Walsh Refractories Corp.

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IN THE :MATTER OF WALSH REFRACTORIES CORP.

-COMPLAINT, FINDINGS, AND ORDER IN REGARD TO THE ALLEGED VIOLATION OF SEC. 5 OF AN ACT OF CONGRESS APPROVED SEPT. 2 6, 1914 Docket 5269. Oomplaint, June "', 1945 1-Decision, July 19, 1945 2 ·where a corporation engaged in the manufacture and competitive interstate sale and distribution of refractory products, including its "Walsh Ref. Corp. Mullitex" firebrick; in circulars disseminated throughout the United States- Represented directly and by implication through use of the term "Super Refractory" that its said firebrick possessed the qualities of a product known in the refractory industry as "super-refractory"; when in fact its said product was not a super-refractory, as now understood in the industry, but was a "super-duty refractory" ;

·with tendency and capacity to mislead and deceive members of the purchasing public into the erroneous belief that said representation was true and to induce a substantial number thereof to purchase its said "Mullitex" fire brick: :Helcl, That such acts and practices, under the circumstances set forth, were all to the prejudice and injun' of the public and constituted unfair and deceptive acts and practices in commerce.

Before Jl,fr. Andrew B. D-uvall and 111-r. Randolph Preston, trial .examiners .

.llfr. Clark Nichols for the Commission.

Jfr. T. M. Pierce, J1Jr. A.M. Menzi and Bruninga & Sutherland, of St. Louis, l\1o., for respondent.

1 Amended.

2 The Commission on November 26, 1!)48, issued an order granting in part motion to ·dismiss complaint, as follows:

"This matter carne on to be heard in regular course upon respondent's motion of Feb- -ruary 19, 1948, for lea,-e to file petition for reconsideration; said petition for reconsid- ·erntion by the Commission of its order of January 15, 1948; the answer to said petition 1l.led on 1\Iarch 3, 1048, by counsel supporting the complaint; brief in support of the petition for reconsideration filed July 22, 1948, pursuant to leave granted; and memorandum 'reply brief filed August 2~1, 1948, by counsel supporting the complaint. "Respondent's major contention is that the Commission erred in sustaining the view -of the trial examiner that a pri.ma facie case bad been made out in support of the charge -of the complaint that the designation 'l\Iullitex' as applied to respondent's firebrick was false and misleading. This point has been briefed by respondent in detail. After consid- -eration of all the testimony and other evidence taken in the proceeding, it appears that there is no established or generally recognized standard of mullite content for 'mullite' or 'mnllite type' brick, and that the brick designated by respondent as 'l\Iullitex' contain !';Ubstantial proportions of mullite (the record indicates a theoretical maximum of slightly more than 55 11ercent mnllite and a practical probability of approximately 45 percent). There is no showing that 'l\Iullitex,' when not joined with the term 'super-refmctory' or • other word or term of similar meaning, is likely to mislead or deceive. In these circumstances, and upon reconsideration of respondent's motion to dismiss the complaint: "It is orckrCll, That the charge in the complaint in this proceeding respecting the term 'l\Iullitex' as applied to respondent's firebrick be, and the same hereby is, dismissed." WALSH REFRACTORIES CORP. 83 82 Complaint AMENDED 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 the 'Valsh Refractories Corp., hereinafter referred to as the 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 is a corporation organized and existing under the laws of the State of l\fjssouri, with its office and principal place of business located at 4070 North First Street, St. Louis, l\fo. PAR. 2. Respondent is now, and for several years last past has been, engaged in the manufacture, sale, and distribution of refractory prod· ucts, among which is a firebrick branded "'Valsh Ref. Corp.lHnllitex," and a high-temperature mortar labeled "'Valsh l\fullitex High Temperature Cement." Respondent causes said products, when sold, to be transported from its said place o£ business in the State of l\nssouri to the purchasers thereof located in various States other than the State of 1_\llissouri and in the District of Columbia. Respondent maintains, and at all times mentioned herein has maintained, a course of trade in its said firebrick products, 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 said business, respondent is now, and has been, in substantial competition with other individuals, :firms, and corporations like.wise engaged in the business o£ manufacturing and selling firebrick and other refractory products, in comn1erce among and between the various States of the United States and in the District of Columbia.

