Evans, William E

Text (OCR of the scan at left; may contain errors)

IN '!'HE 1\iA 'ITER OF WILLIAM E. EVANS, TRADING AS PIONEER MATTRESS COMPANY COMPLAINT, FINDINGS, AND ORDER IN REGARD TO THE ALLEGED VIOLATION OF SEC. 5 OF AN ACT OF CONGRESS APPROVED SEPT. 26, 1914 Docket 1488. Complaint, .Apr. 5, 1941-Deciswn, July 10, 1941 Where an individual engaged in the manufacture and Interstate sale and distribution of mattresses through advertising letters and cards bearing purported signatures of certain women's clubs, prepared subject to his approval and mailed by a New York advertising agency to addresses of numerous prospective purchasers supplied by him, and also through circulars, letters, cards, and otller advertising material, and through tags and labels attached to his products, and otherwise-- (a) Represented that his said mattresses had been designed, sponsored or recommended by a physician, and were the products of a certain competitor long engaged in manufacture and sale of nationally advertised and widely and favorably known mattresses, through use of words "Dr." and "Simmons" in such statements as "Dr. Simmons Spring-filled Mattress • • •," "* • • Dr. Simmons Inner-Spring mattress is nationally known • • *" notwithstanding the fact his said mattresses were not designed, sponsored, or recommended by any physician and were not the product of the Simmons Co.; (b) Represented that his said mattresses w.ere approved or sponsored by women's clubs or organizations tllrough use of various purported offers and such statements as "HAS Belen APPROVEit BY US" and "THE WORLD'S BEST INNER-SPRING MATTREss" over such names as "American Good Housekeeper Club'' and "The Great Northern Women's Club," and "Recommended by the leading 'Vomen's Clubs • • *"; the facts being that such names were wholly fictitious, their purported addresses being the address of tbe advertising agency referred to ;

(c) 1\Iistepresented the customary or regular retail prices of his products through placing on tags and labels attached to certain mattresses, and inserting In advertising material, "$39.50," notwithstanding fact mattresses in question never sold at any price approximating said amount, but were customnrily offered and sold at retail for about $10.95; (d) Represented that his prices were special or reduced prices or applicable for a limited time only, or for advertising purposes, or represented only cost of manufacture, and that prospective purchasers were selected and might obtain his products at prices less than those at which they were customarily sold, through SUCh statements as "LAST OPPORTUNITY l OAMPAIGN' CLOSES * * * DR. SIM!IfONS SPRING-Filled MATTRESS MADE BY Pioneer 1\Iattress Company * • *," aml "HAS BEEN APPROVED BY US. This mattress retails for $39.00. During this campaign you can buy one :!'or $10.95 if you will phone or write them at once, as your name was selected to get one at the actual manufacturers cost. · • * • AMERICAN GOOD HOUSEKEEPERS CLUB • * *," and "• • • I recently had the pleasure of selecting your name to receive a beautiful new Dr. Simmons Health Inner-Sprlng 1\Iattress for advertising purposes, and hal·e instructed The Pioneer 1\Inttress Company, Spartanburg, S. C., to deliver this mattress to you at $10.95 which is tbe actual manu:lac- !i84 FEDERAL TRADE COMMISSION DECISIONS Complaint 33F.T.C.

GIIE~T NORTHERN turers cost. This mattress retails for $39.50. • • • THE WOMEN's OLUB," .and "* • • Your name carrying Number 9380, by the American Good Housekeepers Club, • • • has been selected to receive <llle of our beautiful new • • • Mattresses for advertising purposes • • •" and other similar statements; facts being the prices at which his said products were offered were as aforesaid, his regular and customary retail prices, and names of purchasers wez·e not selected on any particular basis, but merely formed part of the gent>ral mailing lists used by said individual and his said advertising agency; and {e) Represented that his said. mattresses were made entirely of new and twusPd matez·ials and were germ and vermin proof, through such statements ali "• • * 'Ye a,bsolutely guarantee the mattress to be all new material * * *" and, in advPrtlsing, "CLEAN, NEW, SANITARY, GERM AND VERMIN PROOF • • •," and, on the label, "* • • contains all new materials"; facts being, In many cases his said products were made of used or secondhand material's, and were neither germ nor Yermin proof; 'With tendency and capacity to mislead and deceive a substantial portion of the purchasing public with respect to his products, and to induce it to purchase substantial quantities thereof as a result of such erroneous belief: Held, That such acts and practices were all to the prejudice and injury of the public and constituted unfair and deceptive acts and practices in commerce. Mr. Jesse D. Kash for the Commission.

