Samuel Worth

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

In THe Marrer or SAMUEL WORTH DOING BUSINESS AS WORTHMORE SALES COMPANY COMPLAINT, FINDINGS, ORDER AND OPINIONS IN REGARD TO THE ALLEGED VIOLATION OF SEC. 5 OF AN ACT OF CONGRESS APPROVED SEPT. 26, 1914 Docket 5203. Complaint, Aug. 10, 1944—Decision, Mar. 10, 1950 Where lottery schemes are devised and sold in connection with disclaimers which pretend to offer them as straight sales promotion plans, free of the lottery element, prudence requires that the Commission’s remedy should reach any variations of the plans which, as a result of their design, readily lend them- . Selves to the operation of a lottery scheme; and such a remedy obviously would not reach or be intended to reach a plan which was in fact free of the lottery element, but which might be so changed or corrupted by customers of the seller as to be used in connection with lotteries. As examination of pertinent decisions of the several Circuit Courts of Appeal with respect to orders of the Commission enjoining the use of merchandising plans or sales promotion plans which reasonably anticipate or suggest a lottery, or are of such a nature that a lottery is likely to occur therefrom, make it clear that there is no difference in the purpose or scope of the orders intended by the Commission and those approved by said courts, and that the only differences between the opinions of the several Circuit Courts and between certain of said courts and the Commission involved construction © of the language used rather than the proper scope of the orders themselves. AS respects orders in such cases it seems clear from the decisions concerned, and it is the opinion of the Commission, that such orders should be sufficient to enjoin the use of such merchandise plans or sales promotion plans as above described. It is not the intent of the Commission, however, to go beyond such point, and no Court has held that the Commission’s orders in such cases were too broad when construed as the Commission intended they should be construed, it appearing, as above noted, that differences involved question of construction only.

A type of order in such cases, adopted in 1942 for general use in appropriate matters, as a result of a study directed to the possibility of choosing language which would eliminate the uncertainty of construction found by the courts, but would still be sufficiently broad to accomplish the purposes intended, and which requires a respondent engaged in lottery schemes of the nature concerned, to cease and desist from “selling or distributing any merchandise so packed and assembled that sales of said merchandise to the public are to be made or, due to the manner in which such merchandise is packed and assembled at the time it is sold by respondent may be made by means of a game of chance, gift enterprise or lottery scheme,” was designed, through the addition of the underscored language, to make it clear that such orders were intended to apply only’ to those plans which might WORTHMORE. SALES COMPANY 607 606 . Sylabus be used as lottery schemes as a result of the manner’in which the merchandise was packed and assembled at the time it was sold by the party charged with the violation.

While said type of order has been used in many subsequent cases and has not thus far been disapproved by any court, appropriate changes in language: are. necessary to fit the facts of each case, and such a modification as involved in an order requiring a respondent, who had devised and sold lottery schemes ~ in connection with disclaimers which pretended to offer them as straight sales promotion plans, free of the lottery element, to cease and desist from selling sales promotion plans and similar articles ‘so designed that their use in connection with the distribution of merchandise constitutes, or due to such design may constitute, the operation of a game of chance, gift enterprise or lottery scheme,” and in which the language underscored clearly limited the . order to sales plans and merchandise so designed by the respondent that they might or were likely to constitute a game of chance, in the opinion of the Commission met the criticisms which had been raised by some of the Circuit Courts, without narrowing or impairing the effectiveness of the order. Where an individual engaged in the manufacture and interstate sale and distribution of sales promotion plans, trade cards and.similar devices, including several groups of plans—sold in units of 500, or multiples thereof—with trade cards to be distributed by the retailer-purchaser to his customers designed to secure to the consumer, when his purchases aggregated the total displayed on the card a “dividend” (in trade or otherwise, as the case might be) as determined by the number concealed under the card’s “Secret Panel” and the schedule of dividends or prizes as arranged and displayed by the merchant concerned (the superiority of which over ordinary trade cards—where the holder knows from the beginning what he will get—he stressed )— Sold his said stimulator plans with their explanatory advertising matter, posters, “secret panel” trade cards, trade card punches, and award sheets setting out the numbers concealed in the different panels (which had been so arranged by him that the higher the number, the fewer there were) to each of his retail merchant customers, who distributed the cards to their customers and thereby entitled them, upon the punching out of the cards, in trade, without choice— and in disregard of said individual’s instructions as to how, if each holder had his choice of awards, the use of the plan could not be considered a lottery, and was not so intended—to merchandise of varying value as set out by the particular merchant on blank lines on the award sheet opposite the different numbers displayed and arranged as aforesaid, and as determined by the concealed number secured by the particular customer; Whereby the awards received were thus determined and distributed wholly by chance, through the operation of said game of chance or lottery scheme in the sale of merchandise to the purchasing public; and he supplied to and placed in the hands of retail merchants, as intended, the means through which they conducted games of chance, gift enterprises, and lottery schemes in the sale of merchandise to the pubiic, contrary to the established public policy of the United States Government; ;

With tendency and capacity to induce members of the purchasing public to deal with or purchase merchandise from dealers using such plans in preference to Complaint 46 F.T.C.

those using sales promotion plans of competitors which did not contain an element of chance; and with the result that retail merchants and dealers were attracted to his sales plans by their element of chance, and were thus induced to purchase said plans in preference to those offered by competitors; and with capacity and tendency thereby to unfairly divert trade from his competitors to him:

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

Under such schemes no reasonable person could feel any real suspense, in trading out his card, to learn what his concealed number might be unless that number had some influence in determining what award he would receive, and the only consideration that gave point and purpose to the number concealed in ' the “secret panel’ was that it served to identify specifically the award or bonus which the holder of the number would receive, and inspired the hope that through it by chance the holder might receive one of the larger awards. Should the holder know that, regardless of his secret number, he might receive his choice of any of the listed prizes it is wholly unreasonable to believe that he would have any curiosity as to what that number might be. The Commission, accordingly, found it surprising that respondent in the above matter should seriously argue that the plan was not designed or intended to be used as a lottery, that the element of chance had been entirely eliminated by instructions to the merchants to give any listed prize which their customers might select regardless of the hidden number on the customer’s card, and that while the hidden number provided an attractive element of suspense, the customer was nevertheless not limited in his choice of awards as above set forth, and that respondent’s instruction to the retailer relieved him of responsibility for any lottery which might be employed by the retailer in actual operation; or, that such arguments, having been offered, should be seriously considered.