PAR. 4. In the course and conduct of its aforesaid business, and for the purpose of promoting the sale of said refractory products, respondent has made false, misleading, and deceptive representations by means of pamphlets, circulars, and other advertising literature, disseminated through the United States mails. Among and typical of the representations made by the respondent as to the 'Valsh Ref. Corp. l\Iullitex Brick are the following:

MULLITEX-A Super Refractory, Non-Shrinking, Non-Spalling Fire Briel{, manufactured by Dry Press Process. Hi~hly resistant to certain slags and other 854002-52--9 Complaint 46 F. T. C. :fluxing agents . . . Will not shrink or spall due to extreme heat or rapid temperature changes. Recommended for Electric Furnaces ... Boiler Furnace Side Walls and Arches ... Forge Furnaces ... Oil Burning Locomotive Fire Boxes ... Enameling Furnaces . . . Ceramic Kilns . . . Silicate of Soda Furnaces ... Tunnel-Kilns ... Glass Furnace Ports ... Regenerator Checkers· ... and wherever extreme beat and sudden changes in temperature are encountered.

and as to "\Valsh Mullitex High Temperature Cement, as follows: A super-duty quality mixture of perfectly blended refractory minerals noted for their resistance to extreme temperatures and other severe conditions. Recom.:. mended for services where ordinary cement and mortars do not assure a bond or joint that will withstand unusually high temperatures and where highly corrosive slags and destructive furnace gases are encountered. Especially adapted for port arches and port side wall construction in glass furnaces, open hearths, electric metal melting furnaces, boiler furnace arches and setting and all other types of furnace where a slag resistant, nonspalling, non-shrinking mortar with tremendous bonding strength is essential for long and economical refractory life.

MULLITEX ingredients differ entirely from those used in ordinary cementsit is truly a superior, super-duty high temperature cement for unusual furnace conditions.

PAR. 5. Through the use of the statements hereinabove set forth, and others similar thereto not specifically set forth herein, especially the words "Mullitex" and "super-refractory," all of which purport to be descriptive of the super-refractory qualities of said products, respondent represents, directly and by implication, that its said firebrick and mortar possess the super-heat resisting qualities of mullite, which is a combination of aluminum oxide and silicon oxide blended by extreme heat in a ratio of approximately 72 percent aluminum oxide and 28 percent silicon oxide.

PAR. 6. The aforesaid representations and the implications arising therefrom are false and misleading. In truth and in fact respondent's products, sold under the trade name "Mullitex," are what are known as fire-clay products, and are made from fire clay mined in the State· of ~1missouri, which clay does not contain the minerals known as mullite, and alusite, kyanite, and sillimanite. In the heating process necessary in manufacturing said firebrick :from the original clay materials, mullite crystals are developed by a combination o:f the alumina and silica in said clay, thereby giving such fire-clay brick a mullite content of from 30 to 40 percent. In the re:fractory products trade the use of the word "mullite" indicates a product having super-refractory qualities and a percentage content of mullite o:f at least 75, which will give a measure .o:f re:fractory performance o:f pyrometric cone equivalent 38, indicating a fusion point of 3,335° F. or 1,835° C. The use o:f either WALSH REFRACTORIES CORP. 85 82 Findings the word "super-refractory" or "mullite" as descriptive of firebrick products in the firebrick trade indicates a "cone" of 38. The maximum pyrometric cone equivalent attained by respondent's ::Mullitex firebrick and refractory products is 33-34, which means that the fusion point of such products is between 3,173° and 3,200° F. or 1,745° and 1,760° C. In other words, respondent's products, sold under the trade name "Mullitex," are what are known in the trade as firebricks while the products properly described as mullite are known in the trade as super-refractory. · Refractory products known in the trade as mullite or super-refractory are very expensive, selling from $400 to $1,000 per 1,000, while· the· fire-clay brick and fire clay brick products of respondents, sold under: the trade name "Mullitex" and others of similar ingredients, are com-paratively inexpensive, selling from $50 to $65 per 1,000. PAR. 7. The use by the respondent of the foregoing false, deceptive, and misleading statements and representations has had, and now has, the capacity and tendency to, and does, mislead and deceive a substantial portion of the purchasing public into the erroneous and mistaken belief that said statements and representations are true, ancl that said firebrick and cement possess the refractory qualities usually attributed to products properly described as mullite, and to induce a substantial portion of the public, because of such erroneous and mistaken belief, to purchase respondent's said firebrick and cement. PAR. 8. The acts and practices of the respondent, as herein alleged, are all to the prejudice and injury of the public and constitute unfair methods of competition and 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 January 27, 1945, issued and subsequently served on respondent, '\Valsh Refractories Corp., its c:om~ plaint charging said respondent with the use of unfair methods of competition in commerce. and unfair and deceptive acts and practices in commerce in violation of the provisions of that act. On March 31, 1945, respondent filed its answer to said complaint denying in part and admitting in part the allegations thereof. On June 7, 1945, pursuant to stipulation of counsel supporting the complaint and counsel for respondent, the Commission issued its amended complaint and t·respondent's ans.wer of record was permitted to stand as its 86 FEDERAL TRADE COMMISSION. D.ECISIONS Findings 46F. T. C.