Complaint Pursuant to the provisions o~ the Federal Trade Commission Act and by virtue of the authority vested in it by said act, the Federal Trade Commission, having reason to believe that 'Villiam E. Evans, an individual trading as Pioneer Mattress Co., hereinafter referred to as respondent, has violated the provisions of said act, and it appearing to the Commission that a proceeding by it in respect thereof would be in the public interest, hereby issues its complaint, stating its charges in that respect as follows:

PARAGRAPH 1. Respondent William E. Evans is an individual trading and doing business under the name of Pioneer Mattress Co., with his office and principal place of business located at. 980 Church Street, in Spartanburg, S. C.

PAR. 2. Respondent is now, and for more than 3 years last past has been, engaged in the manufacture, sale, and distribution of mattresses. Respondent causes his said products, when sold, to be transported from his aforesaid place of business in the State of South Carolina to purchasers thereof located in various other States of the United States and in the District of Columbia. Respondent maintains, and at all times mentioned herein has maintained, a course of trade in his said mattresses in commerce among and between the variou·s States in the United States and in the District of Columbia. PAR. 3. In the course and conduct of his aforesaid business, and for the purpose of inducing the purchase of his products, the respondent PIONEER MATTRESS CO. 585 583 Complaint entered into an agreement with an advertising or mailing agency located in the city of New York, under which agreement such agency prepared form of advertising letters and cards and forwarded such forms to the respondent at his place of business in Spartanburg, S. C., for approval. The respondent had letters and cards pt·inted from such forms and sent such letters and cards to said advertising agency,.. which proceeded to mail them to numerous prospective purchasers of respondent's products, the names and addresses of such prospective purchasers being supplied to said agency by the respondent. These advertising letters and cards bore the signatures of certain purported women's clubs, namely "American Good Housekeepers Club" and "The Great Northern 'Vomen's Qlub."

Among and typical of the statements and representations appearing in such advertising material are the following: LAST OPPORTUNITY! CAMPAIGN CLOSES FEBRUARY 4 1 1939 DB. SIMMONS SPRING-Filled MATrRESS MADE BY Pioneer Mattress Company Spartanburg, S. C.

HAS BEEN APPROVED BY us This mattress retails for $39.50. During this campaign you can buy one for $10.95 If you will phone or write them at once, as your namewas selected to get one at the actual manufacturers cost. However, you must act immediately.

AMERICAN Gooll' HousEKEEPERS CLUB, 21o-5th Avenue, Suite 1102, New York City, Tel. Ashland 4-9221.

• • • • • • • • • • I recently bad the pleasure of selecting your name to receh·e a beautiful' new Dr, Simmons Health Inner-Spring Mattress for advertising purposes, and have instructed The Pioneer Mattre!':s Company, Spartanburg, S. C., to deliver this mattress to you at $10.95 which Is the actual manufacturers cost. This mattress retails for $39.50. • • • THE GREA'r NORTHERN' WOMEN'S CLUB • • • • • • • THE WORLD'S BEST INNER-SPRING MATTRESS :Made by PIONEER MATTRESS COMPANY CIJilAN, NEW, SANITARY, GERM AND VERMIN PROOF MATrRESS This mattress is plainly' labeled to retail for $39.50. During this campaign yoru can buy one for $14.95 and your old mattress. • • • AMERICAN GOOD HOUSEKEEPERS CLUB THIS OFFER WIIL NEVER HAPPEN AGAIN 586 FEDEltAL TRADE COMMISSION DECISIONS Complaint 33F.T.C.

