940 one of the largest customers for studies of human behavior. Copywriters continually improved ways of making claims which, if they had been explicit, would have violated the Wheeler-Lea Act, but, being implicit, escaped official censure. Their goal was to endow their ads with "psychological techniques of persuasion so emotionally powerful and subtle that they could induce a determined opponent of advertising to buy the product even if be disbelieved the claims advertised for it." This goal was best achieved by presenting their appeals through "stereotyped images and unequivocal symbols," often pictorial, rooted in fundamental emotional drives. Ads presented vicarious experiences, implying they might be actualized by using the product, playing on basic cravings for security, status, prestige, companionship, love, sexual fulfillment [22].

During World War II, as during World War I, the advertising profession employed its most effective weapons in behalf of the national interest. And in the postwar decade, with the advent of television, psychological probing of the consumer expanded so markedly "as to render the findings of the prewar era almost elementary by contrast." Over 80 firms engaged in and sold what came to be called "Motivation Research." This alliance between "Freud and the Hucksters" prospered because, when tested by the yardstick of expanding sales, it yielded excellent results [23].

In the mid-1950's, when the Federal Trade Commission's regulatory efforts were at low ebb, sporadic criticisms of advertising began to coalesce into a major movement. It was not the existence of advertising that came to be condemned but its excesses: the noisiness and abominable taste of television and radio commercials, the cynicism of some of the craft's grey-suited practitioners, the unethical alliances summed up in the word "payola." Critics worried too about advertising's very potent social role: the unnerving effect of its constant prodding of emulative anxieties, the depreciation of more basic values through glorifying of materialistic satisfactions. Advertising's amazing success at motivating conduct in the marketplace through appeal to irrational drives—through "hidden persuaders"-- brought increasing uneasiness to many thoughtful citizens. In various ways these cumulating concerns acted to re-energize the FTC.

Amid the wide range of advertising's vulnerabilities, proprietary advertising was a most conspicuous target. The American Medical Association grew increasingly concerned about the white-coated pseudo-doctors who lauded "new" drugs—like the bioflavonoids and chlorophyll—without adequate scientific proof. Sensitive common citizens grew ever more irritated at drug commercials, objecting to learning about their "potential intestinal difficulties between Beethoven and Mozart." The Commission "can regulate medicine claims," commented a newspaperman, "about as well as a gardener can regulate autumn leaves in a high wind." What spurred the FTC most directly, however, was the reflection of these pressures on Congressional committees. Appropriation committees in both Houses raised probing questions about the FTC's policy on proprietary advertising. In 1957 a subcommittee of the House Committee on Government Operations, chaired by Congressman John A. Blatnik, held hearings on misleading advertising in the weight-reducing field. From this examination the FTC emerged with very poor marks indeed. Physicians and a representative of the Better Business Bureau spoke out most critically about abuses in obesity-cure promotion. FTC defense of its policies did not impress committeemen as adequate. The fact of a court defeat in 1946—in a case the Commission admitted had not been well presented—was no excuse for the ensuing "2-year paralysis." "In this [obesity] field," Blatnik's final report charged, "the attitude of the Commission has been one of indifference and apathy," and as to false and misleading advertising generally, "the Commission's record has been one of incredible delay and procrastination." As a result, with respect to slenderizing wares alone, "the American consumer" was "being bilked out of approximately $100 million expended annually on these preparations [24]. In 1959, probing the quiz show scandals, the House Legislative Oversight Subcommittee found that one of the major programs involved had been sponsored by a proprietary manufacturer [25].

Responding to successive waves of pressure, the FTC brought greater and greater pressure to bear on proprietary advertisers. In 1955 21 complaints were issued in the drug and cosmetic field. Late in the year, Chairman Howrey, resigning under fire from the House Small Business Subcommittee, was replaced by John Gwynne, who was more interested in policing advertising. In the first year of Gwynne's chairmanship, more complaints and orders were issued than in any year since, World War II. Monitoring was once again improved by the creation of a special radio-TV "task force," which put attorneys in Washington and in FTC field offices to work listening and watching to catch the tone of voice and note the facial expression of advertising pitchmen: previous monitors had merely read the scripts. "Quite a few" of the misleading claims picked up by this method, Gwynne told the Senate Appropriations Committee, would "have to do with drugs." New complaints began to issue: against a series of arthritis-rheumatism remedies with such nationally known names as Mentholatum, Infra Rub, and Heet; against the shampoo Lanolin Plus; against Rolaids, which sought to boost its antacid qualities by showing television viewers—falsely, the FTC charged—that concentrated stomach acid could burn a bole in a cloth napkin. The FTC also resurrected the affirmative disclosure principle, dead since the Alberty case, applying it first to a series of hair treatment salons which were failing to tell readers of their advertising that most cases of baldness were impervious to their methods. Stronger liaison was established with the Federal Communications Commission, which henceforth received copies of FTC documents relating to actions against radio and television advertising. After the Blatnik hearings, but before the subcommittee issued its blistering report, the FTC started a campaign against weight-reducing remedies [26].

