Better Living, Inc.

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IN THE l\fA TTER OF BETTER. LIVING, INC., ET AL.

ORDER ETC., IN REGARD TO THE ALLEGED VIOLATION OF THE FEDERAL TRADE CO~Il\IISSION ACT Docket (j290. Complaint, Jan. 25, 1955-Dccisi.OIl, Kol'. 29, 1957 Order requiring Philadelphia opemtors of retail stores in Pennsylvania New York, ::\ew Jersey, and l\laryland, to Ct',a8e using bait Hch'ertising in the sale of their aluminum storm doors, aluminull1 storm windows, and aluminum awnings, and to cease making false representations in advertising and trade literature conceming prices all() terms of sale, guamntees, durability of their products, prizes purporte()ly awarded in C'ompetitive contests, and fuel savings resulting from installation. 1111' Dan.z".el J. i1h('1'phy for the Commission. 1111'. Robe1't John B1'ecke1' il/1'. Isadore A. Slwage1' and Al1'. 8-hiney Gin.sbe1' of Philadelphia, Pa., for respondents. INITL\L DECISION BY ABXER E. Lll)SC03IB, HEARING EXAMINER THE CO:;\IPLAINT On January 25 , 1055, the Federal Trade Commission issued its complaint in this proceeding, charging the Respondents with dissemination of false advertisements to promote sales of aluminum storm doors, windows and awnings in commerce, in violation of the Federal Trade Commission Act.

THE ANSWER On :Mareh 15, 1955, Respondents submitted an answer to the complaint herein, denying the principal charges thereof. HEAJUNGS AND PROPOSED FINDINGS I-Iearings were held in "\Vashington, D.C. and Philadelphia, Pennsylvania, at which evidence was presented in support. of and in opposition to the allegations of the complaint. Thereafter, counsel submitted proposed findings as to the facts and proposed conclusions, whereupon the. proceeding came before the Hearing Examiner for his consideration of the entire record and issuance~ of an initial de.cision base.d thereon.

, BETTER LIVING, INC., ET AL. 649 648 Decision IDENTITY AND ORGANIZATION OF THE RESPONDENTS Respondent Better Living, Inc. is a Pennsylvania corporation with its office and principal place of business formerly located at 37th and ",Valnut Streets, now IDeated at 21st and Godfrey Streets Philadelphia, Pennsylvania. Individual Respondents Carl :Mickelson and Fred E. Block are, respectively, President and Treasurer and Vice-President and Secretary, of the corporate Respondent having the same address. The individual Respondents formulate direct and control the acts~ policies and business affairs of the corporate Respondent. The individual Respondents herein have also been partners trading and doing business as .Aluminum Storm ",Vindow Company, but in 1954 this partnership was converted into a corporation of the same name, with the former partners as the principal officers thereof, which positions they still hold. Respondents own, control and operate retail stores in the States of Pennsylvania, New York, New Jersey and :Maryland. NATURE AND SCOPE OF RESPONDENTS' BUSINESS Respondents have been for several years last past, and now are engaged in the sale and distribution of aluminum storm doors, storm windows and aluminum awnings. Hespondents distribute their products from their place of business in Pennsy)vania to purchasers located in various other states of the United States and in the District of Columbia. Respondents compete with various others in their course of trade in commerce in such products, which is 811 stan ti ale ADVEI~TISE::\IENTS DISSE::\IIN ~\ TED For the purpose of soliciting the sale of: and selling, their aluminum products in commerce, R.respondents have represented in correspondence, advertisements, and trade literature disseminated in commerce, among other things, as follows:

Greatest Fuel Savings on Record:

* * * Storm 'Vindows covered by Unconditional Guarantee: $14.H5 plus " \"rWU1ll1l type instaJIntion for larger size standard windows 241;1" by 45"

EverylnstaJlation GUARANTEED:

Better Living, Inc. Beauty Prize" storm windows and doors. Acclaimed from Coast to Coast First Prize 'Vil1ners for Beauty, Choice of Famous Home Stylists.

