Libbey-Owens-Ford Glass Company v. FTC

• Decision Date: 06 December 1965
• Docket Number: No. 15663,15664.,15663
• Citation: 352 F.2d 415
• Parties: LIBBEY-OWENS-FORD GLASS COMPANY, Petitioner, v. FEDERAL TRADE COMMISSION, Respondent. GENERAL MOTORS CORPORATION, Petitioner, v. FEDERAL TRADE COMMISSION, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

352 F.2d 415 (1965)

LIBBEY-OWENS-FORD GLASS COMPANY, Petitioner, v. FEDERAL TRADE COMMISSION, Respondent.

GENERAL MOTORS CORPORATION, Petitioner, v. FEDERAL TRADE COMMISSION, Respondent.

Nos. 15663, 15664.

United States Court of Appeals Sixth Circuit.

November 9, 1965.

Rehearing Denied December 6, 1965.

Joseph J. Smith, Jr., Washington, D. C., Ross S. Carey, Gen. Counsel, Toledo, Ohio, George W. Wise, Washington, D. C., Julian M. Kaplin, Toledo, Ohio, on brief; Hogan & Hartson, Washington, D. C., of counsel, for petitioner, Libbey-Owens-Ford Glass Co.

William Simon, Washington, D. C., Aloysius F. Power, Gen. Counsel, Detroit, Mich., John Bodner, Jr., Washington, D. C., on brief; Frazer F. Hilder, John B. Clayton, Detroit, Mich., Howrey, Simon, Baker & Murchison, Washington, D. C., of counsel, for petitioner General Motors Corp.

Louis Russell Harding, Federal Trade Commission, Washington, D. C., James McI. Henderson, Gen. Counsel, J. B. Truly, Asst. Gen. Counsel, Miles J. Brown, Atty., Federal Trade Commission, Washington, D. C., on brief, for respondent.

Before WEICK, Chief Judge, PHILLIPS, Circuit Judge, and TAYLOR, District Judge.^*

Rehearing Denied in No. 15663, December 6, 1965.

PER CURIAM.

These two cases are before the Court on petitions to review cease and desist orders of the Federal Trade Commission issued upon complaint charging Libbey-Owens-Ford Glass Co. (LOF), a manufacturer and sole supplier of automobile glass for General Motors cars, and General Motors Corporation (GM) with unfair and deceptive acts and practices and unfair methods of competition in violation of Section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45.

Specifically, the facts as to LOF involved twenty-two television commercials purporting to show the superiority of safety plate glass used in all of the windows of GM cars over safety sheet glass used in the side and rear windows of non-GM cars. The facts as to GM involved the televising of one commercial on two separate occasions purporting to show the same superiority.

The Commission found in both cases that the commercials contained false representations that the plate glass used in the side and rear windows of GM cars was the same grade and quality as the plate glass used in the windshields of GM cars,¹ and that the sheet glass used in the side and rear windows of non-GM cars was the same grade and quality as sheet glass used in home windows. The Commission also found that the commercials in both cases contained false demonstrations achieved through the use of undisclosed "mock-ups" or "props". In respect to LOF it was found that the commercials exaggerated the distortion in sheet glass by using different camera lens in filming, more acute angles, and other techniques, including taking a photograph through an open window instead of through the plate glass window as the viewer was led to believe. As to GM the same exaggeration was achieved by the use of streaks of vaseline applied to the glass being photographed and panning the camera from side to side as though the viewer were walking past a home window. Based on these findings the Commission ordered LOF and GM to cease and desist from such practices.

Both LOF and GM contended that there was no basis for the inferences drawn by the Commission that the commercials misrepresented that the grade and quality of plate glass used in the side and rear windows of GM cars was the same as plate glass used in the windshields of GM cars, and that the sheet glass used in the side and rear windows of non-GM cars was the same grade and quality as the sheet glass used in home windows.

We think that it was within the discretion of the Commission to interpret and determine the meaning of the commercials and the impressions they would likely make upon the viewing public. Koch v. Federal Trade Comm'n, 206 F.2d 311, 319 (6th Cir. 1953). The weight to be given the facts as well as inferences reasonably to be drawn therefrom was for the Commission. Federal Trade Comm'n v. Pacific States Paper Trade Ass'n, 273 U.S. 52, 63, 47 S.Ct. 255, 71 L.Ed. 534 (1927).

The decision of the Supreme Court in Federal Trade Comm'n v. Colgate-Palmolive Co., 380 U.S. 374, 85 S.Ct. 1035, 13 L.Ed.2d 904 (1965) disposed of the "mock-up" issue here. There, the Court held that the undisclosed use of mock-ups was a deceptive practice even though the test, experiment or demonstration actually proved the product claim.

On the authority of Colgate we sustain the Commission's order barring LOF and GM from using undisclosed mock-ups in advertising automotive glass products. We...