Colgate-Palmolive Company

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Ix THE IA TTER COLGATE-PAL IOLIVE CmIPANY ORDER. ETC.. IX REG \RD TO THE ALLEGED VIOLATIO:r- OF THE FEDERAL TRADE Cm,Il\IISSION ACT Docket 7660. Complaint, Nov. 1959-Decision, l1-Ia1. 9, 1961 Order requiring a manufacturer of a dentifrice, among other products, with headquarters in New York City, to cease representing falsely in advertisements and television commercials that its "Colgate Dental Cream with Garr101'' formed a " protective shield" around teeth, thereby affording l1sers complete protection against tooth decay or the development of en vities in their teeth.

Edward F. Downs, Esq. and Anthony J. Kennedy, Esq. S11 pporting the complaint.

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COLGATE-PALMOLIVE COMPANY 423 422 Decisioll Oahill, GOTdon, Reindel Ohl by iliathias F. Oorrea, Esq. and Corydon B. D""ham, Jr., Esq. of New York, N. Y., for respondent. INITIAL DECISION BY LEON R.. GROSS , I-IE.\RIXG EXA:\HKER PRELUfINARY STATE fE: rts , 1959 The complaint issued in this proceeding on K ovember 10 charges respondent with violating the Federal Trade Commission Act by using false, misleading and deceptive representations in advertising- a dentifrice, Colgate Dental Cream with Gardol, s01d by it in interstate commerce. H,respondent a,nswereel the complaint; prehearing conferences were helel; and hearings were had in '\Vashington C. and KBW York, New York. Proposed findings of fact, c.onelusions of law, and proposed orders "were filed by the pa.rties and orally nrgl1ecl on June 17, 1960. On February 4 , 1060, a ruling was issued granting the motion of counsel supporting the compla.int to strike portions of respondent's answer. On February 26, 1960, a ruling was issued denying re,spondents motion to dismiss the proceedings on the grollnds that the initial complaint failed to inform the respondent. adequately of the charges it would have to meet, and on the further grounds that counsel supporting the complaint had failed to sustain the burden of proof imposed upon them by law. This is one of the first proceedings under the Federal Trade Commission Act against allegedly deceptive television advertising. TheTe is no snbstantial controversy over the legally operative facts. Respondent contends (1) its advertising was not false, misleading- and deceptive; and (2) should this fact be found against , that it has, nevertheless, voluntarily abandoned the condemned practices; and that this proceeding should be dismissed because all that could be accompJishecl by a cease and desist order has already been achieved by re-spondent's ,voluntary a banclonment of the prac tices.

Two cate,gories of respondent' s advertising are assflilecl in this proeee.cling: "print" advertising and television advertising. The print advertising in evidence in this case does not require the application of any erite.ria different from that Vi-which has been applied in conntless prior print advertising cases '1'here the charges are that such advertising is false, misleading and deceptive. The precedents for judging such print advertising are legion. Television fl,dice.rtising, on the other hanel, has in it an element 'i"hieh the examiner has designated " visual innuendo. " An example of visual innuendo in television adve.rtising is those advertisements in which men in white coats similar to those worn by doctors and dentists, n,dvcTtise pharmaceut.ieals. The television advertjsement 424 FEDERAL TRADE COMMISSION DECISIOKS Decision 58 F.

does not state that the person in the white coat is a doctor or dentist but such innuendo is intended, and usun11y is draVl'l by the viewer even though 11ei ther expressed nor directly -implied. Although the visual innuendo of a television advertisement may be a bit empirical, television advertising, as all other forms of advertising, can be subjected to a disinterested, objective, dispassionate judgment whether it is, with its visual innuendo false, misleading and deceptive.

The hearing examiner finds that counsel supporting the complaint have proven in this proceeding the legally essential allegations of the complaint by a preponderance of material, relevant and probative evidence and enters an order granting counsel supporting the complaint the relief requested.

On the basis of the entire record, the examiner makes the findings of fact hereinafter set forth. Findings requested by counsel which are not specifieal1y adopted and incorporated in this initial decision are rejected. The fact that the examiner has not incorporated in this decision, nor rejected, nor dismissed specifically, evidence which is in the record, should not be construed as indicating that such evidence has not been fully considered by the examiner in preparing this initial decision. It indicates merely that the evidence which the examiner has speeifieal1y incorporated in his findings of fact is suffciently preponderant, relevant, probative and substantial for a proper adjudication of the issues.

