(concurring).

In view of the fact that a dissent is to be filed, the following may add clarity to our determination.

The right of the people who buy shoes and have individual ideas in respect to comfort, poise, balance and posture is involved here. It is not a contest between a selfish seller and an administrative body. Insofar as purely scientific and medical claims are concerned, the Commission is fully supported by this Court. In such a field, where experimentation might be dangerous, perhaps the individual must be protected against himself. It is an extremely close question as to whether a situation existed which justified the elimination of such claims here. However, as to the scientific and medical phases of the findings of the Commission, although these are based upon testimony of experts, this Court has given full concurrence to the results reached. 1 Where almost every individual in the nation passes, perhaps once, perhaps many times a year, through the hands of shoe salesmen, balance, poise, posture and comfort are, in essential, the bases of the sales. In regard to these matters, the individual exercises his own ideas. Even an expert, whether a doctor, a witness for the Commission or a shoe salesman, will be unable to tell the individual that a shoe is or is not comfortable for him or, particularly, her. The idea that each member of the public must be forced to go to a doctor before anyone can help him put anything in or on his shoes circumscribes the liberty of the individual. But this is apparently the attitude of the experts of the agency.

Even after sale, a multitude of wearers of shoes use devices of various sorts to change the balance, poise and posture of the individual or the fit of the shoe to attain comfort. Ankle supports, arch supports, metatarsal pads, rubber sponge, inner soles, corn and bunion pads are added. Shoes are stretched and heels are heightened or raised in part. Outer soles are added. Half soles are placed. Each of these operations may well affect balance, posture and poise of the individual. The wearer ordinarily uses devices for comfort and to give him re- 1 lief from some real or fancied discomfort. Sometimes any one or more of these devices may be used for style. The low or high heels in women’s shoes affect each of these factors. Here the Commission holds that the distributor may not even suggest in advertising that the articles *234 which he makes for the specific purpose of affecting balance, poise and posture to advantage may accomplish it to the satisfaction of the wearer.

There was no substantial evidence in the record that cuboids cannot or do not advantageously affect balance, poise, posture and comfort of the wearer and fit of the shoe. 2 There is a great deal of testimony by wearers that some of these elements were affected. There is testimony that these are prescribed by certain physicians. The opinions of the experts, adduced by the agency, contain highly esoteric discussions of the balance of the foot and theories of various schools of scientific thought. The question before the agency was not one for expert opinion. The lay testimony alone was substantial on this issue. Besides, it is obviously true that cuboids, by their mere presence under the foot, must in some way affect balance, poise and posture, and may certainly affect the comfort of the individual, which, of course, is entirely subjective. The addition of an element not previously there can have no other effect. Thus it is not unreasonable to permit the buying public to experiment with devices possessing this characteristic in their search for foot comfort. The question is not one for the exercise of expertise or even for appraisal of expert opinion, but of common sense. As to these features, insofar as the findings were exclusively factual, the standard of review would be the substantial character of evidence adduced to support the determination. However, in this case the finding that these devices do not advantageously affect balance, poise, position and posture could be held “clearly erroneous” under a much stricter standard than we are technically required to apply. Furthermore, for the purpose of review, this Court is permitted to ascertain for itself the issues presented and examine the whole record. 3

So defined, the final order was not based wholly on a finding of fact, but also upon the proposition of law that the advertising considered in this case violated the statutory criteria and constituted “deceptive acts and practices.” 4 This Court would not be required to pass upon the question of whether there was substantial evidence to support any facts upon which the Commission may have made findings. The unsubstantial character of the evidence has been pointed out to show that such findings could not be conclusive and to highlight the fact that the order is founded upon a conclusion of law. A comprehensive review of the decisions indicates that the question whether advertising is “deceptive” is treated in part as one of law. The approach may be somewhat empirical, but the courts do draw the line. In this case, the Commission far exceeded rational bounds in the mandatory order.

Another contention is that the claim of Sewell that “now everyone can enjoy better posture, poise and balance with * * * cuboids” was á universal, unqualified claim and thus patently false. But it cannot be held deceptive because it is addressed to the taste and the subjective feelings of foot and bodily comfort. The advertising was addressed to the general public. Finespun interpretations and pseudo-scientific construction of the language cannot avail the agency, but it must be shown that the effect of the expressions upon the ordinary reader would be to mislead and deceive him. 5

This advertising was not as a matter of law deceptive. It is true, some of it is rather warm in expression. 6 But it is no more expressive than the claims made for the colors and comfort of modern automobiles. If all such claims so expressed were deceptive, practically all modern magazines would cease business.

The courts have exercised the power to overturn decisions of the Commission which were less flagrantly in error than this.

. Cf. Fulton Co. v. Federal Trade Commission, 9 Cir., 130 F.2d 85 , diabetes nostrum; Stanley Laboratories v. Federal Trade Commission, 9 Cir., 188 F.2d 888 , douche power; Irwin v. Federal Trade Commission, 8 Cir., 143 F.2d 310 , medical device called “detoxifier” ; Aronberg v. Federal Trade Commission, 7 Cir., 132 F.2d 165 , menstruation remedy; Rhodes Pharmacal Co. v. Federal Trade Commission, 7 Cir., 208 F.2d 882 , modified 348 U.S. 940 , 75 S.Ct. 301 , 99 L.Ed. 736 , drug claim of “cure”' fdr rheumatism, arthritis proscribed, but “relief” allowed; Fairyfoot Products Co. v. Federal Trade Commission, 7 Cir., 80 F.2d 684 , bunion preparation claimed to give “permanent relief.”

. Lippincott Co. v. Federal Trade Commission, 3 Cir., 137 F.2d 490, 491; Carlay Co. v. Federal Trade Commission, 7 Cir., 153 F.2d 493, 496 .

. Federal Trade Commission v. Curtis Co., 260 U.S. 568, 580 , 43 S.Ct. 210 , 67 L.Ed. 408 .

. Federal Trade Commission Act, as amended, § 5, 15 U.S.C.A. § 45 .

. Folds v. Federal Trade Commission, 7 Cir., 187 F.2d 658 ; see also P. Lorillard v. Federal Trade Commission, 4 Cir., 186 F.2d 52, 58 , where one court affirmed finding that quotation of article out of context was deceptive.

. Compare Gulf Oil Corporation v. Federal Trade Commission, 5 Cir., 150 F.2d 106 , wliere unqualified claims of “complete protection” afforded cattle through use of insecticide were proscribed, (but) unlike the instant case, the merits of insecticide were not a matter of subjective measurement, with International Parts Corporation v. Federal Trade Commission, 7 Cir., 133 F.2d 883 , claim that mental finish “prevents” rust does not connote permanency; Kidder Oil Co. v. Federal Trade Commission, 7 Cir., 117 F.2d 892 , claims of “perfect” protection for bearings by graphite content oil; Carlay Co. v. Federal Trade Commission, 7 Cir., 153 F.2d 493 , claims that reducing plan was “easy”; Ostemoor & Co. v. Federal Trade Commission, 2 Cir., 16 F.2d 962 , exaggerated pictorial representation of mattress. Cf. Howe v. Federal Trade Commission, 9 Cir., 148 F.2d 561 , certiorari denied 326 U.S. 741 , 66 S.Ct. 53 , 90 L.Ed. 442 , cosmetics held falsely labelled “Hollywood,” “ ‘Favorite of the Stars’ ”, when actually made in Seattle.