The Supreme Court has been asked to decide whether a state can prohibit hearing-aid advertisements that claim "any effect" on ear and auditory disorders or diseases, "including hearing loss and deafness."
The case comes from California, where six elderly residents of Santa Cruz County charged in a lawsuit that the state's food and drug law had been violated by ads, some in comic-strip form, for "Miracle-Ear" and "Magic-Ear" hearing aids.
The devices are manufactured by one of the nation's largest hearing-air producers, Dahlberg Electronics Inc., which is owned by Detection Sciences Inc., both of Minneapolis.
The chairman of Detection Sciences is Kenneth H. Dahlberg, who was midwest finance chairman in 1972 for President Nixon's reelection campaign. A $25,000 check he contributed was traced to the account of one of the men convicted of the Watergate break-in.
The plaintiffs complained of serious and repeated abusive sales practices by the lcoal Dahlberg dealer. As a result, they alleged, they bought expensive hearing aids that could not or did not help them and that, in some cases, were medially inappropriate.
The complaint coincided with a 1974 report by a Department of Health, Education and Welfare task force that misleading advertising and high pressure sales techniques were prevalent in the industry that prices sometimes were excessive, and that many people were sold devices that can't help them or were the wrong type.
The plaintiffs sought an injunction to stop Dahlberg and Detection Sciences from continuing to advertise that their hearing aids would help people wih hearing loss caused by nerve deafness or nerve impairment and from requesting those interested to write to Minneapolis for more information.
The Dahlberg ads - some in nationally circulated magazines - were effectively enought to induce nearly 12,000 Californians, in a 13 1/2-month period ended in February 1973, to send for information. The company then referred them to local dealers.
One comic-strip ad began with a troubled mother saying, "Our daughter's graduation . . . I could hear but I wasn't able to understand words."
After a physician tells the mother that he can't help, she gets a Dahlberg ad in the mail, reads it and visits a dealer. Raising her hopes, he says , "Modern science has created a tiny new electronic device made to help in most cases like yours." She buys one.
Then in a panel captioned. "Later . . . at the PTA meeting," she says, "Fred, this is marvelous I can understand the words. It's the first time in years I've heard so clearly."
In the final panel, she tells her son, ". . . And when you graduate, Billy, I'll be able to enjoy every bit of the ceremonies . . . Thank Heavens!"
In 1975, Superior Court Judge Harry F. Brauer granted the requested injunction. Although he didn't find the ads false or misleading, he held that they had "the tendency to injure people who are hard of hearing," sometimes by inducing them to buy "unnecessary" hearing aids and to forgo medical diagnosis and treatment.
Similarly, the 1974 federal task force found that because most persons with hearing problems go to dealers before they go to physicians, the medical problems of thousands of such people go undiagnosed.
The California Court of Appeal, in affirming Brauer last March, went further. It said the ads "were misleading in that they convey the impression that the hearing aid would have a curative or therapeutic effect." The state law specifically forbid sof such an effect.
The state's highest tribunal let the ruling stand. The companies then filed a petition for review in the Supreme Court. Opposing review, in behalf of the elderly plaintiffs, is California Rural Legal Assistance (CRLA) of San Francisco.
A key issue is whether the federal Medical Device Amendments of 1976 preempted California's regulation of hearing-aid ads. The California appeals court said it didn't, because preemption applied only to devices classified by HEW as "restricted" - and HEW hadn't so classified hearing aids.
The companies disagreed, citing the adoption by HEW's Food and Drug Administration of regulations classifying the aids as "restricted devices." But CRLA cited evidence that the FDA granted California's request to exempt its hearing-aid regulations from federal preemption.
The companies protested that the law's prohibition of advertising "any effect" on hearing loss prevents them from saying truthfully that the aids have a compensatory effect in some cases of hearing loss. The appeals court countered that the state law makes no exception for such an effect.
The companies also contended that the law denied them the freedom of speech guaranteed by the First Amendment. They noted that the Supreme COurt has held that the amendment protects "information as to who is producing and selling what product, for what reason, and at what price.
"Common sense tells us that unless the nature and performance of the product can be communicated, the free flow of information will be of little value," they said.
Rejecting such arguments, the appeals court said the Supreme Court hadn't interpreted that amendment to preclude state and federal regulation of false or deceptive advertising.