answer to the complaint as amended. Thereafter, testimony and other evidence were introduced before a trial examiner of the Commission theretofore duly designated by it and such testimony and other evidence were duly recorded and filed in the office of the Commission. Subsequently, and after cm~tain charges of the amended complaint were disposed of by orders of the Commission ·duly entered herein, counsel in support of the complaint and counsel for respondent filed with the trial examiner their joint proposed findings and conclusion and proposed order to cease and desist, which were adopted by the trial examiner as his recommended decision herein. Thereafter, the proceeding came on for final consideration by the Commission upon the record, including the amended complaint, answer, testimony and other evidence, and recommended decision of the trial· examiner (no briefs having been filed and oral argument not having been requested); and the Commission, 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. )!'INDINGS .AS TO THE FACTS PARAGRAPH 1. Respondent is a corporation organized and existing under the laws of the State of J\iissouri, with its office and principal place of business located at 4070 North First Street, St. Louis, Mo. PAR •. 2. Respondent is now, and for several years last past has been, engaged in the manufacture, sale, and distribution of refractory products, among which is a firebrick branded ""\Valsh Ref. Corp. l\1ullitex.'' Respondent causes said product, when sold, to be transported from its said place of business in the State of l\1missouri to the purchasers thereof located in various States other than the State of l\1missouri, and in the District of Columbia.

- Respondent maintains, and at a11 times mentioned herein has maintained, a course of trade in its said firebrick products, in commerce, between and among the various States of the United States and in the District of Columbia.

PAR. 3.. In the course and cond'Jct of its said business, respondent is now, and has been, in substantial competition with other individuals, firms, and corporations likewise engaged in the business of manufacturing and selling firebrick and other refractory products, in commerce, among and between the various States of the United States and in the District of Columbia.

PAR. 4. In the course and conduct of its aforesaid business, and for the purpose of promoting the sale of said refractory products, re- WALSH REFRACTORIES CORP. 87 82 Findings spondent has made representations by means of a circular disse~inated through the mails and otherwise throughout the United States, containing the following statement: · MULLITEX-A Super Refractory, Non-Shrinking, Non-Spalling Fire Brick, manufactured by Dry-Press Process. Highly resistant to certain slags and other fiuxing agents . . . Will not shrink or spall due to extreme beat or rapid temperature changes. Recommended for Electric Furnaces . . . Boiler Furnace Side ·walls and Arches ... Forge Furnaces ... Oil Burning Locomotive Fire Boxes ... Enameling Furnaces ... Ceramic Kilns ..• Silicate of Soda Furnaces ... Tunnel-Kilns ... Glass Furnace Ports ... Regenerator Checkers ... and wherever extreme heat and sudden changes in temperature ure encountered.

PAR. 5. Through the use in the above statement of the term "Super Refractory" respondent represents directly and by implication that its said fire brick possesses the qualities of a product known in the refractory industry as "super-refractory."

PAR. 6. The American Society for Testing l\iaterials in its tentative classification of fire clay refractories issued in 1940 shows the following minimum pyrometric cone equivalents for super duty, highheat duty, intermediate heat duty, and low heat duty fire-clay brick: Super Duty Fireclay Brick, not lower than cone No. 33. High Hen t Duty Fi.reclay Brick, not lower than cone No. 31-32. Intermediate Heat Duty Fireclay Brick, not lower than cone No. 29. Low Heat Duty Fireclay Brick, not lower than cone No. 19. PAR. 7. Neither the American Society for Testing :Materials in its aforesaid classification nor the Navy Department in Specification 32R1b issued January 2, 1942, states the maximum cone vrrlne of super-duty fireclay refractories. Nor do said publications classify or define a grade of refractories as super-refractories. 'Valsh Re· fractories Corp.'s test data fixes the pyrometric cone equivalent of "Mullitex" firebrick a.t No. 34, and the :Mellon Institute of Industrial Research fixes the cone equivalent of "lVIullitex" firebrick at Nos. 33-34. Respondent's ":Mullitex" firebrick is made entirely from native lVIissouri fire clay.