Before5 1 5 1 1 2 835 1977 67 32 94.231804 Mr.5 1 5 1 1 3 914 1976 96 32 93.244736 Johns 1 5 1 1 4 1021 1975 40 34 89.626595 P.5 1 5 1 1 5 1074 1977 182 33 95.310570 Bramhall5 1 5 1 1 6 1269 1977 68 33 96.554771 ands 1 5 1 1 7 1349 1979 67 32 96.269722 Mr.5 1 5 1 1 8 1430 1978 118 33 96.353516 Frank5 1 5 1 1 9 1561 1979 99 41 96.353516 Hier,5 1 5 1 1 10 1672 1979 82 32 96.215034 trials 1 5 1 1 11 1768 1979 197 33 96.760338 examiners.2 1 6 0 0 0 696 2025 935 95 -1 3 1 6 1 0 0 696 2025 935 95 -1 4 1 6 1 1 0 697 2025 849 43 -1 5 1 6 1 1 1 697 2027 66 32 49.108654 Mr.5 1 6 1 1 2 775 2026 34 33 49.108654 J.5 1 6 1 1 3 824 2028 50 32 66.497292 W.5 1 6 1 1 4 886 2025 207 43 95.745628 Brookfield,5 1 6 1 1 5 1105 2028 52 32 94.567184 Jr.5 1 6 1 1 6 1172 2027 57 33 96.136093 for5 1 6 1 1 7 1241 2028 59 32 96.003860 thes 1 6 1 1 8 1312 2027 234 34 96.586349 Commission.4 1 6 1 2 0 696 2076 935 44 -1 5 1 6 1 2 1 696 2076 96 33 93.272964 Nash5 1 6 1 2 2 803 2076 31 32 92.798592 &5 1 6 1 2 3 845 2076 183 43 95.867783 Donnelly,5 1 6 1 2 4 1040 2076 39 33 96.378304 of5 1 6 1 2 5 1092 2076 160 43 92.778107 Chicago,5 1 6 1 2 6 1266 2078 68 41 67.718582 Ill.,5 1 6 1 2 7 1348 2077 57 33 96.514488 for5 1 6 1 2 8 1417 2078 214 42 95.917877 respondent.2 1 7 0 0 0 1207 2160 209 34 -1 3 1 7 1 0 0 1207 2160 209 34 -1 4 1 7 1 1 0 1207 2160 209 34 -1 5 1 7 1 1 1 1207 2160 209 34 88.603905 Complaint2 1 8 0 0 0 654 2242 1312 503 -1 3 1 8 1 0 0 655 2242 1311 196 -1 4 1 8 1 1 0 668 2242 1298 44 -1 5 1 8 1 1 1 668 2244 3 2 0.000000 '5 1 8 1 1 2 698 2243 174 32 96.727486 Pursuant5 1 8 1 1 3 889 2247 37 29 96.464333 to5 1 8 1 1 4 943 2243 58 33 96.765694 thes 1 8 1 1 5 1018 2242 193 44 96.523804 provisions5 1 8 1 1 6 1229 2244 39 33 96.809448 of5 1 8 1 1 7 1285 2244 59 33 96.397430 thes 1 8 1 1 8 1362 2244 143 33 96.432106 Federal5 1 8 1 1 9 1523 2246 114 32 96.886490 Trades 1 8 1 1 10 1654 2245 226 35 96.599396 Commissions 1 8 1 1 11 1897 2246 69 32 96.802879 Acta 1 8 1 2 0 657 2293 1307 45 -1 5 1 8 1 2 1 657 2294 69 43 96.787964 ands 1 8 1 2 2 744 2293 45 42 96.862488 by5 1 8 1 2 3 807 2294 113 32 97.013359 virtues 1 8 1 2 4 937 2288 39 38 97.001900 of5 1 8 1 2 5 993 2295 59 32 97.006248 thes 1 8 1 2 6 1069 2294 176 43 96.989250 authority5 1 8 1 2 7 1263 2295 141 33 96.933380 vested5 1 8 1 2 8 1394 2307 37 21 96.959084 in5 1 8 1 2 9 1450 2295 28 33 96.623558 it5 1 8 1 2 10 1494 2295 46 43 96.623558 by5 1 8 1 2 11 1558 2296 74 33 95.851089 said5 1 8 1 2 12 1649 2296 78 42 96.829414 Act,5 1 8 1 2 13 1744 2297 59 32 96.401390 thes 1 8 1 2 14 1821 2297 143 32 96.305252 Federal4 1 8 1 3 0 655 2322 1309 67 -1 5 1 8 1 3 1 655 2335 115 48 96.515022 Trades 1 8 1 3 2 787 2344 235 42 95.700470 Commission,5 1 8 1 3 3 1039 2345 131 42 96.525459 having5 1 8 1 3 4 1188 2355 119 22 96.688187 reasons 1 8 1 3 5 1324 2349 37 29 97.002304 to5 1 8 1 3 6 1376 2345 129 34 96.858826 believes 1 8 1 3 7 1521 2347 76 32 96.941048 that5 1 8 1 3 8 1615 2322 136 58 95.627884 Samuels 1 8 1 3 9 1768 2347 135 42 96.413895 Worth,5 1 8 1 3 10 1921 2358 43 22 96.762299 an4 1 8 1 4 0 656 2373 1308 65 -1 5 1 8 1 4 1 656 2394 194 34 96.186440 individuals 1 8 1 4 2 865 2395 142 42 96.666512 trading5 1 8 1 4 3 1021 2396 67 32 96.766052 ands 1 8 1 4 4 1104 2395 106 43 96.525070 doing5 1 8 1 4 5 1223 2396 152 33 96.255600 business5 1 8 1 4 6 1388 2397 108 32 96.505074 under5 1 8 1 4 7 1511 2397 57 34 96.019249 thes 1 8 1 4 8 1582 2409 98 22 96.768410 names 1 8 1 4 9 1695 2398 38 33 96.461929 of5 1 8 1 4 10 1747 2373 217 59 92.845673 Worthmore3 1 8 2 0 0 654 2445 1311 300 -1 4 1 8 2 1 0 658 2445 1307 46 -1 5 1 8 2 1 1 658 2445 96 34 93.192749 Sales5 1 8 2 1 2 769 2445 69 42 92.996971 Co.,5 1 8 2 1 3 853 2445 210 36 96.651192 hereinafter5 1 8 2 1 4 1077 2446 152 34 96.584106 referred5 1 8 2 1 5 1244 2451 36 29 96.332153 to5 1 8 2 1 6 1295 2459 37 22 96.806648 as5 1 8 2 1 7 1346 2448 215 43 96.747772 respondent,5 1 8 2 1 8 1574 2449 63 33 96.893021 has5 1 8 2 1 9 1651 2449 151 33 96.302109 violated5 1 8 2 1 10 1815 2449 58 33 93.298164 thes 1 8 2 1 11 1888 2460 77 31 93.039505 pro-4 1 8 2 2 0 655 2496 1309 46 -1 5 1 8 2 2 1 655 2496 129 34 96.977051 visions5 1 8 2 2 2 797 2497 39 32 97.002472 of5 1 8 2 2 3 847 2497 74 33 96.574913 said5 1 8 2 2 4 934 2500 64 39 96.755196 act,5 1 8 2 2 5 1010 2497 69 33 96.445869 ands 1 8 2 2 6 1090 2497 30 33 96.445869 it5 1 8 2 2 7 1131 2497 191 44 96.425240 appearing5 1 8 2 2 8 1332 2502 36 29 96.503311 to5 1 8 2 2 9 1381 2498 58 34 96.810318 thes 1 8 2 2 10 1452 2498 224 35 95.650612 Commissions 1 8 2 2 11 1687 2500 77 33 94.867622 that5 1 8 2 2 12 1776 2512 20 21 92.733315 a5 1 8 2 2 13 1807 2500 157 42 92.698929 proceed-4 1 8 2 3 0 656 2545 1307 48 -1 5 1 8 2 3 1 