Chocolate Products Co

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IN THE }fatter OF CHOCOLATE PRODUCTS COMPANY COMPLAINT, FINDINGS, AND ORDER IN REGARD TO Tile ALLEGED VIOLATION OF SEC. S OF AN ACT OF CONGRESS APPROVED SEPT. 26, 1914 Docket 4371. Complaint, Nov. 8, 19-}0-Deciaion, Dec. 4, 1941 'Where a corporation engaged In the manufacture, and in the interstate sale and distribution of a chocolate syrup product, formerly called "Stillicious Vitamin A, B, D'' and thereafter "Stillicious Vitamin," allegedly containing vitamins A, B, D, and G, to wholesalers and retailers in small cans or containers for resale to public, and in large quantities to dairies which made use thereof in making bottled chocolate drinks sold to the public under tbe trade name "Stilliclous,'' pursuant to agreements with said corporation; directly or by implication- Itepresented that said chocolate drinks made by dairies, were made with milk, and that its product, because of its vitamin A content, helped to build resistance to colds and infection, through such advertising as "MY Goodness [picture of cow head] MORE Vitamin B. STILLICIOUS Vitamin B. Chocolate Contains Dextrose and Levlllose [picture of. milk bottle and glass, both with 'Stillicious' th<:!reon]," "And now, with St!.Uicious Vitamin A, B, D Chocolate Syrup, we offer today's big Vitamin bargain, A 20-oz. tin "' "' "' contains an extra supply of Vitamin A to help build resistance to colds and infection";

'rhe facts being the chocolate beverage in question did not contain milk as understood by the purchasing public, 1. e., milk from which no part of the cream had been removed, but contained skim milk or a mixture of whole and skim milk, and its said products did not help build resistance to colds or infection, even in exceptional cases involving a recognizable deficiency of vitamin A, quantity of which in its product was insufficient to overcome such deficiencies or afford any substantial assistance in building resistance to colds or infection;

'With effect of misleading and deceiving a substantial portion of. tbe purchas-' lng public with respect to the properties of. said product and the content of beverages made therewith, and thereby inducing it to purchase substantial quantites of said product and beverages made therefrom, and with further e:ffect of placing in the bands of uninformed or unscrupulous dealers and dairies means and instrumentalities whereby they were enabled to mislead and deceive the public:

1iela, That such acts practices were all to the prejudice and injury of the public and competitors, and constituted unfair anu deceptive acts and practices In commerce.

Before Mr. Andrew B. Duvall, trial examiner. Mr. Maurice 0. Pearce and Mr. John M. Russell for the Commission.

11/r. John B. /1 osty, of Chicago, Ill., for respondertt. Complaint 34F. T. C.

Complaint Pursuant to the provisions of 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 Chocolate Products Co., a corporation, 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, Chocolate Products Co., is a corporation organized, existing, and doing business under and by virtue of the laws of the State of Illinois, having its office and principal place of business at 415 West Scott Street, in the city of Chicago, in the State of Illinois.

PAR. 2. Respondent, Chocolate Products Co., is now and has been for more than 2 years last past, engaged in the business of manufacturing, selling, and distributing a certain chocolate syrup product formerly called "Stillicious Vitamin A, B, D," now designated "Stillicious Vitamix," alleged to contain vitamins A, B, D, and G. Respondent sells its product in small cans or containers to wholesaJe and retail dealers, and such retail dealers resell said product to the public. Respondent also sells its product in large quantities to dairies, which use said product in making bottled chocolate drinks or beverages which, pursuant to agreement with respondents, are sold to the public under the trade name "Stillicious." , Respondent causes its said product when sold to be transported from its place of business in the State of Illinois to the purchasers .thereof at their respective points of location 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 its said product in commerce between and among the various States of the United States and in the District of Columbia. PAR. 3. In the course and conduct of its aforesaid business, the respondent has disseminated, and is now disseminating, and has caused, and is now causing the dessemination of, false advertisements, concerning its said product by the United States 'mails, and by various other means in commerce, as commerce is defined in the Federal Trade Commission Act; and respondent has also disseminated and is now disseminating, and has caused and is now causing the dissemination of, false advertisements concerning its said product, by various means, for the purpose of inducing and which are likely to induce, directly or indirectly, the purchase of its said product in commerce, CHOCOLATE PRODUCTS CO. 277 275 Complaint .as commerce is defined in the Federal Trade Commission Act . .Among, and typical of, the false, misleading, and deceptive statements .and representations contained in said false advertisements, disseminated and caused to be djsseminated, as hereinabove set forth, by the. 1Inited States mails, by radio continuities· and by counter display ·cards, circulars, and other advertising literature are the following: My goodness ( PiC'turf' of and MORE Vitamin B cow's head) STILLICIOUS Vitamin B. Chocolate Contains (Picture of milk bottle and glass, Dextrose and Levulose. hotb with "Stillicious" thereon.) .A.nd now, with Stillicious Vitamin A., B, D, Chocolate Syrup,' we offer today's :big vitamin bargain. A. 20-oz. tin, costing only 35¢, contains an extra supply of V'vitamin A. to help build resistance to colds and infection. PAn. 4. Through the use of the aforesaid representations and others ·of similar import not specifically set out herein, the respondent represents, directly or by implication, that the said chocolate drinks or beverages made by said dairies with respondent's product and sold by said dairies under the name "Stillicious" are made with milk; that respondent's product, by reason of its Vitamin A content, helps .to build resistance to colds and infection. PAR, 5. The foregoing representations are grossly exaggerated, false, and· misleading. In truth and in fact, the drinks made and sold by said dairies as aforesaid do not contain milk. The term "'':milk" denotes whole milk, that is, milk from which no part of the cream or butterfat content has been removed, and such term is so Understood by the purchasing public. The further understanding of the public is that the milk content of a chocolate beverage pur- ~orting to be made with milk is entirely 'Whole milk. In truth and In fact, the milk content of the beverages made by said dairies with i~e respondent's product is not in any case whole milk, but is skimmed llnlk or a mixture o£ whole milk and skimmed milk • . Respondent's product does not help to build resistance to colds or 1~:fection. Even in the exceptional cases where members of the pubhe are suffering from a recognizable deficiency of vitamin A, the ·quantity thereof in respondent's product is insufficient to overcome such deficiency or aff,ord any substantial assistance in building resistance to colds or infection.

