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.
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.
(a) The FTC's judgment as to what constitutes a deceptive
practice is to be accorded great weight by reviewing courts,
Page 380 U. S. 375
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.
(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.
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.
(a) The crucial terms of the present order are as specific as
the circumstances will permit. P. 380 U. S.
(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.
(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.
326 F.2d 517, reversed and remanded.
MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.
The basic question before us is whether it is a deceptive trade
practice, prohibited by § 5 of the Federal Trade
Page 380 U. S. 376
Commission Act, [Footnote 1
to represent falsely that a televised test, experiment, or
demonstration provides a viewer with visual proof of a product
claim, regardless of whether the product claim is itself true.
The case arises out of an attempt by respondent
Colgate-Palmolive Company to prove to the television public that
its shaving cream, "Rapid Shave," out-shaves them all. Respondent
Ted Bates & Company, Inc., an advertising agency, prepared for
Colgate three one-minute commercials designed to show that Rapid
Shave could soften even the toughness of sandpaper. Each of the
commercials contained the same "sandpaper test." The announcer
informed the audience that, "To prove RAPID SHAVE'S
super-moisturizing power, we put it right from the can onto this
tough, dry sandpaper. It was apply . . . soak . . . and off in a
stroke." While the announcer was speaking, Rapid Shave was applied
to a substance that appeared to be sandpaper, and immediately
thereafter a razor was shown shaving the substance clean.
The Federal Trade Commission issued a complaint against
respondents Colgate and Bates charging that the commercials were
false and deceptive. The evidence before the hearing examiner
disclosed that sandpaper of the type depicted in the commercials
could not be shaved immediately following the application of Rapid
Shave, but required a substantial soaking period of approximately
80 minutes. The evidence also showed that the substance resembling
sandpaper was in fact a simulated prop, or "mock-up," made of
plexiglass to which sand had been applied. However, the examiner
found that Rapid Shave could shave sandpaper, even though not in
the short time represented by the commercials, and that, if
Page 380 U. S. 377
real sandpaper had been used in the commercials, the
inadequacies of television transmission would have made it appear
to viewers to be nothing more than plain, colored paper. The
examiner dismissed the complaint because neither misrepresentation
-- concerning the actual moistening time or the identity of the
shaved substance -- was, in his opinion, a material one that would
mislead the public.
The Commission, in an opinion dated December 29, 1961, reversed
the hearing examiner. It found that, since Rapid Shave could not
shave sandpaper within the time depicted in the commercials,
respondents had misrepresented the product's moisturizing power.
Moreover, the Commission found that the undisclosed use of a
plexiglass substitute for sandpaper was an additional material
misrepresentation that was a deceptive act separate and distinct
from the misrepresentation concerning Rapid Shave's underlying
qualities. Even if the sandpaper could be shaved just as depicted
in the commercials, the Commission found that viewers had been
misled into believing they had seen it done with their own eyes. As
a result of these findings, the Commission entered a cease and
desist order against the respondents.
An appeal was taken to the Court of Appeals for the First
Circuit, which rendered an opinion on November 20, 1962, 310 F.2d
89. That court sustained the Commission's conclusion that
respondents had misrepresented the qualities of Rapid Shave, but it
would not accept the Commission's order forbidding the future use
of undisclosed simulations in television commercials. It set aside
the Commission's order and directed that a new order be entered. On
May 7, 1963, the Commission, over the protest of respondents,
issued a new order narrowing and clarifying its original order to
comply with the court's mandate. The Court of Appeals again found
unsatisfactory that portion of the order dealing with simulated
props, and refused to enforce
Page 380 U. S. 378
it, 326 F.2d 517. We granted certiorari, 377 U.S. 942, to
consider this aspect of the case, and do not have before us any
question concerning the misrepresentation that Rapid Shave could
shave sandpaper immediately after application, that being
A threshold question presented is whether the petition for
certiorari was filed within 90 days after the entry of the judgment
below, as required by 28 U.S.C. § 2101(c) (1958 ed.). Respondents
claim that the failure of the Commission to seek certiorari from
the judgment of the Court of Appeals rendered on November 20, 1962,
barred a subsequent order prohibiting the use of simulated props in
commercials that offer visual proof of a product claim.
After a court of appeals has set aside an order of the
Commission on a point of law, the Commission may seek certiorari if
it disagrees with the court's legal conclusion. Section 5(i) of the
Federal Trade Commission Act [Footnote 2
] contemplates that, when the time for filing a
petition for certiorari has passed without a petition's being
filed, the Commission will enter an order in accordance with the
mandate of the court of appeals. The Commission may not merely
restate its former position in a new order and then apply for
certiorari when the court of appeals reiterates
Page 380 U. S. 379
its previous objection. As was said in Federal Power Comm'n
v. Idaho Power Co., 344 U. S. 17
344 U. S.
"If the court did no more by the second judgment than to restate
what it had decided by the first one . . . , the 90 days would
start to run from the first judgment."