656 2545 63 45 96.581177 ings 1 8 2 3 2 738 2548 46 42 96.696838 by5 1 8 2 3 3 804 2548 29 32 96.312241 it5 1 8 2 3 4 853 2548 37 32 96.306534 in5 1 8 2 3 5 909 2552 131 38 96.306534 respects 1 8 2 3 6 1059 2548 136 33 96.868050 thereof5 1 8 2 3 7 1214 2549 114 33 96.097923 would5 1 8 2 3 8 1347 2548 41 34 96.897682 be5 1 8 2 3 9 1407 2549 38 33 97.005981 in5 1 8 2 3 10 1464 2550 59 33 96.892136 thes 1 8 2 3 11 1542 2550 140 34 96.992989 interests 1 8 2 3 12 1702 2551 39 32 97.015930 of5 1 8 2 3 13 1760 2551 59 33 96.625839 thes 1 8 2 3 14 1837 2551 126 42 96.108200 public,4 1 8 2 4 0 654 2598 1310 46 -1 5 1 8 2 4 1 654 2598 125 42 96.320381 hereby5 1 8 2 4 2 790 2599 103 45 96.804535 issues5 1 8 2 4 3 902 2599 45 33 96.737968 its5 1 8 2 4 4 957 2599 187 42 96.365707 complaints 1 8 2 4 5 1153 2599 130 42 96.292221 stating5 1 8 2 4 6 1292 2599 45 33 95.231377 its5 1 8 2 4 7 1345 2600 141 42 93.559929 charges5 1 8 2 4 8 1495 2600 36 32 93.559929 in5 1 8 2 4 9 1540 2601 78 32 96.771828 that5 1 8 2 4 10 1627 2605 130 38 96.891258 respects 1 8 2 4 11 1768 2612 36 21 96.947449 as5 1 8 2 4 12 1813 2601 151 34 96.419579 follows:4 1 8 2 5 0 667 2647 1298 48 -1 5 1 8 2 5 1 667 2678 5 11 74.557655 ,5 1 8 2 5 2 698 2647 210 41 30.525681 Paragrapu5 1 8 2 5 3 925 2652 28 30 94.670975 1.5 1 8 2 5 4 976 2650 220 42 96.629272 Respondents 1 8 2 5 5 1211 2650 137 33 96.211555 Samuels 1 8 2 5 6 1363 2651 134 41 95.958672 Worth,5 1 8 2 5 7 1512 2651 30 33 96.798363 is5 1 8 2 5 8 1558 2663 43 22 96.798363 an5 1 8 2 5 9 1616 2652 192 32 96.637848 individuals 1 8 2 5 10 1823 2653 142 42 96.748779 trading4 1 8 2 6 0 655 2700 1309 45 -1 5 1 8 2 6 1 655 2701 68 31 78.462631 ands 1 8 2 6 2 739 2701 107 36 78.382553 doing5 1 8 2 6 3 859 2700 151 33 96.770226 business5 1 8 2 6 4 1024 2701 109 33 96.152267 under5 1 8 2 6 5 1147 2702 58 32 96.041130 thes 1 8 2 6 6 1220 2713 98 21 96.710365 names 1 8 2 6 7 1332 2702 38 32 93.280518 of5 1 8 2 6 8 1384 2703 216 32 91.336327 Worthmore5 1 8 2 6 9 1618 2703 94 33 93.168045 Sales5 1 8 2 6 10 1726 2703 70 42 91.021210 Co.,5 1 8 2 6 11 1811 2704 84 32 97.012878 with5 1 8 2 6 12 1910 2704 54 32 96.034943 his WORTHMORE SALES COMPANY 609 606 Complaint principal office and place of business located at 221 East Cullerton Street, Chicago, Il]. Respondent is now and for more than 6 months last past has been engaged in the manufacture of sales promotion cards and in the sale and distribution thereof to dealers located at points in the various States of the United States and in the District of Columbia. Respondent causes and has caused his sales cards, when sold, to be transported from his place of business in the city of Chicago, Ill., 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 6 months last past a-course of trade by respondent in such sales promotion cards 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 said business respondent is in competition with other individuals and with corporations and firms engaged in the manufacture of sales promotion cards, trade cards, discount cards, premium cards, coupons and trading stamps and in the sale and distribution thereof 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 his business as described in paragraph 1 hereof respondent sells and has sold cards so designed and arranged as to involve the use of a lottery scheme or gift enterprise when used by dealers in promoting and increasing sales of their merchandise to the consuming public. The respondent manufactures and distributes several groups of sales promotion cards but they all involve a lottery scheme or gift enterprise and vary only in detail. The sales promotion cards in one such group are herein described for the purpose of showing arrangement, design and principle involved: Gas 22 2222222333333333 Gas Sales Sales THIS CARD IS VALUABLE—Use it and Discover YOUR HIDDEN TREASURE Mystery! ‘Under This SECRET PANEL No blanks Thrills! is Your Award Surprises! Warning! Void if Opened Every Card a Winner! Read Rules on Other Side Gas Oil 111 = Oil Gas Sales 55555 Sales 223 Sales 55555 Sales Under the secret panel appears various legends, some of which have the numbers 400, 300, etc., and the words “See Chart for Award.” On the reverse or back of said sales card appears the following legend: Complaint 46 F.T.C, Customers Dividend Club Membership Card Name Address . Hach purchase you make will be punched out. When entirely punched out, we will open the “Secret Panel” revealing a hidden number which entitles you to a valuable dividend award absolutely free. See selection of awards in our Place. Should you open “Secret Panel” card becomes void.. Mfd. by Worthmore, 221 E. 20th St., Chicago U.S. Pat. No. 2,109,603.

