cure-all panacea. It was conceded that it was not invariably efficacious.
The Rhodes Pharmacal case affirmed the Federal Trade Commission's cease-and-desist order by a finding that although the proprietor's product afforded (208 F.2d p. 388): 'relief for the pain and discomfort incident to many rheumatic and arthritic conditions' and 'the duration of time that such relief was afforded differed with the individuals who used' it, the product would not furnish permanent relief or effect a cure of rheumatic or arthritic conditions. The Court modified the Commission's order to enjoin representations that the product would afford permanent rather than any relief from the discomforts of the named ills.
Proprietor's contention that his product was advertised not as a remedy but as providing relief from delayed menstruation did not enable him to withstand the Commission's order in Aronberg v. Federal Trade Commission, supra, because, as the Court said, (132 F.2d p. 168): 'The term 'relief' is not of definite connotation or entirely free from ambiguity; in a common sense, it connotes permanent removal of organic or functional disturbances, as distinguished from alleviation of discomfort.' The Court found (132 F.2d p. 169), that 'the consensus of the expert testimony was that petitioner's preparations are not competent, safe, or reliable as a relief for delayed menstruation because of the heavy dosage of drugs contained in each capsule.'
The representations in the present case which the Government criticizes as false and misleading are to be found in the leaflet entitled 'The Amazing New Sunflo Flowing Air Purifier' and in the display card entitled 'New Scientific Aid for Symptomatic Asthma, Sinus, Hay Fever Relief' previously herein referred to. The leaflet purports to explain how the user may enjoy new comfort and palliative relief from breathing discomforts due to allergies, asthma, simple coughs, colds and sinus infection, hay fever, sinus congestion and simple irritation of the mucous membrance lining the respiratory tract (including nose, throat and bronchi). The leaflet claims four potentials for the device: (1) promotion of helpful palliative relief of certain asthma and hay fever symptoms, such as sneezing and associated breathing difficulty, achieved by the filtering out of allergens, pollens, soot, dust, dirt and other contaminants whereby the sufferer is caused to 'feel better fast' and enabled to breathe more easily in consequence of the removal of irritants that constantly aggravate swollen membranes; (2) production of 'ionized' air which, when inhaled, may be influential in shrinking swollen membranes of respiratory passages, and may aid in speeding recovery from cold or virus symptoms and in protecting from infection by airborne disease germs; (3) compensation for electron deficiency in ambient air through its enrichment by the ionization of the air flowing from the device; and (4) deodorization of the ambient air and destruction of viruses and other air-borne germs therein by means of ozone produced by the two ultra-violet bulbs within the device. In sum, it is claimed that the device affords palliative relief from symptoms of various diseases, aids in shrinking swollen membranes of respiratory passages, compensates for electron deficiencies in the air, and serves to deodorize the air and destroy virus and other air-borne germs therein. The display card represents that the device affords effective relief from breathing distress due to allergies, asthma, simple coughs and colds, sinus, hay fever or air-borne irritants. It is stated that the device produces, for inhalation by the sufferer, healthful ionized air almost completely free of air-borne allergens, dust carried bacteria, pollen, and impurities. The resulting electron-enriched air is said to promote quick, palliative, drugless relief from the respiratory ailments above mentioned, by aiding the lungs and throat in clearing themselves from congestion and foreign matter and relieving bronchial asthma spasms. 'Ionized air' as used in the advertisement is therein defined as air which is electronically treated by ultra-violet sun-tubes in the device, so that the air becomes revitalized and energized. In the proprietor's language, 'In go dust, germs, pollen, odors, allergens, and other irritants * * * OUT comes the pure, safe, fresh and beneficial kind of air you should breathe -- plus an increased supply of 'activated oxygen' that promotes immediate, pleasant relief with every breath you take. * * * It purifies as it filters as it deodorizes as it recirculates a whole roomful of enriched, healthier-to-breathe air every few minutes.'
The Court finds that the seized device is harmless, per se; and that it filters some particulate matter from and reduces, to a degree, the bacteriological and virous content of such air as is drawn into and discharged from the device. No person who had used the device while suffering from any of the diseases mentioned in the labeling testified respecting the effect of the operation of the device upon the discomforts of the sufferer. The presence of ozone in the air discharged from the device is easily perceptible to the olfactory sense when inhaled as it leaves the front grille. No evidence was presented of the effect of the discharged air upon pervasive odors in the surrounding air. Air-borne smoke passed readily through the device. If, as the claimant contends, air which is discharged from the device is ionized, the evidence preponderates that it is inefficacious to eliminate the symptoms of any of the diseases or conditions mentioned in the labeling. The device does not purify as it filters the air; nor does it deodorize or recirculate a whole roomful of enriched air every few minutes.
The device is misbranded, because its labeling is in some respects false, and in other respects misleading. The device and its labeling are condemned, and an appropriate decree will be entered. However, after entry of such decree, and upon payment of the costs of these proceedings, and execution of bond as provided in 21 U.S.C.A. 334(d), the seized devices may be delivered to the owner thereof, to be brought into compliance with the provisions of Chapter 9 of Title 21, pursuant to the requirements of said Section.
Submit decree and order accordingly.
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