Storm windows * * * pny for UlemseJH's over and over again in fuel and nH1 intenanep savings:

'650 FEDERAL TRADE COMMISSION DECISIONS Decision 54 F.

All Storm Windows ~'0U need-Any size ~'0U need $14.95 * * * Large size standard windows 24%" x 45"

Aluminum storm doors * * * $59 size 34" x 77" Repeated by Popular Demand 3 days only! * * * Storm and Screen Doors $10 * * * with purchase of 8 or more satin-finish aircraft aluminum * * * STORM WINDOWS;

Fully Guaranteed;

Your Installation Fully Guaranteed for Life; * * * Everlasting Aluminum Door * * * SAVE % ON FUEL;

Prompt Installation;

Beautiful 1" thick all aluminum STOH~1 & SCREEN DOORS $10.00 * * * REG. $90 installed;

IMMEDIATE INSTALLATION;

Profit Guaranteed Installations;

WORLD' S LOWEST PRICES;

Nationally Adjudged America s Finest! * * "' :Mr. and Mrs. Home Owner! Can you Spare $4.92 per month to guarantee yourself lov,'ered household expense?;

Studies made by the U.S. Government Conservation Division (official manual 599141- * * * ) clearly reveal that beyond question Storm Windows will definitely cut your heat loss "as much as 50%" ; All good storm windo\vs pay for themselves and show a profit * Better Living, Inc., unconditionally guarantees to lower your household exppnses! 'Vhy can we fearlessly, unhesitatingly, publish such a guarantee, black on white? Who is the authority behind the g1.1arantee? We ll tell you why, we ll tell you who: The United States Govemment also black on white and indisputable, clearly reveals that, beyond question, Storm Windows will definitely cut your fuel bills when accurately measured and properly installed Heat Loss" says Uncle Sam "can be reduced as much as 50%" The many square feet of window panes in the average house are therefore one of the prime factors in the heat loss. This loss can be reduced as much as 50% by the use of storm windows * * official manual U. S. Gov. Conservation Diyision Booklet 599141.

We unconditionally guarantee to install FOUR (4) Genuine YOUKGSTOWN ALUMINUM STORl\1 'VINDOWS. for only $4.92 per month. STOHl\! AND SCREEN DOORS $10 ACTUAL YALUE $90 Installed With purchase of 8 or more satin-finish aircraft aluminum triple-track aUwelded storm windows, others not By means of the above-quoted advertisements and 11erein set forth, Hespondents have represented, directly or by implication, as follows:

(a) That the reduced prices quoted in the advertisements are the complete prices for the products including installations, hardware and accessories;

are fully and uncondi- (b) That the pI'oducts and installations tionally guaranteed for life;

BETTER LIVING, INC., ET AL. 651 648 Decision (c) That the products are sold at the world's lowest prices; (d) That their products have been awarded prizes in competitivecon(e) That their productstests;are everlasting and are made of indestructible materials;

(f) That customers will obtain immediate installation of Respondents' products;

(g) That installations of their storm windows will result in savings of 1J2 in fuel and will reduce heat loss as much as 50%; (h) That a bona fide offer is being made to sell their products a greatly reduced price in combination with the purchase of other products.

TRUTH OR FALSITY OF REPRESENTATIONS Since the complaint alleges, and Respondents' answer denies, that the foregoing representations are false and deceptive, it is necessary, in order to resolve the issues thus raised, to consider each representation seriatim, together with all the evidence relevant thereto. (a) That the reduced prices quoted in the advertisements are the complete prices for the products including installations, hardware and accessories.

