James H. Sewell, Doing Business Under the Fictitious Firm Name and Style of Burns Cuboid Company v. Federal Trade Commission

240 F.2d 228, 1956 U.S. App. LEXIS 4933, 1956 Trade Cas. (CCH) 68,508

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 16, 1956
• Docket: 14354_1
• Status: Published

Opinions

CHAMBERS, Circuit Judge.

Sewell, petitioner here, and respondent before the Federal Trade Commission, has successfully built in and from Santa Ana, California, a large business in the manufacture and sale of an article which we can call a shoe insert. Its basic name is Cuboids. This is a derivation from the cuboid bone in the arch of the human foot. Various names are used in marketing like “Cuboid balancer” or “Doggies.” A ready market for the device is found among the legion of Americans who complain about their feet.

The insert is ordinarily sold in department stores in metropolitan centers where representatives on the payroll of Sewell sell the product, usually for the account of Sewell, rather than the department store. Those who sell it have had some training in fitting shoes and selling corrective devices. Some sales are made by mail order after a customer has filled out a questionnaire which is intended to elicit his complaints. Some sales are made by stores that do not have a Sewell representative on the premises.

The insert is made on a license from an inventor named Burns, who apparently first marketed the device himself on a limited basis. The article moves in commerce among the states. There are about 200 different models of the same basic thing, which is made with two layers of leather with cork at various points in between the layers of leather. The difference in sizes of shoes accounts for many models. Then for each foot size a variety of thicknesses is manufactured.

The attack initiated by the Federal Trade Commission is on Sewell’s advertising. We assume that Sewell would readily admit that his advertising has been a big factor in building his business: that the product has not entirely sold itself.

Some of the lines of Sewell's advertising which were the subject of the Commission’s complaint were as follows: •

“Cuboids help to balance your body weight * * *

“Cuboid Foot Balancers “ * * * the foot and body balance, the relief from aches and pains Cuboids afford.

“Better poise and balance replace aches and pains.

“Drive away foot fatigue with Cuboids. Enjoy more normal foot action with Cuboids.

“They’re the modern way to foot relief — combining scientific principles of balance and support to lessen fatigue and help improve your stance.

“Now everyone can enjoy better posture, poise and balance with * *, Cuboids.

“Especially designed to help you enjoy increased foot health and comfort.

“With Cuboids foot pains often disappear as if by magic.

“Cuboid foot balancers make housework less tiring.

“Cuboids help to distribute body weight removing pressure from delicate nerve centers and arteries transferring it to better cushioned parts of the feet.

“The feet are the body’s foundation. Cuboids balance this foundation and provide the basis for correct posture.

“The Cuboid bone is the keystone of the outer or weight-bearing arch and its position determines the relative position of every other bone in the foot. Cuboid metal-free foot balancers are scientifically designed to help bring these bones into normal position.

“Cuboids afford effective relief to aching and calloused feet.”

After peripatetic hearings in various parts of the United States, the examiner filed a report which proscribed not only the foregoing claims, but which recommended that Sewell be forbidden to use advertising matter which he had discontinued four years previously. The Commission followed the examiner on the advertising set forth above shown to be in current use but refused to whip the dead horse of Sewell’s discontinued advertising.¹ Now, Sewell seeks review here.

Before the examiner, medical men, orthopaedic specialists, testified for Sewell’s claims and against them. Sewell showed that medical doctors, presumably reputable, in great numbers regularly prescribe his device. He had much testimony that people are regularly pleased with the device. He showed that only three per cent of all purchasers take advantage of their “satisfaction guaranteed or your money back” offer.

But be the foregoing as it may, the Commission entered an order forbidding:

“1. Disseminating or causing to be disseminated by means of the United States mails, or by any means in commerce, as ‘commerce’ is defined in the Federal Trade Commission Act [15 U.S.C.A. § 41 et seq.], any advertisement which represents directly or by implication:

“(a) That the wearing of respondents’ device will assist in balancing the feet or body.

"(b) That respondents’ device possesses therapeutic value for aching or painful feet.

“(c) That the wearing of respondents’ device will enable the user to achieve better posture or poise or will improve the stance.

“(d) That the wearing of respondents’ device will result in more normal foot action or improved foot action or foot health.

“(e) That the wearing of respondents’ device will afford increased comfort for the feet or decrease the fatigue resulting from housework or other physical efforts except to the extent that respondents’ device may in instances reduce or relieve the discomfort associated with strained or tired feet.

“ (f) That the wearing of respondents’ device will have beneficial effect upon the distribution of body weight.

“(g) That the wearing of respondents’ device will in any way aid the Cuboid Bono or its position or stability with respect to other bones of the feet or will serve to readjust, realign, normalize or improve the position of the bones of the feet.

“(h) That said device possesses therapeutic value in the treatment of calloused feet.

“2. Disseminating or causing to be disseminated any advertisement by any means for the purpose of inducing or which is likely to induce, directly or indirectly, the purchase of said product in commerce, as ‘commerce’ is defined in the Federal Trade Commission Act, which advertisement contains any representation prohibited in Paragraph 1 hereof.”

This court is satisfied that the Commission must be affirmed insofar as advertising claims assert that the device has a special effect on the cuboid bone of the foot or is a “scientific” device. That is a highly technical matter upon which experts testified both ways. There the Commission could take its choice.

On highly technical matters one’s product claims, under the law, are at the mercy of experts, even though the group relied upon may ultimately be proved wrong. Yet that is the way the legal system works and must work.

On the other hand, we are not disposed to issue our mandate to cease and desist with respect to the general claims in the advertising on the assertions made with reference to “balance,” “balancers,” “improved health,” “poise,” “improvement of stance,” “elimination of foot fatigue,” “better posture,” and “better foot action.” In so holding, we do not believe we vary from the long established principles of reviewing orders such as we have here.

