Evis Manufacturing Company, a corporation, hereafter referred to as Evis, and Arthur N. Wells have petitioned this Court to review and set aside an Order made and entered by respondent Federal Trade Commission on the 23rd day of March, 1959, ordering petitioners to cease and desist from making certain specific representations in connection with the offering for sale, sale or distribution of the device known as the Evis Water Conditioner. Said Order was made in a proceeding before respondent Commission entitled, “In the Matter of Evis Manufacturing Company, a corporation, and Joseph T. Voorheis, and Arthur N. Wells, individually, and as officers of said corporation.”

On February 5, 1954, respondent Commission issued its complaint charging petitioners with unfair methods of competition and unfair and deceptive acts and practices in commerce in connection with the sale and distribution of the Evis Water Conditioner. Petitioners denied the charges alleged in the complaint and denied any violation of the Federal Trade Commission Act, 15 U.S.C.A. § 41 et seq.

After a series of hearings in various places, Mr. Abner E. Lipscomb, Hearing Examiner, duly made and filed, on April 27, 1956, his “Initial Decision” reviewing testimony and evidence received upon the hearings stating his conclusions and his Order dismissing the complaint.

On appeal the Commission vacated said “Initial Decision” and remanded the case to the Examiner for the purpose of receiving evidence of further scientific tests of the Evis Water Conditioner.

Pursuant to the Commission’s direction, additional scientific evidence was presented to the Examiner who then filed, on June 30, 1958, his “Initial Decision” after remand, again dismissing the complaint. Upon appeal the Commission reversed the Examiner’s second “Initial Decision” holding, however, that there was no probative and substantial evidence of petitioners having falsely claimed that Evis Water Conditioner was made of a specially processed metal.

The Hearing Examiner correctly summarized and stated the gravamen of the Commission’s complaint as follows:

“The Complaint.

The Commission issued its findings of fact, conclusions and Order, March 23, 1959.

The petitioners, in support of their petition for review, summarized their argument as follows:

Respondents state as the fundamental issue the following:

In this proceeding to review an Order of the Federal Trade Commission, it is our duty to examine the record as a whole, including decisions of the Examiner, in order to determine whether evidence supporting the Commission’s Order is substantial. Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 496 , 71 S.Ct. 456 , 95 L.Ed. 456 ; and Minneapolis-Honeywell Reg. Co. v. Federal Trade Com’n, 7 Cir., 191 F.2d 786 , 789.

The record is voluminous but our task in discussing the evidence is greatly lightened by the comprehensive Initial Decisions of the Hearing Examiner. The Commission does not challenge the accuracy of his narration of the evidence; it finds fault only with his evaluation of the evidence and his conclusions therefrom.

Evidence Relied Upon by the Commission.

From its opinion and from statements in its brief, it is apparent that in arriving at its findings and conclusions, the' Commission relied upon the opinions of 19 experts and a so-called admission that 3,000 installations of the Evis Water Conditioner were failures. The experts’ opinions were based upon experiments and laboratory tests performed with the Evis Water Conditioner. The Commission considered the so-called admission, that 3,000 users would have testified that Evis was a failure, as a complete refutation of the testimony of petitioners’ 91 “user-witnesses” who had used the device in homes, in industry, and in various types of business.

Arthur F. Tudury, a witness for petitioners, an engineer and operator of an engineering supply business known as Refrigerating and Power Specialities Company, testifying as to the origin and purpose of the manufacturer’s instructions, stated that he handled Evis Water Conditioners as an agent or distributor since late summer of 1952 ; that he had sold or distributed in excess of 18,000 of the Evis units. He said that when he and associates started out with the device, they were under the impression that all that had to be done was to install the Evis in a pipe line and it would remove the scale, and in many cases that proved to be true. The first instructions merely provided for fitting the unit into the main water supply line. After numerous installations, however, difficulties appeared, and after twenty, thirty, forty, fifty thousand of the units were operating, troubles began to show up, and investigations disclosed that electrical disturbances in the pipe lines were causing trouble, and that installation of shunting and grounding wires were necessary to make the unit function. He testified it has been the practice of the company to continually modify their instructions as experience was gained in the field.

Mr. Tudury said that 30 representatives of the company from various parts of the United States convened and pooled all of their knowledge of Evis installation and techniques into a bulletin (Petitioners’ Exhibit 34 bearing date of its issuance, July 31, 1953), and he testified in response to the question:

Another bulletin, issued about the time that petitioner’s Exhibit 34 was issued, contained advice and instructions for the use and testing of the Evis Water Conditioner, among them being:

The record indicates that instructions for installation of the device were issued from time to time, modified and changed, to meet the result of user experience.