The hearing examiner has excluded two offers of evidence by the respondent which merit comment:

A series of RTticles written by various persons relating to tooth decay in general and the alleged properties of Colgate Dental Cream with Gardol, (exhibits RX 3A through RX 3Z 58) was excluded because (a) no evidence was introduccd as to the qualifications the persons who wrote the articles; (b) the authors of the articles were not tendeTecl for cross-examination by counsel support6ng the complaint; and (c) to have received such hearsay evidence into the record without affording counsel supporting the complaint an opportunity to cross-examine the authors of the articles, would have deprived counsel supporting the compla.int of a very fundamental and basic legal right.

A series of advertisements of dentifrices by respondent's competit.ors was excluded bec.cause it is irrelevant a,nd immaterial. 1100g Indllst1'ies FTC 855 S. 411. A respondent to Federal Trade Commission proceedings may not escape the penalties of its own "\vrong doing, by showing or attempting to show similar wrong doing of that respondent's competitors. The advertising of respond- COLGATE-PALMOLIVE COMPANY 425 422 Decision cnt' s compptit.ors is not relevant to determining whether respondent Colgate s advertising was false, misleading tnd deceptive. The examiner makes the following FINDINGS OF FACT The Federal Trade Commission has jurisdiction over the parties and ovei' the subject matter of this proceeding and this proceeding is in the public interest.

The complaint filed herein states a good cause of action against respondent, and counsel supporting the complaint have proven the essential allegations of the complaint by preponderant, relevant probative evidence in the record.

Respondent is engaged in commerce as "commerce" is defined in the Fedcml Trade Commission Act.

Colgate-Pa.1mo11ve Company, a Delaware corporatioll whose consolidated income account for the year ended December 31 , 1959 was $581 081 680 has its principal offce and place of business located at 300 Park Avenue, New York, New York. It manufactures, adver tises, offers for sale, sens, and distributes, in int.erstate and foreign c.0I111nerce, fl dentifrice designated " Colgai-e Dental Cream with Gardol" and various other products to distributors and retailers for resale to the public. Respondent's domestic sales of Colgate Dental Cream with Gardol for the six months ended .Tune 30, 1058 were $30 764 764.

In promoting the sale of its products respondent advertised and does Ldvertise extensively in magn,zines of nat.ional circulation, in newspapers of interstate circulation, and by means or television programs and commercials broadcast over nation-wide networks. In the conduct of it,s business, at an times material to this proceeding, respondent has been in substantial competition, in commerce with corporations! firms, and individuals in the sale of dental cream. At the time the complaint issued in this proceeding respondent was representing in both its print advertising and its television advertising that brushing with Colgate Dental Cream with Gardol would put a "protective shield" around teeth, and prevent tooth decay. The manner in which this theme is developed in the print advertising accurately shown in CX 15, CX 16, CX 17, CX 18, CX 10, CX 20 CX 21 , CX 22, CX 23 , ex 24, and CX 26. The treatment of this theme in respondent's television aclve.rtisements is accurately shown in CX 3, CX 4, ex 5, CX 6, ex 7, CX 8, CX 9, ex 10, CX 11, CX , CX 13, and ex 14. It is stipulated in this record that neither Colgat.e Dental Cream wit.h Gardol nor any ot.her dentifrice on the market at the time this q, 426 FEDERAL TRADE CO 1:MISSION DECISIOKS Findings 58 J!"' l'. complaint issued, or 11m\" affords the users thereof complete protection against tooth decay or the development of cavities in their mouth.

The word "audio ' as used in these findings refers to that portion of respondent' s television advertisements which communicates by means of the auditory Sense. The word "video" refers to that portion of the television presentation which communicates by means of the visual senSB. In addition to the audio and video portions of the advertisement, considered separately, there is it "visual innwmdo" in television advertising which was briefly alluded to and characterized above in the Preliminary Statements.

