Greenberg, Harry

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

IN THE 1fatter OF HARRY GREENBERG, TRADING AS PIONEER SPECIALTY COMPANY AND CANDYLAND COMPANY COMPLAINT, FINDINGS, AND ORDER IN REGARD TO THE ALLEGED VIOLATION OF SEC. 6 OF AN ACT OF CONGRESS APPROVED SEPT. 26, 1914 Docket 5128. Complaint, Feb. 5, 194-4--Decision, Sept. 14, 1944- Where an individual engaged in interstate sale and distribution of candy to dealers, including its "General MacArthur" packages which retailed for 5~, and its "U. S. Navy Warships," "U. S. \Varplanes" or "Remember Pearl Harbor" which retailed at 1¢ each- Offered and sold said packages in cartons of substantially greater size than necessary and which, in case of first, with dimensions of 1" X 3" X 5" included several pieces of candy taffy and a toy of infinitesimal value, and in the other cases, with dimensions of 1Y2" X 2" X 3'', contained a few pieces of candy of the size of a small bean and a toy or novelty of no appreciable va.lue; With effect, through such employment of said "slack filling" practice, of misleading and deceiving a substantial portion of the buying public into the erroneous belief ithat said packages or containers were fill!!d to capacity and contained the quantity of candy indicated by their capacity, and into the purchase of said candy in reliance upon such erroneous "beli<'f, and of placing in the bands of retail S<'llers the means whereby to mislead and deceive members of the purchasing public: lleld, That said acts and practices,' under the circumstances above set forth, were all to the prejudice and inju~y of the public and constituted unfair and deceptive acts and practices in commerce. · 1\fr. J. tv. Brookfield, Jr. for the Commission. 1\fr. I. Zimmerman, of New York City, .for respondent. 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 Harry Greenberg, an individual, trading and doing business under the name of Pioneer Specialty Co. and Candyland 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 interest of the public, hereby issues its complaint, stating its charges in that respect as follows: PARAGRAPH 1. Respondent, Harry Greenber~, is an individual, trndinl!: and doing business under the names of Pioneer Specialty Co. and Candyland Co. with his principal office and place of business located at 38 Crosby Avenue, Drooklyn, N.Y. Re~pondent is now and for more than one year last past has been engaged in the sale and distribution of candy to dealer~. Re~pondent causes and has caused his said candy when sold to be shipped or transported from his aforesaid place of business in the State of Kew York to purchasers thereof at their respective points of location in various PIONEER SPECIALTY CO., ETC. 189 188 Findings other States of the United States and in the District of Columbia. There is now and has been for more than one year last past a course of trade by respondent in such candy in commerce between and among the various States of the United States and in the District of Columbia. PAR. 2. In the course and conduct..of his business a~ aforesaid, respondent has sold and offered for sale candy packaged in cardboard containers in the following manner. One of respondent's said packages of candy labeled "General MacArthur" and retailing for 5¢, is packed in a cardboard carton 1" X 3" X 5", said carton containing five or six small pieces of candy taffy and a toy of infinitesimal value. The carton in which said candy is packed is substantially larger than necessary to contain the amount of candy therein packed. Others of respondent's packages of candy labeled "U.S. Navy ·warships," "U.S. Warplanes" or "Remember Pearl Harbor" and retailing for 1¢ each, consist of a few pieces of candy of the size and shape of a small bean and a toy or novelty of no appreciable value which are packed in a carton 1Y2" X 2" X 3" in dimension, said cartons being of substantially greater size than is necessary to contain the candy and novelty.

Thus said containers of candy when offered for sale and sold to the purchasing public are not filled to capacity and the quantity of candy contained therein is substantially less than the capacity of said cartons or contaiMrs. The practice of using over-size containers or cartons is known in the trade and generally as "slack filling" and has the force and effect of tnisleading and deceiving members of the purchasing public with respect to the quantity of candy contained in such packages. PAR. 3. The aforesaid acts and practices of the respondent have had, and have, the tendency and capacity to, and do, mislead and deceive a substantial por.tion of the purchasers and prospective purchasers, membex:s of the buying public, into the false and erroneous belief that said packages or containers are filled to capacity, and contain the quantity of candy indicated by the capacity of said containers, and into the purchase of said candy in reliance upon such erroneous belief. The said practices further place in the hands of retail sellers the means whereby to mislead and deceive members of the purchasing public.

