S. Buchsbaum & Co.

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S. BUCHSBAUM & CO.

COMPLAINT, FINDINGS, AND ORDER IN REGARD TO THE ALLEGED VIOLATION OF SEC. 5 OF AN ACT OF CONGRESS APPROVED SEPT 26, 1914 Docket H50. Complaint, Jan. 25, 1941-Dccisirm, Nov. 23,)943 Where a corporation engaged in the manufacture and interstate sale anu distribution of men's access<lries, including suspenders, belts, garters, wristwatch bands, key chains, raincoats, and other similar merchandise made from "vlnyllte," a resinous derivative of vinyl with an added plasticizer- Represented through use of trade name, "Elasti-Giass," to designate and describe its said products, and through advertisements in newspapers and other periodicals, form letters, and other advertising material, that its said products were made of glass, as understood by the general public, processed In such a manner as to give It elastic properties; The facts being plastic material In question had none of the characteristics of glass other than that of transparency; it had a molding temperature of about 120• to 130• C. as compared to that of common glass, which Is about soo• to ooo• C. higher; it differed from glass also In that lt did not have a highscratch hardness, low-water abs<Jrptlon or high-softening and decomposition point; and differed along with other similar synthetic resinous compounds, and so 'greatly In composition, methods of manufacture and x;•operties froiD common glass as to constitute a separate division of chemical technology; With capacity and tendency to mislead and deceive a substantial portion of the purchasing public into the erroneous belief that the products so designated were made from common glass processed to make lt pliable and elastic, and to cause them to purchase its products because of such mistaken belief: Held, That said acts and practices, under the circumstances set forth, were all to the prejudice and' injury of the public, and constituted unfair and deceptive acts and practices ln commerce.

Before Mr. 0 harles A. Vilas, trial examiner. Mr. Eldon P. Schrup, Mr. D. 0. Ddniel, and Mr. James W. Cassedy for the Commission.

Moses, Kennedy, Stein & Bachrach, of Chicago, Ill., for respondent. CollrPLAINT PtJrsuant 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 S. Buchsbaum & Co., a corporation, hereinafter referred to as respondent, has violated the provisions of the 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 re:;:pect as follows:

S. BUCHSBAUM & CO. 603 602 Complaint PARAGRAPH 1. Respondent, S. Buchsbaum & Co., is a corporation, organized, existing and doing business under and by virtue of the laws of the State of Illinois with its principal office and place of business located at 243 East Huron Street, in the city of Chicago, State of Illinois.

Said respondent operates a factory located at said address, wherein are manufactured various men's accessories, including suspenders, belts, garters, wrist-watch bands, key chains, raincoats, and allied :merchandise, made from "Vinylite," an organic material of glass-like appearance.

Respondent is now, and for more than 1 year last past has been, engaged in the sale and distribution of said merchandise in com- Dlerce among and between the various States of the United States and in the District of Columbia. Respondent causes said merchandise, When sold, to be transported from its place of business in the State of Illinois to purchasers t:j:lereof located in various States of the 'United States other than the State of Illinois, and in the District of Columbia.

Respondent now maintains and at all times mentioned herein has maintained a course of trade in said merchandise sold and distributed by it in commerce among and between the various States of the 'United States and in the District of Columbia. . PAR. 2. "Vinylite" is the registered trade-mark of a chemically n1anufactureq plasticized resinous material resembling glass, purchased by respondent in the form of pliable, clear or colored, transl?arent or translucent, semielastic sheets, which after further processing, respondent converts into various of the afore-described men's accessories. Articles of men's accessories manufactured by respondent from said material are advertised, offered for sale and sold by respondent, as being made of "Elasti-Glass," respondent's trade name for the material so used.

PAn. 3. Processes for the fabrication of inorganic glass into lnaterials suitable for use in the manufacture of various men's acces- Sories, as well as women's accessories and household furnishings, have been developed and are now in process of being developed at considerllb]e expense by various members of the glass industry. Many such articles of merchandise made from inorganic glass materials have already been manufactured and amidst wide publicity have been and , lire being marketed and sold to the public, long accustomed to the worth nnd the use of glass.

PAn. 4. Respondent in nid of the sale and distribution of its mer- (·hnndise made from "Vinylite" and in the conduct of its business in the course of trade in commerce as aforesaid, has inserted or caused to be Complaint 37 I<'. T. C. inserted in various magazines and periodicals having interstate circulation, certain advertisements illustrative of the men's accessories made by respondent from "Vinylite." Said advertisements conspicuously state that such products are made of "Elasti-Glass," "science's latest miracle," picture the transparency of said material, state it to be elastic in action and further ascribe to it many of the properties commonly associated with glass such as among others, durability and imperviousness to water and moisture. Many of such advertisements quote the retail prices of such accessories and contain printed coupons to be filled out and mailed directly to respondent's Chicago address in purchase of such products.