Respondent' s print advertising and its television advertising at the time the complaint issued herein in November, 1959, sought to convey, and did convey, the impression to the prospective purchasers of Colgate Dental Cream with Gardol, (the television advertisement by means of visual innuendo) that persons who brushed their teeth with that toothpaste would thereby prevent decay from getting to their teeth; that "Gardol forms an invisible protective shield around your teeth.

The video portion of respondent' television advertisements depicted objects being propelled toward but not hittin a person because of an invisible shield. The visual innuendo was intended, and was conveyed to the viewer, that decay cannot get to the teeth of a person brushing with Colgate Dental Cream with Gardo1. This representation was and is false, misleading and deceptive. It deceives and misleads the public concerning the properties and the cariesprevent.ion value, if any, of Colgatc Dental Cream with Gardo1. Respondent' s specimen television advertisements in evidence (eX , CX 5, CX 7, CX 9, and CX 11) have the following audio sequence: In ex 3 as Th.fighty Thlouse in the video sequence takes the top off a Colgate with Gardol tube and points to the Happy Tooth standing near by, the audio. portion says OW to put up tbe invisilile protective shield around our Happy Tooth with Colg"ate Dental Cream with GARDOL. (Emphasis1' supplied. At this point in the video portion of the advertisement, Mighty 1\1011se spreads Colgate Dental Cream on a toothbrush, flies around the tooth and puts up a "gardol shield, In the video portion of CX 5, CX 7, CX 9, and CX 11, a coconut teunis ban, and 1ariat are thrown or hit toward a person in the forcground of the scene. The coconut., tennis ball, and lariat bounce off an unseen transparent glass shield which is, invisibly, between the person propellng t.he objects, and the person toward whom t.he object is propelled. The eocollut, tennis ball, anc11ariat do not reach . .

COLGATE-PALMOLIVE COMPAc'I 427 422 Discussion the person at whom they are thrown because they cannot get to them. The audio portion accompanying this action (CX 6A, CX 8B, CX lob, CX 12B) says And here s how Gardal works. Now just as I was protected by this (man knocks on sl1field) invisible shield, Colgate s with Gardal forms an invisible protective shield around your teeth. Fights tooth decay. and bad breath all dayi Yes, for most people, just one brushing stops mouth odor an day. Respondent's print advertising in the record actually shows a transparent protective shield in front of the teeth of a person whose face appears in the advertisement.

The invisible shield theme in respondent's advertising had the tendency to and did deceive prospective purchasers of Colgate Dental Cream with Gardal insofar as it represented the true nature of the properties of Colgate Dental Cream with Gardol, and the manner in which Colgate Dental Cream with Gardol inhibits tooth decay.

Respondent's print advertising and the visual irmuendo of its television advertising were intended to convey the impression, and did convey the impression, that decay could not get to the teeth of a person brushing with Colgate Dental Cream with Gardol, just as the eoeonut, tennis ball, and lariat could not get to the pcrson at whom they ,were thrown, because of the " invisible shield. " This \vas and is, a false, misleading and deceptive portrayal of the true properties of Colgate Dental Cream with Gardo1. Such false, misleading and deceptive advertising is proscribed by the Federal Trade Commission Act.

W1,en the complaint in this proceeding was served upon respondent alerting respondent to the Commission s objection to the "invisible shield" theme, respondent, at a cost in excess of $100 000, promptly took steps to eliminate, and eliminated, the invisible shield theme from its print and television advertising. It has not been used since. The invisible shield theme has not been reinserted in respondent' advertising since it was eliminated for the purpose of meeting the objections thereto stated in the instant complaint issued November , 1959. The evidence in this record does not support a finding that respondent win not, in the future, unless restrained by this Commission, misrepresent the true properties, and earies inhibiting value, if any, of Colgate Dental Cream with Gardol. DISCUSSION It is in the public interest to prevent the, sale of commodities by the use of false and misleading statements and representations. Par7'6 Austin Lipscomb v. FTC 142 F. 2d 437 (4 S. & D. 16RJ citing L. & C. -:Iayers Co., Inc. v. Federal Trade Commission, 97 I" . 2d 365, 867 (2 S. & D. 460). (/.