The evidence shows that persons answering Respondents' advertisements and seeking to purchase from Respondent Better Living, Inc. storm doors or windows at the prices quoted in such advertisements, discovered that for one reason or another the particular type of window or door which they wished to buy was not available at the price advertised. At various times prospective customers were told that they could obtain the desired products at a higher price or at the price advertised in combination with other higher-priced items. They were also told that the price advertised did not include the installation of the doors or windows, nor the hardware and accessories required for their installation. In fact, Respondent Block is quoted as admitting that the basic purpose of Hespondents advertisements as to price was merely to develop leads, and that actually Respondents could not afford to sell the products at the special prices quoted in such advertisements. A ,vitness testified that Respondent Block further stated that they could make their customers think that the customer was getting a particular article at a very low price, simply by combining the specially-priced article with another article at a higher price. Considering the entire. record, we must conclude that the reduced prices and special prices advertised by Respondents for several years prior to the issuance of the complaint herein were misleading and deceptive, and that 528577 -GO-4 :::

, Dec~sion 54 F.

such prices. were not the complete prices for the products advertised in that they did not include the cost of installation, hardware and accessories, and in some instances the article could not be purchased at all. for the price advertised.

(b) That the products and installations are fully and unconditionally guaranteed for life.

The evidence shmys that some of the printed purchase orders used by the Respondents during the period of time in question contained a one-year guarantee, as follows:

* * * For a period of one year from date of installation, Seller guarantees that all materials furnished by it will be of standard quality, free from defects alld will be installed or applied in a good and 'world;:manlike manner. * * No statement relative to a lifetime guarantee appears on this particular printed form. On another purchase-order form, which contains the same printed one-year guarantee, there appears in handwriting the statement "Guaranteed for the life of the property against rust~ colTosion, pitting. Install. also guaranteed.~' On another purchase ordet containing the printed one-year guarantee limitation, there appears the statement, also in handwriting, "Guaranteed for life of house." Of the three purchase orders cited, it "ill be noted that one contains no lifetime guarantee, but only a one-year guarantee printed on the order form; of the other two, both which contain the same one-year printed guarantee, one bears handwritten statement contradicting the printed one-year guar~1ntee. by apparently guaranteeing the, product for the life of the. property: and the third bears a similar contradiction in the form of a handwritten guarantee For the life of the house. productjs :guan~llt~ecl for life" is, on its -I-!~stat~mel1t _that face, ambiguous and deceptive, u~lless qualified by a definition of the erm ~'life" a~. 1l~E':dinJhe.. p,~hgT1i)?f,~nent..; !!~at is, whether the life of the pu hase~' is meant, or the life of the pr~i)~~'!jr ,~herei~-tl?epr6'al~Ct, is being instanecl~-' Tn-.-tiie r(;sei:it~.' instance, Ilo,,-e,' , Respondents order blanks bear a printed limitation of one year as the period during which the product. is guaranteed. ,Ye find, therefore, that Respondents did not fully and unconditionally guarantee for life their products and the instal1aton thereof. Accordingly, ,ye m11st conclude that such representation is false and deceptive. (e) That the products are sold at the worlcrs lowest prices. The only evidence relevant to the claim that Respondents' prices were the ,,"orIel's lowest prices consists of the testimony of Respondents' advertising agent, ,yho testified that for several weeks prior to the publication of the advertisement a cheek "-as made of Jocal C01llpf~titi\'e prices, and that the prices thereafter achertised by )ie- BETTER LIVING ) INC. , ET AL. 653 648 Decision spondents were slightly lower than their competitors . Respondents agent then admitted that he had no real factual basis to support Respondents' claim, and, in ans"-er to a leading question, he statt'd that the claim was "Typical puffing, yes.

The question at once arises as to what is puffing, and whether the representation here under examination may properly be so characterized. Puffing, as we understand it, is a term frequently used to denote the exaggerations reasonably to be expectf'd of a seller as to the degree of quality of his product, the truth or falsity of which cannot be precisely determined. In contrast thereto, the. representation as to "the worlcFs Imyest price" is a statement of an objective actuality, the truth or falsity of which is not variable and can be tlscertained with factual precision. This representation cannot therefore, properly be termed "puffing. It is either true, or it is false; and, accordingly, such a determination must be made. Respondents' advertising agent admitted, in substance, that the representation was disseminated without :l real factual basis therefor. Although we consider the issuance of such an a(lvertising statement a reckless disregard of one s moral obligation to know ,vhereof he speaks, nevertheless the admission that. such a ~taten1fnt has no known basis in fact does not prove such statement false. "\Ve might reach that conclusion, if the record contained even one report. of products, substantially the same as the Respondents, having been sold anywhere in the worhl at a 1m-rei' pricp,. No such evidenel' however, appears herein. In the absence thereof, and of any other factual proof of the falsehood of this representation, we must conclude that. the burden or proof ,with respect thereto has not been sust ained.