Disregard of the Manufacturer’s Instructions, Examples:

The Hearing Examiner in his Initial Decision after remand, points out instances of disregard of instructions, some of which are the following:

Then follows in the record other questions and answers showing disregard of instructions.

On p. 23 of said Initial Decision after remand, the Hearing Examiner’s comment on the testimony of Commission’s witness Joe Carson Mallory was:

Following the above, the Hearing Examiner observed:

On the issue that the Evis Water Conditioner will not prevent or remove scale in boilers, water heaters, pipes, shower nozzles, or other parts of a water system, the Hearing Examiner commented:

The Hearing Examiner continued:

On this question of observance or failure of observance of manufacturer’s instructions as to installations, tests, and use of the Evis device, respondent makes no contention that the installations and tests of its experts were made and carried on in accordance with the manufacturer’s instructions. It attempts to meet this issue by depreciating the value and importance of the instructions. The Commission states in its brief (p. 32):

The Commission’s determination of this case, largely based on “tests of experts” not following the instructions of the manufacturer in conducting their tests, is indeed something less than a reliance upon substantial evidence and was obviously unfair to the manufacturer. That it was unfair is supported by the testimony of a Commission witness, Carroll M. Wakeman, a testing engineer employed by City of Los Angeles Harbor Department, who, in testifying on behalf of the Commission, was asked :

The So-Called Admission

The Commission erred in considering a statement of counsel as an admission that 3,000 other users, had they been called to the stand, would have testified that Evis was a failure. The statement was considered as if it were a declaration of counsel standing alone, but a reading of the colloquy accompanying it indicates that it only was intended to convey the thought by counsel that of 100,000 users, he would concede that possibly 3,000 would be found who would testify that the water conditioner brought unsatisfactory results. The colloquy between Mr. Downs, for the Commission, and Mr. Michael, for the petitioners, came in the course of a hearing before Hearing Examiner Lipscomb at Washington, D. C., December 12, 1955.

At the beginning of the hearing, Mr. Michael, counsel for the petitioners, stated that he had asked for the hearing for the purpose of ascertaining whether a few decisions or agreements could be arrived at which would expedite the case. He referred to conversations and nego-tions with counsel for the Commission with that object in view. Interrupting an argument of Mr. Downs, Mr. Michael said:

Then, pointing out that no such agreement or arrangement had been arrived at, he continued :

Then Mr. Michael referred to authorities in support of his motion and contention that the proposed testimony of witnesses showing failure was not proper rebuttal.

Further in his argument, Mr. Michael called attention to two types of evidence which the Commission might have offered to support its charges that Evis will not perform as advertised and thereby injure the public. He referred to the opinion or expert testimony, and testimony of various members of the public who had installed and used the conditioner but did not get results that the advertising claimed for the device. He pointed out that the Commission elected to take only the opinion or expert evidence and called no “user witnesses.” His point was that the Commission put on half of their case at the beginning and wanted to put on half of their case as rebuttal at the end. Mr. Michael added :

After further observations of Mr. Michael, Mr. Downs, for the Commission, entered upon his argument and urged that he be permitted to introduce, in rebuttal, witnesses who would testify to unsuccessful experiences with the Evis Conditioner. The Hearing Examiner asked :

Then followed further discussion between the Hearing Examiner and Mr. Michael. Then Mr. Michael resumed:

After extensive discussion between the Hearing Examiner, Mr. Michael, and Mr. Downs, we then have the following:

From all that we have quoted above and more appearing in the record, it is obvious that no admission was intended. It is apparent that all that was intended by Mr. Michael was that out of 100,000 users, probably 3,000 of them would testify as to unsatisfactory results. In view of the circumstances under which it was uttered, both the Commission and the Hearing Examiner were clearly erroneous in emasculating Mr. Michael’s statement by taking a portion of it as an admission and disregarding what' immediately followed as to the possibility of procuring 97,000 users who would testify as to satisfactory results. The Order of the Commission in this case largely rests upon that error for we have seen the so-called admission was considered an “offset” by the Commission of the testimony of the 91 consumer or user witnesses called by the petitioners; and the so-called admission was given effect by the Commission without any consideration whatever of the possibility that numerous users, if called, may have testified to satisfactory results. There was no such admission by counsel. 31 C.J.S. Evidence § 277, p. 1029, citing Pulver v. Union Inv. Co., 8 Cir., 279 F. 699, 705 , where the Court said:

Therefore, the Commission erred in considering the so-called admission as a refutation of all or of any of the testimony of petitioners’ user witnesses.

