foot health and better comfort. And even housewife's drudgery ought to be lessened.

[232] We think perhaps there are two basic mistakes in the case and which lead us to believe that the Commission was legally wrong in part and justify our declination to enforce the order in full. First, we believe in the testimony of the experts of the Commission, they have failed to start with the premise that Sewell fitter starts with. That is, that the shoe of the customer prospect for some reason does not fit the foot or the foot does not fit the shoe. Maybe a different shoe would often give the customer balance, relief from aches and pains, give him better posture and poise and stance. But if the customer gets it by a Sewell device, we see no objection to advertising that it does. (And in the main, we do not think the expert opinion meets the proof here of the generally satisfied customer.) The Commission experts apparently would proscribe entirely the use of the trial and error method of experimenting with devices to relieve one's foot aches and pains.2

Secondly, we think the examiner and the Commission have reduced generality to specificity, when it was not justified. For example, the approach to "balance" seems to have been in the sense of the physicist in the laboratory. We think there is in the vernacular lexicon a meaning for the word which imports a feeling of well being, a feeling "that it fits."

While we must accept the Commission's determination, right or wrong in the abstract, that the claims of special efficacy on the cuboid bone is false science and that it is not a scientific device, we think the other claims of Sewell are within the legitimate field of "puffing" of the ad man.

In reaching our decision, it should not be understood that we announce our own independent beliefs about Cuboids. It is just our judgment that when the evidence was all in and when the Commission's experts were done that the objections of the complaint as to the general claims about Cuboids were left without substantial evidence, only with general statements of experts weakened too badly by the experts' own subsequent testimony. See Tractor Training Service v. Federal Trade Commission, 9 Cir., 227 F. 2d 420 [5 S. & D. 741].

One of the Commission's experts testified that the correct approach to diagnosing foot ailments is to have the sufferer disrobe in the doctor's office, because the trouble may originate above the foot up in the body or the legs. Then the doctor makes a visual inspection of the naked person. Last he looks at the feet. Such a procedure may be the most scientific approach. But we doubt if it is the only approach.

It well may be that the public would be better served if all shoes were fitted by doctors. Perhaps only doctors should prescribe any type of corrective devices, although there is a ring of verity in the testimony of one of Sewell's experts when he says that most medical men, even the bone and joint specialists, do not want to "fool" with foot troubles. But who should prescribe the devices is beyond the scope of this inquiry into Sewell's advertising practices.

The Commission has not attacked the brand name of "Cuboid." And, of course, it would appear that the name has acquired a secondary meaning. Therefore, our mandate will not affect the continued use of the name "Cuboid," per se.

Sewell claims stoutly that he did not have a fair hearing before the examiner. We find this unnecessary to decide, although a close perusal of the record lends some support to the contention. As one tediously reads the record, a shading in the trial examiner's remarks appears here or a nuance there which gives one a feeling of predestination that the examiner's ruling will be against Sewell. (This occurs independently of the "drift" of the testimony of the witnesses.) Of course, it is difficult to avoid coming to a conclusion before the last question has been asked. Perhaps, the truth may be only that some triers of fact are more circumspect in what they say than others.

But evidence of the foregoing conclusion here is found when during the interrogation of the Commission's last expert the trial examiner says, "When he [233] [meaning Sewell] appeals-I think if he thinks enough of this [i. e., the point under discussion at the moment], that he will appeal from my ruling and when he goes before the Commission he will have the document he offered to prove by this witness. The Commission will then decide if I am in error in denying him." The examiner's statement is not prefaced by "If I should decide the case against you." And the statement in its context can only be projected on a predetermined conclusion of the issues of the case adverse to Sewell. Else, why would Sewell have any occasion to appeal to the Commission?

If judicial perfection cannot be obtained, at least the observation of the forms of fairness often make it easier to pull out of the quicksand of error.

On this review, the Commission's order is affirmed insofar as it prohibits Sewell from advertising special efficacy on the cuboid bone and on other related bones, and insofar as he advertises the device is "scientific"; otherwise, not.