PAR. 8. A witness familiar with thb refractory industry testified· that alumina diaspore firebrick having a pyrometric cone equivalent not lower than 34, 35, or 36, depending upon the alumina content, are generally called "super-refractories" and that "super-refractory" firebrick connoted "a highly refractory material which presumably could stand very special conditions of service," but which does not necessarily contain any mullite or any alumina or any great amount of silica. Another witness engaged in the refractory business testified that the Order 46F. T. C.

minimum pyrometric cone equivalent for super-refractories should not be below cone 36. ·· PAR. 9. Respondent's product "Mullitex" firebrick is a superduty refractory. Respondent admits that it is not a super-refractory product as the expression is now understood in the industry. PAR. 10. The Commission finds, therefore, that the representation made by respondent through the use of the term "Super-Refractory" as descriptive of its product "l\1ullitex" firebrick as aforesaid is misleading and deceptive.

PAR. 11. The use by respondent of the aforesaid misleading and deceptive representation has had, and now has, the tendency and capacity to mislead and deceive members of the purchasing public into the erroneous and mistaken belief that the representation is true and to induce a substantial number thereof to purchase respondent's "l\1ullitex" firebrick.

CONCLUSION The acts and practices of the respondent, vValsh Refractories Corp., .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 amended complaint of the Commission, the answer of respondent, testimony, and other evidence taken before a trial examiner of the Commission theretofore duly designated by it, and recommended decision of the trial examiner (no briefs having been filed and oral argument not having been requested); and the Commission having made its findings as to the facts and conclusion that the respondent has violated the provisions of the Federal Trade Commission Act:

It is ordered, That the respondent, 'Va1sh Refractories Corp., a corporation, and its officers, agents, representatives, and employees, directly or through any corporate or other device, in connection with the offering for sale, sale, or distribution of refractory fire-clay prodtlCts in commerce as "commerce'' is defined in the Federal Trade Commission Act, do forthwith cease and desist from: Representing, directly or by implication, that its product "Mullitex" firebrick is a super-refractory product.

WALSH REFRACTORIES CORP. 89 82 Order It .is further ordered, That the respondent shall, within 60 days after servica 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. · Complaint 46F.T.C.

IN THE MA'ITER OF OPPENHEI~1ER CASING CO., INC., NATURAL CASING INSTITUTE, INC., AND CHARLES SILVER, ALLEN S. BECKER, AND B. R. SOLO~10N, TRADING AS CHARLES SILVER & CO.

COMPLAINT, FINDINGS, AND ORDER IN REGARD TO THE ALLEGED VIOLATION OF SEC. 5 OF AN ACT OF CONGRESS APPROVED SEPT. 26, 1914 Docket 5148. Com.pl.aint, Apr. 8, 1944-Decision, July U, 1949 Where a corporation engaged in the manufacture or processing and in the competitive interstate sale and distribution of castings made from the intestines of animals for frankfurters, wieners, and sausages, as distinguished from artificial or cellulose casings; an incorporated trade association, the principal activity of which consisted in advertising and in otherwise promoting the sale of such "natural" castings and products thereof; and three partners, advertising age.nts, who advised said corporation and trade association as to their advertising and prepared and placed copy; through newspaper and periodical advertisements, circulars and other advertising media- Falsely represented that meat products, such as wieners and frankfurters, encased in natural casings are 22 percent juicier, retain their flavor to a greater extent, are richer in proteins and Yitamin B1, and have better keeping qualities than meat products produced by the use of cellulose casings; With tendency and capacity to mislead a substantial portion of the purchasing public with respect to the characteristics of meat products encased in animal casings and thereby to cause its purchase of such products; and with the result of placing in the hands of packers using natural casings, and dealers selling products thus encased, a means of so misleading the purchasing public:

Held, That such acts and practices, under the circumstances set forth, were all to the prejudice and injury of the public and constituted unfair methods of competition in commerce and unfair and deceptive acts and practices therein.

