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In its opinion the Commission said:
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“We agree with the conclusion of the hearing examiner that the agency should be held but not solely because it was a mere `participant in the preparation of the advertising.’ We believe that the record in this case establishes that the agency was at least equally responsible with its principal for the deception found to be implicit in the advertising under consideration. Moreover, we believe that the agency should have been aware of the deceptive capacity of such advertising. Although the agency contends, in this connection, that it relied on information furnished by Merck, the deception found to exist stems not from the falsity of this information but from the use made of it by the agency. The advertising was based on two pieces of information, i.e., laboratory tests established that Sucrets and Children’s Sucrets by virtue of their hexylresorcinol content would under certain conditions kill germs, including staphylococcal and streptococcal germs, on contact and that they would relieve the pain of minor sore throat. As used by the agency, these facts became at best half-truths and exaggerations. We refer particularly to the repeated use of the unqualified claims that the products `kill even staph and strep germs’ and `help fight infection’ in conjunction with the portrayal of a throat engulfed in flame and the prompt recovery of the user. A false impression can be made by words and sentences which are literally and technically true but framed in such a setting as to mislead or deceive, Bockenstette v. F. T. C., 134 F.2d 369 (10th Cir. 1943), and as one writer has pointed out `The skillful advertiser can mislead the consumer without misstating a single fact. The shrewd use of exaggeration, innuendo, ambiguity and half-truth is more efficacious from the advertiser’s standpoint than factual assertions.’
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“Nothing in the information supplied by Merck indicated that Sucrets or Children’s Sucrets would have any effect on the course of either a viral or bacterial infection of the throat. Nor was there anything to indicate that these products would promptly eliminate severe pain, such as that symbolized by fire. To the contrary, the agency knew that the products were recommended only for the relief of minor sore throat pain, mouth and throat irritations. Despite this knowledge, it developed advertising, which by the use of `exaggeration, innuendo, ambiguity and half-truth’ conveyed the false impression that the products would cure or help cure existing throat infections and would be effective in relieving severe pain of sore throat. As found by the examiner, the falsity of such advertising should have been apparent to its creator.
“Nor is it a defense to the agency that the advertising was approved by Merck’s legal and medical departments. The agency, more so than its principal, should have known whether the advertisements had the capacity to mislead or deceive the public. This is an area in which the agency has expertise. Its responsibility for creating deceptive advertising cannot be shifted to the principal who is liable in any event.”
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Category: WHY