PAR. 4. In addition to the foregoing representations, the respondent has made other representations to ·prospective purchasers of his prodnets, such representations bejng disseminated by means of circulars, letters, cards, and other advertising material distributed among pro- ~pective pur.chasers, by means of tags and labels attached to respondent's products, and by other means.

Among and typical of the statements and representations appearing in such advertising material are the following: • • • Your name carrying Number 9380, by the .American Good Housekeepers Club, 210--5th Avenue, New York City, N. Y., has been selected to recei,·e one of our beautiful new $39.50 Dr. Simmons Health Inner-Spring Mattresses for advertising purposes.

• • • • • • • PIONEER 1\fATrREss Co. • • • Here, now is a mattress designed to bring uncommon luxury into on&third of your life-one that will frankly spoil you for guest week-ends at the Joneses. .A deep, tempting come-to-bed mattress. This Dr. Simmons Inner- Spring mattress is nationally known. Recommended by the leading Women's Clubs and Is absolutely guaranteed for 15 years. During this campaign, you can save $27.55 on this mattress as our wholesale price is $16.9·5 and the attached coupon for $5.00 when properly endorsed by you brings the actual cost down to $11.95.

THE PIONEEH 1\!A'ITRESS Co.

By W. E. EVANS (Manager) SPARTANBURG, S. C., August 28th, 1939.

Dear Madam: We have selected your name to receive a beautiful new worlds BEST INNEHrSPRING YA'ITRESS for only $11.95 and your old mattress which will be passed.. on to the •needy, or sold• for junk. • • • •This mattress is plainly labeled to retail for $39.50. We absolutely guarantee the mattress to be all new material and to please you in every respect or we will refund you every penny of your money.

THE PIONEER 1\IA'ITREss Co.

(Label) This article contains all new materials. PAR. 5. Through the use of the foregoing representations, and others of similar import not specifically set out herein, the respondent has represented that his said mattresses are designed, sponsored or recommended by a physician; that the prospective purchaser's name has been selected or chosen on some basis, and that by reason thereof such prospective purchaser is given an opportunity to obtain one of respondent's mattresses at a special or reduced price which represents the actual cost of manufacture of such mattress; that such offer is open for a limited time only; that such offer is made in connection with a special advertising campaign; that respondent's mattresses are made entirely of new and unused materials; that such mattresses are germ proof PIONEER MATTRESS CO. 587 583 Complaint and vermin proof; that such mattresses are approved or recommended by various women's clubs.

PAR. 6. The foregoing representations are grossly exaggerated, false, and misleading. In truth and in fact, respondent's mattresses are not designed, spousored, or recommended by any physician. The use by the respondent of the legend "Dr." to designate his mattresses is within itself misleading and deceptive. The names of prospective purchasers are not selected or chosen on ~tny particular basis, but such names merely form a part of general mailing lists used by the respondent and by the respondent's advertising agency as aforesaid. The prices at which respondent's mattresses are offered for sale are not special or reduced prices, nor do they repr~sent only the cost of the manufacture of such mattresses. Such prices are in fact the regular and customary retail prices of respondent's mattresses. Such offers are not limited as to time, nor are they made in connection with any special advertising campaign.

In many cases respondent's mattresses are not made entirely of new or unused materials, but are made of used or second-hand materials. Respondent'B mattresses are neither germ proof nor vermin proof. They are not approved or recommended by any women's club. In truth and in fact, the names of the purported women's clubs appearing in respondent's advertising are wholly fictitious, the purported addresses of such clubs being the address of respondent's advertising agency.

PAR. 7. A further practice on the part of respondent is the use of fictitious price markings in connection with his products, such markings being placed on tags and labels attached to said products, and also inserted in other advertising material. ~\.among and typical of such price markings is the legend "$39.50" which the respondent uses in connection with certain of his mattresses. Through the use of this legend, the respondent represents that the. customary retail price of said mattress is $39.50, This representation is false and misleading, in that said mattresses have nevl:'r been sold at retail for $39.50 or for any price approximating such amount. In truth and in fact, the price at which said mattresses are customarily offered for sale and sold at retail in the normal and regular course of business is only about $10.95. PAR. 8. One of the competitors of the respondent, namely, Simmons · Co., has for many years manufactured and sold mattresses under the trade name "Simmons." Such mattresses have been nationally advertised under such trade name and are widely and favorably known among members of the purchasing public. The use by the respondent of the name "Simmons" to designate his products serves as a repre- Findings 33F.T.C sentation to the public that respondent's mattresses are the product of the Simmons Co. In truth and in fact, respondent's mattresses are not the product of said Simmons Co., and the use by the respondent of the name "Simmons" to designate such mattresses constitutes a false and misleading representation.