Respondent, by means of its salesmen and through use of the United States m,ails, also disseminates like advertisements by describing to and furnishing retail merchants located throughout the United States nrious advertising mats, advertising copy and other materials containing illustrations and statements of similar import and effect and thereby causes the further dissemination of such advertisements in the newspaper advertising and other adverti~ing media employed by such merchants. Respondent awards premiums to retail mez:chants for such forms of advertising and by means of circular letters addressed to its representatives calling on said retail merchants, explanatory and descriptive of "Vinylite" imd its process of manufacture, further es· pressly stresses that such material is a form of glass. PAR. 5. Respondent through and by means of the said illustrations, htatements, and claims set forth in its magazine and periodicnl adver· tisements, advertising mats, advertising copy, circular letters, and other materials, represents and implies, and causes to be represented and implied, to the purchasing public and to retail merchants purchas· ing respondent's said merchandise for resale, and through and by means of such merchants' advertising media, has further caused and causes to be stated, represented and implied to the purchasing public, that articles of men's accessories made of Vinylite and designated by re· spondent as made of Elasti-Glass, are made and constructed of glass. Respondent's said statements, representations, and implications made and caused to be made, as aforesaid, with reference to the mantt· facture, construction and materials contained in respondent's articles of men's accessories made of Vinylite are grossly exaggerated, false, misleading, and deceptive.

In truth and in fact respondent's articles of men's accessories made . of Vinylite contain no glass whatsoever, for the product· known ns Vinylite is not a glass but rather is a product made by the heating and mixing of petroleum or coal and srrlt with a special catalytic agent and chemicals to induce the formation of certain gnsPs and disti11atcs, . S. BUCHSBAUM & CO. 605 602 Findings which in cooling results m the synthetic resm product known as Vinylite.

PAR. 6. Respondent's said statements, representations, and implications to retail merchants and to the purchasing public, made and disseminated as aforedescribed, have had and now have the capacity and tendency to and do mislead and decei \"e a substantial number of such merchants and the purchasing public into the erroneous and mistaken impression that the statements and rei)resentations contained in respondent's magazine and periodical advertisements and in respondent's advertising mats, advertising copy, circular letters, and other materials furnished such merchants, and in such merchants' newspaper and other advertising m£>dia, are true, and many merchants arid members of the purchasing public have been and are induced to purchase respondent's aforesaid products, made of Vinylite, under the mistaken and errone-. ous belief that such products are made of glass. Respondent's said acts and practices, as hereinabove detailed, place in the hands of retail merchants a means and instrumentality whereby. in the sale of respondent's said products such merchants may mislead and deceive the purchasing public in the maimer hereinbefore described.

PAn. 7. The aforesaid acts and practices of the respondent as herein alleged are all to the prejudice and injury of .the public and comtitnte llllfnir and deceptive acts and practices in commerce within the intent and meaning of the Federal Trade Commission Act. REPORT, FnmiNGS AS TO THE FAcrs, AND ORDER Pursuant to the provisions of the Federal Trade Commission Act, the Federal Trade Commission on January 25, 1941, issued and subsequently served its complaint in this proceeding upon the respondent, S. Buchsbaum&. Co., a corporation, charging it with the use of unfair and deceptive acts and practices in commerce in violation of the prol'isions of said act. After the issuance of said complaint and the filing of respondent's answer thereto, testimony and other evid£·nce in ~Support of and in opposition to the allegations of said complaint were 11ltroduced before trial examiners of the Commission theretofore duly designated by it, and said testimony and other evidence were duly tecor·ded until filed in the office of the Commission. Thereafter, this l1toceeding regularly came on for final hearing before the Commission on said complaint, answer thereto, testimony and other evidence, report of Trial Examiner Charles A. Vilas upon the evidence and ll>;::cpptions filed thereto, briefs in support of the complaint and in 0l)l>position thereto, and oral argument of counsel; and the Commission, Findings 37F ..T. C.

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, S. Buchsbaum & Co., is a corporation, organized, existing, and doing business under and ,by virtue of the laws 'of the State of Illinois, with its principal office and place of busi· ness located at 243 East Huron Street in the city of Chicago, State of Illinois.