To the same effect, see Federal Trade Comm'n v.
Minneapolis-Honeywell Regulator Co., 344 U.
, 344 U. S. 211
However, it has also been held that, when a reviewing court finds a
legal error in an administrative order, the agency is not
foreclosed upon the remand of the case from enforcing the
legislative policy of the act it administers, provided the new
order does not conflict with the reviewing court's mandate.
Obviously, the court which drafted the mandate is normally in
the best position to determine whether the Commission's subsequent
order is consistent with the mandate, but this Court is never
foreclosed from determining the issue for itself. [Footnote 4
] The resolution of this issue in
the present case requires a detailed analysis of the various
opinions, mandates and orders issued by the Commission and the
Court of Appeals.
In its initial opinion, dated December 29, 1961, the Commission
commented that the heart of the commercials was the visual
"sandpaper test," which was designed to leave the viewer with the
impression that he had actually seen such an experiment being
performed. The Commission expressed the view that, without this
visible proof of Rapid Shave's moisturizing ability, some viewers
might not have been persuaded to buy the product. The Commission
then entered into a far-reaching discussion on the
Page 380 U. S. 380
use of mock-ups in television and the relationship between
"truth" and "television salesmanship," and finally concluded that
the use of the plexiglass prop was a deceptive practice. The
Commission's order was as inclusive as its discussion. It ordered
both respondents to cease and desist from:
"Representing, directly or by implication, in describing,
or purporting to prove the quality or merits of
any product, that pictures, depictions, or demonstrations . . .
are genuine or accurate representations . . . of,
the quality or merits of, any product
when such pictures,
depictions, or demonstrations are not in fact genuine or
. . . of, or do not prove the quality
or merits of, any such product.
The Court of Appeals understandably was concerned with the broad
language in the Commission's opinion and order, especially since
the Commission was not dealing with an established deceptive
practice, but was applying the flexible standards of § 5 to a
hitherto unexplored area. The breadth of the Commission's order was
potentially limitless, apparently establishing a per se
rule prohibiting the use of simulated props in all television
commercials, since commercials, by definition, describe "the
qualities or merits" of products. The court's impression that the
order was "quite ambiguous" was not alleviated when, in oral
argument, counsel for the Commission stated that, if a prominent
person appeared on television saying "I love Lipsom's iced tea"
while drinking something that appeared to be tea but in fact was
not, the commercial would be a deceptive practice.
Page 380 U. S. 381
In light of the Commission's order and its oral argument, the
court concluded that it was the Commission's intention to prohibit
all simulated props in television commercials. The court could not
agree with this position, since it believed that,
"where the only untruth is that the substance [the viewer] sees
on the screen is artificial, and the visual appearance is otherwise
a correct and accurate representation of the product itself, he is
not injured. [Footnote 6
But, in setting aside the Commission's order, the court gave
little specific guidance for the drafting of a new one. It merely
criticized the Commission for holding that mock-ups are "illegal
" [Footnote 7
and indicated that the Commission's order "may" have been too broad
in other respects as well.
Following the decision by the Court of Appeals, the Commission
entered a new "proposed final order" on February 18, 1963. This
order was accompanied by an explanatory opinion that admitted error
in the original disposition of the case and expressed an intention
to eliminate the errors found by the Court of Appeals. The
Commission explained that its new order was not directed toward the
broad prohibition of all undisclosed simulated props in
commercials, but merely toward prohibiting respondents from
misrepresenting to the public that it was seeing for itself a test,
experiment or demonstration which purportedly proved a product
claim. According to the Commission, the television commercial in
question did not merely tell viewers that the experiment had been
or could be performed, but instead told them that they were seeing
it for themselves, and did not have to take the seller's word for
it. This, and not the mere use of a prop, was the misrepresentation
found to be a deceptive practice. Over the vigorous objection of
Page 380 U. S. 382
Commission issued its final order on May 7, 1963. Both
respondents were ordered to cease and desist from:
"Unfairly or deceptively advertising any . . . product by
presenting a test, experiment or demonstration that (1) is
represented to the public as actual proof of a claim made for the
product which is material to inducing its sale, and (2) is not in
fact a genuine test, experiment or demonstration being conducted as
represented, and does not in fact constitute actual proof of the
claim, because of the undisclosed use and substitution of a mock-up
or prop instead of the product, article, or substance represented
to be used therein. [Footnote
Respondents again appealed to the Court of Appeals. Despite the
urgings of respondents that it limit its review to a determination
whether the Commission's order was consistent with the previous
mandate, the court reexamined the Commission's new order on the
merits. The court recognized that the new order no longer
prohibited the use of all simulated props in commercials, but found
that it would be impossible under it to distinguish between
commercials which depicted a test, experiment or demonstration and
those which did not. The court held that, so long as there is an
accurate portrayal of a product's attributes or performance, there
is no deceit, and instructed the Commission, "as we thought we had
directed it before," [Footnote
] to enter an order merely prohibiting respondents
Page 380 U. S. 383
from using mock-ups to demonstrate something which in fact could
not be accomplished.