Petitioners claim error in the holding of the Commission, p. 10, Exhibit E attached to petition, that:

Mr. Wells was the inventor of the water conditioner. He testified that he was not a chemist and in answer to the question, “Are you an engineer?” he stated, “I have worked at the field of engineering for some twenty years”; he testified that he was not a licensed engineer in the State of California. Mr. Downs, conducting the direct examination of Mr. Wells as an adverse witness, propounded the question:

Then Mr. Wells, answering the question, gave as his explanation what warranted the use of the name “conditioner”. He answered:

Here Mr. Michael renewed his objection and advised his client that if these questions approach a point where he feels it is invading the secret processes he employs in the manufacture of this product, impinging upon the secret nature of his processes, to so advise the Examiner. Then the witness Wells stated:

After discussion, the Hearing Examiner commented:

Then after objection and argument the Hearing Examiner said:

Mr. Michael then renewed his objection and renewed his instruction to the witness not to disclose any secret formula.

Then followed objection and discussion; then the question:

Mr. Michael then renewed his objection and again instructed the witness as before.

The reasons for the refusal of Mr. Wells to disclose the Evis method of processing metal are apparent from the above quotations from his testimony. If applications for patent were pending, and ‘ there is no contention that they were not, the witness and counsel had reason to fear that public disclosure of secret processing or metal composition would render such secrets public property. Such secret processing is protected by rules of practice in patent cases. 37 C.F.R. § 1.14 . And in contested cases in the patent office, a witness may not be held in contempt for refusing to disclose any secret matter except upon appropriate order of the court which issued the subpoena. 35 U.S.C.A. § 24 . It is therefore apparent that the “refusal” on the part of the inventor Wells to disclose the composition of the metal in the water conditioner, under the circumstances as shown above, cannot be the basis of an inference or presumption that an answer to the question propounded would support the allegation of the complaint that the Evis Water Conditioner is not made of a specially processed metal, or support any other charge made in the complaint.

In 8 Wigmore on Evidence, 3d Ed. 1940, p. 156, § 2212, the author states:

In Charles of the Ritz Distributors Corporation v. Federal Trade Com’n, 2 Cir., 143 F.2d 676, 678 , cited by the Commission, the Court said:

Unlike the Ritz case, there is evidence-here contrary to the testimony of the-experts. Here we have the testimony of 91 user witnesses as to favorable results-from use of the Evis Water Conditioner. And further, it does not appear from a reading of the Ritz case that any application for patent was pending or that there-existed any other plausible reasons for-withholding the so-called secrets of the-formula.

Referring again to the holding of the Commission (p. 10 of Exhibit E attached to petition), to the effect that the refusal of petitioners to disclose the composition of the metal of the Evis Water Conditioner and the claimed special processing thereof is strong confirmation of the charges in the complaint, and to the authorities cited in support of that contention (Charles of the Ritz Distributors Corporation v. Federal Trade Com’n, supra), we note that the Commission’s conception of the rule does not consider the qualification of adequate explanation, and a reading of the Ritz case does not disclose any excuse or reason given for the failure to disclose. The rule is stated in the article on Evidence, 31 CJ.S. § 156, p. 851, as follows:

Here a reasonable and adequate explanation for the refusal to disclose was given. And, furthermore, the question of whether the Evis Water Conditioner is made of a specially processed metal was rendered irrelevant and immaterial by the Commission itself and by its finding No. 5 has been removed from consideration in this case. Among other things, the finding states:

In determining whether there is substantial evidence in this record supporting the Commission’s decision, we must •eliminate from our consideration the above described so-called admission and the inference drawn as in support of the complaint by the Commission by reason of the refusal to disclose the processing and composition of the metal in the Evis Water Conditioner. We are left then with the opinions of the experts as the only evidence in the record tending to support the findings and conclusions of the Commission, and, as we have seen, those opinions were the results of tests made in disregard of the instructions of the manufacturer as to tests and as to installation of Evis units; and, as we have hereinabove pointed out, such tests in themselves and standing alone cannot be considered as substantial evidence in support of the complaint. The Commission in its brief recognizes, and it appears from the record, that 91 witnesses testified on behalf of petitioners that they obtained beneficial results from the use of Evis pipe.

