Colgate-Palmolive Company v. FTC, 5972

• Decision Date: 20 November 1962
• Docket Number: 5986.,No. 5972,5972
• Court: U.S. Court of Appeals — First Circuit
• Parties: COLGATE-PALMOLIVE COMPANY, Petitioner, v. FEDERAL TRADE COMMISSION, Respondent. TED BATES & COMPANY, Inc., Petitioner, v. FEDERAL TRADE COMMISSION, Respondent.

310 F.2d 89 (1962)

COLGATE-PALMOLIVE COMPANY, Petitioner, v. FEDERAL TRADE COMMISSION, Respondent.

TED BATES & COMPANY, Inc., Petitioner, v. FEDERAL TRADE COMMISSION, Respondent.

Nos. 5972, 5986.

United States Court of Appeals First Circuit.

November 20, 1962.

Mathias F. Correa, New York City, with whom Arthur Mermin, Corydon B. Dunham, New York City, John F. Groden, Boston, Mass., Cahill, Gordon, Reindel & Ohl, New York City, and Withington, Cross, Park & McCann, Boston, Mass., were on brief, for petitioner Colgate-Palmolive Co.

Joseph A. McManus, New York City, with whom Lane McGovern, Boston, Mass., Coudert Brothers, New York City, and Ropes & Gray, Boston, Mass., were on brief, for petitioner Ted Bates & Co.

Miles J. Brown, Washington, D. C., Attorney, with whom James McI. Henderson, General Counsel, J. B. Truly, Assistant General Counsel, and Frederick H. Mayer, Washington, D. C., Attorney, were on brief, for respondent.

Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.

ALDRICH, Circuit Judge.

These petitions to review and set aside a cease and desist order of the Federal Trade Commission are noteworthy principally because of the extremes to which the dispute has led the parties. We shall refer to the petitioners as they were below, viz., as respondents. Respondent Colgate-Palmolive Company, with the aid and at the suggestion of its advertising agency, respondent Ted Bates & Company, in 1959 released three substantially similar television commercials (hereinafter referred to in the singular) to advertise the "moisturizing" qualities of Colgate's pressurized¹ shaving preparation Palmolive Rapid Shave, hereinafter the cream. The commercial was a dramatic "audio" and "video" exposition in which sandpaper was apparently shaved with a safety razor with a single stroke immediately following the application of the cream. This demonstration, it was vocally claimed, "proved" the moisturizing qualities of the cream and that it would have the same effect "for you." In fact the demonstration did not employ sandpaper at all, but a simulated mockup of sand on plexiglass. The Commission brought a civil complaint against respondents, charging misrepresentations in that "* * * said visual demonstration was a `mock-up' * * * and does not prove the `moisturizing' properties of Palmolive Rapid Shave, in actual use, for shaving purposes." Respondents' answers admitted that the demonstration was a mock-up, but asserted that the "commercials contained a fair and true illustration of the otherwise proven fact that Palmolive Rapid Shave has excellent wetting qualities." Following a trial the Commission issued a broad order against both respondents of which they now seek review.

Respondents' first defense is that the cream did in fact permit the shaving of sandpaper as apparently shown, so that there was no misrepresentation. This claim is conspicuously lacking in merit. Ordinary coarse sandpaper can be shaved, but not until the cream has remained upon it for upwards of an hour. Even if we could assume that a particularly fine grade of paper, described as "finishing paper," could fall within the common understanding of what the audio portion described as "tough"² sandpaper, which we may doubt, and even if the visual demonstration, which was clearly of a coarse³ brand of sandpaper, did not conclusively foreclose that assertion in this case, which we doubt even more, respondents are not aided. Their best evidence was that even finishing paper required that the cream rest upon it for one to three minutes before shaving was possible. The video portion of the demonstration shows no such inconvenient wait, but graphically exhibits no pause or break between the application of the cream to the paper, the reaching for the razor, and the shaving operation. It is true that the accompanying audio portion of the commercial uses the word "soak." Respondents contend that soaking means an appreciable passage of time. The Commission was well warranted in finding that the word "soak" was so unobtrusive that many viewers might not notice it, and that even those who did might conclude that the length of the announced soaking was not one to three minutes or more, but the insignificant interval defined by the visual portrayal, the same as was shown for "soaking" the human beard.⁴ It should be obvious by now to anyone that advertisements are not judged by scholarly dissection in a college classroom. F. T. C. v. Standard Education Society, 1937, 302 U.S. 112, 116, 58 S.Ct. 113, 82 L.Ed. 141; Aronberg v. F. T. C., 7 Cir., 1942, 132 F.2d 165.