The quiz scandals made big headlines and increased consumer complaints about commercials tenfold in the FTC's mail. This too intensified the Commission's campaign. "If the creative ability of those who develop advertising gambits and who are, I understand, rather handsomely remunerated for it—is of the genius variety we are led to believe, they should have no difficulty in reconciling their imaginative fantasy with legality of phraseology." Such was the sarcastic judgment of the Commission's new chairman, Earl Kintner, who had been elevated to that position from within the agency, which he had served as general counsel. Expanding monitoring around the clock, the FTC challenged TV commercials that seemed to show one thing while actually showing another, complaining, for example, about the "protective shield" claim for Gardol in Colgate's toothpaste. The Commission also began to include in its actions, along with the manufacturer, the advertising agency that had prepared the copy. This publicity was unwelcome. "What disturbs Madison Avenue," a business periodical noted, "is that the government seems intent on turning advertising's own tools of communication against it." [27]

While adding "a few lead weights" to "the enforcement club," Kintner at the same time sought to persuade industry and the media to take giant steps toward self-reform. He and his Commission colleagues made many addresses in which pleading and warning were intertwined. The warning flag, of course, had long been out, but too few advertisers had seemed to see it. After the Blatnik hearings, Dr. Cullen had counselled Proprietary Association members to recheck their advertising and make changes, if necessary, "to stem the tide." [28]

Self-regulation machinery at the highest echelons of advertising was tightened up, with full support from the American Medical Association. Some physicians desired a forthright anti-self-medication stand, but the AMA's House of Delegates directed an augmentation of liaison with the radio-television industry to raise advertising levels voluntarily. After an informal conference, attended by representatives of the AMA, the National Better Business Bureau, the proprietary industry, and advertising agencies and media, the AMA became a sustaining member of the NBBB, thinking it "the most practical coordinating agency." This new "mechanism" of coordination, a committee reported to the 1958 AMA convention, would produce good results. The House of Delegates did enact a resolution condemning advertising that urged self-treatment for indigestion, constipation, and anemia, although a committee report complimented the proprietary industry generally on its diligent efforts at self-policing. The specter of "socialized" medicine doubtless played a role in the AMA's efforts to wrestle with an admittedly serious problem in a wholly voluntaristic way. Indeed, a committee resolution calling for stricter governmental controls on advertising was pigeonholed [29].

The National Association of Broadcasters, as a token of the new cooperative efforts, amended its code to ban actors in drug commercials from wearing white coats. "Dramatized advertising involving statements or purported statements by physicians, dentists or nurses," the new rule said, "must be presented by accredited members of such professions." A special committee of the Television Code Review Board was appointed to survey commercials and draft some "commonsense guideposts" for those preparing them. With respect to laxatives, for example, the subcommittee suggested the avoidance of "techniques which over-dramatize the discomfort of one requiring a laxative,, which emphasize the speed or efficiency of the laxative, [and] which duplicate the mechanics of elimination by charts or props." Barred completely from showing by stations which wished to display the Code Board's seal of approval were commercials promoting feminine hygiene products and hemorrhoid remedies [30].

This last taboo revealed some of the difficulties inherent in self-regulation. One of the giants of the proprietary industry, AMHO-Whitehall, marketed a profitable treatment for piles called Preparation H. The Code Review Board warned television stations that they would lose their seal of approval if they continued showing Preparation H commercials. Over a score of stations preferred the advertising revenue to the seal. In any case, many stations were not members of the National Association of Broadcasters and of those that were, some were not subscribers to the code. AMHO-Whitehall increased its dollar outlay for television advertising in behalf of Preparation H [31].