We hold that the Commission's order of May 7, 1963, was not in
disregard of the Court of Appeals' first mandate, and was a good
faith attempt to incorporate the legal principles contained
therein. An examination of the Commission's first order and
accompanying opinion shows an overriding emphasis on mock-ups as
such, and a failure to articulate with precision the actual
deceptive practice found. As a result, it is not surprising that
the court criticized the order as "ambiguous," interpreted it as
prohibiting the substitution of a mock-up for a product in any
commercial, and found that it rested on a premise that mock-ups
were "illegal per se.
" It is true that the court also said
that viewers are interested in what they see, and not in the means
by which they see it, but this statement occurred immediately after
the court discussed the contention in oral argument that it would
be a deceptive practice to represent that a person was drinking
"Lipsom's iced tea" when, in fact, he was not. The only clear
directive in the court's mandate was for the Commission to remove
the "fundamental error [which] so permeates the order" [Footnote 10
] -- i.e.,
error that every use of mock-ups is a deceptive practice.
We find it inconceivable that the Commission could have
successfully sought certiorari from this judgment. Had it done so,
it would have been forced to argue either that every use of
mock-ups in commercials is a deceptive practice, an apparently
unintended theory, or that this Court should reinstate the
Commission's decision on a theory of its own, something the Court
said it would not do in Securities & Exchange Comm'n v.
Chenery Corp., 332 U. S. 194
332 U. S.
Page 380 U. S. 384
Support is given our conclusion by the refusal of the Court of
Appeals to declare that the Commission's subsequent order was
inconsistent with the previous mandate. However, even if the first
opinion of the Court of Appeals could somehow be construed to hold
as a matter of law that it is never a deceptive practice to use
undisclosed props in a commercial designed to convince a viewer
that he is seeing for himself proof of a seller's claims, we find
that the Commission acted reasonably in construing the mandate more
narrowly. The Commission's vague first order had spawned a
correspondingly vague opinion by the Court of Appeals. If the court
meant its first opinion to say more than we have attributed to it,
it was not until the second opinion that the court clearly
articulated its reasoning. Therefore, at the least, the court's
second opinion resolved a genuine ambiguity in the first, and the
time within which certiorari had to be requested dates from the
second judgment. See Federal Trade Comm'n v.
Minneapolis-Honeywell Regulator Co., 344 U.
, 344 U. S.
In reviewing the substantive issues in the case, it is well to
remember the respective roles of the Commission and the courts in
the administration of the Federal Trade Commission Act. When the
Commission was created by Congress in 1914, it was directed by § 5
to prevent "[u]nfair methods of competition in commerce." [Footnote 11
] Congress amended the
Act in 1938 to extend the Commission's jurisdiction to include
"unfair or deceptive acts or practices in commerce" [Footnote 12
] -- a significant amendment
showing Congress' concern for consumers as well as for competitors.
It is important to note the generality of these
Page 380 U. S. 385
standards of illegality; the proscriptions in § 5 are flexible,
"to be defined with particularity by the myriad of cases from the
field of business." Federal Trade Comm'n v. Motion Picture
Advertising Service Co., 344 U. S. 392
344 U. S.
This statutory scheme necessarily gives the Commission an
influential role in interpreting § 5 and in applying it to the
facts of particular cases arising out of unprecedented situations.
Moreover, as an administrative agency which deals continually with
cases in the area, the Commission is often in a better position
than are courts to determine when a practice is "deceptive" within
the meaning of the Act. This Court has frequently stated that the
Commission's judgment is to be given great weight by reviewing
courts. [Footnote 13
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. Nevertheless,
while informed judicial determination is dependent upon
enlightenment gained from administrative experience, in the last
analysis, the words "deceptive practices" set forth a legal
standard, and they must get their final meaning from judicial
construction. Cf. Federal Trade Comm'n v. R. F. Keppel &
Bro., Inc., 291 U. S. 304
291 U. S.
We are not concerned in this case with the clear
misrepresentation in the commercials concerning the speed with
which Rapid Shave could shave sandpaper, since the Court of Appeals
upheld the Commission's finding on that matter, and the respondents
have not challenged the finding here. We granted certiorari to
consider the Commission's conclusion that, even if an advertiser
has himself conducted a test, experiment or demonstration which
Page 380 U. S. 386
honestly believes will prove a certain product claim, he may not
convey to television viewers the false impression that they are
seeing the test, experiment, or demonstration for themselves when
they are not because of the undisclosed use of mock-ups.
