A-58674, NOVEMBER 21, 1934, 14 COMP. GEN. 404

A-58674: Nov 21, 1934

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THE TEMPORARY EMPLOYMENT OF A PERSON TO HAVE HER HAIR DYED WITH AN ADVERTISED SOLUTION AND OF AN OPERATOR WHO APPLIES THE TREATMENT. IN ORDER TO DETERMINE WHETHER THE PREPARATION IS A DYE OR A TONIC. THE COMMISSION IS ADVISED THAT THE EVIDENCE IS NECESSARY TO THE SUCCESSFUL PROSECUTION OF THE PROCEEDING. THE QUESTION PRESENTED IS. WHETHER OR NOT THE COMMISSION IS AUTHORIZED TO EXPEND PART OF THE FUNDS APPROPRIATED FOR ITS GENERAL WORK TO OBTAIN SUCH EVIDENCE. WHICH IS DESCRIBED AND THE NEED FOR WHICH HAS ARISEN. AS FOLLOWS: THE COMPLAINT CHARGES THAT THE RESPONDENT'S ALLEGED HAIR TONIC IS A DYE AND ACTS AS A DYE. THE RESPONDENT CONTENDS THAT ITS PRODUCT IS NOT A DYE. THAT THE RESULTING CHANGE IN THE COLOR OF THE HAIR OF THE USER OF THE PRODUCT FROM GRAY TO APPROXIMATELY ITS FORMER COLOR MAY HAVE BEEN PRODUCED BY NATURAL CAUSES.

A-58674, NOVEMBER 21, 1934, 14 COMP. GEN. 404

FEDERAL TRADE COMMISSION - TEMPORARY EMPLOYEES FOR DEMONSTRATION AS SECTION 2 OF THE ACT OF SEPTEMBER 26, 1914, 38 STAT. 718, REQUIRES, WITH CERTAIN EXCEPTIONS, THAT ALL EMPLOYEES OF THE FEDERAL TRADE COMMISSION SHALL BE APPOINTED IN ACCORDANCE WITH CIVIL SERVICE LAWS AND REGULATIONS, THE TEMPORARY EMPLOYMENT OF A PERSON TO HAVE HER HAIR DYED WITH AN ADVERTISED SOLUTION AND OF AN OPERATOR WHO APPLIES THE TREATMENT, IN ORDER TO DETERMINE WHETHER THE PREPARATION IS A DYE OR A TONIC, MUST BE IN ACCORDANCE WITH THE CIVIL-SERVICE REGULATIONS OR WITH THE CONSENT OF THE CIVIL SERVICE COMMISSION.

COMPTROLLER GENERAL MCCARL TO THE CHAIRMAN, FEDERAL TRADE COMMISSION, NOVEMBER 21, 1934:

THERE HAS BEEN RECEIVED YOUR LETTER OF NOVEMBER 8, 1934, AS FOLLOWS:

THE COMMISSION DESIRES TO OBTAIN CERTAIN EVIDENCE IN A PROCEEDING AGAINST A RESPONDENT UNDER A COMPLAINT ISSUED PURSUANT TO THE PROVISIONS OF SECTION 5 OF THE FEDERAL TRADE COMMISSION ACT TO RESTRAIN UNFAIR METHODS OF COMPETITION IN THE SALE OF AN ALLEGED HAIR TONIC.

THE COMMISSION IS ADVISED THAT THE EVIDENCE IS NECESSARY TO THE SUCCESSFUL PROSECUTION OF THE PROCEEDING, AND THE QUESTION PRESENTED IS, WHETHER OR NOT THE COMMISSION IS AUTHORIZED TO EXPEND PART OF THE FUNDS APPROPRIATED FOR ITS GENERAL WORK TO OBTAIN SUCH EVIDENCE, WHICH IS DESCRIBED AND THE NEED FOR WHICH HAS ARISEN, AS FOLLOWS:

