Louis Buchwalter

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IN THE IATTER OF LOUIS BUCHWALTER ET AL. TRADING AS NATW)/AL FEATHER & DOWN COMPANY ORDER, orINION, ECT., IX TIEGAHD TO THE ALLEGED VIOLATION OF THE FEDERAL TRADE COl\IlIISSlON ACT Docket 613.8. Complaint, Oct. 28, 1953-Decision, June 30 lrl;j.' Order requiring manufacturers in Brooklyn, . Y. , to cease misrepresenting the down and feather content of their pilo\ys on labels affxed thereto otherwise.

Mr. Ames W. Wiliams for the Commission. Davidson, Cohen il Zellcin of ew York City, for respondents. INITIAL DECISION BY J. EARL cox, Hearjng EXAMINER The complaint charges that the respondents have violated the provisions of the Federa.l Trade Commission Act by misrepresenting the contents of feather pilows which they manufacture and distribute in commerce, and, further, that they have falsely represented that their pillows have been laboratorv-tested bv the National Bureau of Standards, an agency of the United) States G vernment. After the filing of an answer, hearings were held, in which testimony and other evidence was presented, duly recorded and filed in the offce of the Commission. By stipulation all the evidence in the companion feather cases was made a part of the record in this case, except so far as such evidence relates exclusively to the identification, contents and analyses of the feather samples in each of those cases.' Proposed findings of fact, conclusions and order have been submitted by counsel. On the basis of the entire record, the following findings of fact are made:

1. Respondents Louis Buchwalter and Emanuel Cohen are copartners trading as National Feather & Down Company, with their offce and principal place of business at 160-166 Seventh Street, Brooklyn ew York.

2. Hesponclents arc now, and for more than one year last past have been engaged in the manufacture of feather pillows, which they sell to dealers for resale to the public.

Respondents have caused and now cause their pilows, when sold 1 The companion feather cases are: Docket fJ132, Katlonal Feather & Down Company; Docket 6133, The L Bnclman Co., Inc., et al.: Ducket G134, Burton-Dixie Corp., et al.; Docket 6135, N. Sumergradc & Sons, et al.; Docket 6137, Northern Feather Works, (nc. et al.; Do(ket 6161. '.Ihe Salisbury Co. , et al.; Docket 6188, Glube Feather & Down Co., et al.; and Docket 6208, Sanitary Feather & Down Co., Inc., et al. _. _ (;) NATIONAL FEATHER & DOWN CO. 1307 1306 Decision to be transported from their place of business to purchasers thereof located in various other States of the United States. Respondents maintain and, at all times mentioned herein, have maintained a course of trade in said pillows in commerce among and between the various States of the United States.

3. In the course and conduct of their aforesaid business respondents are now, and have been, in substantial competition in commerce with other partnerships, firms, corporations and individuals engaged in the sale and distribution of feather and down products, including pillows. 4. In the course and conduct of their aforesaid business, respondents have caused labels to be affxed to certain of their pilows purporting to state and set out the kinds or types and proportions of filling materials contained therein, and have made representations with respect to their pill0\1s designated "Gem " as follows: All new material consisting of Gons.e DO\Yll 20% Goose Jj eathers 80%"

nd with respect to their pillows designated "Grace All new material consisting of Goose Feathers.

5. Through the use of the aforesaid statements, respondents have represented that the fining material in the pjllo s designated "Gem is composed of 20% new goose down and 80)0 new goose feathers and the filling material in the pilows designated "Grace" is composed of 100% new goose feathers.