Certainly, by the early 1960's, neither renewed efforts at self-regulation nor reinvigorated regulation by the Federal Trade Commission had solved the problem of either taste or "truth" in proprietary advertising. Of all the complaints reaching the National Better Business Bureau, those in the health field headed the list. In a poll conducted by the National Audience Board, deodorant commercials struck consumers as most obnoxious. "All TV commercials for deodorants stink," wrote one spokesman for the public, Brooks Atkinson of the New York Times. "Many of the others are harrowing in one way or another. The trip hammer that pounds on the nerves, the bolts of lightning that split the head of the junior executive, the flaming stomach walls, the liver acid that burns holes in a cloth, the pockets of rotting food between teeth—portray the American body as one of nature's abominations." [32]

Uneasiness continued within the industry. "When you sit," said the vice-president of a major proprietary concern, "as I have so often in these past months, with Government officials or with advertising men from other industries and discuss the problems facing advertising today, we in the drug business are most frequently considered to be the bad boys. We are the ones who are called the rotten apples in the barrel." And an advertising agency official, speaking to his fellows, was equally disturbed. "Some of the advertising now on the air for deodorants, laxatives, corn removers, 'sick headache' remedies, cold and sinus inhalants, and girdles and brassieres needs to be thrown off and kept off the air. For if there is nothing more beautiful to the maker of nose spray than a map of the nasal passages, at least he mustn't insist upon showing it in parlor projection." [33}

"To say that the Government's enforcement of the truth-in-advertising law has been ineffectual," adjudged a Consumer Reports editorial, "is to put a good face on the matter. It has been close to a farce." Still another FTC chairman, Paul Rand Dixon, surveying the Commission's past from the vantage of 1961, was forced to assess that record gloomily. The agency had not yet found a way to stop false advertising while it was "still claiming victims." [34].

Abuses with respect to prescription drug advertising, exposed in the celebrated bearings conducted by Senator Estes Kefauver, led to the enactment of legislation in 1962 which placed control of such advertising within the authority of the Food and Drug Administration [35]. By the mid-1960's no similar major confrontation and resolution of the questionable techniques in drug advertising to consumers had yet occurred.

