9723084 UNITED STATES OF AMERICA In the Matter of DEL PHARMACEUTICALS, INC. and DEL LABORATORIES, INC., corporations. DOCKET NO. C-3837 COMPLAINT The Federal Trade Commission, having reason to believe that Del Pharmaceuticals, Inc. and Del Laboratories, Inc., corporations (“respondents”), have violated the provisions of the Federal Trade Commission Act, and it appearing to the Commission that this proceeding is in the public interest, alleges: 1. Respondent Del Pharmaceuticals, Inc. is a Delaware corporation with its principal office or place of business at 178 EAB Plaza, Uniondale, New York 11556. Del Pharmaceuticals is a wholly owned subsidiary of Del Laboratories, Inc. 2. Respondent Del Laboratories, Inc. is a Delaware corporation with its principal office or place of business at 178 EAB Plaza, Uniondale, New York 11556. 3. Respondents have manufactured, advertised, labeled, offered for sale, sold, and distributed cosmetics and over-the-counter pharmaceuticals to the public, including “Pronto Lice Treatment” and “Baby Orajel Tooth & Gum Cleanser.” Pronto Lice Treatment is a pediculicide, which contains the active ingredients of 0.33 percent pyrethrum extract and 4 percent piperonyl butoxide. Baby Orajel Tooth & Gum Cleanser is a topically applied oral cleansing product, which is designed to clean the teeth and gums of infants and toddlers. Pronto Lice Treatment is a “drug” and Baby Orajel Tooth & Gum Cleanser is a “drug” and/or “cosmetic” within the meaning of Sections 12 and 15 of the Federal Trade Commission Act. 4. The acts and practices of respondents alleged in this complaint have been in or affecting commerce, as “commerce” is defined in Section 4 of the Federal Trade Commission Act. Pronto Lice Treatment 5. Respondents have disseminated or have caused to be disseminated advertisements for Pronto Lice Treatment, including but not necessarily limited to the attached Exhibits A through G. These advertisements contain the following statements:
6. Through the means described in Paragraph 5, respondents have represented, expressly or by implication, that:
7. In truth and in fact:
Therefore, the representations set forth in Paragraph 6 were, and are, false or misleading. 8. Through the means described in Paragraph 5, respondents have represented, expressly or by implication, that laboratory tests prove that Pronto Lice Treatment is one hundred percent effective in killing lice and their eggs. 9. In truth and in fact, laboratory tests do not prove that Pronto Lice Treatment is one hundred percent effective in killing lice and their eggs. Therefore, the representation set forth in Paragraph 8 was, and is, false or misleading. 10. Through the means described in Paragraph 5, respondents have represented, expressly or by implication, that they possessed and relied upon a reasonable basis that substantiated the representations set forth in Paragraph 6, at the time the representations were made. 11. In truth and in fact, respondents did not possess and rely upon a reasonable basis that substantiated the representations set forth in Paragraph 6, at the time the representations were made. Therefore, the representation set forth in Paragraph 10 was, and is, false or misleading. Baby Orajel Tooth & Gum Cleanser 12. Respondents have disseminated or have caused to be disseminated advertisements for Baby Orajel Tooth & Gum Cleanser, including but not necessarily limited to the attached Exhibits H and I. These advertisements contain the following statements:
13. Through the means described in Paragraph 12, respondents have represented, expressly or by implication, that competent and reliable surveys show that nine out of ten pediatricians would recommend Baby Orajel Tooth & Gum Cleanser. 14. In truth and in fact, competent and reliable surveys do not show that nine out of ten pediatricians surveyed would recommend Baby Orajel Tooth & Gum Cleanser. Among other reasons, the survey relied upon by respondents is methodologically flawed and the greatest number of respondents to that survey said they were only “somewhat likely” to recommend Baby Orajel Tooth & Gum Cleanser. Therefore, the representation set forth in Paragraph 13 was, and is, false or misleading. 15. Through the means described in Paragraph 12, respondents have represented, expressly or by implication, that nine out of ten pediatricians recommend Baby Orajel Tooth & Gum Cleanser. 16. Through the means described in Paragraph 12, respondents have represented, expressly or by implication, that they possessed and relied upon a reasonable basis that substantiated the representations set forth in Paragraphs 13 and 15, at the time the representations were made. 17. In truth and in fact, respondents did not possess and rely upon a reasonable basis that substantiated the representations set forth in Paragraphs 13 and 15, at the time the representations were made. In addition to the reasons stated in Paragraph 14, the survey relied upon by respondents was not designed to elicit whether pediatricians actually do recommend Baby Orajel Tooth & Gum Cleanser to their patients. The survey merely asked pediatricians how likely they would be to recommend the product. Therefore, the representation set forth in Paragraph 16 was, and is, false or misleading. 18. The acts and practices of respondents as alleged in this complaint constitute unfair or deceptive acts or practices, and the making of false advertisements, in or affecting commerce in violation of Sections 5(a) and 12 of the Federal Trade Commission Act. THEREFORE, the Federal Trade Commission this eighth day of December, 1998, has issued this complaint against respondents. By the Commission. Donald S. Clark SEAL: |