6. Two pillows of each of the above-mentioned designatiolls were procured by a representative of the Commission at the same tiuJC from the same retail dealer, and erc introduce.c1 in evidence. The contents of these pillows \\-e1'e analyzed by an expert for the Commission and by an expert for the respondents. The malysis made by the Commission s expert showed as fo1Jows:

Pilow 1 Pilow 2 ! Computed (by weight) (byweigJjt) aHral;e Perceni Percent Pucent DOWll_ 20, 20. 20. Goose feathers____ 47, !J I (,5(j 56, 3)(65. 52, 11(61.15) Duekfeatbers_ 17_2;(17. R 7 1 (i: 12. (13,Chicken fcatbe,.s---- .--u_--u. Dam:lf'cd tC itllcrs- FeatllPr 5bers-- 1 ' Pith and scaJcnu 1.2 1. : Grums Grrm8 Amount anal zcd--__ 395 501 1 The figures in p ,rentbr e'j rer2 '('nt 1.1,(' tut:;, )ounts (If fratllers oftJw particular designation, including the proportjonate SlHcl'Cof darnag(' (l frath('r ._ .. ._ __ .+.+._ Decision 51 F.

Respondents' expert made but one analysis of the contents of the two pilows, which showed the following:

Peroent au weight Feathers (predominantly goose)__-__--------------------------- 74. J)OWD__ -- 24. Pith, 'scales, etc------ O. 7 With respect to respondents' pilows designated "Grace, " the analyses were as follows:

Pilowl Pilow 2 Computed , (by weight) (by weigbt) average By Commission s expert: perant Percent Percent Down ._n Goosefeatbers_ 56. (65. 64. (74. 60. (70. Duck featbers---__-.- 22. (22. 11. (13. 16. (18. 15) (inc. 2d band) Cbicken featbers---_---------------- -v_.-------- Damaged featbers_--___--- 10. 10. 10. Second. band feathers. -. --------------h..-.-_'.---- None 1.8 Kone Featherfibers---+-----------_v._nv---------------- Pith and scale_ Gram Grams Amount analyzed--h_ h.'-'---- 4.837 2366 The figures in parentbeses represent the total amounts of featbers of the particular designation, including the proportionate sbare of damaged feathers. By respondents ' expert: Percent by weight Feathers (predominantly goose)----- -- 95. ))ovvn- --- - --- --- - --- - -- - -- -- - -- --- - -- - -- - -- - --- 3. 2 Pith, scale, etc___-------- 1. 1 7. Respondents, also, have featured on their tags and on certain price lists, the following statements:

LABORATORY TESTED APPROVED NATIONAL BUREAl;

OF S'l'AI\ DARDS C. D. Pomerantz, B. S. M.

Chemist ALL OCR PRODUCTS ARE TESTED AKD GUARANTEED BY ='ATIOKAL' BUREAU OF STA 'DARDS.

8. Through the use of these statements respondents represented that their pilows had been tested and approved by the National Bureau of Standards, Washington, D. C., an agency of the United States Government. The fact is that the National Bureau of Standards to which the respondents referred was a trade name registered in 1946 in the County of Kings, State of N ew York, under which Charles Pomerantz Louis Buchwalter and Emanuel Cohen functioned, and the testing to which the respondents referred in the above statements was made by these men operating under this registered designation. The record NATIONAL FEATHER & DOWN CO. 1309 1306 Decision 51 F. T. C. shows that this commercial National Bureau of Standards performed no work and no tests for any firms or individuals other than respondents. The representations were discontinued April 9, 1953, prior to the issuance of the complaint in this proceeding, and respondents have stated that they will not he resumcd. All labels containing these representations were destroyed.

9. In determining whether or not the representations as to the pilow contents are false within the meaning of the Act, it is helpful to have an understanding of the manufacturing methods used in the feather industry.

(1) In general, three sources of feather supplies are or have been available:

(a) TheAmericanSource First, there are the domestic feathers, which ordinarily are properly labeled, hut are not available in suffcient quantities to meet the industry's requirements.