Said respondent is engaged in the manufacture and in the sale and distribution of men's accessories, including suspenders, belts, garters, wrist-watch bands, key chains, raincoats, and other similar merchan· elise, under the trade name "Elasti-Glass." Respondent causes said merchandise, when sold, to be transported from its place of business in the State of Illinois to purchasers thereof located in various other States of the United States and in the District of Columbia. Re· spondent maintains, and at all times mentioned herein has maintained, a course of trade in said merchandise in commerce among and between the various States of the United States and in the District of Columbia. PAR. 2. In the course and conduct of its said business and for the purpose of inducing the purchase of its various products, the re· spondent has represented that its various products are made of glass through the use of the trade name "Elasti-Glass" to designate and describe such products, and also through statl:'ments and representa· tions which respondent has inserted and caused to be inserted in various advertisements in magazines, newspapers, and other periodicals and in form letters and other advertising material. PAn. 3. The various products sold and rlistributed by the respondent under the trade name "Elasti-Glass" are made from a resinous ma· teri~l, a derivative of vinyl, which is sold unuer the trade name of "vinylite" and to which a plasticizer has been added. Vinylite is a· plastic material which can be worked .and molded into definite shapes under mechanical stress and which retains its shape after being formed· Respondent processes and molds this material into v~rious belts, sus· penrlers, and other articles of merchandise. . PAR. 4. Glass as understood and recognized by the general pubh0 is a hard, transparent,·brittle material, with a relatively high-softeJl• ing point, and is substantially insoluble in water and organic solvents and is noninflammable in the usual sense. Titis is the common glnsS found in window panes, tumblers, and bottles. For centuries th~ 9 glass has been made with ~ilica combined with soda and lime nnd 19 a product of fusion.

S. BUCHSBAUM & CO. 607 602 Conclusion PAR. 5. The use by the respondent of the term "Elasti-Glass" conveys to members of the purchasing public the impression that such articles consist of common glass processed in such a manner as to give it elastic properties.

PAR. 6. The plastic material used by the respondent in the manufacture of its products has none of the characteristics of glass as recognized and understood by the general public, other than that of transparency. It has a molding temperature of about 120° to 130° C., as ~compared to that of common glass, which is about 800° to 900° C. or higher. This material also differs from ordinary glass in that it does not have a high-scratch hardness, low-water absorption, or high-softening and decomposition point.

PAR. 7. In the course of the hearings in this case a considerable amount of scientific testimony was introduced, most of which was of a controversial nature relative to the properties of special glasses and the similarity in some respects between resinous compounds and glass. The Commission has given consideration to this scientific testimony "lind in addition has considered the additional exhibits identified in the respondent's memorandum in support of its motion to introduce -additional exhibits. Based upon the testimony and other evidence in this record, the Commission finds that respondent's products are not glass as understood by the purchasing public. Vinylite and other liimilar synthetic resinous compounds differ so greatly in composition, lnethods of manufacture, and properties from those substances comtnonly known as glass that they constitute a separate division of ~chemical technology.

PAR. 8. The use by the respondent of the term "Elasti-Glass" to designate and describe its products and the use of statements and representations in advertising material which represent that respondent's Products are made of glass, have a capacity and tendency to mislead and deceive a substantial portion of the purchasing public into the ~rroneous and. mistaken belief that the products so designated and represented are made from common glass specially processed in some manner to make it pliable and elastic, and to cause them to pur- (;hase respondent's products. because of such erroneous and mistaken belief.

CONCLUSION · The aforesaid acts and practices of the respondent, as herein found, are aU to the prejudice and injury of the public and constitute unfair ~ttd d.eceptivc acts and practices in commerce within the intent and lneaning of the Fed('rnl Trade Commission Act. Order 37F.T.C.

ORDER TO CEASE AND DESIST This proceeding having been heard by the Federal Trade Commission upon the complaint of the Commission, answer of the respondent, testimony, and other evidence in support of and in opposition to the allegations of said complaint taken before trial examiners of the Commission theretofore duly designated by it, briefs in support of the complaint and in opposition thereto, and oral argument of counsel; and the Commission having made its findings as to the facts and its conc.lusion that said respondent has violated the provisim1s of the Federal Trade Commission Act: ' It is ordered, That the respondent, S. Buchsbaum & Co., a corporation, and its officers, representatives, agents, and employees, directly or through any corporate or other device in connection with the offering for sale, sale, and distribution of men's accessories, including suspenders, belts, garters, wrist-watch bands, key chains, raincoats, and other similar articles of merchandise, in commerce as "commerce" is defined in the Federal Trade Commission Act, do forthwith cease and desist from: ' 1. Using the term "Elasti-Glass" or any other term containing the word "glass" to designate or describe any article of merchandise made of the material vinylite or any other similar synthetic resinous compound.

2. Representing in any manner, either directly or by implicationt that any article of merchandise made of .vinylite or any other simil•1r synthetic resinous compound is made of glass. It is further ordered, 'Ihat the respondent shall, with 60 days after 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 with this order. · J. SILVERMAN AND ASSOCIATES, ETC. 609 Syllabus