PAR. 9. The use by the respondent of the aforesaid acts and practices has the tendency and capacity to mislead and deceive a substantial portion of the purchasing public with respect,to respondent's products, and to induce such portion of the public to purchase substantial quantities of respondent's products as a result of such erroneous and mistaken belief.

PAR.lO. The aforesaid acts and practices of the respondent, as herein alleged, are all to the prejudice and injury of the public and constitute unfair and deceptive acts and practices in commerce within the intent and meaning of the Federal Trade Commission Act. REPORT, FINDINGS AS TO THE FACTS, AND ORDER Pursuant to the provisions of the Federal Trade Commission Act, the Federal Trade Commission, on April 5, 1941, issued and subsequently sened its complaint in this proceeding upon respondent 'Villiam E. Evans, an individual trading as Pioneer Mattress Co., charging him with the use of unfair anq deceptive acts and practices in commerce in violation of the provisions of said act. Subsequently, respondent filed his answer in which he admitted all the material allegations of fact set forth in said complaint and waived all intervening procedure and further hearing as to said facts. Thereafter, the proceeding regularly came on for final hearing before the Commission on the said complaint and the answer thereto, and the Commission having duly considered the matter and being now fully advised in the premises, finds that this proceeding is in the interest of the public and makes this its findings as to the facts and its conclusion drawn therefrom.

FINDINGS AS TO THE FACTS PARAGRAPH 1. Respondent William E. Evans is an individual trading and doing business under the name of Pioneer Mattress Co., with his office and principal place of business located at 980 Church Street, in Spartanburg, S.C.

PAR. 2. Respondent is now, and for more than 3 years last past has been, engaged in the manufacture, sale, and distribution of mattresses. Respondent causes his said products, when sold, to be transported from his aforesaid place of business in the State of South PIONEER MATTRESS CO. 589 583 Findings Carolina to purchasers thereof located in various other States o£ the United States and in the District o£ Columbia. Respondent maintains, and at all times mentioned herein has maintained, a course of trade in his said mattresses in commerce among and between the various States of the United States and in the District of Columbia. PAR. 3. In the course and conduct of his aforesaid business, and for the purpose of inducing the purchase of his products, the respondent entered into an agreement with an advertising or mailing agency located in the city of New York, under which agreement such agency prepared forms of advertising letters and cards and forwarded such forms to the respondent at his place of business in Spartanburg, S. C., for approval. The respondent had letters and cards printed from such forms and sent such letters and cards to said advertising agency, which proceeded to mail them to numerous prospective purchasers of respondent's products, the names and addresses of such prospective purchasers being supplied to said agency by the respondent. These advertising letters and cards bore the signatures of certain purported women's clubs, namely, "American Good Housekeepers Club" and "The Great Northern 1Vomen's Club." Among and typical of the statements and representations appearing in such advertising material are the following: LAST OPPORTUNITY ! FEBRUARY 4, 1939 DR. SIMMONS SPRING-FILLED MATTRESS MADE BY Pioneer Mattress Company Spartanburg, S. C.

HAS BEEN APPROVED BY us This mattress retails for $39.50. During this campaign you can buy one for $10.95 if you will phone or write them at once, as your name was selected to get one at the actual manufacturers cost. However, you must act immediately.

AMERICAN GOOD HOUSEKEEPERS CLUB 210-5th Avenue, Suite 1102, New Yorlt City, Tel. Ashland 4-9221 .

• • • • • • • • • • I recently had the pleasure of selecting your name to receive a beautiful new Dr. Simmons Health Inner-Spring Mattress for advertising purposes, and have instructed The Pioneer 1\Iattress Company, Spartanburg, S. C., to deliver this mattress to you at $10.95 which Is the actual manufacturers cost. This mattress retails for $39.50. • • • 43~5~6m--42--vol.33----38 Findings 33F.T.C.

