Federal Trade Commission v. Keppel Bro

• Decision Date: 05 February 1934
• Docket Number: No. 194,194
• Citation: 54 S.Ct. 423,291 U.S. 304,78 L.Ed. 814
• Parties: FEDERAL TRADE COMMISSION v. R. F. KEPPEL & BRO., Inc
• Court: U.S. Supreme Court

291 U.S. 304

54 S.Ct. 423

78 L.Ed. 814

FEDERAL TRADE COMMISSION

v R. F. KEPPEL & BRO., Inc.

No. 194.

Argued Jan. 11, 1934.

Decided Feb. 5, 1934.

[Syllabus from pages 304-306 intentionally omitted]The Attorney General and Mr. Harold M.Stephens, Asst. Atty. Gen., for petitioner.

Mr. George E. Elliott, of Washington, D.C., for respondents.

Mr. Justice STONEdelivered the opinion of the Court.

This case comes here on certiorari, 290 U.S. 613, 54 S.Ct. 62, 78 L.Ed. —-, to review a decree of the Court of Appeals for the Third Circuit, which set aside an order of the Federal Trade Commission forbidding certain trade practices of respondent as an unfair method of competition.63 F.(2d) 81;section 5, Federal Trade Commission Act, 38 Stat. 717, 719(15 USCA § 45).

The Commission found that respondent, one of numerous candy manufacturers similarly engaged, manufactures, sells, and distributes, in interstate commerce, package assortments of candies known to the trade as 'break and take' packages, in competition with manufacturers of assortments known as 'straight goods' packages.Both types are assortments of candies in packages in convenient arrangement for sale by the piece at a small price in retail stores in what is known as the penny candy trade.The break and take assortments are so arranged and offered for sale to consumers as to avail of the element of chance as an inducement to the retail purchasers.One assortment, consisting of 120 pieces retailing at 1 cent each, includes four pieces, each having concealed within its wrapper a single cent, so that the purchasers of those particular pieces of candy receive back the amount of the purchase price and thus obtain the candy without cost.Another contains 60 pieces of candy, each having its retail price marked on a slip of paper concealed within its wrapper; 10 pieces retail at 1 cent each, 10 at 2 cents, and 40 at 3 cents.The price paid for each piece is that named on the price ticket, ascertained only after the purchaser has selected the candy and the wrapper has been removed.A third assortment consists of 200 pieces of candy, a few of which have concealed centers of different colors, the remainder having white centers.The purchasers of the candy found to have colored centers are given prizes, packed with the candy, consisting of other pieces of candy or a package containing lead pencils, penholder and ruler.Each assortment is accompanied by a display card, attractive to children, prepared by respondent for exhibition and use by the dealer in selling the candy, explaining the plan by which either the price or the amount of candy or other merchandise which the purchaser receives is affected by chance.The pieces of candy in the break and take packages are either smaller than those of the competing straight goods packages, which are sold at a comparable price without the aid of any chance feature, or they are of inferior quality.Much of the candy assembled in the break and take packages is sold by retailers, located in the vicinity of schools, to school children.

The Commission found that the use of the break and take package in the retail trade involves the sale or dis- tribution of the candy by lot or chance; that it is a lottery or gambling device which encourages gambling among children; that children, enticed by the element of chance, purchase candy so sold in preference to straight goods candy; and that the competition between the two types of package results in a substantial diversion of trade from the manufacturers of the straight goods package to those distributing the break and take type.It found further that in some states lotteries and gaming devices are penal offenses; that the sale or distribution of candy by lot or chance is against public policy; that many manufacturers of competing candies refuse to engage in the distribution of the break and take type of package because they regard it as a reprehensible encouragement of gambling among children; and that such manufacturers are placed at a disadvantage in competition.The evidence shows that others have reluctantly yielded to the practice in order to avoid loss of trade to their competitors.

The court below held, as the respondent argues here, that respondent's practice does not hinder competition or injure its competitors, since they are free to resort to the same sales method; that the practice does not tend to create a monopoly or involve any deception to consumers or the public, and hence is not an unfair method of competition within the meaning of the statute.

