Under section 5 of the Federal Trade Commission Act, c. 311, 38 Stat. 717, 719 (U.S.C., Title 15, § 45 (15 USCA § 45)), the relevant parts of which are copied in the margin, the Commission issued its complaint charging the respondent with using unfair methods of competition in interstate commerce.
Respondent manufactures a preparation for internal use, denominated an 'obesity cure.' The complaint charges that this preparation is sold by respondent in and throughout the several states, generally to wholesalers who resell to retail dealers, and these, in turn, to consumers; that it is offered for sale and sld i n competition with other persons who are engaged 'in offering for sale, and selling, printed professional advice, books of information and instruction, and other methods and means and certain remedies and appliances for dissolving or otherwise removing excess flesh of the human body'; that respondent advertises in newspapers, etc., circulated generally in the United States, and in printed labels, etc., that the preparation is the result of scientific research, knowledge, and accuracy, that it is safe and effective and may be used without discomfort, inconvenience, or danger of harmful results to health. Among the ingredients is 'desiccated thyroid,' which, it is alleged, cannot be prescribed to act with reasonable uniformity on the bodies of all users, or without impairing the health of a substantial portion of them, etc., or with safety, without previous consultation with, and continuing observation and advice of, a competent medical adviser. The complaint further avers that many persons are seeking obesity remedies, and respondent's advertisements are calculated to mislead and deceive the purchasing public into the belief that the preparation is safe, effective, dependable, and without danger of harmful results. By way of conclusion, it is said that 'the acts and practices of the respondent are all to the prejudice of the public and of competitors of respondent, * * * and constitute unfair methods of competition.' Respondent answered, and hearings were had before an examiner. The Commission found against respondent, and issued a cease and desist order. The findings in general follow the language of the complaint. There was no finding of prejudice or injury to any competitor, but the conclusion was drawn from the findings of fact that the practice of respondent was to the prejudice of the public and respondent's competitors, and constituted an unfair method of competition.
The Court of Appeals reviewed the action of the Commission upon respondent's petition, and reversed the order. 42 F.(2d) 430. We brought the case here by certiorari, limiting the briefs and argument to the question of the jurisdiction of the Commission. 282 U.S. 829, 51 S.C.t. 86, 75 L. Ed. -.
In substance, the Commission ordered the respondent to cease and desist from representing that its preparation is a scientific method for treating obesity, is the result of scientific research, or that the formula is a scientific formula; and from representing its preparation as a remedy for obesity, unless accompanied by the statement that it cannot be taken safely except under medical advice and direction. Findings, supported by evidence, warrant the conclusion that the preparation is one which cannot be used generally with safety to physical health except under medical direction and advice. If the necessity of protecting the public against dangerously misleading advertisements of a remedy sold in interstate commerce were all that is necessary to give the Commission jurisdiction, the order could not successfully be assailed. But this is not all.
By the plain words of the act, the power of the Commission to take steps looking to the issue of an order to desist depends upon the existence of three distinct prerequisites: (1) That the methods complained of are unfair; (2) that they are methods of competition in commerce; and (3) that a proceeding by the Commission to prevent the use of the methods appears to be in the interest of the public. We assume the existence of the first and third of these requisites; and pass at once to the consideration of the second.