We accept the Commission's determination that the commercials
involved in this case contained three representations to the
public: (1) that sandpaper could be shaved by Rapid Shave; (2) that
an experiment had been conducted which verified this claim; and (3)
that the viewer was seeing this experiment for himself. Respondents
admit that the first two representations were made, but deny that
the third was. The Commission, however, found to the contrary, and,
since this is a matter of fact resting on an inference that could
reasonably be drawn from the commercials themselves, the
Commission's finding should be sustained. [Footnote 14
] For the purposes of our review, we
can assume that the first two representations were true; the focus
of our consideration is on the third, which was clearly false. The
parties agree that § 5 prohibits the intentional misrepresentation
of any fact which would constitute a material factor in a
purchaser's decision whether to buy. [Footnote 15
] They differ, however, in their conception of
what "facts" constitute a "material factor" in a purchaser's
decision to buy. Respondents submit, in effect, that the only
material facts are those which deal with the substantive qualities
of a product. [Footnote 16
Page 380 U. S. 387
on the other hand, submits that the misrepresentation of any
fact, so long as it materially induces a purchaser's decision to
buy, is a deception prohibited by § 5.
The Commission's interpretation of what is a deceptive practice
seems more in line with the decided cases than that of respondents.
This Court said in Federal Trade Comm'n v. Algoma Lumber
Co., 291 U. S. 67
291 U. S. 78
"[T]he public is entitled to get what it chooses, though the choice
may be dictated by caprice, or by fashion, or perhaps by
ignorance." It has long been considered a deceptive practice to
state falsely that a product ordinarily sells for an inflated
price, but that it is being offered at a special reduced price,
even if the offered price represents the actual value of the
product and the purchaser is receiving his money's worth. [Footnote 17
] Applying respondents'
arguments to these cases, it would appear that, so long as buyers
paid no more than the product was actually worth and the product
contained the qualities advertised, the misstatement of an inflated
original price was immaterial.
Page 380 U. S. 388
It has also been held a violation of § 5 for a seller to
misrepresent to the public that he is in a certain line of
business, even though the misstatement in no way affects the
qualities of the product. As was said in Federal Trade Comm'n
v. Royal Milling Co., 288 U. S. 212
288 U. S.
"If consumers or dealers prefer to purchase a given article
because it was made by a particular manufacturer or class of
manufacturers, they have a right to do so, and this right cannot be
satisfied by imposing upon them an exactly similar article, or one
equally as good, but having a different origin."
The courts of appeals have applied this reasoning to the
merchandising of reprocessed products that are as good as new,
without a disclosure that they are in fact reprocessed. [Footnote 18
] And it has also been
held that it is a deceptive practice to misappropriate the trade
name of another. [Footnote
Respondents claim that all these cases are irrelevant to our
decision because they involve misrepresentations related to the
product itself, and not merely to the manner in which an
advertising message is communicated. This distinction misses the
mark for two reasons. In the first place, the present case is not
concerned with a mode of communication, but with a
misrepresentation that viewers have objective proof of a seller's
product claim over and above the seller's word. Secondly, all of
the above cases, like the present case, deal with methods designed
to get a consumer to purchase a product, not with whether the
product, when purchased, will perform up to expectations. We find
an especially strong similarity between the present
Page 380 U. S. 389
case and those cases in which a seller induces the public to
purchase an arguably good product by misrepresenting his line of
business by concealing the fact that the product is reprocessed or
by misappropriating another's trademark. In each, the seller has
used a misrepresentation to break down what he regards to be an
annoying or irrational habit of the buying public -- the preference
for particular manufacturers or known brands regardless of a
product's actual qualities, the prejudice against reprocessed
goods, and the desire for verification of a product claim. In each
case, the seller reasons that, when the habit is broken, the buyer
will be satisfied with the performance of the product he receives.
Yet a misrepresentation has been used to break the habit, and, as
was stated in Algoma Lumber,
a misrepresentation for such
an end is not permitted.
We need not limit ourselves to the cases already mentioned,
because there are other situations which also illustrate the
correctness of the Commission's finding in the present case. It is
generally accepted that it is a deceptive practice to state falsely
that a product has received a testimonial from a respected source.
] In addition,
the Commission has consistently acted to prevent sellers from
falsely stating that their product claims have been "certified."
] We find these
situations to be indistinguishable from the present case. We can
assume that, in each, the underlying product claim is true, and, in
each, the seller actually conducted an experiment sufficient to
prove to himself the truth of the claim. But in each the seller has
told the public that it could rely on something other than his word
concerning both the truth of the claim and
Page 380 U. S. 390
the validity of his experiment. We find it an immaterial
difference that, in one case, the viewer is told to rely on the
word of a celebrity or authority he respects, in another on the
word of a testing agency, and, in the present case, on his own
perception of an undisclosed simulation.