(d) That their products have been a ,," ,udell prizes in eompetiti YO contests.

Respondents' advertising agent admitted in his testimony that those storm windo,ys were never awarded a beauty prize of any kind. This testimony flatly contradicts Respolldents ' represent:1tions of "Beauty Prize Storm ,Vindmys and Door' ~' and '; Ii' irst Prize "\Vinners for Beauty." Hespondents' contention that such a statement is mere subjective pllfiing, ,which is acceptable. in the field of advertising and is deceptive to no one, fails as a defense because the readers of Respondents' achertisements, not knowing that Respondents' products have never been entered in a beauty contest may reasonably accept such statement at its :face value. It contains therefore, at least the capacity and tendency to mislead and deceive. Accordingly, ,ye must conclude that Hespondents ' representations with respect. to the prize-\yinning beauty of their products are false and deceptive.

Decision 54 F.

(e) That their products are everlasting and are made of indestructible materials.

The evidence shows that aluminum possesses qualities which render it resistant to the effects of weather, but that it is not completely unaffected thereby. As a matter of fact, pittings and discolorations appear upon its surface under the action of weather, and cannot be easily removed. Furthermore, it is shown that aluminum is injuriously affected by salt air. The evidence further shows that aluminum storm windows and doors may be mechanically damaged as by a blow, or by the settling or warping of the building in which they are installed. "\Ve must find, therefore, that Respondents aluminum storm windows, doors and awnings are not everlasting, and are in no sense indestructible. Accordingly, we must conclude that Respondents' representations that their products are everlasting and indestructible are false and deceptive. customers will obtain immediate installation of Re- (f) That spondents' products.

There is substantial evidence in the record that Respondents' customers, on a number of occasions, did not obtain immediate installation, but, on the contrary, were compelled to ,vait several months and some as long as six months, before the products purchased were actually delivered and installed. A manufacturer and dealer in the industry testified that immediate installation implied a delivery the product in two or three days, or within a we.ek. "\Ve can, for present purposes, accept the definition of immediate" as meaning within a few days' time, or without unreasonable delay; but by no means can "immediate" be expanded to mean within three or six months. Accordingly, we must conclude that Respondents' representations with respect to the immediate delivery of their products have been false and deceptive.

(g) That installations of their storm windows will result in savloss as much as 50%.ings of 1Jz in fuel and will reduce heat The record contains testimony by experienced dealers in storm windows and doors, to the effect that, in their opinions, the installation of storm windows, in a house in reasonably good repair, would probably save about 20% of the fuel bill, but that. it 'yould not result in savings of 50%. The difference behyeen the experienced observation and opinion of the practical men in this field as to the possible sflTing in fuel, and the Respondents' claims for such saving, is considerable. The only possibility of a saving of as much fls 50% in fuel costs being effected by the installation of Respondents' storm of a house inwindows and doors would be in the extreme insta,nce poor repair, wherein the repair needed concerned only the "indow' BETTER LIVING, INC. , ET AL.

648 Decision and doors. This would be so rare and special an instance that cannot be here considered as a criterion of the truth of Respondents representations. In fact, it is obvious that no installation will be exactly like any other, and that it will be practically impossible to state in advance any precise percentage of savings in fuel cost that might be expected to result. Accordingly, we must conclude that Respondents' representations 'with respect to possible fuel savings by installation of their products are false and deceptive. (h) That a bona fide offer is being made to sell their products at a greatly reduced price in combination with the purchase of other products.