428 FEDERAL TRADE COMMISSIO),T DECISIONS Findings uS P.

Capacity to deceive and not actual deception is the criteria by which practices are tested under the Federal Trade Commission Act.' To te1l1ess than the whole truth is a well-known method of deception; and he who deceives by resorting to such method, cannot. excuse the deception by relying upon the truthfulness per se of the partial truth by which it has been accomplished. 3 "A statement may be deceptive even if the ,words may be literally or technically construed so as to not constitute a misrepresentation. . . The buying pubhc docs not weigh eRell ,yonl in an advertisement or misrepresentation. It is important to ascerta,in the impression that is likely to be created upon the prospective purchaser." 1 .."'advertisements are not to judged by their effect upon the scientific or legal mind, which wil dissect and analyze each phrase, but rather by their effect upon the a.verag"e member of the Dublie who more likelv will be influenced by th impression gleaned from a first glance. " ::leasul'cd by these criteria which have been culled from deceptive advertising decisions of the courts, responde-nes a.advertising reflected in this record violated the proscriptions of the Federal Trade Commission Act and the cease and desist orde.r requested by counsel supporting the complaint should issue.

THE "ARGUS DEFEXSE Respondent a.argues, most persuasively that it has always cooperated with the Commission, voluntarily eliminated the invisible shield theme from its advertising after being served with this Coltplaint and nothing can be accomplished by a cease and desist order which has not already been accomplished by respondent's voluntary action. The proceeding should, therefore, be dismissed. In support of its position respondent cites in its brief, inter alia Argus Cameras Inc. 51 FTC 405 (1954) ; Dietzqen 00. \'. FTC, 142 F.2c1 321 (CA 7 1941): Firestone T-re and Rubber 00. Docket No. 7020; W'ildToot 00., Inc. 49 FTC 1578 (1953); Bell Howell 00. Docket No. 6729; United States v. W. T. Grant 00. 345 CS. 629 (1953). Although there is in the record respondent's evidence of events occurring prior to the issuance of the complaint to demonstrate its complete cooperation with the Commission, the examiner must assume, and does assume, that respondent s conduct prior to N ovembel' 19, 1959, was fully considered by the Commission at the time it issued this complaint. The issuance of this complaint carried with it a finding and conclusion that the Commission had reason to 2G()orlman v. FTC. 244 F. 2d 584. U04 CA 9th (1957). P. Lorilaj' (/ CO. Y. FTC, 186 F. 2d 52 S (CA 4 1950). Ka/wajty. v. FTC 237 F. 2d 654 , 656. Cert Den. 352 CS. 1025. Ii Wan/ Laboral.OI ies Inc., ef 1. v. FTC 276 F. 2d 952 , 954 (CA 2-April 14 , 1960). COLGATE-PALMOLIVE COMPANY 429 422 :Windings believe, at that time, that respondent was violating the law, and that this proceeding was, and iS in the public interest. Respondent seeks to be l'cvmrc1ed for doing that which it was, and is, required OV law to do-advertise accurately, truthfully, and honestly t.he roducts \Thich it sells. This primary legal duty is upon the advertiser and it may not be shifted to the Federal Trade Commission. Respondent. has proven most of the elements which would entitle it to a dismissal under the "Argus defense " except one: The examiner cannot on this record, find that there is "no reasonable likelihood that respondent will in the future misrepresent" the true properties of Colgate Dental Cream with Gardol unless an order to cease and desist therefrom issues.

, therefore, the examiner makes the following CONCLUSIONS OF LAW 1. The Federal Trade Commission has jurisdiction over the parties :md the subject matter of this proceeding. 2. The complaint which 'vas filed herein states a good cause of action and t.his proceeding was and is in the public interest. 3. Respondent sens Colgate Dental Cream with Gardol in interstate commerce as "interstate COllnerce" is defined in the Federal Trade Commission Act.

:1. Counsel support.ing the complaint have proven t.he legally mat.erial a.lle,gat.ions of saiel complaint by a ple,ponderance of relevant probative and material evidence.

5. In the conduct of its business, at an times material to these proceedings, respondent has been in substantia.l competition in com merce with corporate.ions, firms, and individuals in the sale of dental creams.

