Spurgeon Pickering

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

In Toe Matrer or SPURGEON PICKERING TRADING AS MONDO GRASS CO. AND MONDO GRASS & NURSERY Coo.

CONSENT ORDER, ETC., IN REGARD TO THE ALLEGED VIOLATION OF THE . FEDERAL TRADE COMMISSION ACT Docket 6847. Complaint, July 28, 1957—Decision, Jan, 22, 1958 Consent order requiring a seller of nursery stock in Biloxi, Miss., to cease representing falsely in newspaper and magazine advertisements that the plant Ophiopogon Japonicus—which he referred to as ‘Mondo ‘Grass’ ”—is a grass, will make a lawn, maintain lawn height, withstand traffic, remain evergreen the year round, withstand severe freezing, and is drought resistant.

Mr. John W. Brookfield, Jr., and Mr. Charles W. O’Connell for the Commission.

Mr. Leonard J. Calhoun, of Washington, D.C., for respondent. Inittat Decision py Witi1am L. Pack, Hearne ExaMINeEr The complaint in this matter charges the respondent with violation ‘of the Federal Trade Commission Act in connection with the advertising of a plant known as ophiopogon japonicus, referred to by respondent as “Mondo Grass.” An agreement has now been entered into by respondent and counsel supporting the complaint which provides, among other things, that respondent admits all of the jurisdictional allegations in the complaint; that the record on which the initial decision and the decision of the Commission shall] be based shall consist solely of the complaint and agreement; that the inclusion of findings of fact and conclusions of law in the decision disposing of this matter is waived, together with any further procedural steps before the hearing examiner and the Commission; that the order hereinafter set forth may be entered in disposition of the proceeding, such order to have the same force and effect as if entered after a full hearing, respondent specifically waiving any and all rights to challenge or contest the validity of such order; that the order may be altered, modified, or set aside in the manner provided for other orders of the Commission; that the complaint may be used in construing the terms of the order; and that the agreement is for settlement purposes only and does not constitute an admission by respondent that he has violated the law as alleged in the complaint. Order 54 F.T.C.

The proposed order covers all of the charges in the complaint except the charge that respondent has represented, contrary to fact, that his product forms a sod. As to this charge, the agreement contains a statement. by counsel supporting the complaint to the effect that the charge cannot be sustained. The omission of the matter from the proposed order therefore appears proper. The hearing examiner being of the opinion that the agreement and proposed order represent an appropriate disposition of the proceeding, the agreement is hereby accepted, the following jurisdictional findings made, and the following order issued : 1. Respondent Spurgeon Pickering is an individual trading and doing business under his own name and as Mondo Grass Co. and Mondo Grass & Nursery Co., with his office and place of business located.at Briarfield Avenue, Route 3, Biloxi, Miss. 2, The Federal Trade Commission has jurisdiction of the subject matter of this proceeding and of the respondent, and the proceeding is in the public interest.

ORDER It is ordered, That Spurgeon Pickering, an individual trading and doing business under his own name and as Mondo Grass Co. and Mondo Grass & Nursery Co., or trading under any other name or names, and his agents, representatives 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 the plant ophiopogon japonicus, by whatever name it may be designated, do forthwith cease and clesist from :

1. Advertising or offering ophiopogon japonicus for sale unless a clear and conspicuous disclosure is made that it is not a grass. 2. Representing directly or by implication: (a) That ophiopogon japonicus will make a lawn unless it is clearly and conspicuously disclosed that it will not serve all the uses of a lawn. (b) That without mowing it will maintain the height to which lawns are usually mowed.

(c) That regardless of the region of the United States in which itis planted :

(1) Itvemains evergreen the year around.

(2) Itis winter hardy.

(3) It is drought tolerant.

38. Misrepresenting directly or indirectly the ability of ophiopogon japonicus to withstand traffic.

MONDO GRASS CO., ETC. 963 961 Decision DECISION OF THE COMMISSION AND ORDER TO FILE REPORT OF COMPLIANCE Pursuant to section 3.21 of the Commission’s rules of practice, the initial decision of the hearing examiner shall, on the 22d day of January 1958, become the decision of the Commission; and, accordingly: It is ordered, That the respondent herein shall, within sixty (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 the order to cease and desist. Decision 54 F.T.C,