References

  1. Dixon, "False Advertising Is No Minor Matter," mimeographed text of Apr. 17, 1961, address.
  2. Chase, "'Your Money's Worth' Twenty-Five Years Later," Consumer Reports, 19 (Feb. 1954), 93.
  3. 52 U. S. Stat. 111. Charles Wesley Dunn, in Wheeler-Lea Act, A Statement of Its Legislative Record, has brought together texts of the various drafts of this bill, committee reports, selections from hearings, and pertinent passages from the Congressional Record.
  4. The main House debate took place Jan. 12, 1938, Cong. Record (75 Cong., 3 ses.), 391-424; both proponents and opponents had expressed their views in Extension of Federal Trade Commission Authority over Unfair Acts and Practices and False Advertising of Food, Drugs, Devices, and Cosmetics, House Report 1613 (75 Cong., 1 ses.). Copeland in Senate, Mar. 14, 1938, Cong. Record (75 Cong., 3 ses.), 3289.
  5. The case ran from the complaint in 1943 to the Supreme Court's denial of certiorari in 1959 on Carter's appeal from a 9th Circuit Court opinion. Complaint, In the Matter of Carter Products, Inc., FTC Docket 4970; Carter's Products, Inc., v. FTC, 268 Fed. (2d) 461; 36 U.S. 884. Some 11,000 pages of testimony and 750 exhibits were involved in this case. Sigurd Anderson, "Consumer Fraud: The Role of the Federal Trade Commission," mimeographed text of Mar. 11, 1960, address.
  6. For a summary of some of the lengthy FTC cases, see James Cook, Remedies and Rackets: The Truth about Patent Medicines Today (N.Y., 1958), 56-61, 186-87. David H. Vernon, "Labyrinthine Ways: The Handling of Food, Drug & Device and Cosmetic Cases by the Federal Trade Commission Since 1938," FDC Law Jnl., 8 (June 1953), 367-93; "The Regulation of Advertising," Columbia Law Rev., 56 (Nov. 1956), 1035-36; Dixon, "False Advertising Is No Minor Matter."
  7. Vernon, "Labyrinthine Ways," 370; interview with Frederick W. Irish, chief, FTC Division of Scientific Opinions, Mar. 28, 1961; Dixon, "Some Obligations of Your Consumer Franchise-a F.T.C. Point of View," mimeographed text of May 15, 1961, address.
  8. Dixon, "Let's Get Rid of Uncertainty," mimeographed text of Apr. 28, 1962, address.
  9. Wheeler in Cong. Record (74 Cong., 2 ses.), 6592; James A. Horton in Twenty-Ninth Annual Meeting, American Drug Manufacturers Association (Baltimore, 1940); Robert M. Dyer. "False and Misleading Advertising," FDC Law Jnl., 5 (Sep. 1950), 570-89.
  10. Freer, "The Wheeler-Lea Act," mimeographed text of May 17, 1938, address; T. Swann Harding, "Has Truth in Advertising Been Achieved At Last?," Amer. Jnl. Pharm., 192 (Aug. 1940), 325-Z6; "The Consumer and Federal Regulation of Advertising," Harvard Law Rev., 53 (1940), 828-42; FDC Reports, Feb. 11, 1939, Pink 3, white 1-2; Feb. 18, 1939, 3; Nov. 10, 1945, white 1-3; Advertising As a Factor in Distribution, part 5 of Report of the Federal Trade Commission on Distribution Methods and Costs (Wash., 1944), ix; Ewin Davis, "Federal Trade Commission Procedure—with Particular Reference to Advertising of Medicinal and Cosmetic Preparations," mimeographed text of Sep. 30, 1940, address; Robert E. Freer, "Recent Activities of the Federal Trade Commission," mimeographed text of Sep. 27, 1939, address; JAMA, 113 (Aug. 12, 1939), 596-97. Annual Reports of the FTC have been used passim.
  11. FDC Reports, Nov. 17, 1945, white 1, 2; Oct. 17, 1950, 11; Mar. 24, 1951, 5-8; P1, 210 (Mar. 16, 1945), 11; interview with John J. McCann, Mar. 15, 1961; see ch. 5 above.
  12. F&D Rev., 29 (Oct. 1945), 214-17; FDC Reports, Apr. 10, 1954, 13-14; June 12, 1954, pink 2-3; Oct. 2, 1954, white 5-6; "Working Agreement between FTC and FDA," FTC press release, June 9, 1954, containing text of agreement signed by Oveta Culp Hobby, Secretary of the Department of Health, Education, and Welfare, and FTC Chairman Edward F. Howrey.
  13. FDC Law Qtly., 2 (Sep. 1947), 334; PI, 220 (Sep. 12, 1947), 15; Alberty v. FTC, 182 Fed. (2d) 36, certiorari denied, 340 U.S. 818; Jack Graeme Clark on Alberty case in Cornell Law Qtly., 36 (Spring 1951), 534-41.
  14. Irish interview; Irish, "The Control of False Advertising by the Federal Trade Commission," Proprietary Association Executive News-Letter 59-23 (June 12, 1959); Drug Trade News, 29 (Oct. 11, 1954), 9; 30 (Mar. 14, 1955), 8; 32 (Sep. 23, 1957), 29; FDC Reports, May 1, 1954, white 10. Cases revealing the Commission's changing view of evidence involved Cystex, 51 FTC 206, and Lipan, 51 FTC 616. An example of the staff's response, in developing clinical evidence, is the case against the Brotherhood of Good Samaritans for Victims of Arthritis, 53 FTC 470. Durrett, "Our Health and the Federal Trade Commission," Jnl. Med. Assoc. of Alabama, 13 (Mar. 1943), 158.