6. The advertising used by respondent to sell Colgate Dental Cream Trith Gardol, and complained against in this complaint, and nO\v aba,ndoned, is and was false, misleading and deceptive, and is proscribed by the Federal Trade Commission Act. It is, therefore OnlMoecl TJmt respondent Colgate-Palmolive Company, a corporation, and its offcers, agents, representatives, and employees, directly or through any corporate or other device, in connection with the offering for sale, sale or distribution of the product "Colgate Dental Cream with Gardol" or any other dentifrice possessing substantially the same properties, in commerce, as "commerce" is defined in the Federal Trade Commission Act, forthwith cease and desist, from: o See Charles PjizC)' d', Co., Inc. Docket o. 7487. Commision s opinion of IIIay 23 19GO, .'ffrming eX:lminer s dismissal of compJilint. , .

430 FEDERAL TRADE COMMISSIOK DECISIONS Opinion 58 F:I'.

1. Representing, directly or by implication, that said dentifrice affords the users thereof with complete protection against tooth decay or the development of cavities in their teeth. 2. Misrepresenting in any manner the degree or extent of protection against tooth decay or the development of cavities in teeth afforded users of any such dentifrice.

OPINION OF THE CQffUnSSION By Kern, Commissioner:

Respondent, Colgate-Palmolive Company, is charged with violation or the Federal Trade Commission Act in advertisements, including television commercials, used by it in promoting the sale of Colgate Dental Cream with Gardol. The hearing examiner in his initial decision held that the anegations were sustained by the evidence and ordered respondent to cease and desist from the practice found to be unlawful. Respondent has appealed from this decision. In substance, the complaint charges respondent with representing that Colgate Dental Cream with Gardol forms a "protective shield" around teeth, thereby affording the users thereof complete protection against tooth decay or the development or cavities in their teeth when in truth and in fact saiel product does not fIord such complete protection by rorming a " protective shield" or otherwise. There is no dispute concerning the question of whether Colgate Dental Cream with Gardol affords complete protection. It is stipulated in the record that "neither Colgate Dental Cream with Gardol nor any other dentifrice on the market, affords the users thereof complete protection against tooth decay or the development of cavities in their teeth, " Hovl"ever, respondent vigorously contends that its advertisements do not claim such complete protection for its dentifrice.

As aptly described by the hearing examiner, in the video portion of one of respondent's typical television commercials in evidence a tennis ball is hit toward the announcer in the foreground of the scene. Another commercial pictures a coconut being thrown toward the announcer. The ball and coconut bounce off an unseen transparent shield which is, invisibly, between the person propelling these objects and the announcer. Neither the ball nor the coconut reaches the announcer and the shield is in no way damaged or penetrated. In the audio portion accompanying this action, the announcer states: And here s how Gardol works. Now just as I was protected by this (announced taps shield) invisible shield, Colgate s with Gardol forms an invisible protecti"re shield around your teeth, Fights tooth decay. and bad breath all day! COLGATE-PALMOLIVE COMPANY 431 422 Opinion In another television commercial, Mighty Mouse is pictured spreading Colgate Dental Cream on a tooth after stating: Kow to put the invisible protective shield around our Happy Tooth. Colgate Dental Cream with Gardol.

In the following scene, Mr. Tooth Decay attempts to reach the tooth but is unable to because of the Garclol shield. In respondenes newspaper and magazine advertisements, a transparent shield is pictured protecting teeth frOlTI the words "Tooth Deca, " and "Bad Breath. In the text of the advertisements there appears the statement that "* :; * only Colgate s cont.ains Gardol to form an invisible, protective shield around your t.eeth that fights decay a11 day.