Respondents again insist that the present case is not like any
of the above, but is more like a case in which a celebrity or
independent testing agency has in fact submitted a written
verification of an experiment actually observed, but, because of
the inability of the camera to transmit accurately an impression of
the paper on which the testimonial is written, the seller
reproduces it on another substance so that it can be seen by the
viewing audience. This analogy ignores the finding of the
Commission that, in the present case, the seller misrepresented to
the public that it was being given objective proof of a product
claim. In respondents' hypothetical, the objective proof of the
product claim that is offered, the word of the celebrity or agency
that the experiment was actually conducted, does exist, while, in
the case before us, the objective proof offered, the viewer's own
perception of an actual experiment, does not exist. Thus, in
respondents' hypothetical, unlike the present case, the use of the
undisclosed mock-up does not conflict with the seller's claim that
there is objective proof.
We agree with the Commission, therefore, that the undisclosed
use of plexiglass in the present commercials was a material
deceptive practice, independent and separate from the other
misrepresentation found. We find unpersuasive respondents' other
objections to this conclusion. Respondents claim that it will be
impractical to inform the viewing public that it is not seeing an
actual test, experiment or demonstration, but we think it
inconceivable that the ingenious advertising world will be unable,
if it so desires, to conform to the Commission's insistence that
the public be not misinformed. If, however, it becomes
Page 380 U. S. 391
impossible or impractical to show simulated demonstrations on
television in a truthful manner, this indicates that television is
not a medium that lends itself to this type of commercial, not that
the commercial must survive at all costs. Similarly unpersuasive is
respondents' objection that the Commission's decision discriminates
against sellers whose product claims cannot be "verified" on
television without the use of simulations. All methods of
advertising do not equally favor every seller. If the inherent
limitations of a method do not permit its use in the way a seller
desires, the seller cannot by material misrepresentation compensate
for those limitations.
Respondents also claim that the Commission reached out to decide
a question not properly before it, and has presented this Court
with an abstract question. They argue that, since the commercials
in the present case misrepresented the time element involved in
shaving sandpaper, this Court should not consider the additional
misrepresentation that the public had objective proof of the
seller's claim. As we have already said, these misrepresentations
are separate and distinct, and we fail to see why respondents
should be sheltered from a cease and desist order with respect to
one deceptive practice merely because they also engaged in
Respondents finally object to what they consider to be the
absence of an adequate record to sustain the Commission's finding.
It is true that, in its initial stages, the case was concerned more
with the misrepresentation about the product's underlying qualities
than with the misrepresentation that objective proof was being
given. Nevertheless, both misrepresentations were in the case from
the beginning, and respondents were never prejudicially misled into
believing that the second question was not being considered. Nor
was it necessary for the Commission to conduct a survey of the
viewing public before it could determine that the commercials had a
tendency to mislead,
Page 380 U. S. 392
for, when the Commission finds deception, it is also authorized,
within the bounds of reason, to infer that the deception will
constitute a material factor in a purchaser's decision to buy.
See Federal Trade Comm'n v. Raladam Co., 316 U.
, 316 U. S. 152
We find the record in this case sufficient to support the
We turn our attention now to the order issued by the Commission.
It has been repeatedly held that the Commission has wide discretion
in determining the type of order that is necessary to cope with the
unfair practices found, e.g., Jacob Siegel Co. v. Federal Trade
Comm'n, 327 U. S. 608
327 U. S. 611
and that Congress has placed the primary responsibility for
fashioning orders upon the Commission, Federal Trade Comm'n v.
National Lead Co., 352 U. S. 419
352 U. S. 429
For these reasons, the courts should not "lightly modify" the
Commission's orders. Federal Trade Comm'n v. Cement
Institute, 333 U. S. 683
333 U. S. 726
However, this Court has also warned that an order's prohibitions
"should be clear and precise in order that they may be understood
by those against whom they are directed," Federal Trade Comm'n
v. Cement Institute, supra,
at 333 U. S. 726
"[t]he severity of possible penalties prescribed . . . for
violations of orders which have become final underlines the
necessity for fashioning orders which are, at the outset,
sufficiently clear and precise to avoid raising serious questions
as to their meaning and application."
Federal Trade Comm'n v. Henry Broch & Co.,
368 U. S. 360
368 U. S.
The Court of Appeals has criticized the reference in the
Commission's order to "test, experiment or demonstration" as not
capable of practical interpretation. It could find no difference
between the Rapid Shave commercial and a commercial which extolled
the goodness of ice cream while giving viewers a picture of a scoop
Page 380 U. S. 393
potatoes appearing to be ice cream. We do not understand this
difficulty. In the ice cream case, the mashed potato prop is not
being used for additional proof of the product claim, while the
purpose of the Rapid Shave commercial is to give the viewer
objective proof of the claims made. If, in the ice cream
hypothetical, the focus of the commercial becomes the undisclosed
potato prop and the viewer is invited, explicitly or by
implication, to see for himself the truth of the claims about the
ice cream's rich texture and full color, and perhaps compare it to
a "rival product," then the commercial has become similar to the
one now before us. Clearly, however, a commercial which depicts
happy actors delightedly eating ice cream that is in fact mashed
potatoes or drinking a product appearing to be coffee, but which
is, in fact, some other substance, is not covered by the present
The crucial terms of the present order -- "test, experiment or
demonstration . . . represented . . . as actual proof of a claim"
-- are as specific as the circumstances will permit. If
respondents, in their subsequent commercials, attempt to come as
close to the line of misrepresentation as the Commission's order
permits, they may, without specifically intending to do so, cross
into the area proscribed by this order. However, it does not
"unfair to require that one who deliberately goes perilously
close to an area of proscribed conduct shall take the risk that he
may cross the line."