(b) The European Source Second, there is the European source of supply from which feathers are procured, but from this source it is impossible to get unadulaterated, new stock, because of a common practice of mixing second-hand feathers with new. European feathers are purchased on the basis of sa,mples, and each manufacturer must judge from these samples the quality and type of feathers available to him. (c) The Oriental Source The third source is the Orient, from which adequate supplies may be had; hut in the Orient there is no careful sorting, and a hale of feathers purchased as good feathers may contain substantial quantities of duck or chicken feathers. These feathers are usually purchased through importers and commission merchants who submit offers to manufacturers. A typical offer wil show as available for purchase by respondents or other pillow manufacturers 100 bales of 200 pounds each at 901t per pound, the feathers being Formosan grey goose feathers, 90% clean, maximum 20% duck feathers, 5% chicken feathers, 3% quills, minimum 30% down. Oriental feathers are purchased on the basis of these representations, \vithout sampling. (2) After raw feathers are procured hy the manufacturer they are thoroughly washed, dried and flufIed up. Then they are sorted by means of a machine which separates the various constituents of 1310 FEDERAL TRADE Cmv:tISSlOX DECISIONS Decision 51 F. T. C.

the feather bulk by a hlowing or suction process. The feathers are put through the sorting machine in lots of fifty pounds. The down being lighter, is more readily blown over the baffe in the sorting machine, and passes into its particular bin or container. Then follow t.he downy-type feathers, and thc yarious other feathers, in appropriate classifications according to weight or specific gravity, each into a specially prepared container. By t.his process it. is reasonahly practical to segregate a high percentage of down, but in down, as in the other classifications, there are always some feathers which are inappropriate to the particular classification. In the downy- type feathcr receptacle will be some pure dmnl a,Del some he adler-type feathers. Similar discrepancies \will occur in c,ach of the other classifications. It is impossible to separate feathers according to type of fowl or to remove inferior or second-hand feathers. The only possible separations are those which can he obtained by the application of the principles of specific gravity. Feathers of the same degree of lightness will go over the baffe at the same time, irrespeetive of the kind of fowl from which they may have been plucked, or whether they are new or used. (3) The down and feathers t,hus sorted ancl placed in separate containers hate no unifonnity or homogeneit)! ; the heavier feathers will be at the bottom, the down at the top of each container. Although there be a vigorous agitation of the feathers and dmvn in a storage bin, the resulting mixture will at no tilne be of uniforrn content throughout., anclno mixture of ieatbers and c10\T11 is or \Tin remain 11 pinow order is touniiorm or eOllstant throughout its bu I1\. 'Vhen be made up, the manufacturer puts into the fining bin the number of bags of each type of feather requisite to obtain the desired mixture. The filling bins llslWlly are approxilnately 5 x 10 x 12 feet in size, and hold np to 350 or 400 pounds of feathers. T1\o or three hundred pairs of pillows may bc filled out 01 one mixture, and it is not unusual for a manufacturer to fill from twelyc to fourteen hundred pairs of pillows during a day.

:1) During the filling process the fpnthers arc agitated by meallS of -wooden forks, and t.he pillows are, fined by suction. The proportion of down and feathers that go into each pillow depends partly, of course, upon the fining-bin mixture, but also to a large extent upon \vlwt part of the bin t.he filling suction I'pachcs. Even with the exercise of the greatest care, pillo\TS filled from the same bin win vary content. Those being filled from the bottom of tlle bin will contall1 the heavier feathers, and the greater amounts of pith, scale and other extraneous matter. The exact amount. or proportion of down and feathers going into any particular pillow cannot be controlled by NATIONAL FEATHER & DOWN CO. 1311 1306 Decision mecha.nical means. The expert whose testimony was presented support of the complaint stated that the contents of pillows filled from the same bin will vary as much as 30% ; that the same percentage will not be found in any two pillows; and that the mixture in each pillow will vary from the mixture in the fillng hin. If anyone pilow should cont.ain exactly the same percentage of feathers and down as that originally placed in the filling hin, it would he pure accident. The closest practical indication of thc contents of a pillow product of a nutnuracturer and the correctness of its labeling will result if several diiIerent pilows are sampled, preferably pillows obtained at different times and places.