The evidence shows that Respondents' agents and salesmen called upon prospective purchasers who had responded to the corporate respondents' advertisements, and that such prospective purchasers were, in some instances, persuaded from the purchase of the cheaper products advertised in combination with other products, and into the purchase of aluminum storm doors and windows much more expensive than those aclYertised. In other instances, the cheaper products advertised were not made available to the prospective purchasers until after persistent demands, as illustrated in the case of ",Vitness ",Vinkler, \vho testified that he caJIed Respondents relative to the purchase of sixteen windo\\s at an advertised price of $11.95 each. Thereafter a representative of Respondents ealled at ~Ir. ,Vinlder s home and "put on high-pressure talk to sell windows at a regular price * * * " stating that Respondents did not have the desired windows in stock. Thereafter, following lengthy negotiations between the witness and Respondents' representative, Respondents agreed to deliver the desired sixteen windows at $11.95 each the price advertised, provided :Mr. ,Vinkler also purchased one additional window at a price of $38. , and paid $5.00 for a survey. After a lengthy delay, involving months, the windo\ys were finally delivered, and the purchaser was recluired to pay an additional $3.00 for the installation of each of the sixteen winc1O\ys, making the windows cost $14.95 each instead of $11.95 , fls advertised, plus $5. for the survey and $38.00 for the extra window. From a. consideration of all the evidence it is dear that Respot1(Jents' ach-ertisements did not present a bona fide after to prospective purchasers to sell them nluminmn products at a greatly reduced price in combination ,,"ith the purchase of other aluminum products, but that Respondents e.mploye(1 such advertisements merely selling theiras. a means of c1eTeloping leads for the purpose of produc.tsa.t their regular prices. "\Ve must conclude, therefore, that Respondents' advertising representations regarding greatly reduced Order 54 F.

prices in combination with the purchase of other products are misleading and deceptive.

CONCLUSIONS Based upon consideration of the entire record, and in consonance with the applicable principles of law and precedent, we conclude: 1. That the Federal Trade Commission has jurisdiction over the Respondents and oyer their acts and practices alleged in the eomplaint. herein to be unlawful;

~. That this proceeding is in the interest of the public and that 1111 blie interest herein is substantial; and 3. That the use by Respondents of the false, misleading and deee.ptlYc statements herein found tends to mislead and deceive a substantial number of the purchasing public into the erroneous and mistaken belief that such representations are true, and thereby to induce the purchase of substantial quantities of Respondents' prodnets. Consequently, trade has be.en unfairly diverted to Respondents from their competitors in commerce, and substantial injury to competition has resulted therefrom. Such acts and practices are all to the prejudice and injury of the public, and constitute unfair methods of competition and unfair and deceptive acts and prndices in commerce within the intent and meaning of the Federal Trade Commission Act.

Accordingly, 1 t is Olde1' That Respondents Better Living, Inc., a corporation and Celrl lIIiekelson and Fred E. Bloek, individually and as officers of said corporation, and also as partners trading as Aluminmn Storm 'Vindow Company, and their agents, representatives and employe. in conne,ctiondirectly or through any corporate or other device, ,with the sale of aluminum storm doors, aluminum storm windows is defined inand aJuminl1l11 a'ivnings in commerce, as "commerce the Fede.ral Trade Commission Act, do forthwith cease and desist from representing, directly or by implication: 1. That their products are offered at reduced prices, without clearly and conspiC'nousl~' disclosing, in immedin te conjunction therewith all of the terms and conditions thereof, including the requirement that additional merchandise must be purchased, if sneh is the case; 2. That the advertised price of any of said products includes the cost of installation, or nny equipment or aeeessories, for which an additional charge is made;

3. That their products or insta.llations are fully or unconditionally guaranteed or are guaranteed for life, without revealing, in BETTER LIVING, INC., ET AL. 657 648 Opinion immediate conjunction therewith, the full terms and meaning of such guarantee;

4. That any of said products are guaranteed unless the nature and extent of the guarantee and the manner in which the guarailtor will perform are clearly and conspicuously disclosed; 5. That any of said products have been a,yarded prizes in competitive contests, unless such is in fact true; 6. That any of said products are everlasting or are made of indestructi ble materials;

7. That customers will obtain immediate installation of aluminum products purchased from Respondents, unless such installation is in fact made without unreasonable delay in the usual course of business;

8. That installation of their storm windows ",ill cut fuel consumption one-half or will reduce total heat loss as much as 50%; 9. That articles are offered for sale at a certain price or under certain conditions, when such offer is not. a bona fide offer to sell the articles so, and as, offered.