Before Mr. Randolpl~ Preston, trial examiner. Jlfr. lVilliani L. Taggart for the Commission. Col\fPLAINT 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 Oppenheimer Casing Co., Inc., a corporation, Natural Casing Institute, Inc., a corporation, and Charles Silver, Allan S. Becker, and B. R. Solomon, trading as Charles Silver & Co., hereinafter referred to as respondents, have 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 OPPENHEIMER CASING CO., INC., ET AL. 91 90 Complaint interest, hereby issues its complaint stating its charges in that respect as :follows :

PARAGRAPH 1. Respondent, Oppenheimer Casing Co., is a corporation organized under the laws of the State o:f Delaware, with its principal office and place o:f business located at 1016 west Thirty-sixth Street, Chicago, Ill.

This respondent is now, and for several years last past has been, engaged in the manufacture or processing of casings made from the intestines of animals and used as containers for meat products, including :frankfurters, weiners, and sausages, and known and described as natural casings. This respondent causes its said products, when sold, to be transported frmn its place of business in the State of Illinois to the purchasers thereof located in various other States of the United States and in the District o:f Columbia. This respondent maintains, and at all times mentioned herein has maintained, a course o~ trade in said product in commerce between and among the various States o:f the United States and in the District of Columbia. ·PAR. 2. The Natural Casing Institute, Inc., is a corporation organized under the laws of the State of New York, with its office at 4710 South Ada Street, Chicago, Ill. This respondent is a trade association and· its principal activity consists in advertising and in other ways promoting the sale of natural casings and the products for which natural casings are used.

PAR. 3. Respondents, Charles Silver, Allan S. Becker, and B. R. Solomon, are individuals doing business as a partnership under the name of Charles Silver & Co., with their office located at 737 North :Michigan Avenue, Chicago, Ill. These respondents operate an advertising agency and as such are engaged in formulating, editing, and placing advertising for their clients. These respondents are or have been the advertising agents for the respondents, Oppenheimer Casing Co., Inc., and Natural Casing Institute, Inc., and have advised said respondents and prepared and placed advertising matter used by said respondents in promoting the sale of natural casings and products for which natural casings are used, including the advertising matter hereinafter referred to.

PAR. 4. ·All of the respondents aet and have acted in conjunction and cooperation with each other in the performance of the acts and practices hereinafter set out and alleged.

PAR. 5. The casings used in the production or manufacture of wieners and kindred products are of two kinds; that variety sold by Complaint 46 F. T. C. respondent, Oppenheimer Casing Co., Inc., known as natural casings, · and those manufactured by certain competitors of this respondent · made from cellulose. The natural casing remains on the meat products when sold to the consumer, while the cellulose variety is detached before sale.

PAR. 6. Respondent, Oppenheimer Casing Co., Inc., is now and for several years last past has been, in substantial competition with other corporations, individuals, firms, and partnerships engaged in the sale and distribution of casings used in the packing of meat products and particularly those manufactured from cellulose; and various packers using the natural casings for their meat products, sold by this respondent, are in substantial competition, in commerce, with packers using the cellulose casing manufactured and sold by this respondent's competitors. Furthermore, dealers selling meat products encased in natural casings are in substantial competition, in commerce, with dealers selling meat products in which other types of casings are used. PAR. 7. In the course and conduct of their aforesaid businesses, the respondents have disseminated, and are now disseminating, and have caused and are now causing the dissemination of, false advertisements, concerning the products known as natural casings and sold by respondent, Oppenheimer Casing Co., Inc., and the value and desirability of .meat products which make use of 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 respondents have also disseminated and are now disseminating, and have caused and are now causing the dissemination of, false advertisements concerning the said product, as aforesaid, by various means for the purpose of inducing, and which are likely to induce, directly or indirectly, the purchase of said product and the meat products making use thereof, in commerce, 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 advertisements disseminated and cause to be disseminated by respondents, as herein set forth by the United States 1nails, by advertisements inserted in newspapers and periodicals, by means of circulars and other advertising media, are the following :