JAMES ALGER FEE, Circuit Judge, 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 relief 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." There is a great deal of testimony by wearers that some of these elements were affected. There is testi

1 Cf. Fulton v. Federal Trade Commission, 9 Cir., 130 F. 2d 85 [35 F. T. C. 946; 3 S. & D. 499], diabetes nostrum; Stanley Laboratories v. Federal Trade Commission, 9 Cir., 138 F.2d 388 [87 F. T. C. 801; 3 S. & D. 596], douche power; Irwin v. Federal Trade Commission, 8 Cir., 143 F. 2d 316 [38 F. T. C. 906; 4 S. & D. 198], medical device called "deloxifier"; Aronberg v. Federal Trade Commission, 7 Cir., 132 F. 2d 165 [35 F. T. C. 979; 3 S. & D. 647], menstruation remedy; Rhodes Pharmacal Co. v. Federal Trade Commission, 7 Cir., 208 F. 2d 382 [5 S. & D. 582], modified 348 U. S. 940 [5 S. & D. 728], drug claim of "cure" for rheumatism, arthritis proscribed, but “relief" allowed; Fairy Foot Products Co. v. Federal Trade Commission, 7 Cir., 80 F. 2d 684 [21 F. T. C. 1224; 2 S. & D. 330], bunion preparation claimed to give "permanent relief."

• Lippincott v. Federal Trade Commission, 3 Cir., 137 F. 2d 490, 491 [36 F. T. C. 1158; 8 S. & D. 584]; Carlay Co. v. Federal Trade Commission, 7 Cir., 153 F. 2d 493, 496 [42 F. T. C. 897; 4 S. & D. 470].

mony 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.

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." 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 a 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. Fine-spun interpretations and

3 Federal Trade Commission v. Curtis Co., 260 U. S. 568, 580 [5 F. T. C. 599; 1 S. & D. 271].

• Federal Trade Commission Act, as amended, § 5, 15 U. S. C. A. (1955) § 45.

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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."

"What was said was clearly justifiable, under the circumstances, under those cases recognizing that such words as 'easy', 'perfect', ‘amazing', 'prime', 'wonderful', 'excellent', are [235] regarded in law as mere puffing or dealer's talk upon which no charge of misrepresentation can be based. [Citing cases.]" Carlay Co. v. Federal Trade Commission, 7 Cir., 153 F. 2d 493, 496 [42 F. T. C. 897; 4 S. & D. 470].

This advertising was not as a matter of law deceptive. It is true, some of it is rather warm in expression. 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.

POPE, Circuit Judge.

I dissent. It seems to me clear that the court has assumed a power which it does not have and has meddled in a decision which it is not authorized to make. In Fed. Trade Comm'n v. Algoma Co., 291 U. S. 67, 73 [18 F. T. C. 669; 2 S. & D. 247], the Supreme Court described what has happened here in language which could not be more apt if it had been spoken concerning this very case. Said the Supreme Court: ""The findings of the Commission as to facts, if supported by testimony, shall be conclusive.' 15 U. S. C. Sec. 45. The Court of Appeals, though professing adherence to this mandate, honored it, we think, with lip service only. *** In fact what the court did was to make its own appraisal of the testimony, picking and choosing for itself among uncertain and conflicting inferences. Statute and deci

Folds v. Federal Trade Commission, 7 Cir., 187 F. 2d 658 [47 F. T. C. 1815; 5 S. & D. 271]; see also P. Lorillard v. Federal Trade Commission, 4 Cir., 186 F. 2d 52, 58 [47 F. T. .C 1755; 5 S. & D. 210], where one court affirmed finding that quotation of article out of context was deceptive.

• Cf. Gulf Oil Corporation v. Federal Trade Commission, 5 Cir., 150 F. 2d 106 [40 F. T. C. 933; 4 S. & D. 374], where 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. International Parts Corporation v. Federal Trade Commission, 7 Cir., 133 F. 2d 883 [36 F. T. C. 1102; 3 S. & D. 535], claim that metal finish "prevents" rust does not connote permanency; Kidder Oil Co. v. Federal Trade Commission, 7 Cir., 117 F. 2d 892 [32 F. T. C. 1823; 3 S. & D. 317], claims of "perfect" protection for bearings by graphite content oil; Carlay Co. v. Federal Trade Commission, 7 Cir., 153 F. 2d 493 [42 F. T. C. 897; 4 S. & D. 470], claims that reducing plan was "easy"; Ostermoor and Co. v. Federal Trade Commission, 2 Cir., 16 F. 2d 962 [11 F. T. C. 642; 1 S. & D. 589], exaggerated pictorial representation of mattress. Cf. Howe v. Federal Trade Commission, 9 Cir., 148 F. 2d 561 [40 F. T. C. 889; 4 S. & D. 328], cert. den., 326 U. S. 741, cosmetics held falsely labelled "Hollywood," "Favorite of the Stars," when actually made in Seattle.