THE COMPLAINT CHARGES THAT THE RESPONDENT'S ALLEGED HAIR TONIC IS A DYE AND ACTS AS A DYE. THE RESPONDENT CONTENDS THAT ITS PRODUCT IS NOT A DYE, AND HAS INTRODUCED SOME EVIDENCE THROUGH CHEMISTS AND PHYSICIANS TENDING TO SHOW THAT ITS APPLICATION MAY BE THE CAUSE OF STIMULATING NATURAL BODY FUNCTIONS CONNECTED WITH THE GROWTH OF HUMAN HAIR, AND THAT THE RESULTING CHANGE IN THE COLOR OF THE HAIR OF THE USER OF THE PRODUCT FROM GRAY TO APPROXIMATELY ITS FORMER COLOR MAY HAVE BEEN PRODUCED BY NATURAL CAUSES, AND NOT FROM THE PRODUCT AS A DYE.

THE COMMISSION IS ADVISED THAT IT IS NECESSARY TO HAVE A CONTROLLED DEMONSTRATION OF THE USE OF THE PRODUCT. GOVERNMENT CHEMISTS WHO WILL TESTIFY AS EXPERTS FOR THE COMMISSION BELIEVE THAT THE FACTS DEVELOPED BY SUCH A DEMONSTRATION WILL BE SUFFICIENT ON WHICH TO BASE THEIR CONCLUSION THAT THE PRODUCT IS A DYE, AND ACTS AS SUCH.

FOR THE PURPOSE OF THE DEMONSTRATION, A SUBJECT HAS BEEN SECURED WHO IS WILLING TO HAVE HER HAIR TREATED WITH THE PRODUCT IN QUESTION AND TO HAVE HER HAIR CUT AND DELIVERED FOR ANALYSIS TO A CHEMIST CONNECTED WITH THE BUREAU OF CHEMISTRY AND SOILS OF THE DEPARTMENT OF AGRICULTURE. THE SUBJECT AND THE OPERATOR WHO IS TO TREAT THE SUBJECT'S HAIR WITH THE PRODUCT ARE NEITHER OF THEM IN THE EMPLOY OF THE GOVERNMENT. THE SUBJECT, FOR THE TIME USED IN THE TREATMENT OF HAIR AND FOR THE HAIR WHICH SHE FURNISHES FOR ANALYSIS, WILL REQUIRE $25 AS COMPENSATION AND THE OPERATOR FOR HER SERVICES, INCLUDING THE PURCHASE OF TWO OR THREE BOTTLES OF THE PRODUCT, WILL REQUIRE APPROXIMATELY $25 AS COMPENSATION, OR A TOTAL EXPENDITURE ON ACCOUNT OF THE DEMONSTRATION OF APPROXIMATELY $50.

I WISH TO EXPLAIN THAT THIS IS A MATTER OF IMPORTANCE ASIDE FROM THIS PARTICULAR CASE, AS THE COMMISSION HAS MANY CASES IN WHICH THE VENDORS ADVERTISE THAT HAIR DYES RESTORE THE NATURAL COLOR, ARE NOT DYES, ETC. THIS IS THE FIRST INSTANCE IN WHICH IT HAS BEEN SERIOUSLY CONTENDED BY THE VENDOR THAT THE PRODUCT IS NOT A DYE. IF THEY MAINTAIN THEIR CONTENTION, OF COURSE, THE MANUFACTURERS OF SIMILAR PRODUCTS WILL MAKE THE SAME CONTENTION.

THE TAKING OF TESTIMONY IN THE COMMISSION'S PROCEEDING REFERRED TO HAS BEEN INTERRUPTED FOR THE PURPOSE OF THE PROPOSED DEMONSTRATION AND YOUR ADVICE IS URGENTLY REQUESTED AS TO WHETHER OR NOT YOU CAN APPROVE A VOUCHER FOR THE EXPENDITURE BY THE COMMISSION OF APPROXIMATELY THE ABOVE AMOUNTS TO THE ABOVE PERSONS, WHO ARE NOT IN THE EMPLOY OF THE GOVERNMENT, FOR THEIR SERVICES AS ABOVE SET FORTH.