THE GREAT NORTHERN WOMEN'S CLUB • • • • • • • THE WORLD'S BEST INNER-SPRING MATTRESS l\!ade by PIONEER MATTRESS COMPANY CLEAN, NEW, SANITARY, GERM AND VERMIN PROOF MATTRESS. This mattress is plainly labeled to retail for $39.50. During this campaign you can buy one for $14.95 nnd your old mattress. • • • AMERICAN GOOD HOUSEKEEPERS OLUB THIS OFFER WILL NEVER HAPPEN AGAIN PAn. 4. In addition to the foregoing representations, the respondent has made other representations to prospective purchasers o£ his products, such representations being disseminated by means o£ circulars, letters, cards, and other advertising material distributed among prospective purchasers, by means of tags and labels attached to respondent's products, and by other means.

Among and typical of the statements and representations appearing in such advertising material are the following: • • • Your name carrying Number 9380, by the American Good Housekeepers Club, 210-5th Avenue, New York City, N. Y., has been selected to receive one of our beautiful new $39.50 Dr. Simmons Health Inner-Spring Mattres>:es for advertising purposes.

• • • • • • • • • • Here, now is a mattress designed to bring uncommon luxury into onethh·d of your life--one that will frankly spoil you for guest week-ends at the Joneses. A deep, tempting come-to-bed mattress. This Dr. Simmons Inner- Spring mattress is nationally known. Recommended by the leading Women's Clubs and is absolutely guaranteed for 15 years. During this campaign, you can save $27.55 on this mattress as our wholesale pri<'e is $16.95 and the attached coupon for $5.00 when properly endorsed by you brings the actual cost down to $11.95.

THE PIONEER MATTRESS CO.

By W. E. Evans (Manager) Spartanburg, S. C.

August 28th, 1939 Dear Madam: We have selected your name to receive a beautiful new worlds BEST INNER-SPRING MATTRESS for only $11.95 and your old mattress which Will be passed on to the needy, or sold for junk. • • • • • • • This mattress is plainly labeleu to retail for $39.50. We absolutely guarantee the mattress to be all new material and to pl<'ase you in e~ery respect or we will refund you e~ery penny of your money.

THE PIONEER MATTRESS CO.

(Label) This article contains all new materials. PIONEER MATTRESS CO . 591 .583 Findings PAR. 5. Through the use of the foregoing representations, and others of similar import not specifically set out herein, the respondent has represented that his said mattresses are designed, sponsored, or recommended by a physician; that the prospective purchaser's name has been selected or chosen on some basis, and that by reason thereof such prospective purchaser is given, an opportunity to obtain one of respondent's mattresses at a special or reduced price which represents the actual cost of manufacture of such mattress; that such offer is open for a limited time only; that such offer is made in connection with a special advertising campaign; that respondent's mattresses are made entirely of new and unused materials; that such mattresses are germ proof and vermin proof; that such mattresses are approved or recommended by various women's clubs.

PAR. 6. The foregoing representations are grossly exaggerated, false, and misleading. In truth and in fact, respondent's mattresses are not designed, sponsored, or recommended by any physician. The use by the respondent of the legend "DR.'' to designate his mattresses is within itself misleading and deceptive. The names of prospective purchasers are not selected or chosen on any particular basis, but such names merely form a part of general mailing lists used by the respondent and by the respondent's advertising agency as aforesaid. The prices at which respondent's mattresses are offered for sale are not special or reduced prices, nor do they represent only the cost of the manufacture of such mattresses. Such prices are in fact the regular and customary retail prices of respondent's mattresses. Such offers are not limited as to time, nor are they made in connection with any special advertising campaign.

In many cases respondent's mattresses are not made entirely of new or unused materials, but are made of used or second-hand materials. Respondent's mattresses are neither germ proof nor vermin proof. They are not approved or recommended by any women's club. In truth and. in fact, the names of the purported women's clubs appearing in respondent's advertising are wholly fictitious, the purported addresses of such clubs being the address of respondent's advertising agency.

