FTC v. Colgate-Palmolive Co. - 380 U.S. 374 (1965)
U.S. Supreme Court
FTC v. Colgate-Palmolive Co., 380 U.S. 374 (1965)
Federal Trade Commission v. Colgate-Palmolive Co.
Argued December 10, 1964
Decided April 5, 1965
380 U.S. 374
The Federal Trade Commission charged respondents, an advertiser and an advertising agency, with using commercials that were deceptive within the meaning of § 5 of the Federal Trade Commission Act. The commercials purported to give viewers visual proof that the advertiser's shaving cream could soften "sandpaper," but, unknown to viewers, the substance that appeared to be sandpaper in the commercials was in fact a simulated prop, or "mock-up," made of plexiglass to which sand had been applied. After a hearing, the Commission issued a cease and desist order against respondents that could be interpreted to forbid all use of undisclosed simulations in television commercials. The Court of Appeals set aside the order as too broad. Five months later, the Commission issued a revised order prohibiting respondents from presenting advertisements depicting a test, experiment, or demonstration represented as actual proof of a product claim but not in fact constituting actual proof because of the undisclosed use of a prop or mock-up. From the court's judgment setting aside that order, the Commission petitioned this Court for certiorari.
1. The 90-day period allowed for filing a petition for certiorari by 28 U.S.C. § 2101(c) commenced on the date of the second judgment by the Court of Appeals, since the Commission's second order was a good faith attempt to incorporate the legal principles contained in the court's first mandate and, at the least, the court's second opinion resolved a genuine ambiguity in the first. Pp. 380 U. S. 378-384.
2. It is a material deceptive practice to convey to television viewers the false impression that they are seeing an actual test, experiment or demonstration which prove a product claim when they are not, because of the undisclosed use of mock-ups. Pp. 380 U. S. 384-392.
(a) The FTC's judgment as to what constitutes a deceptive practice is to be accorded great weight by reviewing courts, and
this admonition is especially true with respect to allegedly deceptive advertising, since the finding of a § 5 violation in this field rests so heavily on inference and pragmatic judgment. P. 380 U. S. 385.
(b) The misrepresentation of any fact, so long as it materially induces a purchaser's decision to buy, is a deception prohibited by § 5. P. 380 U. S. 387.
3. The order issued in this case was well within the Commission's wide discretion to determine the type of order necessary to cope with the unfair practices found. Pp. 380 U. S. 392-395.
(a) The crucial terms of the present order are as specific as the circumstances will permit. P. 380 U. S. 393.
(b) In borderline situations, the respondents can oblige the FTC to advise them whether a contemplated commercial complies with the order. P. 380 U. S. 394.
(c) Since the respondents produced three different commercials which employed the same deceptive practice, the Commission had a sufficient basis for believing that the respondents would be inclined to use similar commercials with respect to other products they advertise. P. 380 U. S. 395.
326 F. 2d 517, reversed and remanded.