Boyce Motor Lines, Inc. v. United States, 342 U.
, 342 U. S. 340
In commercials where the emphasis is on the seller's word, and not
on the viewer's own perception, the respondents need not fear that
an undisclosed use of props is prohibited by the present order. On
the other hand, when the commercial not only makes a claim, but
also invites the viewer to rely on his own perception, for
demonstrative proof of the claim, the respondents will be aware
that the use of undisclosed props in strategic places might be a
Page 380 U. S. 394
We believe that respondents will have no difficulty applying the
Commission's order to the vast majority of their contemplated
future commercials. If, however, a situation arises in which
respondents are sincerely unable to determine whether a proposed
course of action would violate the present order, they can, by
complying with the Commission's rules, [Footnote 22
] oblige the Commission to give them
definitive advice as to whether their proposed action, if pursued,
would constitute compliance with the order.
Finally, we find no defect in the provision of the order which
prohibits respondents from engaging in similar practices with
respect to "any product" they advertise. The propriety of a broad
order depends upon the specific circumstances of the case, but the
courts will not interfere except where the remedy selected has no
Page 380 U. S. 395
to the unlawful practices found to exist. [Footnote 23
] In this case, the respondents
produced three different commercials which employed the same
deceptive practice. This, we believe, gave the Commission a
sufficient basis for believing that the respondents would be
inclined to use similar commercials with respect to the other
products they advertise. We think it reasonable for the Commission
to frame its order broadly enough to prevent respondents from
engaging in similarly illegal practices in future advertisements.
As was said in Federal Trade Comm'n v. Ruberoid Co.,
343 U. S. 470
343 U. S. 473
"[T]he Commission is not limited to prohibiting the illegal
practice in the precise form in which it is found to have existed
in the past." Having been caught violating the Act, respondents
"must expect some fencing in." Federal Trade Comm'n v. National
Lead Co., 352 U. S. 419
352 U. S.
The judgment of the Court of Appeals is reversed, and the case
remanded for the entry of a judgment enforcing the Commission's
Reversed and remanded.
38 Stat. 719, as amended, 52 Stat. 111, 15 U.S.C. § 45(a)(1)
"Unfair methods of competition in commerce, and unfair or
deceptive acts or practices in commerce, are declared
52 Stat. 114, as amended, 15 U.S.C. § 45(i) (1958 ed.):
"If the order of the Commission is modified or set aside by the
court of appeals, and if (1) the time allowed for filing a petition
for certiorari has expired and no such petition has been duly
filed, or (2) the petition for certiorari has been denied, or (3)
the decision of the court has been affirmed by the Supreme Court,
then the order of the Commission rendered in accordance with the
mandate of the court of appeals shall become final on the
expiration of thirty days from the time such order of the
Commission was rendered, unless within such thirty days either
party has instituted proceedings to have such order corrected so
that it will accord with the mandate, in which event the order of
the Commission shall become final when so corrected."
Securities & Exchange Comm'n v. Chenery Corp.,
332 U. S. 194
332 U. S. 200
Federal Communications Comm'n v. Pottsville Broadcasting
Co., 309 U. S. 134
309 U. S.
See Labor Board v. Donnelly Garment Co., 330 U.
, 330 U. S. 227
Federal Communications Comm'n v. Pottsville Broadcasting Co.,
supra, note 3
309 U.S. at
309 U. S.
59 F.T.C. 1452, 1477-1478.
310 F.2d 89, 94.
No. 7736, FTC, May 7, 1963. An
additional clause was added to the order for the benefit of
respondent Bates in recognition of the different positions of
clients and advertising agencies, which often do not have all the
information about a product that the client has. The clause
"provided, however, that it shall be a defense hereunder that
respondent neither knew nor had reason to know that the product,
article or substance used in the test, experiment or demonstration
was a mock-up or prop."
326 F.2d 517, 523.
310 F.2d 89, 94.
38 Stat. 719 (1914), as amended, 15 U.S.C. § 45(a)(1) (1958
52 Stat. 111 (1938), 15 U.S.C. § 45(a)(1) (1958 ed.).
See, e.g., Federal Trade Comm'n v. Motion Picture
Advertising Service Co., 344 U. S. 392
344 U. S. 396
Federal Trade Comm'n v. Raladam Co., 316 U.
, 316 U. S.
See Universal Camera Corp. v. Labor Board, 340 U.
, 340 U. S. 488
Federal Trade Comm'n v. Pacific States Paper Trade Ass'n,
273 U. S. 52
273 U. S.
Brief for Petitioner, p. 13; Brief for Respondent Colgate, p.