Each set of the sales promotion cards sold by respondents is accompanied by a poster, typical of which is the one bearing the following legend :

JOIN OUR CUSTOMER’S DIVIDEND CLUB $ Trade It $ Here: Pays ask for a “Secret Panel” Treasure Card * It’s Free When your card is fully punched out we will open “Secret Panel” revealing your hidden dividend number which entitles you to choice of gifts below. No. Dividends below are absolutely free 950 Receives 900 Receives 800 Receives 700 Receives 600 Receives 500 - Receives 400 Receives 800 Receives 200 Receives 150 Receives The secret panel referred to on said card is partially perforated indicating where the panel may be opened, but until the panel is opened, the legend thereunder is effectively concealed from the holder of said card. The legends under the secret panel contain numbers corresponding to some of those shown on the poster. The legend under the secret panel is effectively concealed under the panel except when opened, and the number which the holder of said card has drawn is effectively concealed and determined wholly by lot or chance. Respondent furnishes his customers various posters and advertising matter explaining the operation of the sale plan, and in his literature and by his representations suggests various methods for the use of WORTHMORE SALES COMPANY 611 606 Complaint his sales cards by dealers, all of which methods involve a lottery or game of chance.

Par. 4. Each of the cards included in one of the groups of sales cards embodying respondent’s sales plan is intended for use in the sale of various amounts ef merchandise, and others manufactured and sold to filling stations are intended for use by proprietors of service stations in sales of oil and gas aggregating specified amounts and provide for various awards as determined by the proprietors of said stations. The retail merchandise and service station operators to whom respondent sells and has sold assortments of such sales promotion cards distribute the same to their customers and prospective customers and, on the poster furnished by respondent for the purpose opposite the various numbers, list prizes or awards in varying amounts as determined by said merchants. The cards are distributed free to customers and prospective customers of said retail merchants and filling station operators and, when purchases are made, numbers corresponding to the amount of such purchase are punched from the margin of said card. And when all the numbers around the said margin are punched, the secret panel is opened and the customer is entitled to merchandise in the amount shown on the poster opposite the number corresponding to the number appearing under the secret panel without additional charge. In few or no cases are the retail customers of said merchants given their choice of the various prizes listed on the poster. Par. 5. There are in competition with respondent various manufacturers and distributors of sales promotion cards, premium cards, price concession cards, coupons and trading stamps, which, when used by dealers, do not involve a lottery scheme, game of chance, or gift enterprise. Many persons, firms and corporations who sell and distribute various cards or devices for promoting or increasing the sales of dealers do not offer for sale or sell cards or devices so designed and arranged as above alleged, or otherwise designed and arranged, as to involve a game of chance, lottery scheme, or gift enterprise. Par. 6. The use by respondent of said methods in designing and arranging his said cards and distributing the same for redistribution to the public is a practice which is contrary to an establishéd public policy of the Government of the United States. The consuming public is induced to deal with or purchase merchandise from dealers using respondent’s cards in preference to purchasing merchandise from dealers using the devices of respondent’s competitors, because of the lottery scheme, game of chance, or gift enterprise connected with respondent’s said cards. By reason thereof, dealers are induced to purchase respondents said cards in preference to devices of respondent’s 854002—52——-42 Findings 46 F.T.C.

competitors. The sale and distribution of the aforesaid sales cards has the tendency and capacity to unfairly divert trade to respondent from its said competitors.

Par. 7. The aforesaid acts and practices of the respondent, as herein alleged, are all to the prejudice and injury of the public and of respondent’s competitors and constitute unfair methods of competition in commerce and unfair and deceptive acts and practices in commerce within the intent and meaning of the Federal Trade Commission Act.

Revort, Frnvrines as To THE Facts, AND ORDER Pursuant to the provisions of the Federal Trade Commission Act, the Federal Trade Commission on August 10, 1944, issued and subsequently served its complaint in this proceeding upon the respondent Samuel Worth, an individual trading as Worthmore Sales Co., charging him with the use of unfair methods of competition in commerce and unfair acts and practices in commerce in violation of the provisions of said act. After the respondent filed his answer, testimony and other evidence in support of and in opposition to the allegations of the complain 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, the answer thereto, testimony and other evidence, recommended decision of the trial examiner, and briefs and oral argument in support of and in opposition to the complaint; 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 Paracrapy 1, Respondent, Samuel Worth, is an individual trading and doing business under the name of Worthmore Sales Co., with his office and place of business located at 1825 South Michigan Avenue, Chicago, Ill. He is now, and since 1942 has been, engaged in the manufacture of sales promotion plans, including trade cards and other similar devices, which have been distributed to retail dealers located at points in the various States of the United States and in the District of Columbia.

Par. 2. In the course and conduct of his business, respondent causes and has caused his sales plans, trade cards, and other similar devices, WORTHMORE. SALES COMPANY 613 606 Findings when sold, to be transported from his place of business in the State ’ of Illinois te purchasers thereof located in the various States of the United States and in the District of Columbia. Respondent maintains, and has maintained, a course of trade in his products in commerce among and between the various States of the United States and in the District of Columbia.

