Herbold Laboratory, Inc. And Milton Herbold v. United States

The Federal Trade Commission issued, in 1951, a Cease and Desist Order di recting appellants to refrain from advertising that their product “Herbold Pomade” was capable of restoring a user’s hair to its “former natural shade or color.” In 1965, the Government instituted suit in the District Court, seeking the imposition of civil penalties authorized by the Federal Trade Commission Act, § 5(1). 15 U.S.C. § 45(l). The action was grounded upon certain alleged violations by appellants of the Order. The District Court imposed fines totaling $3,500.00 upon finding that appellants’ advertisements, set out in the margin *****8 violated the Order. Additionally, the court granted injunctive relief, although the Government had not requested such a remedy in its pleadings or until after the introduction of all evidence.

We reverse the judgment below because the advertisements alleged and held to constitute infractions do not, in our opinion, violate the Cease and Desist Order. These advertisements do not represent, as the Order forbids, that appellants’ products will restore the “former natural shade or color to gray, streaked, or faded hair.” The advertisements represent that a user of…