(5) The same diffculties arise in analyzjng the contents of a single pillow. Except by pure aceic1ent, no two sa.mples \Till have the same content; so there is no sure or positive met.hod of measuring the contents of feather pillows with scientific accuracy, other than by taking an of the content out of the pillow and separating it into its component elements, then weighing each element. Such a process is so complet.ely impractical tlult, usually, a test is made by opening the pills\v-tic.king and taking samples from three different portions of the pinow. Tlle se samples are thoroughly mixed and a smaller testing sample, of which the analysis is to be made, is taken from this mixture. The expert \Vho testified in support of the complaint selected three samples from the. opening by inserting his hand and reaching to different portions of thc pillow. Samples selected hy the respondents "ere obta.ined by taking a small quantity of feathers from each of three openings in each pillow. The hearing examiner was present \vhenresponc1ents' samples \\' cre taken. As each opening was made in the pinow ticking, some dO\vn escaped, and as each withdrawal was made, more dmrn escaped before the sample could be enclosed in a container; while the feathers, being heavier and bulk1er, were easier to retain. X 0 sample c.an be exactly representative of the original content of the pillow, just: as the content of no olle pillow can be exactly representative of t.he original mixture in the fining bin. The average sample for analysis weighed approximately 3 grams, representing between V. and % of 1 % of the contents of a pillow, and the appearan( e or a single he.avy feather in a sample of t.h1S size would make as much as 4:90 difference in the Gnal result. This method is far from satisfactory, and the resulting percentages are not. conclusive. (6) The crushing or curling process is a manner of giving a twist or curl to lalldfowl feathers, such as chicken and turkey: to increase their resiliency and tend to prevent. their matting, and thus improve their quality lor use as pillow-filling material. The same process is 423783-58- 1312 FEDERAL TRADE COM:\ISSION DECISIONS Decision f5 F.

applied to waterfowl quil feathers (that is, feathers from the wings and tails of ducks and geese), which otherwise would not he suitahle for pilow-filling material. A considerable amount of fiber, pith and scale result from the crushing, and are carried over into the fillng mixture. As to utility, crushed land fowl feathers are better than crushed waterfowl feathers, and crushed turkey feathers are better than crushed chicken feathers. The mixture of crushed feathers is made hy weighing out the proper proportions of the various kinds of crushed feathers that are to be mixed, and taking alternate handfuls of feathers from the separate containers and throwing these into the hopper of the curling or crushing machine. Because of the nature of these larger feathers, they frequently go through the hopper in lumps, so that it is impossible to get a mixture with any degree of homogeneity. Despite agitation in mixing, slugs of chicken or turkey feathers and slugs of quil feathers will get into the pillows without ever being separated or mixed. The label "Crushed Feathers " showing the types of feathers used, can indicate no more than that the mixture was made from the types or kinds of feathers stated on the label. It is impossible to separate and analyze crushed feathers accurately. A pilow filled with crushed feathers is the cheapest product of the industry, and in the minds of thc general public, there is very little distinction among the various kinds of crushed feathers, whether goose, duck, chicken or turkey. The expert who testified in support of the complaint indicated that pilows fiJJed with crushed feathers are the least desirable of ajj pillows, and are the lowest class of pilows on the market. In his opinion, it is impractical to attempt to distinguish between the various types of crushed feathers in any hatch of such pillows, and he suggested during the course of his tests for the Commission that no further pillows filled with crushed feathers be sent to him for analysis. (7) On the basis of the foregoing, the conclusion is inescapable that as a practical matter, thc contents of feather pillows cannot be accurately laheJed. In fact, to require accurate labeling as to content of a product such as feather pillows, which, by nature, vary constantly and at random in content, is to require an impossibility. No manufacturer of feather pilows could comply with such a requirement except hy analyzing the fillng of each pillow individually. Ohviously that is an impossible task. Incidentally, it points up the dangers involved in attempting to reach a conclusion as to pillow content on the basis of testing two pilows out of a hatch that may have included one hundred Or two hundred pairs of pilows.