PAn. 7. A further practice on the part of respondent is the use of fictitious price markings in connection with his products, such markings being placed on tags and labels attached to said products, and also inserted in other advertising material. Among and typical of such price markings is the legend "$39.50" which the r<>spondent uses in connection with certain of his mattresses. Through the use of this legend, the respondent represents that the customary retail price of Raid mattress is $39.50. This representation is false and misleading, Ordel! 33 F. 'f. C. in that said mattresses have never been sold at retail for $39.50 or for any price approximating such amount. In truth and in fact, the price at which said mattresses are customarily offered for sale and sold at retail in the normal and regular course of business is only about $10.95. PAR. 8. One of the competitors of the respondent, namely, Simmons Co., has for many years manufactureq and sold mattresses under the trade name "Simmons." Such mattresses have been nationally advertised under such trade name and are widely and favorably known among members of the purchasing public. The use by the respondent of the name "Simmons" to designate his products serves as a representation to the public that respondent's mattresses are the product of the Simmons Co. In truth and in fact, respondent's mattresses are not the product of said Simmons Co., and the use by the respondent of the name "Simmons" to designate such mattresses constitutes a. false and misleading representation.

PAR. 9. The use by the respondent of the aforesaid acts and practices has the tendency and capacity to mislead and deceive a substantial portion of the purchasing public with respect to respondent's products, and to induce such portion of the public to purchase substantial quantities of respondent's products as a result of such erroneous and mistaken belief.

CONCLUSION . The aforesaid acts and practices of the respondent as herein found are all to the prejudice and injury of the public and constitute unfair and deceptive acts and practices in commerce within the intent and meaning of the Federal Trade Commission Act. ORDER TO CEASE AND DESIST This proceeding having been heard by the Federal Trade Commission upon the complaint of the Commission and the answer of respondent, in which answer respondent admits all the material allegations of fact set forth in said complain.t and states that he waives all intervening procedure and further hearing as to said facts, and the Commission having made its .findings as to the facts and conclusion that said respondent has violated the provisions of the Federal Trade Commission Act.

It is ordered, That the respondent, William E. Evans, individually and trading as Pioneer Mattress Co., or trading under any other name, his representatives, agents, and employees, directly or through any corporate or other device, in connection with the offering for sale, sale and distribution of mattresses in commerce, as "commerce" is defined PIONEER MATTRESS CO. · 593 .583 Order in the Federal Trade Commission Act, do forthwith cease and desist from:· 1. Using the word "Doctor" or the abbreviation "Dr." to designate, describe or refer to respondent's products, or otherwise representing that respondent's products are d.esigned, sponsored, or recommended by any physician.

2. Using the word "Simmons," alone or in conjunction or connection with any other word or words, to designate, describe or refer to respondent's products, or otherwise representing that respondent's products are products of the concern known as Simmons Company. 3. Soliciting the purchase of respondent's products through the use -of offers which purport to have originated with women's clubs or -organizations sponsoring respondent's products. 4. Representing that respondent's products are approved or recommended by any women's club or organization. 5. Representing as the customary or regular retail prices of respondent's products prices which are in excess of the prices at which such pr~ducts are regularly and customarily sold by respondent at retail in the normal and usual course of business. 6. Representing that the prices at which respondent offers his products for sale are special or reduced prices, or that such prices are llpplicable for a limited time only, or that such prices are for advertising purposes, or that such pric~s represent only the cost of the manufacture -of such products, when in fact such prices are the usual and customary prices at which respondent sells his products at retail in the normal and usual course of business.

7. Representing that the names of prospective purchasers which are taken from general mailing lists are "selected," and that such prospective purchasers may obtain respondent's products at prices less than the prices at which such products are customarily sold. 8. Representing that products which contain any used or secondhand materials are made entirely of new or unused materials. • 9. Representing that respondent's products are germ proof or vermin proof.

It i..~ further ordered, That the respondent shall, within 60 days after servic~ upon him of this order, file with the Commission a report in writing, setting forth in detail the manner and form in which he has complied with this order.

Syllabus 33 F. T. C.