P Alt. 6. The acts and practices of the respondent have the tendency nnd capacity' to, and do, mislead and deceive a substantial portion of the purchasing public with respect to the properties of respondent's ·product and with respect to the content of the beverages made with 278 FEDERAL TRADE CO:li.IMISSION DECISIONS Findings 341!'.T.C. such product. As a result, the purchasing public has been induced to purchase, and has purchased, substantial quantities of said product and beverages. The respondent's acts and practices serve also to place • iu the hands of uninformed or unscrupulous dealers and dairies means and instrumentalities whereby such dealers and dairies are enabled to n~mislead and deceive the purchasing public. PAR. 7. 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 November 8, A. D. 1940, issued and thereafter served its complaint in this proceeding upon the respondent, Chocolate Products Co., a corporation, charging it with unfair and deceptive acts and practices in commerce, in violation of the provisions of said act. After the issuance of the complaint and the filing of respondent's answer thereto, evidence in support of the allegations of the complaint was introduced by Maurice C. Pearce, attorney for the Commission, before Andrew B. Duvall, a duly appointed trial exam· iner of the Commission designated by it to serve in this proceeding; and John B. Hasty, attorney for the respondent, in a stipulation en· tered on the record, admitted on behalf of respondent all the material :facts alleged in the complaint. The evidence and the stipulated facts were duly recorded and filed in the office of the Commission. There· after, the proceedings regularly came on for final hearing before the Commission on the complaint, the answer thereto, the evidence and stipulated facts, the report of the trial examiner thereon, and brief filed on behalf of the Commission. 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. The respondent, Chocolate ·Products Co., is a cor· poration duly organized under the laws of the State of Illinois, having its principal place o£ business at 415 West Scott Street, in the city of Chicago, in the State o£ Illinois.

PAR. 2. Respondent is now, and for more than 2 years last past ·has been, engaged in the business of manufacturing, selling, and distributing a chocolate syrup product formerly called "Stillicious CHOCOLATE PRODUCTS CO. 279 275 Findings Vitamin A, B, D," and now designated "Stillicious Vitamix," alleged ~o contain vitamins A, B, D, and G. Respondent sells its product ln small cans or containers to wholesale and retail dealers, and such retail dealer_s resell said product to the public. Respondent also Sells its product in large quantities to dairies, which use the same in Inaking bottled chocolate drinks or beverages, which, pursuant to agreements with respondent, are sold to the public under the trade name "Stillicious." ltespondent causes its said product, when sold, to be transported from its place of business in the State of Illinois to the purchasers thereof at their respective points of location in V"arious 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 its said product, in commerce between and among the various States of the United States and in the District of Columbia.