The Commission took the position that the so-called admission that “ * * * 3,000 other users, had they been called to the stand, would have testified that Evis was a failure, so that the statements of petitioners’ witnesses would have been more than offset. * * * ” As there was no such admission, one of the Commission’s purported reasons for discarding and ignoring the testimony of petitioners’ 91 user witnesses is extinguished. The Commission, continuing its argument (pp. 10 and 11 of its brief), claims that it “was eminently justified in resting its decision upon the scientific evidence and in holding that the Evis pipe has none of the effects claimed by petitioners.”

Vacu-Matic Carburetor Co. v. Federal Trade Com’n, 7 Cir., 157 F.2d 711, 713 , is cited to support a Commission contention that “ * * * the scientific testimony presented to the Commission stands uncontradicted by any other scientific testimony regarding the effectiveness of the Evis pipe. Thus, this is not a case in which the Commission was confronted with a conflict of views of scientists and the problem of resolving such conflict.” In that case, the Court of Appeals said:

The experts here did not make “every recognized test.” They ignored the manufacturer’s instructions as to the testing of its product. Our attention is not called to any apparent obstacle preventing the following of the manufacturer’s instructions and no reason is given for the failure to heed them. Why the experts here did not follow instructions does not appear but the persistent disregard of the instructions weakens and in great measure nullifies the value of the Commission’s scientific evidence. Such failure to follow instructions was obviously unfair.

The Hearing Examiner, in each of his Initial Decisions, referring to evidence presented by respondents, commented:

This Court is not barred from setting aside the Commission’s decision, and we may do so on the ground that we cannot conscientiously find that the evidence supporting that decision is substantial, and we may take into account whatever in the record fairly detracts from the weight of the evidence which underlies the agency order and is opposed to the agency’s view. Carter Products, Inc. v. F. T. C., 9 Cir., 268 F.2d 461, 493 .

The Commission erred in disregarding the testimony of the user witnesses.

We cannot sustain the findings of the Commission; they are unsupported by substantial evidence.

With the exception of that portion thereof dismissing the complaint as to respondent Joseph T. Voorheis, the Order of the Federal Trade Commission is set aside.

. Order It Is Ordered that respondent Evis Manufacturing Company, a corporation, and its officers, and respondent Arthur N. Wells, individually and as an officer of said corporation, and said respondents’ agents, representatives and employees, directly or through any corporate or other device, in connection with the offering for sale, sale or distribution of their product, known as the “Evis Water Conditioner”, or any other product of substantially similar design or construction, whether sold under the same name or under any other name, in commerce, as “commerce” is defined in the Federal Trade Commission Act, do forthwith cease and desist from representing, directly or by implication: That their said product: (a) has a catalytic effect on water; (b) changes the physical behavior of water; (c) will solve hard water problems; (d) will make hard water soft; (e) will cause hard water to feel, taste or act softer, or have any of the attributes or charactei’istics of soft water; (f) will remove or reduce unpleasant odors or flavors from water; (g) will make water taste better; (h) will impx-ove the taste of beverages or foods; (i) will require the use of less soap; (j) will reduce the cost of heating water; (k) will eliminate or reduce the harshness of water to the hands; (l) will cause dishes or glassware to dry without leaving water stains; (m) will remove grease; (n) will prevent or remove scale; (o) will prevent, reduce or eliminate scum; (p) will prevent, reduce or eliminate rust stains; (q) will prevent, reduce or eliminate corrosion or retard pitting of metal; (r) will improve the action of chemi-icals used for water softening purposes; (s) will leach out alkali and salts in soil; (t) will improve the growth or production of agx-icultural or orchard products or plants; (u) will improve the texture or structure of soil; (v) will reduce the amount of water required for agricultural irrigation; (w) has any beneficial effect upon water. . Respondents’ Brief, pp. 10, 11, 24. . R.IV 2909. . R.IV 2922. . CX2, R.VI 818. . R.IV 2923. . R.IV 2924. . R.IV 2927, 2928. . R.IV 2931. . R.II 31, 32. . R.II 68. . R.II 141-144. . R.II 185-190; 214-216. . R.II 557, 561, 562. . P. 24 of Initial Decision after remand. . Pages 24 and 25 of Initial Decision after remand. . R.II33. . Pages 25 and 26 of Initial Decision after remand. . R.II 483. . R.II 202, 203. . R.V 3731, 3732. . R.V 3732. . R.V 3751, 3752. . R.V 3757, 3758. . R.V 3760. . R.V 3764. . R.II 412. . R.II 413. . R.II 414-418. . R.II 419. . R.II 420. . R.II 422. . R.II 423. . R.II 425. . Respondent’s Brief, pp. 10, 24. . First Initial Decision, pp. 33, 34; and Initial Decision after Remand, pp. 35, 36.