22; Brief for Respondent Bates, p. 14.
Brief for Respondent Colgate, p. 16:
"What [the buyer] is interested in is whether the actual product
he buys will look and perform the way it appeared on his television
at 17: "[A] buyer's real concern it with the truth
of the substantive claims or promises made to him, not with the
means used to make them." Id.
at 20: "[T]he Commission's
error was to confuse the substantive claim made for a product with
the means by which such claim was conveyed."
Brief for Respondent Bates, pp. 2-3:
"If the viewer or reader of the advertisement buys the product,
and it will do exactly what the portrayal in the advertisement
asserts it will do, can there be any unlawful
"What induces the buyer to purchase is the claim that the
product will perform as represented in the portrayed test. That is
the material claim."
"It is not a representation in any way relating to the product
or to its purchase, so that even if the strained suggestion that
there is such an implied representation were realistic, the
representation plainly would be immaterial."
Federal Trade Comm'n v. Standard Education Society,
302 U. S. 112
302 U. S.
-117; Kalwajtys v. Federal Trade Comm'n,
F.2d 654, 656 (C.A.7th Cir. 1956), cert. denied,
Kerran v. Federal Trade Comm'n,
265 F.2d 246 (C.A.10th
Cir. 1959), cert. denied sub nom. Double Eagle Ref. Co. v.
Federal Trade Comm'n,
361 U.S. 818; Mohawk Ref. Corp. v.
Federal Trade Comm'n,
263 F.2d 818 (C.A.3d Cir. 1959),
361 U.S. 814.
E.g., Niresk Industries, Inc. v. Federal Trade Comm'n,
278 F.2d 337 (C.A.7th Cir. 1960), cert. denied,
Stipulation 9083, 55 F.T.C. 2101 (1958);
Stipulation 8966, 54 F.T.C. 1953 (1957).
The Commission's rules, 16 CFR § 3.26 (1964 Supp.), provide:
"(b) Any respondent subject to a Commission order may request
advice from the Commission as to whether a proposed course of
action, if pursued by it, will constitute compliance with such
order. The request for advice should be submitted in writing to the
Secretary of the Commission, and should include full and complete
information regarding the proposed course of action. On the basis
of the facts submitted, as well as other information available to
the Commission, the Commission will inform the respondent whether
or not the proposed course of action, if pursued, would constitute
compliance with its order."
"(c) The Commission may at any time reconsider its approval of
any report of compliance or any advice given under this section
and, where the public interest requires, rescind or revoke its
prior approval or advice. In such event, the respondent will be
given notice of the Commission's intent to revoked or rescind and
will be given an opportunity to submit its views to the Commission.
The Commission will not proceed against a respondent for violation
of an order with respect to any action which was taken in good
faith reliance upon the Commission's approval or advice under this
section where all relevant facts were fully, completely and
accurately presented to the Commission and where such action was
promptly discontinued upon notification of rescission or revocation
of the Commission's approval."
Federal Trade Comm'n v. National Lead Co., 352 U.
, 352 U. S. 429
Federal Trade Comm'n v. Ruberoid Co., 343 U.
, 343 U. S. 473
Jacob Siegel Co. v. Federal Trade Comm'n, 327 U.
, 327 U. S.
MR. JUSTICE HARLAN, whom MR. JUSTICE STEWART joins, dissenting
Under the limited grant of certiorari in this case, the Court
must assume that the advertiser can perform the experiment in
question, and that the demonstration is as simple to execute as it
appears on television. The only question here is what techniques
the advertiser may use to convey essential truth to the television
viewer. If the claim is true and valid, then the technique for
projecting that claim, within broad boundaries, falls purely within
the advertiser's art. The warrant to the Federal Trade Commission
is to police the verity of the claim itself.
Page 380 U. S. 396
I do not agree that the use of "mock-ups" by the television
advertiser is, of itself, a deceptive trade practice. Further,
while there was an independent deceptive element in this
commercial, I do not think this record justifies the broad remedial
order issued by the Commission. I would remand the case to the
Commission for further proceedings.
"MOCK-UPS" AS SUCH
The faulty prop in the Court's reasoning is that it focuses
entirely on what is taking place in the studio, rather than on what
the viewer is seeing on his screen. That which the viewer sees with
his own eyes is not, however, what is taking place in the studio,
but an electronic image. If the image he sees on the screen is an
accurate reproduction of what he would see with the naked eyes were
the experiment performed before him with sandpaper in his home or
in the studio, there can hardly be a misrepresentation in any
legally significant sense. While the Commission undoubtedly
possesses broad authority to give content to the proscriptions of
the Act, its discretion, as the Court recognizes, is not unbridled,
and, "in the last analysis, the words "deceptive practices" set
forth a legal standard, and they must get their final meaning from
judicial construction" (ante,
p. 380 U. S.