We think that the respondent Sewell by his witnesses demonstrated, simply stated, that people wearing shoes that do not fit their feet, for reasons inherent either in the customer’s foot or his shoe, do very, very frequently get a better platform to walk on with the addition of Sewell’s insert. Why, we cannot say with certainty. The Commission doctors who roundly condemned the device say there is no reason that the device should relieve one’s foot ills. We do not think the doctors’ opinion and their few case histories of failures of the device overcome the proof of frequent successful use. There is no proof the device ever did any damage. Some doctors suggested in certain cases it could. Further, we think after cross examination of the Commission’s experts very little was left of their opinions on the “lay” claims of general efficacy.

We believe that if we concede that when often the addition of the device produces a better fitting shoe that every one of Sewell’s claims naturally flows, except those based on the assertion of special effect on the cuboid bone or the device being scientific. A better fitting shoe should result in better foot balance, some relief from aches and pains, better poise and balance, better poise, posture and balance, better foot health and better comfort. And even housewife’s drudgery ought to be lessened.

We think perhaps there are two basic mistakes in the case and which lead us to believe that the Commission was legally wrong in part and justify our declination to enforce the order in full. First, we believe in the testimony of the experts of the Commission, they have failed to start with the premise that Sewell fitter starts with. That is, that the shoe of the customer prospect for some reason does not fit the foot or the foot does not fit the shoe. Maybe a different shoe would often give the customer balance, relief from aches and pains, give him better posture and poise and stance. But if the customer gets it by a Sewell device, we see no objection to advertising that it does. (And in the main, we do not think the expert opinion meets the proof here of the generally satisfied customer.) The Commission experts apparently would proscribe entirely the use of the trial and error method of experimenting with devices to relieve one’s foot aches and pains.²

Secondly, we think the examiner and the Commission have reduced generality to specificity, when it was not justified. For example, the approach to “balance” seems to have been in the sense of the physicist in the laboratory. We think there is in the vernacular lexicon a meaning for the word which imports a feeling of well being, a feeling “that it fits.”

While we must accept the Commission’s determination, right or wrong in the abstract, that the claims of special efficacy on the cuboid bone is false science and that it is not a scientific device, we think the other claims of Sewell are within the legitimate field of “puffing” of the ad man.

In reaching our decision, it should not be understood that we announce our own independent beliefs about Cuboids. It is just our judgment that when the evidence was all in and when the Commission’s experts were done that the objections of the complaint as to the general claims about Cuboids were left without substantial evidence, only with general statements of experts weakened too badly by the experts’ own subsequent testimony. See Tractor Training Service v. Federal Trade Commission, 9 Cir., 227 F.2d 420.

The Commission has not attacked the brand name of “Cuboid.” And, of course, it would appear that the name has acquired a secondary meaning. Therefore, our mandate will not affect the continued use of the name “Cuboid,” per se.

Sewell claims stoutly that he did not have a fair hearing before the examiner. We find this unnecessary to decide, although a close perusal of the record lends some support to the contention. As one tediously reads the record, a shading in the trial examiner’s remarks appears here or a nuance there which gives one a feeling of predestination that the examiner’s ruling will be against Sewell. (This occurs independently of the “drift” of the testimony of the witnesses.) Of course, it is difficult to avoid coming to a conclusion before the last question has been asked. Perhaps, the truth may be only that some triers of fact are more circumspect in what they say than others.

But evidence of the foregone conclusion here is found when during the interrogation of the Commission’s last expert the trial examiner says, “When he [meaning Sewell] appeals — I think if he thinks enough of this [i. e., the point under discussion at the moment], that he will appeal from my ruling and when he goes before the Commission he will have the document he offered to prove by this witness. The Commission will then decide if I am in error in denying him.” The examiner’s statement is not prefaced by “If I should decide the case against you.” And the statement in its context can only be projected on a predetermined conclusion of the issues of the case adverse to Sewell. Else, why would Sewell have any occasion to appeal to the Commission ?

If judicial perfection cannot be obtained, at least the observation of the forms of fairness often makes it easier to pull out of the quicksand of error.

On this review, the Commission’s order is affirmed insofar as it prohibits Sewell from advertising special efficacy on the cuboid bone and on other related bones, and insofar as he advertises the device is “scientific;” otherwise, not.

1 . It is evident that Sewell or his predecessors for several years had not proclaimed:

1. “Cuboids strengthen weak muscles and counteract poor circulation.”

2. “Cuboids aid circulation.”

3. “Cuboids strengthen weak feet.”

4. “Cuboids aid circulation — stimulate flow df nervous energy in the feet.”

Some of the critical testimony of the experts concerns these specific claims. Had the examiner eliminated these claims at the outset from consideration of his inquiry, the hearings could have been materially shortened.

Tactically the trial of these more or less specific claims easily permitted the Commission’s experts to condemn Sewell’s devices more stridently and to overlook the real issue of: Do the supports frequently give relief to those who complain of their feet?

2 . One of the Commission’s experts testified that the correct approach to diagnosing foot ailments is to have the sufferer disrobe in the doctor’s office, because the trouble may originate above the foot up in the body or the legs. Then the doctor makes a visual inspection of the naked person. Last he looks at the feet. Such a procedure may be the most scientific approach. But we doubt if it is the only approach.

It well may be that the public would be better served if all shoes were fitted by doctors. Perhaps only doctors should prescribe any type of corrective devices, although there is a ring of verity in the testimony of one of Sewell’s experts when he says that most medical men, even the bone and joint specialists, do not want to “fool” with foot troubles. But who should prescribe the devices is beyond the scope of this inquiry into Sewell’s advertising practices.