Par. 3. In the course and conduct of his business, respondent sells, and has sold and distributed, several groups of sales promotion plans, trade cards, and similar devices which involve the same general principle and vary only in detail, typical and illustrative of which are the following:

Gas 2 2222222 2 3 3 8 8 8 8 8 8 8 Gas Sales Sales THIS CARD IS VALUABLE—Use it and Discover YOUR HIDDEN TREASURE Mystery ! Under This SECRET PANEL No Blanks Thrills! is Your Award Surprises ! Warning! Void if Opened Every Card a Winner! Read Rules on Other Side Gas Oil 111 Oil Gas Sales 5 5 5 5 5 Sales 223 Sales 5 5 5 5 5 Sales Under the secret panel appear various legends, some of which have the numbers 400, 300, etc., and the words “See Chart for Award.” On the reverse or back of said sales card appears the following legend: Customers Dividend Club Membership Card Name Address Each purchase you make will be punched out. When entirely punched out,’ we will open the “Secret Panel” revealing a hidden number which entitles you to a valuable dividend award absolutely free. See selection of awards in our place. Should you open “Secret Panel” card becomes void. Mfd. by Worthmore, 221 B. 20th St., Chicago U.S. Pat.-No. 2,109,603.

Each set of the above cards is accompanied by the following poster : JOIN OUR CUSTOMER’S DIVIDEND CLUB $ Trade It §$ Here Pays ask for a “Secret Panel” Treasure Card It’s Free When your card is fully punched out we will open “Secret Panel” revealing your hidden dividend number which entitles you to choice of gifts below. . Findings 46F,.T.C, No. Dividends below are absolutely free 950 Receives 900 Receives 800 Receives 700 Receives 600 Receives 500 Receives 400 Receives 300 Receives 200 Receives 150 Receives 100 -Receives Par. 4. These sales stimulator plans are sold in units consisting of 500 or multiples thereof, “secret panel” trade cards, several award sheets, window posters, and a trade card punch. The secret panel referred to on said trade card is partially perforated, indicating where the panel may be opened, but until the panel is opened, the legend thereunder is effectively concealed from the holder of said card and the number held is determined by lot or chance. The numbers on the award chart match the concealed numbers on the cards according to a schedule fixed by the respondent so that the higher the number, the fewer the cards bearing that number. Thus, there are only two cards having the highest number concealed, while there are 140 cards with secret panels concealing the lowest number on the award sheet. Respondent supplies each of his customers with posters and advertising matter which describe the operation of the sales plan and the use of cards by them to attract customers and increase sales. He also sends to each customer a sheet showing a photographic facsimile of the patent on his sales plan, on the reverse side of which are printed instructions to them that so long as the card holder has his choice of awards the use of the plan cannot be considered a lottery and that it is intended to be so used.

Par. 5. The respondent’s sales plans, trade cards, and similar devices are all designed and arranged for use by retail merchants in the sale and distribution of their merchandise to the public by means of a game of chance, gift enterprise, or lottery scheme. The retail merchants to whom respondent sells his plans distribute the sales cards to their customers without charge and without knowledge on the part of either as to the numbers concealed on the cards. On the award poster furnished by respondent for this purpose, retailers list prizes or awards epposite the various numbers in varying amounts which are determined solely by said retailers. As purchases are made by the card holders from the retailer, the latter punches out the value of each purchase WORTHMORE SALES COMPANY 615 606 Findings from the sales or trade card until all the numbers around the margin, equaling the face value of the card, are punched out. The retailer then opens the secret panel on the trade or punch card, and the customer is entitled to merchandise in the amount shown on the poster opposite the number corresponding to the number appearing under the secret panel, without additional charge. Such customer is not given a choice of the awards listed but must take the one listed opposite the same number as his card bears. The award received is thus determined and distributed wholly by chance.

Par. 6. Retail merchants who purchase respondent’s sales plans and cards use them to operate a game of chance, gift enterprise, or lottery scheme in the sale of merchandise to the purchasing public. That these plans and cards are designed, arranged, and sold by the respondent for that purpose is evident from the make-up of the plan and the cards themselves; from respondent’s description of the superiority of his plans with concealed numbers to ordinary trade cards, where the’ holder knows from the beginning what he will get; from the literature advertising his plans; and from his instructions to his retailer-customers as to how, if used as directed, they do not involve a lottery but if otherwise used they do.

Par. 7. Respondent supplies to and places in the hands of retail merchants the means by which they have been, and are, conducting games of chance, gift enterprises, and lottery schemes in the sale of merchandise to the public. The sale of merchandise by and through such means is a practice which is contrary to the established public policy of the government of the United States, and the respondent, through the supplying of such means, assists and participates in a vio- — lation of said policy.

Par. 8. Respondent is in competition with other individuals, firms, or corporations who sell and distribute trade cards, sales plans, premium cards, etc., which are not designed, arranged, sold, or used to sell merchandise by games of chance, gift enterprises, or lottery methods. The lot or chance feature of respondent’s sales plans has the tendency and capacity to induce members of the purchasing public to deal with or purchase merchandise from merchants using such plans in preference to merchants or others using sales promotion plans of competitors which do not contain an element of lot or chance. Therefore, retail merchants and dealers are attracted to respondent’s sales plans or methods by the element of chance involved in the sale of merchandise _by the use of said plans and are thereby induced to purchase said plans in preference to sales promotion plans offered by competitors which do not contain an element of chance. Thus, the offering for sale, sale, and Opinion 46 F. 1. C.

distribution by respondent of said sales plans have the capacity and tendency, because of the lot or chance feature, unfairly to divert trade to respondent from his competitors who do not sell, or offer for sale, sales plans containing an element of chance. CONCLUSION .

The acts and practices of the respondent as herein found are all to the prejudice and injury of the public and of respondent’s competitors, and constitute unfair methods of competition in commerce and unfair acts and practices in commerce within the intent and meaning of the Federal Trade Commission Act.

Commissioner Mason concurring in part and dissenting in part. ORDER TO CEASE AND DESIST This proceeding having been heard by the Federal Trade Commission upon the complaint of the Commission, the answer of the respondent, testimony and other evidence taken before a trial examiner of the Commission theretofore duly designated by it, recommended decision of the trial examiner, and briefs and oral argument in support of and in opposition to the complaint; and the Commission having made its findings as to the facts and its conclusion that the respondent has violated the provisions of the Federal Trade Commission Act: It is ordered, That the respondent, Samuel Worth, trading as ‘Worthmore Sales Company or under any other name, his agents, representatives, and employees, directly or through any corporate or other device, do forthwith cease and desist from: Selling or distributing in commerce, as “commerce” is defined in the Federal Trade Commission Act, sales stimulator plans, trade cards, sales cards, premium cards, or other articles so designed that their use in connection with the distribution of merchandise constitutes, or due to such design may constitute, the operation of a game of chance, gift enterprise, or lottery scheme.