A BASIC SUPERIORITY ... CONFIRMED BY SCIENCE "22% Juicier" The proof of the pudding may be in the eating, but the American public prefers to have its sense of taste backed up by scientific findings. It is, therefore, of highest importance to America's millions of weiner-lovers that scientific tests OPPENHE!l1:ER CASING CO., INC., ET AL. 93 90 Complaint by an inde~ndent, nationally recognized laboratory have definitely prov~d that Weiners in Natural Casings are 22% juicer! This and other basic superiorities of Natural Sheep Casings, enhanced by strict adherence to the highest quality standards, have formed the foundation upon which our business has been built. Our many friends have come to know, over a period of more than a quarter of a century, that this company is a dependable source of supply of their casing needs, with a background rich in technical achievements and sound business practice. WEINERS in NATURAL CASINGS The Skin Keeps the Flavor in I NATURAL CASINGS FRANKFURTS Richer in Vitamins and Proteins! Proved by Scientific Laboratory Tests! Recent important tests by independent laboratories, conducted on both fresh and canned frankfurts, PROVE that frankfurts in Natural Sheep Casings have definitely greater protein content, and higher Vitamin B-1 content! In addition to these greater nutritional advantages, other tests show that Natural Casing Frankfurts show less loss of weight in cooking ... and the protection of Natural casings means better keeping qualities! 'WATCH "NATURAL CASINGS" GO PLACES We salute the new advertising campaign driving home the PROVED FACTS that weiners in NATURAL CASINGS are 22% JUICIER. Oppenheimer Casing Co.

PAR. 8. Through the use o:f the aforesaid statements and representation and others o:f similar import not specifically set-out herein, respondents represent and have represented, that meat products, such as weiners and frankfurters encased in natural casings are 22 percent juicier, retain their flavor to ~ greater extent, and richer in proteins, particularly vitamin B1, and have better keeping qualities than meat products encased in cellulose casings.

PAR. 9. The :foregoing statements and representations are :false, misleading, and deceptive. In truth and in :fact, the casings used in the manufacture or production of wieners, :frankfurters, and similar meat products have no significant effect upon the amount o:f juice, the flavor, the protein and vitamin content, or the keeping qualities o:f meat products. The amount o:f juice and the protein and vitamin content are entirely dependent upon the materials used by the packers and not upon the type o:f casing used. Meat products encased in FEDERAL TRADE' ·commission· ·DECISIONS Fhidings: 46F. T. C.

natural ·casings do not have better keeping qualities than those prepared by the use of cellulose casings.

PAR. 10. By disseminating the aforesaid advertisements containing said false, misleading, and deceptive statements, respondents furnish and place in the hands of packers using natural casings and dealers selling products, encased in natural casings, a means and instrumentality by and through ·which the purchasing public maybe misled and deceived as to the merits and advantages claimed to be derived through the use of natural casings.

PAR. 11. The use by the respondents of the foregoing false, misleading, and deceptive statements and representations with respect to the natural casings sold and distributed by the respondent, Oppenheimer Casing Co., Inc., and the quality and characteristics of the meat products resulting from their use, unfairly disparages and defames the products of its competitors and the finished products resulting from their use and has had and now has the tendency and capacity to mislead and deceive the purchasing public into the erroneous and mistaken belief that such statements and representations are true and to induce a substantial number of packers to purchase the natural casings sold and distributed by respondent Oppenheimer Casing Co., Inc., and a substantial portion of the purchasing public to purchase meat products encased in natural casings in preference to such products encased in other casings, particularly cellulose casings. As a result, injury has been and is now being done to the competitors of the respondent, Oppenheimer Casing Co., Inc., and to competition between packers using natural casings and packers using other than natural casings, as \Veil as between dealers selling meat products in which natural casings are used and dealers selling meat products where other than natural casings are used, all in com- . merce, among and between the several States of the United States and in the District of Columbia.

PAR. 12. The aforesaid acts and practices of respondents, as herein alleged, are all to the prejudice and injury of the public and constitute unfair methods of competition and 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 8, 1a44, issued and subsequently served its complaint in this proceeding upon the respondents named in the caption hereof, charging said respondents with the use OPPENHEIMER CASING. CO., INC., ET .AL .. 95' 90 Findings of unfair methods of competition and unfair and deceptive acts and practices in commerce in violation of the provisions of that act. , After the filing of the respondents' joint answer to the complaint, testimony, and other evidence in support of and in opposition to the allegations . of the complaint were introduced before a trial examiner of the Commission theretofore duly designated by it, and such testimony and other evidence were duly recorded and filed in the office of the Commission. Thereafter, this proceeding regularly came on for final hearing before the Commission upon the complaint, respondents' answer,_ testimony, and other evidence, the trial examiner's recommended decision, to which no exceptions were filed, and brief filed by counsel supporting the complaint (respondents having filed no brief and oral argument not having been requested) ; and the Commission, having· duly considered the matter and being now duly advised in the premises, finds that this proceeding is in the public interest and makes this its findings as to the facts and its conclusion drawn therefrom: FINDINGS AS TO THE FACTS PARAGRAPH 1. Respondent, Oppenheimer Casing Co., Inc., is a corporation organized under the laws of the State of Delaware, with its principal office and place of business located at 1016 \Vest Thirty-sixth Street, Chicago, Ill.