(8) Despite these facts, however, some 28 States have labeling requirements with ,whiehpiJJow manufacturers must comply; and the (j) : NATIONAL FEATHER & DOWN CO. 1313 1.306 Decision Federal Trade Commission, on April 26, 1951, promulgated Trade Practice Rules for the Feather and Down Products Industry, which undertake to interpret the Act and express the Commission s policy with respect to the practices complained of in this proceeding. Although these Rules are not binding upon the hearing examiner, they should be given careful consideration in applying the law to the facts of this proceeding. The pertinent parts of those Rules applicable thereto are as follows:

RULE 3-IDENTIFICATIO AND DISCLOSURE OF KIND AND TYPE OF FILLING :MATERIAL IX INDUSTRY PRODUCTS I. In the sale, offering for sale, or distribution of industry products, it is an unfair trade practice to misrepresent or deceptively conceal the identity of the kind or type of fillng material contained in any of such products, or of the kinds or types, and proportions of each, when the fillng material is a mixture of more than one kind or type. Such identification and disclosure shall be made by tag or label securely affxed to the outside covering of each product and in invoices and all advertising and trade promotional literature relating to the product; and when the fillng material is a mixture of more than one kind or type, each kind and type shall either be listed in the order of its predominance by weight, or be listed with an accompanying disclosure of the fraction or per. centage by weight of the entire mixture which it represents. II. Identification of the kind and type of feather and down stock by use of any of the terms listed and defined below wil be considered proper when in accord with the definition set forth for such term: D efinition8:

(a) Down: The undercoating of waterfowl, consisting of clusters of the light fluffy filaments growing from one quil point but without any quil shaft. (b) Down fiber: The barbs of down plumes separated from the quil points. (c) WaterfOt/;l feathers: Goose feathers, duck feathers, or any mixture of goose and duck feathers.

(d) Feathers (or Natural Feathers): Bird or fowl plumage having quil shafts and harbs and which has not been processed in any manner other than by washing, dusting, and sterilzing.

(e) Quil feathers (or Quills) Wing feathers or tail feathers or any mixture of wing and tail feathers.

(1) Crushed feathers: Feathers which have been processed by a crushing or curling machine which has changed the original form of the feathers without removing the quill.

(h) Feather fiber: The barbs of feathers \vhicb have been completely sepa- Tated from the quil shaft and any aftersbaft and which are in no wise joined -or attached to each other.

Damage(l feathers: Feathers, other than crushed, chopped, or stripped which are broken, damaged by insects, or otherwise materially injured. 1314 FEDERAL TRADE COMMISSION DECISIO Decision 51 F.

III. Tolerance: (a) Subjed to tbe restrictions and limitations hereinaftpl' forth, the fillng material of an industry product. may be represented as being of but one Id.nd 01' type when BG% of the weight of all filing matf'rial contained in the product is of tbl represented kind or type; or may be represented as being of a mixture of two or more kinds 01' types with accompanying disclosure of a fraction or percentage of the weight of the entire mixture repre. sented by each if the fraction or percentage shown is not at variance with the actual proportion of the weight of the entire mixture represented by Nleh such kind or type by more thnll 151/;; of the j ated fraction or percentage. The tolerance provh1ed for in this paragraph III is to be understood as being an allowance for error and as not ernbracillg any intentional adulteration. Limitations (lml Rcsthctions (b) When the fillng- material of an industry product is represented, directly or inl1irectl)", as being wholly of down, any proportion within the tolerance percentage provided for in (a) abo,e \\'bicb is Dot down sl1all consist principally of (lown fiber and/or small, light, and fluffy waterfowl feathers, shall contain DC quill feathers, crushed feathers, OJ' chOIJped feathers, and s11a11 not contain dama ed feathees, quil pith. quill fragments, truth, or any matter foreign to feather and down stock in excess of 2% by weight of the fillng material contabled ill the product, 01' which in the aggregate exceecls G% of such weight. (c) "When the filln;:' matClial of an inrIustl'; product is represented, cliectly or indirectly, as being wholly of a mixture of r10,Vll and feathers, 01' of down and more tlWll Olle kind or type of feu then;, or of feathers of more than one kiml or type, any propUl'tion, or the aggTegatc of any proportions, of the filling material of the product at yariance with the representation, but within the tolerance percentage pI' oYiderl for in (a) abo,e, shall Dot contain quil pith, quil frag"ments, trash, or any mattei' fm'eign to feathcr and down stock in excess of 2% by weight of the fillng material ill the product or which in the :lggregate exceeds G% of such weight j and, unless nouc1eeeptively disclosed in tbe representation, not. in excess of 57c by ,veight of the filling material of the prorluet shall consist of crushed feathers, chopped feathers, quil feathers 01' damaged featbers.