Upon the record it is not open to question that the practice complained of is a method of competition in interstate commerce and that it is successful in diverting trade from competitors who do not employ it.If the practice is unfair within the meaning of the act, it is equally clear that the present proceeding, aimed at suppressing it, is brought, as section 5 of the act requires, 'in the interest of the public.'The practice is carried on by forty or more manufacturers.The disposition of a large number of complaints pending before the Commission similar to that in the present case, awaits the outcome of this suit.Sales of the break and take package by respondent aggregate about $234,000 per year.The proceeding involves more than a mere private controversy.A practice so generally adopted by manufacturers necessarily affects not only competing manufacturers but the far greater number of retailers to whom they sell, and the consumers to whom the retailers sell.Thus the effects of the device are felt throughout the penny candy industry.A practice so widespread and so far reaching in its consequences is of public concern if in other respects within the purview of the statute.Federal Trade Commission v. Royal Milling Co., 288 U.S. 212, 216, 53 S.Ct. 335, 77 L.Ed. 706.CompareFederal Trade Commission v. Klesner, 280 U.S. 19, 28, 50 S.Ct. 1, 74 L.Ed. 138, 68 A.L.R. 838.Hence we pass without further discussion to the decisive question whether the practice itself is one over which the Commission is given jurisdiction because it is unfair.

Although the method of competition adopted by respondent induces children, too young to be capable of exercising an intelligent judgment of the transaction, to purchase an article less desirable in point of quality or quantity than that offered at a comparable price in the straight goods package, we may take it that it does not involve any fraud or deception.It would seem also that competing manufacturers can adopt the break and take device at any time and thus maintain their competitive position.From these premises respondent argues that the practice is beyond the reach of the Commission because it does not fall within any of the classes which this Court has held subject to the Commission's prohibition.SeeFederal Trade Commission v. Gratz, 253 U.S. 421, 427, 40 S.Ct. 572, 64 L.Ed. 993;Federal Trade Commission v. Beech Nut Packing Co., 257 U.S. 441, 453, 42 S.Ct. 150, 66 L.Ed. 307, 19 A.L.R. 882;Federal Trade Commission v. Raladam Co., 283 U.S. 643, 652, 51 S.Ct. 587, 75 L.Ed. 1324, 79 A.L.R. 1191;Federal Trade Commission v. Royal Milling Co., supra, 288 U.S. at page 217, 53 S.Ct. 335, 77 L.Ed. 706.But we cannot say that the Com- mission's jurisdiction extends only to those types of practices which happen to have been litigated before this Court.

Neither the language nor the history of the act suggests that Congress intended to confine the forbidden methods to fixed and unyielding categories.The common law afforded a definition of unfair competition and, before the enactment of the Federal Trade Commission Act, the Sherman Anti-Trust Act(15 USCA §§ 1—7,15 note) had laid its inhibition upon combinations to restrain or monopolize interstate commerce which the courts had construed to include restraints upon competition in interstate commerce.It would not have been a difficult feat of draftsmanship to have restricted the operation of the Trade Commission Act to those methods of competition in interstate commerce which are forbidden at common law or which are likely to grow into violations of the Sherman Act, if that had been the purpose of the legislation.

The act undoubtedly was aimed at all the familiar methods of law violation which prosecutions under the Sherman Act had disclosed.SeeFederal Trade Commission v. Raladam, supra, 283 U.S. 649, 650, 51 S.Ct. 587, 74 L.Ed. 1324, 79 A.L.R. 1191.But as this Court has pointed out it also had a broader purpose, Federal Trade Commission v. Winsted Hosiery Co., 258 U.S. 483, 493, 42 S.Ct. 384, 66 L.Ed. 729;Federal Trade Commission v. Raladam Company, supra, 283 U.S. 648, 51 S.Ct. 587, 75 L.Ed. 1324, 79 A.L.R. 1191.As proposed by the Senate Committee on Interstate Commerce and as introduced in the Senate, the bill which ultimately became the Federal Trade Commission Act declared 'unfair competition' to be unlawful.¹But it was because the meaning which the common law had given to those words was deemed too narrow that the broader and more...