This respondent is now, and for several years last past has been, e11gaged in the manufacture or processing of casings made from the intestines of animals and used as containers for meat products, in-· eluding frankfurters, wieners, and sausages, and known and described as natural casings. Respondent causes its said products, 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. Respondent maintains, and at all times mentioned herein has maintained, a course of trade in said product in com1nerce among and between the various States of the United States and in the District of Columbia. PAR. 2. Respondent, Then at ural Casing Institute, Inc., is a corporation organized under the laws of the State of Ne;w York, with its office at 4 710 South Ada Street, Chicago, Ill., and is a trade association whose principal activity consists in advertising and in other ways promoting the sale of natural casings and the products for which natural casings are used.

PAR. 3. Respondents, Charles Silver, Allan S. Becker, and B. R. Solomon, are individuals doing business as a partnership under the name of Charles Silver & Co., with their office located at 737 North Findings 46F.T.C.

Mic~i~an Avenue, Chicago, Ill., at which address they operate an advertising agency engaged in formulating, editing, and placing advertising for their clients, among whom are or have been respondents Oppenheimer Casing Co., Inc. and Natural Casing Institute, Inc., fo~ whom respondents Silver, Becker, and Solomon have acted as adversaid respondents tising agents, advising as to their advertisinO'b' and = . preparing and placing advertising copy used by said respondents in promoting the sale of natural casings and products for which natural .casings are used, including the advertising matter hereinafter set Jorth, .PAR. 4. Respondents, Oppenheimer Casing Co., Inc., a corporation, Natural Casing Institute, Inc., a corporation, and Charles Silver, Allan S. Becker, and B. R. Solomon, individual copartners trading as Charles Silver & Co., have at all times mentioned herein acted in conjunction and cooperation with each other in the performance of the acts and practices hereinafter set forth.

PAR. 5. The casings used as containers for meat products, including frankfurters, wieners, sausages, and kindred products, are of two kinds; that variety manufactured and sold by respondent, Oppenheimer Casing Co., Inc., and others, known and described as natural or animal casings, made from the intestines of animals; and that variety manufactured and sold by certain competitors of this respondent, known and described as artificial or cellulose casings, made from cellulose and other substances. The natural casing remains on the meat products when sold to the consumer, while the artifiical casing is detached before such sale.

PAR. 6. Respondent, Oppenheimer Casing Co., for several years last past has been in substantial competition with other corporations, individuals, firms, and partnerships engaged in the sale and distribution of casings used in the packing of meat products, particularly those manufactured from cellulose; various packers using respondent's natural casings for their meat products are in substantial competition, in commerce, with packers using the cellulose c.asings manufactured and sold by respondent's competitors; and dealers selling meat products encased in natural casings are in substantial ·competition in commerce with dealers selling meat products produced by the use of artificial or cellulose casings. PAR. 7. In the course and conduct of their aforesaid businesses, respondents have disseminated and are now disseminating, and have ,caused and are now causing the dissemination of, advertisements concerning the products known as natural casings, sold by respondent, Opp.enheimer Casing Co., Inc., and the value and desirability of meat OPPENHEIMER CASING CO., INC., ET AL. 97 90 Findings products using said product, by the United States mails and by other means in commerce, as "commerce" is defined in the Federal Trade Commission Act, which said advertisements are disseminated :for the purpose o:f inducing, and are likely to induce, directly or indirectly, the purchase.of said natural casings and the meat products making nse thereof, in commerce, as "commerce" is defined in the Federal Trade Commission Act.

Among and typical of the statements and representations contained in said advertisements disseminated and caused to be disseminated by respondents, as herein set :forth, by the United States mails, by insertion in newspapers and periodicals, by means of circulars and other advertising media, are the :following :

A BASIC SUPERIORITY . . . CONFIRMED BY SCIENCE "22o/o Juicier."

