
    LEKAS & DRIVAS, Inc., v. FEDERAL TRADE COMMISSION.
    No. 5.
    Circuit Court of Appeals, Second Circuit.
    Nov. 30, 1944.
    Henry Ward Beer and Hyman L. Gold-stein, both of New York City, for petitioner.
    R. P. Bellinger, Sp. Atty., W. T. Kelley, Chief Counsel, and Joseph J. Smith, Jr., Asst. Chief Counsel, all of Washington, D. C., for respondent.
    Before L. HAND, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
   PER CURIAM.

The petitioner’s advertising matter very clearly implied that olive oil would of itself make people healthy; specifically that it would prevent, or tend to prevent, appendicitis, gall stones, and bladder infections. Also that it had the vitamins A., E., and F. in substantial quantities; that it would cure skin irritations, neuralgia and rheumatism; stimulate the complexion and “tone up” the organs. According to the only witness sworn — a competent physician —all these claims were substantially false. It has no therapeutic value whatever except as a carrier for operative drugs; and except also that it possibly has some slight value as a laxative. It is a pure fat and therefore does have value as food, but the comparison made by the petitioner of olive oil with dried, or fresh, meats was wholly misleading. As a skin lubricant it may be of benefit when used in massage, but no more than any other lubricant. Its content of viatmins A. and E. is negligible, and there is no such thing as vitamin F. It is not a “tonifc,” in whatever sense that term may be used.

All this appeared without contradiction, and was ample to support the findings and the order save in one particular. The Commission has the burden of proof, and, as we have already indicated, the testimony does not support a finding that olive oil is wholly useless, or even substantially useless, as a laxative. All that the expert would say about that was that its use was “slight, if any”; moreover, his later testimony was at least consistent with its having value for purposes of “elimination”. For this reason we think that the order: Article 1(a), should be supplemented by this suffix: “except a possible slight value as a laxative.”

Order modified as above indicated, and, as modified, affirmed.  