P .AR. 3. Respondent, in the course and conduct of its business, has disseminated and is now disseminating, and has caused and is now causing the dissemination of, .false advertisements concerning its Product, by means of the United States mail and by various other lneans, in commerce as "commerce" is defined in the Federal Trade Commission Act, and respondent has also disseminated and is now disseminating, and has caused and is now causing the dissemination of false advertisements, concerning its product, by various means, for the purpose of inducing and which are likely to induce, directly ?r indirectly, the purchase of its product in commerce as "com:merce" ls defined in the Federal Trade Commission Act. Among and typical of the false, misleading, and deceptive statements and representations contained in said false advertisements disseminated and caused to be disseminated .as herein set forth, by means of the United ~states mail, by radio continuities, and by counter display cards, Clrculars, and other advertising literature, are the following: My Goodness (picture of cow head) MORE vitamin B STILLICIOUS Vitamin B. Chocolate. Contains (Picture of mille bottle and glass, both Dextrose and Levulose. with "Stil!icious" thereon). And now, with Stlllicious Vitamin A, n, D Chocolate syrup, we offer today's big Vitamin bargain. A 20-oz. tin, costing only 35¢ contains an extra supply of Vitamin A to help build resistance to cohls and infectlop, PAR, 4. Respondent, through use of the aforesaid representations, and others of similar import, represents directly or by implication that the chocolate drinks or beverages made by said dairies or dealers with respondent's product, and sold by them under the name ''Stillicious," are made with milk, and that respondent's product, by Order 34F'.T. C.

means of its vitamin A content, helps to build resistance to colds and infection.

PAR. 5. The foregoing representations are grossly exaggerated, false, and misleading. In truth and in fact, the drinks made and sold by said dairies as aforesaid do not contain milk. The terlll "milk" denotes wh.ole milk, that is, milk from which no part of the cream or butterfat content has been removed, and such term is so· understood by the purchasing public. The public further understands that the milk content of a chocolate beverage purporting to be made of milk is of entirely whole milk. In truth and in fu,ct, the milk content of the beverages made by said dairies with respondent's product is not in -any case whole milk, but is skim milk or a. mixture of whole milk and skim milk.

Respondent's products do not help to build resistance to colds or infection even in the exceptional cases where members of the public are suffering from a recognizable deficiency of vitamin A; the quantity of said vitamin in respondent's product is insufficient to overcome such deficiencies, or affor:d any substantial assistance in building resistance to colds or infection.

PAR. 6. The acts and practices of the respondent as herein set forth have the tendency and capacity to, and do, mislead and decei"e a substantial portion of the purchasing public with respect to the properties of respondent's product and with respect to the content of the beverages made with said product. As a result, the purchasing public has been induced to purchase and has purchased substantial quantities of respondent's product and of said beverages. The respondent's said acts and practices serve also to place in the hands of uninformed or unscrupulous dealers and dairies means_ and instrumentnlities whereby such dealers and dai~ies are enabled to mislead ·and deceive the public.

CONCLUSION The aforesaid acts and practices of the respondent are all to the prejudice and injury of the public and of respondent's competitors, 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, the answer of respondent~ evidence introduced before a duly appointed trial examiner of the Commission designated by it to serve in this proceeding and the CHOCOLATE PRODUCTS CO. 281 275 Order stipulation as to the facts entered into by the attorney for the Comlnission and the attorney for the respondent, the report of the trial ex:aminer thereon and brief filed on behalf of the Commission, and the Commission having made its findings as to the facts and its conclusion that the respondent, Chocolate Products Co., a corporation, has violated the provisions of the Federal Trade Commission Act: It is ordered, That the respondent, Chocolate Products Co., a cor- ~oration, its. officers, directors, agents, representatives, and employees, Jointly and severally, directly or through any corporate or other device, in connection with the offering for sale, sale, and distribution of its chocolate syrup product, or any similar or like product sold Under;r the name "Stillicious Vitamin A, B, D," or "Stillicious Vita- . lnix:," or under any other name or designation, do forthwith cea~e and desist from directly or indirectly- !. Dissemina_ting or causing to be disseminated any advertisement by means of the United States mail, or by any means, in commerce, as "commerce" is defined in the Federal Trade Commission Act, Which advertisement represents, directly or by implication, by means of pictorial representations, or in any other manner, that chocolate drinks or beverages .made by dairies or other producers with respondent's product are made with whole milk or milk, when such drinks or beverages are made with skim milk or skim and whole milk, or Which advertisement represents that the vitamin content of respondent's product helps to build resistance to colds and infection: Provided, however, That this order shall not prohibit respondent from Using the term "milk'' to describe the aforesaid drinks or beveraO'ea When such term is properly and accurately qualified. ' o 2. Disseminating or causing to be disseminated any advertiselnent, by any means, for the purpose of inducing or which is likely to induce, directly or indirectly, the purchase in commerce as "comlnerce" is defined in the Federal Trade Commission Act, of respondent's product, which advertisement contains any of the representations Prohibited in paragraph 1 hereof.

It is furt~r O'rdered, That the respondent shall, within 60 days after the service upon it of this order, file with the Commission a report in writing, setting' forth in detail the manner and form in Which it has complied wicl1 this order.

Complaint 34F. T. C.