OPINION OF THE COMMISSION By GWYNNE Ohai7"7nan:

The complaint, filed .January 25 , 1955, charges respondents with j he dissemination of false advertising of aluminum storm doors windows and ::l\ynings in violation of the Federal Trade Commission Act. From an initial decision and order, respondents have appealed.

The individual respondents Carl :Mickelson and Fred E. Block have been partners doing business as Aluminum Storm ,Vindow Company, which partnership was, in 1954, converted into a corporation of the same name. Respondent Better Living, Inc. is a corporation, of ,,-which respondent Carll\fickelson is president and treasurer, and respondent Fred E. Block is vice-president and secretary. The oflice and principal place of business of respondents was formerly 37th and ,Valnut Streets, and at the time of the hearing was 21st and Godfrey Streets, both addresses in Philadelphia, Fa. Hespondents are engaged in the sale and distribution in interstate commerce of aluminum storm doors, aluminum storm windows and aluminum awnings. Their business is substantial and they are in competition with others also engaged in such general type of business. In the conduct of their business, respondents made representations as to their products in newspaper advertisements, letters and by , , ; , . . Opinion 54 F.

other means. A partial list of such representations found to have been made is set out in the initial decision as follows: Greatest Fuel Savings on Hecord;

* * * Storm ' Windows covered by Unconditional Guarantee; $14.95 plus "vacuum type installation for larger size standard windows 2414/1 by 45"

Every Installation GUAHANTEED;

Better Living, Inc" "Beauty~. Prize" storm windows and doors. Acclaimed from Coast to Coast First Prize 'Vinners for Beauty. Choice of Famous Home Stylists, ;

Storm windows, , . pay for themselves over and over again in fuel and maintenance savings;

All Storm Windows you need-Any size you need $14,93 * * * Large size standard windows 241/2 " x 45"

Aluminum storm doors. , . $59 size 34/1 x 77" Hepeated by Popular Demand 3 days only! . . . Storm and Screen Doors $10 with purchase of 8 or more satin-finish aircraft aluminum STORl\! WINDOWS;

Fully Guaranteed;

Your Installation Fully Guaranteed for Life; * * * Everlasting Aluminum Door. . .

SA VE 1h ON FUEL;

Prompt Installation;

Beautiful I" thick all aluminum STOTI~I &. SCHEE::-;' DOORS $10 * ~ * REG. $90 installed;

IMl\IEDIATE I::\TST.\LLATION;

Profit Guaranteed Installations;

WOHLD' S LOWEST PRICES;

Nationally Adjudged America s Finest! . . . Mr. and l\lrs. Horne Owner! Can you spare $4.9~ pel' month to guarantee yourself lowered household expense?;

Studies made by the U. S. Government Conservation Division (ofilcial manual 599141- , . , ) clearly reveal that beyonll question Storm Windows will definitely cut your heat loss "as much as 50%" All good storm windows pay for themselves and show a profit. . . . Bettel' Living, Inc. , unconditionally guarantees to lower your household expenses! 'Vhy can ,ye fearlessl~c, unhesitntingly, publish such guarantee. black on white? 'VllO is the authority behind the guarantee? ' ll tell you why, "e ll tell you who: The United States Government also black on white an(l indisputable, clearly revenls that, beyond question, Storm 'Vindows will definitely cut your fuel hills when accuratel~- I1wnslll'cd ane! properly installed Heat Loss" sa~cs Uncle Sam "can be reduced as much as 50%" The many square feet of window panes in the average house are therefore one of the prime factors in the heat loss. 'This loss can be reduced as much as 50% by the use of storm ,,'windows. . . ," otncial manual U. S. Gov'. Conservation Division Booklet 589141.