THE APPROPRIATION FOR THE FEDERAL TRADE COMMISSION, ACT OF MARCH 28, 1934, 58 STAT. 513, PROVIDES:

FOR FIVE COMMISSIONERS, AND FOR ALL OTHER AUTHORIZED EXPENDITURES OF THE FEDERAL TRADE COMMISSION IN PERFORMING THE DUTIES IMPOSED BY LAW OR IN PURSUANCE OF LAW, INCLUDING SECRETARY TO THE COMMISSION AND OTHER PERSONAL SERVICES, CONTRACT STENOGRAPHIC REPORTING SERVICES; SUPPLIES AND EQUIPMENT, LAW BOOKS, BOOKS OF REFERENCE, PERIODICALS, GARAGE RENTALS, TRAVELING EXPENSES, INCLUDING NOT TO EXCEED $900 FOR EXPENSES OF ATTENDANCE, WHEN SPECIFICALLY AUTHORIZED BY THE COMMISSION, AT MEETINGS CONCERNED WITH THE WORK OF THE FEDERAL TRADE COMMISSION, FOR NEWSPAPERS AND PRESS CLIPPINGS NOT TO EXCEED $400, FOREIGN POSTAGE, AND WITNESS FEES AND MILEAGE IN ACCORDANCE WITH SECTION 9 OF THE FEDERAL TRADE COMMISSION ACT; $1,708,730, OF WHICH $150,000 SHALL BE IMMEDIATELY AVAILABLE.

FOR ALL PRINTING AND BINDING FOR THE FEDERAL TRADE COMMISSION, $34,000.

TOTAL, FEDERAL TRADE COMMISSION, $1,742,730.

SECTION 2 OF THE ACT OF SEPTEMBER 26, 1914, 38 STAT. 718, ESTABLISHING THE FEDERAL TRADE COMMISSION, PROVIDES:

THAT EACH COMMISSIONER SHALL RECEIVE A SALARY OF $10,000 A YEAR, PAYABLE IN THE SAME MANNER AS THE SALARIES OF THE JUDGE OF THE COURTS OF THE UNITED STATES. THE COMMISSION SHALL APPOINT A SECRETARY WHO SHALL RECEIVE A SALARY OF $5,000 A YEAR, PAYABLE IN LIKE MANNER, AND IT SHALL HAVE AUTHORITY TO EMPLOY AND FIX THE COMPENSATION OF SUCH ATTORNEYS, SPECIAL EXPERTS, EXAMINERS, CLERKS, AND OTHER EMPLOYEES AS IT MAY FROM TIME TO TIME FIND NECESSARY FOR THE PROPER PERFORMANCE OF ITS DUTIES AND AS MAY BE FROM TIME TO TIME APPROPRIATED FOR BY CONGRESS.

WITH THE EXCEPTION OF THE SECRETARY, A CLERK TO EACH COMMISSIONER, THE ATTORNEYS, AND SUCH SPECIAL EXPERTS AND EXAMINERS AS THE COMMISSION MAY FROM TIME TO TIME FIND NECESSARY FOR THE CONDUCT OF ITS WORK, ALL EMPLOYEES OF THE COMMISSION SHALL BE A PART OF THE CLASSIFIED CIVIL SERVICE, AND SHALL ENTER THE SERVICE UNDER SUCH RULES AND REGULATIONS AS MAY BE PRESCRIBED BY THE COMMISSION AND BY THE CIVIL SERVICE COMMISSION.

THE SERVICES DESIRED ARE IN THE NATURE OF PERSONAL SERVICES AND AS THEY HARDLY COULD BE CLASSIFIED AS SPECIAL EXPERT SERVICES, SUCH TEMPORARY EMPLOYMENT MUST BE PROCURED IN ACCORDANCE WITH THE CIVIL SERVICE RULES AND REGULATIONS OR PURSUANT TO AUTHORITY FROM THE CIVIL SERVICE COMMISSION. IF SO EMPLOYED, THE APPROPRIATION FOR THE EXPENSES OF YOUR COMMISSION WOULD APPEAR AVAILABLE FOR THEIR COMPENSATION. 5 COMP. GEN. 658; ID. 889; A-42451, JUNE 2, 1932.