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 it.

Commissioner Mason concurring in part and dissenting in part. OPINION OF THE COMMISSION Ayres, Commissioner: Respondent sells various sales promotion plans which involve the same general principle. Typical of such WORTHMORE SALES COMPANY 617 606 Opinion plans are cards which respondent sells to retailers for free distribution among their customers. The cards are intended to stimulate the business of the retailer by providing bonuses to his customers upon their purchase of merchandise from him aggregating the amount shown oneach card. Figures around the edge of the card are punched in an amount corresponding with the amount of each purchase. Some of the cards are punched out in full when purchases amount to $5, and others when they amount to $10. In the center of each card is a “secret panel,” containing a hidden number, which is opened by the retailer when the card has been completely punched out. The customer then becomes entitled to a bonus corresponding with the number in the panel according to a schedule posted in the retailer’s store. On the printed form for the schedule of bonuses, which form is supplied by respondent, appears the following information for the retailer’s customers:

When your card is fully punched out we will open “Secret Panel” revealing your hidden dividend number which entitles you to choice of gifts below. The form showing the schedule of bonuses has blank spaces in which the retailer lists the bonuses to be awarded for each of 11 numbers. In each unit of 500, the “secret panel” of only two cards conceals the highest of the eleven numbers, the lower numbers appearing in the “secret panel” of progressively more cards. Evidence concerning the actual operation of the plan discloses that merchants give a larger award, usually an amount in trade, for the highest numbers, and progressively smaller awards for the lower numbers, and that the customer is entitled to receive only the award listed for his number. On this basis of operation, it is clear that the amount of the award received by each customer is determined wholly by lot or chance.

Respondent argues that this plan is not designed or intended to be used as a lottery; and that the element of chance has been entirely eliminated by instructions to the merchants to give any listed prize which their customer may select, regardless of the hidden number on the customer’s card. It is contended that the “secret panel” or hidden number provides an element of suspense which is attractive, but that the customer is not limited in his choice of awards to that listed for his number on the schedule, and may select any one of the awards listed. Respondent urges that its instructions to the retailer relieves it of responsibility for any lottery which may be employed by the retailer in actual operation.

Opinion 46 F.T.C.

It is surprising that respondent’s arguments should be seriously offered or considered. No reasonable person could feel ‘any real suspense in trading out his card to learn what his concealed number may be unless that number had some influence in determining what award he would receive. If the customer knows, as respondent contends that he should know, that regardless of the number in his “secret panel” he may receive his choice of any one of the listed prizes, it is wholly unreasonable to believe that he has any curiosity as to what his number may be. The only consideration that gives point and purpose to the concealed number is that it serves to identify specifically the award or bonus which the holder of the number will receive, and inspires the hope that through it the finger of chance will fall upon one of the larger awards.

It is clear that the plans are designed to be used in connection with lottery schemes and the Commission has no difficulty in reaching such a conclusion from the plans themselves and from the evidence of their use. This method of competition has previously been condemned as unfair, and the circumstances in this case require an order to cease and desist.

Having decided that corrective action is required, we come to the scope of the remedy which is needed. The order in this matter requires respondent to cease and desist from: Selling or distributing in commerce, as “commerce” is defined in the Federal Trade Commission Act, sales stimulator plans, trade cards, sales cards, premium cards, or other articles so designed that their use in connection with the distribution of merchandise constitutes, or due to such design may constitute, the operation of a game of chance, gift enterprise, or lottery scheme. There has been disagreement particularly with respect to including in the order the phrase, “or due to such design may constitute.” The respondent has devised and sold lottery schemes in connection with disclaimers which pretend to offer them as straight sales promotion plans, free of the lottery element. Prudence requires that the Commission’s remedy should reach any variations of the plans which, as a result of their design, readily lend themselves to the operation of a lottery scheme. Obviously such a remedy would not reach, and is not intended to reach, a plan which is in fact free of the lottery element but which may be so changed or corrupted by respondents’ customers as to be used in connection with lotteries. It has been urged that there is disagreement among the United States circuit courts of appeal concerning provisions of this nature in orders to cease and desist. We do not find such differences in the opinions of the circuit courts.

WORTHMORE SALES COMPANY 619 606 Opinion In May 1942 the Circuit Court of Appeals for the Ninth Circuit considered an order of the Commission which required respondents to discontinue selling merchandise “so packed and assembled that sales of said merchandise to the public are to be made or may be made by means of a game of chance, gift enterprise, or lottery scheme,” and modified the order by striking the words “or may be made.” (Lee Boyer’s Candy v. Federal Trade Commission, 128 F. (2d) 261). In that opinion the Court specifically reaffirmed its 1939 decision in Helen Ardelie, Inc. v. Federal Trade Commission, 101 F. (2d) 718, and refused to follow the action of other Circuit Courts which had approved the inclusion of similar language in cease and desist orders. In explaining the reason for its decision in the Ardelle case supra, the court stated in part as follows:

The orders, as drawn, would prevent petitioners from selling any candy which ~ any person might thereafter sell by means of a lottery, gaming device, or gift enterprise, or might thereafter use in conducting a lottery, gaming device, or gift enterprise, even though such sale or use was not designed, intended, caused, procured, or consented to by petitioners. This; obviously, was not the intention of Congress, In reaching this decision, the Court relied upon Federal Trade Commission v. A. McLean & Son, 84 F. (2d) 910, decided by the Circuit Court of Appeals for the Seventh Circuit in 1936, and upon Federal Trade Commission v. Charles N. Miller Company, 94 F. (2d) 563, decided by the Circuit Court of Appeals for the First Circuit in 1938. The Miller case relied in turn almost wholly upon the McLean case from which it quoted with approval the following language: We are convinced, however, that paragraphs (1) and (2) of.the cease and desist order are too broad in that they prevent the sale and distribution to jobbers and wholesalers for resale to the retailers of any candy so packed and assembled that retail sales may be made by means of a lottery, or gaming device. This clearly would prevent the sale of any candy which might afterwards be sold by the retailer by means of a lottery, gaming device, or gift enterprice. Obviously, this was not the intention of Congress, and we think it was not the intention of the Commission. We have, therefore, stricken the word “may” from paragraphs (1) and (2) of the orders and substituted the words “are designed to,” and as thus modified, the orders of the Commission are affirmed, and respondents, their officers, directors, agents, representatives, and employees are hereby ordered to comply therewith.