Kote: It is t.he consensus of the inrlu!:try that det.et'mination as to whether any representation is \'ioIati,e of the provisions of this Rule should be based on an average of the results of tests of at least t,vo products of the same type when same are readily a ..ailable for testing, Ii Ii "' The Rules further provide that samples of equal weight and sjze drawn from at least three different locations in the product; that such samples be thoroughly mixed; and that a test be made of not less than 3 grams of the mixture. Application of the law and a reasonahle interpretation of these Rules to the facts of this proceeding results in the following:

Conclusions I. The test procedures adopted and followed by the experts who made the analyses of the pilow contents in this proceeding comply with the Trade Practice Rules.

XATION'AL FEATHER & DOWN CO. 1315 1306 Decision II. Respondents Gem" pilows contain more than the 20% goose down which their label shows, but they do not contain 80% (or 68%. as would be required even -with full tolerance) goose feathers asrepresented, and to this extent the labeling is faulty and the representation false.

If duck feathers and damaged feathers are added to and considered part of the goose feather content, the goose feather content would come within the 15% tolerance. Respondents contend that the damaged feathers should be included in the allowable content because the expert testifying in support of the complaint stated that he did not consider the presence of damaged feathers as adulteration since the source of the damage is usually unknown and might have occurred after the feathers had been placed in the pillows; and further. that the damaged feathers were not in suffcient quantities to affect the utility or value of the pillows. This contention cannot be accepted. Respondents further contend that duck feathers should be considered the same as goose feathers, because duck feathers are diffcult to distinguish frOlTI goose feathers, and are, in fact, worth one and one-half times more than China goose feathers. The addition of the duck feathers, it is contended, is an improvement of the product. This contention, likewise, is rejected. Neither the R.ules nor the la w provide that mislabeling shall become acceptahle if the added unlaheled content is of higher grade material than that stated on tJ,e label. The puhlic is entitled to accurate labeling, and is not called upon to determine whether the added 01' substituted ingredients increase or decrease the value of the product in which they appear. The respondents' test analysis shows 74. 6% of the feathers "predominantly goose" in the "Gen1" pillows, but since "predominantly is not defined and there is no further breakdown of the content, this test result can be given no weight.

III. Respondents Grace" pilows contain less than the 85% of goose feathers allowable under the Rule, with tolerance. If duck feathers and damaged fmthers be included as goose feathers, the result would be difierent; but, as explained under conclusion II, above this cannot be done. Likewise, for the same reasons stated above, respondents' test report cannot be accepted.

IV. The respondents' discontinuance of the label bearing the legends "Laboratory Tested, Approved, National Bureau of Standards, C. D. Pomerantz, B. S., M. A., Chemist" and "All our products are tested and guaranteed by Natjonal's Bureau of Standards" was in good faith, and there is no reason to believe that there win ever be a resumption hy the respondents of the use of this or any similar label. Appeal i31 F. C'. Hence the issuance of an order covering this phase of the proceeding is not required.

V. The labeling and representations hereinahove found to be false (conclusions I! and II! above) constitute unfair trade practices; are to the prejudice and injury of the public; and constitute unfair and deceptive acts and practices and unfair methods of competition in commerce.