The hearing examiner found that the representation alleged in the complaint "Was conveyed by means of "visual innuendo." However ,ye do not find it necessary to rely on an innuendo to establish the existence of the aUeged representation in this case. The audio portion of the commercial specifically claims that Colgate s with Gardol forms an invisible protective shield around the teeth and states that this protection is the same as that afforded the announcer by the invisible shield in the commercial. The picture accompanying this statement plainly sho\\'s that the announcer "was completely protected. The fact that the shield is not visible in the commercial is obviously respondenes method of indicating the 1nanneT in which Colgate s with Gardol works, which is not at issue in this proceeding. \Vhether the shield is invisible or visible, as in the print advertisements, is of no consequence in determining whether the alleged representat.ion was made. In our opinion, respondents television commercials and print advertisements clearly and directly represent. that Colgate Dental Crea.m with Gardol affords users complete protection against tooth decay a.nd a,against the development of cavities. On the basis of the aforementioned stipulation, such repreentations as to the degree or extent of the protection afforded users of respondent's dentifrice are deceptive. Respondent contends that the advertisements do not claim complete protection because of the statement therein that Colgate fights ' tooth decay and that the product is backed by it tlyo-year c.inical research on the ' reduction" of tooth decay. In our opinion, the words "fights" and "reduction" in the context in which they are used in respondent's advertisements, do not negate a claim of complete protection from tooth decay. Viewed in the light most favorable to respondent, these words only serve to make the advertisements capable of two meanings. It is wen settled that where one of two meanings conveyed by an advertisement is false, the advertisement 432 FEDERAL TRADE COMMISSION DECISIOl\' Findings 58 F.

is misleading. Respondents argument on this point is rejected. Like'ivise, \Y8 must reject responclenCs various arguments in support of its contention tha.t evidence of public understanding is required to determine whether its advertising has a capacity to len.d purchasers into believing that Colgate s affords complete protection. The courts have made it c)ear that the Commission is not required to smnple public opinion to determine what meaning is conveyed to the public by particular advertismnents.

He,spondent next contends that the hearing examiner erred in failing to dismiss the complaint on the grounds of abandonment. In support of its position respondent relies principally on the Commission s action in Argus Cameras, Inc. 51 F. C. 405 (1954). Although the hearing examiner rejected this defense, he found that respondent has proven most of the elements which would entitle it to dismissal under the Argus case, except one. The "element" 'i"\hic.h the hearing examiner found was not proven is that there is no reasonable likelihood of a resumption of the practice. "lve do not fully understand the hearing examiner s reasoning on this point, as this "element" is obviously a conclusion which must result if all other elements present in the Arg u8 case are proven. R.egardless however, of his reasoning, his finding that most of the elements present in the Argus matter have been established on this record is In error.

In the /t'' gU8 ease, the respondent filed affdavits stating that it had no intention of resuming the practices with which it was charged. Nowhere in this record has the Colgate-P,tlmolive Company given any such express assurance. It is true, as asserted in respondents answer and as found by the hearing examiner, that upon being senTeel yjth the complaint, respondent eliminated the protective shield theme from its advertising at a cost in excess or $100 000 and has not rcsumed the use of that theme. However, the fact that respondent has discontinued one means by which it has misrepresented the degree of protection afforded by its dentifrice cannot be considered an assura,nce that the practice itself will not be resulTlcd by other means.

In dismissing the comphtint against Argus t.he Commission took into considerat.ion its letter to that respondent several years berore complaint issued 'shieh stated in part t.hat the Commission did not contemplate further proceedings at that time. Colgate '.ms not given any such express assurance and was, in fact, informed by Rhorle;, PTwnnacal Co.. h!c Federal Trade Coll1liggioll, 2.08 F. 2.d 382 (7th Cir. H);"),')) : United St,'tes T". 95 Barrels of Yincgro' 265 U.S. 438 (1924). . F. Drew Co.) Inc. FerlCN!l Trorl,c Commission, 235 :P. 2d 735 (2d Cir. 1!)56) ; Rliorlrs P!irU!Irrcal Co" Inc. , 811pl' COLGATE-PALMOLIVE COMPA):y 433 422 Findings the Commission s stan that its advertising practices were under investigation during the period imnlediately preceeding issuance of the complaint.

Another factor militating against dismissal of this complaint on the grounds of abandonment is respondent' s continued insistence that its advertising is not false. In our view, this attitude on the part of respondent has a definite bearing on whether there is any likelihood of a resumption of the practice either for competitive or for other reasons.