The proof of the pudding may be in the eating, but the American public prefers to have its sense of taste backed up by scieutific findings. It is, therefore, of highest importance to America's millions of wiener-lovers that scientific tests by an independent, nationally recognized laboratory have definitely proved that Wieners in Natural Casings are 22% juicier] This and other basic superiorities of Natural Sheep Casings, enhanced by strict adherence to the highest quality standards, have formed the foundation upon which our business has been built. Our many friends ha\e come to know, over a period of more than a quarter of a century, that this company is a dependable source of supply of their casing needs, with a background rich in technical achievements and sound business practice. WIENERS in NATURAL CASINGS They're 22% Juicier- The Skin Keeps the Flavor in! NATURAL CASING FHANKFURTS Richer in Vitamins and Proteius! Proved by Scientific Laboratory Tests! Recent important tests by independent laboratories, conducted on both fresh and canned frankfurts, PROVE that frankfurts in Natural Sheep Casings have definitely greater protein content, and higher Vitamin B-1 content! In ath1ition to these greater nutritional advantages, other tests show that Natural Casing .Frankfurts show less loss of weight in cooking ... and the protection of Natural ~asings means better "keeping qualities"! WATCH "NATURAL CASINGS" GO PLACES We salute the new advertising campaign driving home tbe PROVED FACTS that wieners in NATURAL CASINGS ARE 22% JUICIER Oppenheimer Casing Co.

Order 46F. T. C.

PAR. 8. Through the use of the aforesaid statements and representations and others of similar import not specifically set-out herein, respondents represent and have represented that meat products, such as wieners and frankfurters, encased in natural casings are 22 percent juicier, retain their flavor to a greater extent, are richer in proteins and vitamin B1, and have better keeping qualities than meat products produced by the use of cellulose casings.

PAR. 9. The aforesaid statements and representations are false, misleading, and deceptive. In truth and in fact, meat products in natural casings are not substantially juicier, do not retain their flavor to a greater extent, are not richer in proteins and vitamin ·B1 or nutritionally richer in any respect, and do not have better keeping qualities than the same meat products similarly processed in cellulose casings. P AH. 10. The dissemination by respondents of these false advertisements has the tendency and capacity to mislead a substantial portion of the purchasing public with respect to the characteristics of meat products encased in animal casings, and the tendency and capacity to cause members of the public to purchase such products as a result of the mistaken beliefs so engendered. Such advertisements place in the hands of packers using natural casings, and dealers selling products so encased, a means and instrumentality of misleading and deceiving the purchasing public as to the merits and advantages of said products. CONCLUSION The aforesaid acts and practices of respondents, as herein found, are all to the prejudice and injury of the public and constitute unfair methods of competition and 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 joint answer of respondents, testimony, and other evidence in support of ancl·in opposition to the allegations of the complaint taken before a trial examinsr of the Commission theretofore duly designated by it, the trial examiner's recommended decision, and brief by counsel supporting the complaint (respondents having filed no brief and oral argument not having been requested); and the Commission having made its findings as to the facts· and its conclusion that the respondents have violated the provision.s of the Federal Trad'8 Commission Act: OPPENHEIMER CASING CO., INC., ET AL. 99' 90 Order It is ordel·ed, That the respondents, Oppenheime1~ Casing Co., Inc., a corporation, Nat ural Casing Institute, Inc., a corporation, and Charles Silver, Allan S. Becker, and B. R.. Solomon, individually and trading as Charles Silver & Co. or under any other name or designation, their ·officers, agents, representatives, and employees, directly or through any corporate or other device, in connection with the offering for sale, sal2, or distribution of casings used as a cover for wieners and similar meat products, do forthwith cease and desist from: 1. Disseminating, or causing to be disseminated, any advertisement by means of the United States mails or by any means in commerce, as "commerce" is defined in the Federal Trade Commission Act, which advertisement represents, directly or by implication, that wieners or other meat products encased in natural casings contain or r2tain more juices, flavor, proteins, or vitamin B 1 than wieners or meat products produced by the use of cellulose casings, either when offered for sale at the packing house or when prepared for consumption, or that such products have superior keeping qualities or are superior nutritionally to meat products produced by the use of cellulose casings. 2. Disseminating, or causing to be disseminated, any advertisement by any means for the purpose of inducing, or which is likely to induce, directly or indirectly, the purchase of said casings in commerce, as "commerce" is defined in the Federal Trade Commission Act, which advertisement contains any representation prohibited in paragraph 1 hereof.

It is further o1·dered, That the respondents shall, within 60 clays after service upon them of this order, file with the Commission a report in writing, setting forth in detail the manner and form in which they have complied with this order.

854002--52----10 100 FEDERAL TRADE co:M1v.HSSION DECISIONS Complaint 46F.T.C.