The AfcLean decision which was relied upon in both the Ardelle and Miller cases, was specifically overruled by the Court of Appeals for. the Seventh Circuit in 1939 in its decision in National Candy Co. et al. v. Federal Trade Commission, 104 F, (2d) 999. In that case, the Court 620 : FEDERAL TRADE COMMISSION DECISIONS Opinion 46 F. T.C.

stated that this particular question had but scant attention in the argument of the McLean case but, referring to the Commission, said: It now presents authorities in support of its construction of the present order and-urges us to approve the present order on the theory that it cannot reasonably be construed to apply to the sale and distribution of straight candy, that is to say, to candy that is not “so packed and assembled that sales of such candy to the general public are to be made or may be made by means of a lottery, gaming device, or gift enterprise.”

We deem this suggestion worthy of consideration in view of the fact that the development of plans calculated to evade the intent of the statute, as illustrated by those here presented, convinces us that the substitution we made in the McLeon case lacks effectiveness in carrying out the intention of Congress. A further consideration convinces us that the language of the order in the light of the allegations of the complaint and findings of the Commission cannot reasonably be construed to be applied to the sale of “straight” candy. Regardless of the substitution made by us in the IMfcLean case, we affirm the order of the Commission as here presented. We regard it as inapplicable to “straight” candy or to any candy that does not carry an unfair appeal to retail dealers and retail purchasers because of the element of chance involved in the sale thereof. We had no intention of holding otherwise in the IfcLean case. Tn a decision in 1940 the United States Circuit Court of Appeals for the Second Circuit modified a similar order of the Commission (Sweets Company of America, Inc., v. Federal Trade Commission, 109 F. (2d) 296), with the following explanation: :

We think that an innocent vendor will not be subjected to the risk of violating the order if it be modified so that the words “are likely to be made” are substituted for “may be made” * * *, The order as thus modified would only preclude sales where a lottery system was known to be practiced or where the packing of the candy carried an unfair appeal to the purchasers. It would not preclude a manufacturer from selling its candies when so packed that a lottery was neither reasonably anticipated nor suggested nor likely to occur. In some of the other cases in which this question was specifically considered, the United States circuit courts of appeal affirmed the board language used by the Commission. In Ostler Candy Company et al., vy. Federal Trade Commission, 106 F. (2d) 962, for example, which was decided in 1939, the Circuit Court of Appeals for the Tenth Circuit carefully considered the decisions of the other circuit courts and elected to follow the Seventh Circuit in the National Candy Company case, supra. There, the court said, among other things: These orders mist be construed in the light of the allegations contained in the complaint and the findings of the Commission. And when construed in that manner it is reasonably clear that the first and second paragraphs apply exclusively to candy which is so packed or arranged as to be especially suited to sale at retail in a manner which makes an unfair appeal to retail dealers and retail purchases on account of the element of chance involved, and to candy WORTHMORE SALES COMPANY 621 606 Opinion which is peculiarly adapted in some other manner to sale at retail by chance _ method. With these paragraphs thus construed, the orders are not objectionably broad in scope and effect.

In Hill v. Federal Trade Commission, 124 F. (2d) 104, decided in 1941, the Circuit Court of Appeals for the Fifth Circuit sustained the broad form of order, stating in part as follows: It is our view that those decisions which declare that the order is not subject to the construction which petitioners fear (citing cases); are more soundly based than those on which petitioners rely (citing cases). These latter, we think, as a result of yielding to an unfounded apprehension, have the effect of leaving a loophole for evasion which is certainly closed and no more than closed, by the use of the words in controversy. For we think they must be construed as intending to prohibit and as prohibiting only those practices which petitioners have in some way, made themselves a party to, in some way assisted in carrying out.

From the foregoing references, it will be seen that there is no difference in the purpose or scope of the orders intended by the Commission and those approved by all of the courts referred to. The only differences between the opinions of the several circuit courts and between certain of the Courts and the Federal Trade Commission involve construction of the language used rather than the proper scope of the orders themselves. It seems clear from the decisions, and it is the opinion of the Commission, that when merchandise plans or sales promotion plans reasonably anticipate or suggest a lottery or from which a lottery is likely to occur, the order should be sufficiently broad to enjoin their use. It is not the intention of the Commission to go beyond this point.

No court has held that the orders in question were too broad when construed as we intended that they should be construed. In the light of the decisions discussed above and other decisions of a similar nature, the Commission believed that since the differences involved questions of construction only, they could be resolved by modifying the language of the orders to meet the objections of the courts. We considered carefully, therefore, the possibility of choosing language which would eliminate the uncertainty of construction found by the courts, but which would still be sufficiently broad to accomplish the purposes intended. As guides in this study we gave particular attention to the language “are designed to” which was substituted by the courts in the Miller and McLean cases, supra, and the language “are likely to” which was substituted by the court in the Sweets Company case, supra. The study we made of this problem resulted in our adopting, in 1942, for general use in appropriate matters, language which will Opinion 46 F. T.C.

require respondents who are proved to be engaged in lottery schemes of this nature, to cease and desist from: ; Selling or distributing any merchandise so packed and assembled that sales of said merchandise to the public are to be made, or, due to the manner in achich such merchandise is packed and assembled at the time it is sold by respondent, may be made by means of a game of chance, gift enterprise or lottery scheme. The underscored language was added before the words “may be made,” so as to make it clear that such orders are intended to apply only to those plans which may be used as lottery schemes as a result of the manner in which the merchandise is packed and assembled at the time it is sold by the party charged with the violation. This type of order has been used in many subsequent cases and has not thus far been disapproved by any court.

Appropriate changes in language are necessary to fit the facts of each case and such a change was required in the present matter. As indicated above, the order here prohibits respondent from selling sales promotion plans and similar articles “so designed that their use in connection with the distribution of merchandise constitutes, or due to such design may constitute, the operation of a game of chance, gift enterprise or lottery scheme.” The underscored language here clearly limits the order to merchandise so designed by the respondent that it may or is likely to constitute a game of chance, gift enterprise, or lottery scheme. It is the opinion of the Commission that this modification meets the criticisms which have been raised by some of the circuit courts, without narrowing or impairing the effectiveness of the order.