In support of its argument for dismissal on the basis of the Argus case, respondent relies to a great extent on certain exhibits which were rejected by the hearing examiner. Respondent argues that the exhibits should lmye been admitted to show that although it did not discontinue the protective shield theme until after complaint issued such discontinuance should be viewed as voluntary. ,Ve do not find it necessary to decide whether the hearing examiner erred in excluding these exhibits. Since he allo\Ved them to be forwarded \yilh the record, the exhibits are available for our examination and have been review\ved by us. They consist of copjes of a letter and documents submitted by respondent to the Commission about one year before complaint issued and purport to show that respondent did not attempt. to support rt claim of complete protection for its dentifrice. From the fact t,hat the Conllnission s stan had this data before it for a year prior to issuance of the complaint, respondent argue,s that the stall did not view respondenes advert.ising as ela.timing complete protection and that it was justified in believing that no challenge was being made to its protective shield theme. Respondent' s argument as to the reason complaint did not issue a year earlier is purely speculative. There is no evidence that the Commission s staff gave respondent any reason to believe that its protective shield theme was not deceptive. To the contrary, respondent was advised by the staff on three occasions prior to issuance of the complaint that its advertising, in which the protective shield is featured, was still under investigation. Jforeover, respondent' argument ignores the fact that the interval between the initiation of an investigation and the issuance of a complaint may be affected by several frctors. One such factor would be the necessity for consideration of aU aspeets of a respondent's advertising at staff level to determine the number and nature of the charges which may be warranted by the available evidence. Under the circumstances, we fid no substance in respondent's argument on this point. Respondent was in no way prejudiced by the hearing examiner s exclusion of the exhibits.

esl-237-()3-- \. \.\.

434 FEDERAL TRADE CO L\fISSION DECISIOKS Order 58 F.

It is true that respondent was cooperative throughout the investigation of this matter. Nevertheless, respondent did not revise its advertising to eliminate the protective shield theme until after complaint issued. Moreover, as we had previously stated, respondent has persisted in its argument that the advertising is not false. On the basis of this record, we cannot find that the circumstances of this case warrant a conclusion that the practice charged has been surely stopped and win not be resnmed. In our view, an order to cease and desist is required in the public interest. Respondent next contends that the hearing exa,miner s order goes beyond the charge in the complaint. Specifically, it objects to paragraph 2 of the order which requires that in connection with the sale of Colgate Dental Cream 'iyith Gal'lol, or any other dentifrice possessing substantially the same properties, respondent cease " iisrepresenting in any manner the degree 01' extent of protection against tooth decay or the development of cavities in teeth afforded users of any such dentifrice.

'Ve have found that respondpnt. has engaged in the pract.ice of misrepresenting the degree of protection afforded users of its dentifrice by its claims of complete protection. It is ,,'ell settled that the Commission is not limited to proscribing an unfair practice in the precise form to have existed in the past but may frame its order broadly enough to prohibit the future use of the deceptive 8,11e8 method in any form. In our opinion, paragraph :2 of t.he order in the initial decision is necessary to Rehieve that purpose. Under the circumstances, respondent's appeal is denied. To the extent the findings of the hearing examiner are deficient., the initial decision is modified to include the factual findings together \\ith the reasons flncl basis thereof embodied in this opinion. As so modified the initial decision is adopted as the decision of the Commission. T "\L ORDER This matter having been heard by the Commission upon respondent s appea.1 from the hearing examiner s initial decision, and upon briefs and oral argument in support thereof and in opposition thereto; and The Commission, for the reasons stated in the accompanying opinion, having denied t.he aforementioned appeal, and having modified the initial decision to the extent necessary to conform to the views expressed in the said opinion:

3 Consi11Ier Sales Corp. Federal Tn/de Commission 19S F. 2d 404 (2d Cir. 1952) ; Herfl/tell Ohoro/nte Corp. Federal Trar1e Commisflion. 121 F. 2d !H;S (3d Cir. 1941) ; Nire,oJ, Industries, Inc. Fer/.eral 'Trade Commission 278 F. 2d 337 (7th CJr. 1960). &) &. .

W & J SLO"-'.E 435 422 Decision It i8 ordered That the initial decision of the hearing examiner as so modified, be, and it hereby is, adopted as the decision of the Commission.

It is f"rther ordered That the respondent, Colgate-Palmolive Company, a corporation, shah, within sixty (60) days after service upon it of this order, file "dth the Commission a report, in writing, setting forth in detail the manner and form in which it has complied with the order contained in said initial decision.