  15. Carretta, "The F.T.C.--When Will It Assume the Role of the 'Friendly' Policeman?," mimeographed text of June 9, 1953, address; FDC Reports, May 22, 1954, white 9-14; Jan. 2, 1956, 6-8; Apr. 2, 1956, 3-5; Sep. 9, 1957, 5.
  16. Stephens Rippey, "Lines from Washington," Drug Trade News, 32 (Sep. 23, 1957), 29; 33 (Feb. 24, 1958) 2 28.
  17. FDC Reports, Sep. 9, 1957, 5.
  18. Harding,, "Has Truth in Advertising Been Achieved At Last?," 325-34; "Patent Medicine Shows," JAMA, 119 (June 27, 1942), 714; "Advertising for Home Remedies," ibid., 145 (Mar. 31, 1951), 986-87.
  19. R. M. Cunningham, Jr., "Medicine Men of the Air," New Republic, Ill (Oct. 23, 1944), 515-17.
  20. Commissioner Sigurd Anderson, "Modem Advertising—Uses and Abuses," mimeographed text of Sep. 27, 1956, address; David Seligman, Me Amazing Advertising Business," Fortune, 54 (Sep. 1956), 107109; FDC Law Jnl., 13 (Oct. 1958), 664; FDC Reports, Sep. 2, 1957, 15; Sep. 9, 1957, 17; Oct. 75 1958, 22; Drug Trade News, 33 (Jan. 27, 1958), 2; (June 2, 1958), 2.
  21. Seligman, "The Amazing Advertising Business," 107, 110; Chase, "'Your Money's Worth' Twenty-Five Years Later," 93-95.
  22. A probing discussion of these trends appears in Otis Pease, The Responsibilities of American Advertising: Private Control and Public Influence, 1920-1940, 167-203.
  23. Ibid., 202-203. The literature on "Motivation Research" is vast. See Perrin Stryker, "Motivation Research," Fortune, 53 (June 1956), 144ff.; Ralph Goodman, "Freud and the Hucksters," Nation, 176 (Feb. 14, 1953), 143-45; "Consumer Motivation," Consumer Report, 22 (June 1957), 299-301. The work that most aroused the public was Vance Packard, The Hidden Persuaders (N.Y., 1957).
  24. FDC Reports, May 30, 1955, 18; Apr. 2 , 1956, 3; May 26, 1958, 17-18; Drug Trade News, 31 (Jan. 16, 1956), 1, 33; letter to editor, Harper's Mag., 202 (Apr. 1951), 20; Cook, Remedies and Rackets, 65; False and Misleading Advertising (Weight-Reducing Preparations): Hearings before a Subcommittee of the Committee on Government Operations (85 Cong., I ses., 1957); False and Misleading Advertising (Weight Reducing Remedies), House Report 2553 (85 Cong., 2 ses., 1958).
  25. FDC Reports, Oct. 12, 1959, 21.
  26. 1956 FTC Annual Report, 2, 38-39; 1957 Annual Report, 3, 37; 1958 Annual Report, 41; 1959 Annual Report, 6, 48; FDC Reports, Aug. 15, 1955, 3-9; Jan. 2, 1956, 6-8, Jan. 21, 1957, 5; May 20, 1957, 4; July 15, 1957, 8-10; July 22, 1957, 4; July 21, 1958, 10; Drug Trade News, 30 (Aug. 15, 1955), 4; 32 (Mar. 25, 1957), 27; (Apr. 22, 1957), 1; 33 (Sep. 22, 1958), 14; Business Week, Apr. 6, 1957, 73; FCC Order 57-172, "Liaison between Federal Communications Commission and Federal Trade Commission," Federal Register, Apr. 6, 1957.
  27. FDC Reports, Nov. 23, 1959, 14; Jan. 11, 1960, 15; Apr. 25, 1960, 23-24; Business Week, Dec. 19, 1959, 73-74, 76; Jan. 23, 1960, 34; FDC Law Jnl., 15 (Feb. 1960), 95; 1960 FTC Annual Report, 53-54.
  28. FDC Reports, June 13, 1960, 13-15; Kintner, "The Current State of Advertising," mimeographed text of June 15, 1960, address; Proprietary Association Executive News-Letter 492 (Aug. 16, 1957).
  29. FDC Reports, May 26, 1958, 17-18; June 30, 1958, 9-11; Drug Trade News, 33 (July 14, 1958), 1, 27; JAMA, 167 (July 19, 1958), 1508.
  30. Drug Trade News, 33 (June 30, 1958), 1; 34 (Oct. 5, 1959), 1, 14; excerpts from NAB "Television Code Review Board Special SubCommittee Report on Personal Product Advertising," in Proprietary Association Executive News-Letter 59-44 (Oct. 23, 1959); FDC Reports, Aug. 26, 1957, 17.
  31. Ibid., May 11, 1959, 16; June 22, 1959, 13.
  32. Wash. Post, July 8, 1960; Aug. 1, 1961; N.Y. Times, June 16, 1961.
  33. Donald S. Frost, a Bristol-Myers vice-president, Proprietary Association Executive News-Letter 14-60 (Apr. 8, 1960); Fairfax Cone of Foote, Cone & Belding, Business Week, Apr. 30, 1960, 86, 88.
  34. "The FTC's Squad Car," Consumer Reports, 26 (July 1961), 42526; Dixon, "False Advertising Is No Minor Matter."
  35. Kefauver-Harris Drug Amendments of 1962, 76 U.S. Stat. 780. See ch. 19 below.

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