OPINION OF COMMISSIONER LOWELL B. MASON CONCURRING IN PART AND DISSENTING IN PART I concur in the findings of fact entered by the majority, but I cannot concur in the form of an order that gives effect to the so-called “possibility” rule.

First, as to the facts, the public records of the Commission (which we may judicially notice when determining judgments in other cases) disclose that respondent corporation here is but a thinly veiled sub- ‘stitute for one Samuel Worth against whom we have already entered an order.t Worth’s defiance of this Commission’s mandate is evidenced from the fact that 6n March 28, 1949, the Government obtained 1 Civil penalties of $10,000 were awarded the Government by the United States District Court for the Northern District of Illinois in a civil action against Worthmore Sales Promotion Service, Samuel Worth, president, 221 East Twentieth Street, Chicago, for two violations of a Federal Trade Commission cease and desist order, Docket No. 2946. “WORTHMORE SALES COMPANY 623 606 Opinion a judgment of $10,000 for violation of our order in the above entitled cause.

But, as the Supreme Court has often shown, neither the evil nature of a charge nor the low estate of a defendant taken alone is sufficient grounds on which to base sanctions. Regardless of who the defendant is, sanctions may be issued only on a finding of guilt, and even then, must not exceed the authority granted by Congress to the court or administrative agency entering the order.

We are an administrative agency devoted to the elimination of unfair practices in commerce. To accomplish this, we delineate what are unfair acts through fact findings as to what constitutes unfail commercial practices, and we base our order on such findings. In the first case, Docket 2946, we told the Worthmore corporation that it must not sell boards or cards that are so designed that their use by retail merchants constitutes or may constitute the operation of a lottery, or selling plans or schemes which may be used without alteration or rearrangement to conduct a lottery. Samuel Worth, the present respondent (president and owner of the former corporation), apparently trying to purge himself of selling cards that were designed for lotteries, made his new product so that they could not be so used unless changed. The findings of fact and testimony show that it was the Government’s own witnesses who changed the cards, not the defendant. In order to reach the defendant’s present practices, we would have to extend the scope of our order to prohibit the selling of cards that may be used as a lottery, even if changed by someone else not a party to the suit. In my opinion, the decision in the Brewer case does not support this order. The Brewer decision rests on certain essential conclusions which cannot be drawn in this case because the facts do not support the same. The conclusion in the Brewer case which I believe we are unable to parallel in the Worthmore case is as follows: That the boards and cards are designed and sold by respondents for that specific purpose is evident not only from the make-up of. the boards and cards themselves, but also from statements made by the respondents in the catalogs advertising their devices. {Italics supplied] (Federal Trade Commission vV. Brewer, Docket 3952.) ;

These findings were commented on with approval by the Sixth Circuit Court in its opinion, as follows: . The Commission found specifically that, among the various types of punch boards and push cards manufactured and sold by petitioners, many are designed for use by retail dealers in the sale and distribution of merchanidse to the public “by means of a game of chance, gift enterprise or lottery scheme.” * * * The Opinion 46 F, T. C.

Commission found, further, that * * * the boards and cards of petitioners are designed and sold for that specific purpose, as evidenced, not only from the make-up of the boards and cards, but also from statements contained in the catalogs advertising petitioners’ devices. [Italics supplied.] (C. C. A. 6th, Oct. Term 1945, Docket 9993. ) In this case the Sixth Circuit Court relied on the Supreme Court’s opinion in the Winsted Hosiery case (258 U. 8. 483) where the manufacturer (the respondent) placed in the hands of the retailer an “unlawful instrument.” In the instant matter, the respondent’s product, the sales stimulator, did not become unlawful until after the Government’s own witnesses altered it to make it so. So the same conclusions cannot be correctly drawn paralleling those in the Brewer or Winsted cases.

The Commission, in drafting the order here, has not followed the pattern set down by the Second Circuit Court of Appeals in its decision of Sweets v. Federal Trade Commission. The order in that case as originally issued by the Commission required the defendant to cease and desist from “selling and distributing candy so packed and assembled that sales of such candy to the general public are to be made or may be made by means of a lottery,” etc. The court criticized the use of the words “or may be made,” saying that any box of candies might be used for gambling purposes, and indicated that the order should be modified by substituting the words “are likely to be used.” Thus the Second Circuit would require something more than a mere possibility of an illegal use of the defendant’s products before banning them.

The order as drawn does not agree with the Second Circuit, and in all fairness, it should be added that neither do the Seventh or Tenth Circuits, though on the other hand, the First and Ninth seem to go along with the Second.

I concede that it is difficult to frame an order that will prevent manufacturers of games of chance from marketing an instrumentality that may be used as a lottery. But hard cases make bad law. From apples to zithers (including dominoes, parcheesi and playing cards), there is nothing produced that cannot be diverted to illegal use. Thus, in the instant case, chasing a man with a bad name, we have thrown ourselves past the bounds of accepted legal sanctions. Sometimes hunters riding to hounds become so intent on catching their quarry they trample the farmers’ grain. I feel the same about administrative orders based on the “possibility” rule. We may catch a fox but we endagner the concept of freedom. The burden of the WORTHMORE. SALES COMPANY 625 606. — Opinion law needs more justification than the prevention of the possibility of wrong. Its hand should rest lightly except on the guilty. ~ ‘While we need waste no sympathy on this respondent nor fear that this order which overreaches itself will be used by the present Commissioners as an instrument of oppression, some day, some time, those who seek to ban any product can use the precedent set by this case to demonstrate the legality of their prohibitions. Iam against it.

Cases cited :/n the Matier of Kenneth EB. Brewer, Everette R. Brewer and Nelson C. Brewer, trading under the name of Chas. A. Brewer & Sons (Docket 3952. Complaint November 16, 1939—Decision February 1, 1945) 40 F. T. C. 65. Chas. A. Brewer & Sons. v. Federal Trade Commission (C. C. A., 6th Circuit, December 5, 1946) 158 F. (2d) 74, Sweets Company of America, Inc. v. Federal Trade Commission (C. C. A., 2nd Circuit, January 29, 1940) 109 F. (2d) 296. Federal Trade Commission v. Winsted Hosiery Co. (Supreme Court, April 24, 1922) 258 U. S. 483, 42 S. Ct. 184, 66 L. Ed. 729. Complaint 46 F. T. O.