). In this case, assuming that Rapid Shave could
soften sandpaper as quickly as it does sand-covered plexiglass, a
viewer who wants to entertain his friends by duplicating the actual
experiment could do so by buying a can of Rapid Shave and some
sandpaper. If he wished to shave himself, and his beard were really
as tough as sandpaper, he could perform this part of his morning
ablutions with Rapid Shave in the same way as he saw the plexiglass
shaved on television.
Page 380 U. S. 397
I do not see how such a commercial can be said to be "deceptive"
in any legally acceptable use of that term. The Court attempts to
distinguish the case where a "celebrity" has written a testimonial
endorsing some product, but the original testimonial cannot be seen
over television, and a copy is shown over the air by the
manufacturer. The Court states of this "hypothetical":
"In respondents' hypothetical, the objective proof of the
product claim that is offered, the word of the celebrity or agency
that the experiment was actually conducted does exist; while, in
the case before us, the objective proof offered, the viewer's own
perception of an actual experiment, does not exist."
at 380 U. S. 390
But, in both cases, the viewer is told to "see for himself," in the
one case that the celebrity has endorsed the product; in the other,
that the product can shave sandpaper; in neither case is the viewer
actually seeing the proof, and, in both cases, the objective proof
does exist, be it the original testimonial or the sandpaper test
actually conducted by the manufacturer. In neither case, however,
is there a material misrepresentation, because what the viewer sees
is an accurate image of the objective proof.
Nor can I readily understand how the accurate portrayal of an
experiment by means of a mock-up can be considered more deceptive
than the use of mashed potatoes to convey the glamorous qualities
of a particular ice cream (ante,
pp. 380 U. S.
-393); indeed, to a potato-lover "the smile on the
face of the tiger" might come more naturally than if he were
actually being served ice cream.
It is commonly known that television presents certain
distortions in transmission for which the broadcasting industry
must compensate. Thus, a white towel will look a dingy gray over
television, but a blue towel will look a sparkling white. On the
Court's analysis, an advertiser must achieve accuracy in the studio
even though it results
Page 380 U. S. 398
in an inaccurate image's being projected on the home screen.
This led the Court of Appeals to question whether it would be
proper for an advertiser to show a product on television that
somehow, because of the medium, looks better on the screen than it
does in real life. 310 F.2d 89, 94; 326 F.2d 517, 523, n. 16.
A perhaps more commonplace example suggests itself: would it be
proper for respondent Colgate, in advertising a laundry detergent,
to "demonstrate" the effectiveness of a major competitor's
detergent in washing white sheets, and then, "before the viewer's
eyes," to wash a white (not a blue) sheet with the competitor's
detergent? The studio test would accurately show the quality of the
product, but the image on the screen would look as though the sheet
had been washed with an ineffective detergent. All that has
happened here is the converse: a demonstration has been altered in
the studio to compensate for the distortions of the television
medium, but, in this instance, in order to present an accurate
picture to the television viewer.
In short, it seems to me that the proper legal test in cases of
this kind concerns not what goes on in the broadcasting studio, but
whether what is shown on the television screen is an accurate
representation of the advertised product and of the claims made for
THE COMMISSION'S REMEDY
The Commission ordered both respondents to cease and desist from
using mock-ups in any "test, experiment or demonstration" -- in the
case of respondent Bates, whether or not relating to Colgate
products -- as a result of its finding that the use of a plexiglass
mock-up in this instance constituted a separate misrepresentation.
If that were the only misrepresentation found by the
Page 380 U. S. 399
I would affirm the judgment of the Court of Appeals. The
Commission, however, found another misrepresentation, not disputed
here, namely, that Rapid Shave would shave sandpaper as quickly as
plexiglass, and, on this record, I cannot say that such finding
might not support the Commission's broad order.
In so concluding, some further observations are called for. The
Court brings to the support of the Commission's broad order the
suggestion that it might be difficult for the Commission to police
the reliability of simulated demonstrations, and, further, that the
Commission might have cause for concern as to advertisers which
have demonstrated a propensity for misrepresentation. The policing
factor certainly should not permit the Commission to sweep with the
broad brush it has used here, since the same risk of inaccurate
reproduction inheres in all commercials, not only those involving
tests or experiments. Although the Commission doubtless has wide
discretion in fashioning remedies (ante,
p. 380 U. S.
), I do not believe that an order banning use of all
mock-ups can be justified merely on the score of "policing."
There is some indication, however, that the Commission has had
troubles with both respondents in the past (see
1452, 1473 and n. 30). If the Commission should find that a pattern
of misrepresentations by respondents creates a substantial risk
that they will not accurately portray experiments if permitted to
continue using mock-ups, the Commission's present order might well
be justified. I think the Commission should have an opportunity to
make such findings, which were unnecessary under what I believe was
its mistaken view of the case.
To that end, I would vacate the judgment of the Court of Appeals
and remand the case to the Commission for further proceedings in
light of what has been said in this opinion.