"\Ve unconditionally guarantee to install FOun (4) Genuine YOUNGSTOWN- ALUMINUM S'l'ORr.I 'VINDOWS for only S4. 9~ per month. STOH!ll AND SCHEE:-J Doons :$10 ACTUAL VALUE $90 Installed , BETTER LIVING , INC. , ET AL. 659 '648 Opinion With purchase of 8 or more satin-finish aircraft aluminum triple-track allwelded storm 'windows.

The hearing examiner found that respondents had made false and deceptive representations as follows:

(a) That the reduced prices quoted in the advertisements are tlie complete prices for tlJe products including installations, hardware and accessories. (b) That the products and instal1ntions are fully and uncon(litionaJJy guaranteed for life.

(d) That their products J1ave been mynrded prizes in competitj!\'e contests. (e) That their products are everlasting and are made of indestructible materials.

(1') That customers will obtain immediate installation of Respondents products.

(g) That instnJJations of tlJeir storm windows wiJ) result in savings of in fuel and will reduce beat loss as much as 50%. (h) TI1:1t a bona fide offer is being made to se)) their products at a greatly reduced price in combinfltion with the purchase of other products. The hearing examiner also found that the falsity of the representation ( c) That the prod uets are sol d at the world's lowest prices had not been established. From this finding, counsel supporting the complaint has not appealed.

respondents' appeal first challenges the sufficiency of the evidence to establish the viola60ns charged in the complaint and above refen' ed to.

The initial decision sets out a summary of the evidence as to each specific charge considered by the hearing examiner. \Ve will not enumerate these items of evidence in this opinion. It is sufficient to say that a consideration of the entire record demonstrates that the hearing examiner correctly found that the enumerated representations 'v ere false and deceptive and had the capacity to deceive. The brief and oral argument for respondents point out that the alleged false and deceptive representations were made in 1952 and 1953 and up to approximately the middle, if not the end, of 1954 and that "there has been no attempt made by the Commission to relate these acts in 1952 and 1953 which Better Living, or the company now operated by 1\lr. 1\1ickelson and :Mr. Block, is doing today. It would no doubt have been proper for respondents to show that the practices alleged in the complaint had been abandoned and that there was reasonable ground to believe that they would not be resumed in the future. The difficulty is, however, that nothing appears in the record to warrant the Commission s arriving at any such conclusion.

Counsel supporting the complaint introduced, over the objectlon of respondents, a written statement given by respondents Fred E. 660 FEDERAL 'TRADE COMMISSION DECISIONS Order 54 F.

Block and Carl l\Iiekelson to an Assistant District Attorney in Philadelphia on September 9, 1953. This statement was given in connection with an investigation being conducted by the District Attorney s Office and contained various admissions as to the method of conducting respondents' business. Prior to that time, in :March 1952, respondent Better Living~ Inc. had been convicted in Baltimore, :Marylanc1 , of false advertising of their products under the :Mary land statutes.

"\Ve believe that both the .written statement of respondents and the conviction were admissible evidence; the former, as an admission against interest, and the latter, for the purpose of apprising the Commission of respondents' past conduct in order that a proper evaJnation could be made of possible future conduct. 'Ve think the order issued by the hearing examiner was necessary and proper for the protection of the public. The appeal of respondents is denied, and the findings and order of the hearing examiner are adopted as the findings and order of the Commission. It directed that an order issue aecordingly. FIN AL onder This matter having been heard on the respondents' appeal from the hearing examiner s initial decision, including briefs in support of and in opposition thereto and oral argument of counsel; and The Commission having rendered its decision denying the appeal and adopting as its own the fuldings, conclusions and order contained in the initial decision:

I t is ordered That the respondents, Better Living, Inc., a corporation, and Carl l\Iickelson and Fred E. Block, individually and as ofi1eers of said corporation, 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 contained in the aforesaid initial decision.

COMFORTE, INC. , ET AL. 6tH Decision