VI. The use by respondents of the fai;e and misleading statements on the labels affxed to their pillows has had and now has the tendency and capacity to mislead and deceive dealers and the purchasing public into the erroneous and mistaken belief that such statements are true, and to induce the purchase of substantial quantities of their said pillows because of such erroneous and mistaken belief. VII. This proceeding is found to be in the puhlic interest, and the following order is found to be justified:

It is ordered That Louis Buchwalter and Enamuel Cohen, trading as National Feather & Down Company, or under any other name, and their representatives, agents and employees, directly or through any corporate or other device, in connection with the offering for sale, sale or distribution in commerce, as "commerce" is defined in the Federal Trade Commission Act, of feather pillows or other feather and down products, do forthwith cease and desist from misrepresenting in any manner, or by any means, directly or by implication, the identity of the kind or type of fillng material contained in any such products or of the kinds or types, and proportions of each, when the fillng material is a mixture of more than one kind or type. OX APPEAL FROM INITIAL DECISION By SECRBST Commission This is one of a group of ten cases, all tried and considered together involving the use on lahels of allegedly false and deceptive representations with respect to the filling materials contained in feather and down pilows. The hearing examiner having filed his initial decision in which he found that the respondents have in fact mislabeled certain of their pilows and in which he included an order directing them to forthwith cease and desist from such practices, the respondents appealed. The case was heard on the appeal brief and opposing brief filed by counsel supporting the complaint and oral arguments of counsel.

On the labels affxed to the pillows manufactured and sold in commerce by the respondents under the product name "Gem " the filing material was identified as "goose down" 20% and "goose feathers NATIONAL FEATHER & DOWN CO. 1317 1306 Opinion 80%. While the down content appears to have been correctly described on the labels, analyses of samples of the filling materials withdrawn from two of such pilows revealed 56.8% goose feathers in one and 65.5% in the other and included in those percentages in each instance were substantial amounts of goose feathers which had been hroken or suffered damage from insects, or had been either materially or slightly injured through other means. One of the tested samples contained 17.6% duck feathers and the other 9.1 % and these amounts also included small percentages of similarly damaged or injured duck feathers. .While not identical in amounts, the presence of duck feathers and injured or damaged goose and duck feathers likewise was revealed by analyscs of samples of the filling materials from two of respondents Grace" pillows, the filling materials of which were identified on their lahels as consisting of "goose feathers. " The hearing examiner concluded that the respondents' pillows did not contain goose feathers in the quantities stated on their labels or in lesser amounts reflecting the tolerances recognized in certain circumstances under the . trade practice rules, and the respondents except to the hearing examiner s refusal to include in the goose feather category the proportions actually represented by the duck feathers and the allegedly damaged feathers.

Since duck feathers are generically a separate and distinct kind of filling material from goose feathers, 've think the hearing examiner correctly held that the fillng material comprising duck feathers could not he properly classified as goose feathers. Inasmuch as the hearing examiner properly distinguished hetwecn the duck feather and goose feather filling materials in his computations, inclusion in the latter category of the allegedly damaged feathers would not serve to bring the goose feather content within thc amounts claimed under the lahels for the "Gem" and "Grace" pilows or those derived through application of the tolerances referred to in the trade practice rules. Thc hearing examiner s refusal to recognize the damaged and injured feathers as goose feathers accordingly did not constitute prejudicial error and no determination is required as to whether the record would adequately support conclusions that the content of broken and injured feathers designated hy an aggregate percentage figure in each of the analyses has constituted damaged feathers as that term is understood in the feather and down industry.

The remaining issues presented under the appeal are essentially similar to those considered in the matter of Bernard H. Sumergrade et al. , Docket No. 6135, in which the Commission has written an opinion setting forth in some detail its views on the issues there in- 1318 FEDERAL TRADE COMMISSION DECISIOXS Final Order 51 F. T. C.

valved. The similarity between the cases renders the opinion in that case equally applicable here and the Commission is of the view that the hearing examiner correctly concluded that the respondents have misrepresented the contents of certain of their pillows in violation of the Federal Trade Commission Act and that the order to cease and desist contained in the initial decision is appropriate. The appeal accordingly is denied and the initial decision is affrmed. FINAL ORDER The respondents having filed an appeal from the hearing examiner initial decision in this proceeding; and the matter having been heard on briefs and oral argument, and the Commission having rendered its decision denying the appeal and amrming the initial decision: It i8 o1"de,.ed That the respondents shall, within sixty (60) days 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 the order to cease and desist contained in the aforesaid initial decision.

THE L. BUCHM CO., INC., ET AL. 1319 Decision