PAR. 4. The aforesaid acts and practices of 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 February 5, 1944, issued and subsequently served its complaint in this proceeding upon the respondent named in the caption hereof, charging him with the use of unfair and deceptive acts and Practices in commerce in violation of the provisions of said act. After the issuance of said complaint, respondent filed his answer thereto admitting all the material allegations of fact set forth in said complaint and waiving further hearing as to said facts, and by letter dated February 21, 1944, respondent's counsel advised the Commission that respondent waived all Findings 39 F. T. C.

intervening procedure. 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, Harry Greenberg, is an individual, trading and doing business under the names of Pioneer Specialty Co. and Candyland Co., with his principal office and place of business located at 38 Crosby Avenue, Brooklyn, N.Y. Respondent is now, and for more than one year last past has been, engaged in the sale and distribution of candy to dealers. Respondent causes, and has caused, his said candy, when sold, to be shipped or transported from his aforesaid place of business in the State of New York to purchasers thereof at their respective points of location in various other States of the United States and in the District of Columbia. There is now, and has been for more than one year last past, a course of trade by respondent in such candy in commerce between and among the various States of the United States and in the District of Columbia. PAR. 2. In the course and conduct of his business as aforesaid, respondent has sold and offered for sale candy packaged in cardboard containers in the following manner. One of respondent's said packages of candy labeled "General MacArthur," and retailing for 5¢, is packed in a cardboard carton 1" X 3" X 5", said carton containing five or six small pieces of candy taffy and a toy of infinitesimal value. The carton in which said candy is packed is substantially larger than necessary to contain the amount of candy therein packed. Others of respondent's packages of candy labeled "U.S. Navy \Varships," "U.S. Warplanes," or "Remember Pearl Harbor," and retailing for 1¢ each, consist of a few pieces of candy of the size and shape of a small bean and a toy or novelty of no appreciable value, which are packed in a carton 131" X 2" X 3" in dimension, said cartons being of substantially greater size than is necessary to contain the candy and novelty.

Thus said containers of candy, when offered for sale and sold by the purchasing public, are not filled to capacity, and the quantity of candy contained therein is substantially less than the capacity of said cartons or containers. The practice of using over-size containers or cartons is known in the trade and generally as "slack filling" and has the force and effect of misleading and deceiving members of the purchasing public with respect to the quantity of candy contained in such packages. PAn. 3. The aforesaid acts and practices of the respondent have had, and have, the tendency and capacity to, and do, mislead and deceive a substantial portion of the purchasers and prospective purchasers, members of the buying public, into the false and erroneous belief that said packages or containers are filled to capacity, and contain the quantity of candy indicated by the capacity of said containers, and into the purchase of said candy in reliance upon such erroneous belief. The said practices further ,I place in the hands of retail sellers the means whereby to mislead and deceive members of the purchasing public.

PIONEER SPECIALTY CO., ETC. 191 188 Order CONCLUSION The aforesaid acts and practices of 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 admitted all the material allegations of fact set forth in said complaint and waived further hearing as to said facts, and respondent having, through counsel, waived all intervening procedure, and the Commission having made its findings as to the facts and its conclusion that said respondent has violated the provisions of the Federal Trade Commission Act.

It is ordered, That respondent, Harry Greenberg, trading as Pioneer Specialty Co., as Candyland Co., or 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 his candy products or any other merchandise in commerce, as "commerce" is defined in the Federal Trade Commission Act, do forthwith cease and desist from offering for sale or selling any of such candy products or other merchandise in a container or package which is substantially larger in size or capacity than that required for packaging the quantity of product contained or placed therein.

It is further ordered, That the respondent shall, within 60 days after service 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 39 F. T. C.