Respondents next contend that the length of time required to shave sandpaper was not within the pleadings. We agree with them that the Commission did not happily phrase its order denying a motion to amend the complaint. Although respondents predicate some argument on this denial, which the Commission might well have anticipated, one may nevertheless question how seriously they were misled into thinking the issue was simply whether sandpaper of a variety not depicted could eventually be shaved, when the complaint plainly charged that the "commercials, which include a visual demonstration * * * represented, directly or by implication, that * * * it is possible to forthwith shave off the rough surface of said sandpaper * * *." More important, respondents have not been able to suggest to us how, in the light of the evidence which they introduced after a suitable interval to prepare against the Commission's showing, they have been prejudiced. Rather, we think they are simply trying to restrict the issue to one they might be able to meet, instead of one they plainly cannot. The Commission rejected this attempt, and we agree.

Next, respondents assert that the commercial, even if not true with respect to sandpaper, was mere metaphorical puffing; that there is no contention that the cream did not possess entirely adequate moisturizing properties for shaving humans (the Commission makes no claim of inadequacy of the cream); that no one bought the cream intending to shave sandpaper, and that therefore there was no misrepresentation as to any material matter. Within limits we are sympathetic with the principle allegedly underlying respondents' contention. Graphic visual demonstrations that have dramatic appeal may well be mere puffing. References to sandpaper beards may of themselves be harmless, and so may be pictures illustrating the analogy. We see no objection to obvious fancy, provided there is no underlying misrepresentation. But respondents' difficulty is that they do not come under any such principle. They went far beyond generalities and eye-catching devices into asserting as a fact that the cream enables sandpaper to be shaved forthwith, and that this fact "proved" the cream's properties for shaving humans. They cannot now suggest that ability to shave sandpaper forthwith was an irrelevant fact and an irrelevant representation.⁵ We agree with the Commission that it is immaterial that the cream may in fact have adequate shaving qualities. If a misrepresentation is calculated to affect a buyer's judgment it does not make it a fair business practice to say the judgment was capricious. Mohawk Refining Corp. v. F. T. C., 3 Cir., 1959, 263 F.2d 818, cert. den. 361 U.S. 814, 80 S.Ct. 53, 4 L.Ed.2d 61; C. Howard Hunt Pen Co. v. F. T. C., 3 Cir., 1952, 197 F.2d 273.

It may well be that little injury was done to the public by respondents' representations. We suggested in our opening sentence that we consider this a rather trivial case. Nonetheless, we could not possibly say that it was not within the province of the Commission to conclude that such conduct should be forbidden. Colgate's motion to dismiss the complaint was properly denied.

Respondent Bates contends that as a mere advertising agency no order should be entered against it in any event. On one occasion the Commission has drawn such a distinction on the ground that the agency was but a secondary actor. This ruling, however, was expressly stated to be a matter of "sound discretion." Bristol-Myers Co. et al., 1949, 46 F.T.C. 162, 176. Where, as here, the Commission was warranted in finding that the advertising agency was an active, if not the prime, mover, we could not say that the Commission lacked either jurisdiction or discretion. Cf. C. Howard Hunt Pen Co. v. F. T. C., supra 197 F.2d at 281; Chas. A. Brewer & Sons v. F. T. C., 6 Cir., 1946, 158 F.2d 74; see also National Cash-Register Co. v. Leland, 1 Cir., 1899, 94 F. 502, 507, cert. den. 175 U.S. 724, 20 S.Ct. 1021, 44 L.Ed. 337.

Very different questions, however, arise when we come to the scope of the order. The interdiction of which respondents principally complain prohibits the following:

"Representing, directly or by implication, in describing, explaining, or purporting to prove the quality or merits of any product, that pictures, depictions, or demonstrations, either alone or accompanied by oral or written statements, are genuine or accurate representations, depictions, or demonstrations of, or prove the quality or merits of, any product, when such pictures, depictions, or demonstrations are not in fact genuine or accurate representations, depictions, or demonstrations of, or do not prove the quality or merits of, any such product."

Analysis of this portion of the order shows it to be quite ambiguous. On first reading we had thought that, in effect, it simply forbade demonstrations which represented a product as doing something that it...