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Wolf, Alvin B. (DeLuxe Products Co., etc.). (C.A.) 36-1135; 3 S. & D. 564.

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Zitserman, Esther (J. M. Howard Co.)_____ (C.A.) 49-1688; 5 S. & D. 457.

200 F. 2d 519.

43 For interlocutory order, see "Memoranda," 20-743 or 1 S. & D. 716.

DECISIONS OF THE COURTS

IN CASES INSTITUTED AGAINST OR BY THE COMMISSION

REDDI-SPRED CORPORATION v. FEDERAL TRADE COMMISSION*

No. 11673-F. T. C. Docket 6228

(Court of Appeals, Third Circuit. Jan. 18, 1956)

CEASE AND DESIST ORDERS-ADVERTISING FALSELY OR MISLEADINGLY-NATURE OF PRODUCT-OLEOMARGARINE

Federal Trade Commission's determination that shrewd featuring of word "butter" in petitioner's advertisements, coupled with skillfully worded statements which inferred that, because of its butter content, petitioner's product was substantially different from margarine, suggested that petitioner's product was a dairy product and, therefore, violated letter and spirit of the Federal Trade Act provision pertaining to false advertisements was not arbitrary or clearly wrong.

OLEOMARGARINE AMENDMENT TO FEDERAL TRADE COMMISSION ACT-PUBLIC DECEPTION NOT REQUIRED

In order to prevent petitioner from disseminating by mails or any means in commerce any advertisement which represents or suggests that the oleomargarine or margarine petitioner presents for sale is a dairy product, Federal Trade Commission is not forced to go to length of showing deception on public, but design of statute involved is to prohibit seller of oleomargarine from using dairy terms to imply that the oleomargarine offered is a dairy product.

(The syllabus, with substituted captions, is taken from 229 F. 2d 557)

On petition for review of order of Commission, order modified and affirmed.

Mr. Edwin P. Rome, of Philadelphia, Pa. (Blank & Rudenko, of Philadelphia, Pa., on brief), for petitioner.

Mr. Earl W. Kintner, of Washington, D. C. (Mr. Robert B. Dawkins, Asst. Gen. Counsel, Mr. John W. Carter, Jr., Mr. Alvin L. Berman, Attorneys for Federal Trade Commission, of Washington, D. C., on the brief), for respondent.

*Reported in 229 F. 2d 557. For case before Commission, see 51 F. T. C. 1074.

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Before GOODRICH, MCLAUGHLIN and STALEY, Circuit Judges.

[558] MCLAUGHLIN, Circuit Judge.

This petition brings before us an order of the Federal Trade Commission calling upon petitioner to cease and desist from disseminating or causing to be disseminated by means of the United States mails or by any means in commerce any advertisement which represents or suggests that the oleomargarine or margarine it presents for sale is a dairy product.1

The Commission's action was taken under the 1950 amendment to Section 15 of the Federal Trade Commission Act. 15 U. S. C. 55 (a) (2)2 whereby it found that the petitioner's advertisements in evidence were misleading in a material respect. Under 55 (a) (1) that sort of advertisement is a false advertisement and Section 12 of the Act (15 U.S. C. 52) makes it "[u]nlawful *** to disseminate, or cause to be disseminated, any false advertisement-(1) By United States mails, or in commerce by any means, for the purpose of inducing, purchase of food, ***."

the

Section 15 (f) of the Act states that for the purposes of Section 15 the term "oleomargarine" or "margarine" includes "(1) all substances, mixtures, and compounds known as oleomargarine or margarine; (2) all substances, mixtures, and compounds which have a consistence similar to that of butter and which contain any edible oils or fats other than milk fat if made in imitation or semblance of butter."

Initially the hearing examiner dismissed the complaint. He did not dispute that the test as established by the statute was whether the advertisements in question represented or suggested that the margarine involved was a dairy product. He accepted what is plainly indicated in the history of Section 15 (a) (2) that its purpose, as

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1 The proviso under Paragraph No. 1 of the Commission's order as it now stands reads: "Provided, however, that nothing contained in this order shall prevent the use in advertisements of a truthful, accurate and full statement of all of the ingredients contained in said product or of a truthful statement that said product contains butter or any other dairy product provided the percentage thereof contained is clearly and conspicuously set forth."

Since the order was entered the Commission has concluded that it does not possess the authority under the 1950 amendment to Section 15 of the Federal Trade Commission Act, 15 U. S. C. Section 55 (a) (1) (2), to allow in oleomargarine advertisements "a truthful statement that said product contains butter or any other dairy product provided the percentage thereof contained is clearly and conspicuously set forth." The Commission has asked us to modify its order by striking out that language.

"Sec. 15. For the purposes of sections 12, * * *—

"(a) (2) In the case of oleomargarine or margarine an advertisement shall be deemed misleading in a material respect if in such advertisement representations are made or sug-. gested by statement, word, grade designation, design, device, symbol, sound, or any combination thereof, that such oleomargarine or margarine is a dairy product, except that nothing contained herein shall prevent a truthful, accurate, and full statement in any such advertisement of all the ingredients contained in such oleomargarine or margarine."

For a comprehensive report of the legislative background of Section 15 (a) (2) see the Commission opinion In the Matter of E. F. Drew & Company, Inc. a corporation, F. T. C. docket No. 6126.

far as our specific problem is concerned, was to prevent sellers of oleomargarine and margarine from representing as butter a product composed of any oils and fats other than milk fat. However, he founded his decision upon his conclusion that the "[a]dvertisements do not tend to mislead the purchasing public into the belief that 'Reddi-Spred' is butter or any other dairy product, ***" and therefore held that petitioner had not violated the law. The Commission upon consideration of the entire record reversed that decision, finding as a fact that "The prominent use of the word butter in [559] respondent's advertising, together with the representation that ReddiSpred is some kind of a product other than margarine because of its butter content, clearly suggests that it is a dairy product."

We think the decision of the Commission should be affirmed. It is soundly based upon the particular 1950 oleomargarine law. The consumer test, erroneously applied by the examiner, is strongly urged by appellant under the doctrine of United States v. 88 Cases, etc., 187 F. 2d 967 (3 Cir. 1951). That decision is not in point. Its holding was that in Section 402 (b) (4) of the Federal Food, Drug & Cosmetic Act (21 U. S. C. 342 (b) (4)) the standard indicated is as said at page 971, "[t]he reaction of the ordinary consumer under such circumstances as attended retail distribution of this product." The issue before us is not whether the advertisements of Reddi-Spred have the tendency or capacity to deceive the purchasing public into believing that it is in reality a dairy product or something sold under a trade name which is actually different from oleomargarine. Nor does the Commission contend there is no butter in Reddi-Spred. It does justifiably decide that the shrewd featuring of the word butter in the advertisements coupled with skillfully worded statements which infer that because of its butter content Reddi-Spred is substantially different from margarine suggests that Reddi-Spred is a dairy product and so violates the letter and spirit of the statute. With the advertisements before us it is impossible to say that the Commission's finding is arbitrary or clearly wrong.5

Petitioner must face the flat prohibition of 15 (a) (2). Any change in its terms is a problem for the Congress, not the courts. As the amendment is worded and was intended the violation consists in the suggestion itself. The Commission is not forced to go to the length of showing deception of the public. The design of the amendment is to prohibit a seller of oleomargarine from using dairy terms to imply

In the proceedings before the Commission the parties stipulated that "butter is a dairy product".

The Commission introduced nine advertisements in evidence, the petitioner six, All these feature butter with the insinuation that because of butter Reddi-Spred was essentially

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