Bissell, Inc.

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

IN THE 1Lur OF BISSELL, INC.

ORDER, ETC., IN REGARD TO THE ALLEGED VIOLATION OF THE FEERAL TRAE COMMISSION AOT Docket 8086. Corn.plaint, Aug. 2.1, 1960-Decision, Jan. , 1962 Order requiring a Grand Rapids, Mich., distributor of rug and upholstery cleaning devices and shampoos to jobbers and retailers to cease representing falsely in advertising in magazines and ne"i'spapers and by television that said devices and shampoo \vould give rugs professlonal- ype cleaning at one-tenth the cost of professional cleaning, would dry clean rugs, and would clean merely by wiping; the shampoo Oil a rug and letting it dry. COUPLAINT Pursuant to the provisions of the Federal Trade Commission Act and by virtue of the authority vested in it by said Act, the Federal Trade COlllnission, having reason to believe that Bissell, Inc. , a corporation, hereinafter referred to as respondcllt, has violated the provisions of said Act, and it appearing to the COlnmission that a proceeding by it in respect thereof T\ould be in the public interest 719-603--64-- .

134 FEDERAL TRADE COMMISSION DECISIONS, Complaint 60 :F' hereby issues its complaint stating its charges in that respect as follows:

PARAGRAPH 1. Respondent Bissell, Inc., is a corporation organized, existing and doing business under and by virtue of the laws of the State of Michigan, with its principal offce and place of business located at 2345 Walker Road, N. , in the city of Grand Rapids, State of Michigan.

PAR. 2. Respondent is now, and for some time last past has been engaged in the advertising, offering for sale, sale and distribution of rug and upholstery cleaning devices and rug and upholstery shampoos, to distributors ancl jobbers and to retailers for resale to the public.

PAR. 3. In the course and conduct of its business, respondent now causes, and for some time last past has caused, its said products, when sold, to be shipped from its place of business in the State of Michigan to purchasers thereof located in various other States of the United States and in the District of Columbia, and maintains, and at all times herein mentioned has maintained, a substantial course of trade in said products in commerce, as "commerce" is defined in the Federal Trade Commission Act.

PAR. 4. In the course and conduct of its business, and for the purpose of inducing the sale of its products, respondent has made certain statements with respect to the cleaning abilities and qualities of its products, in advertisements in magazines of national circulation on television and in newspapers, of which the following are typical: '" .. '" Bissell Shampoo Master cleans a 9 x 12 rug professionally '" '" '" RE- )IOVES EVERY KIND OF STAI that professional cleaning can remove. *" * '" '" '" *" Bissell Shampoo :1Iaster Applicator and Liquid Rug Cleaner that wil give rugs professional-type rug cleaning at one-tenth the cost. '" * '" or BISSELL SHAMPOO MASTERS. The rug shampoos that dry clean. :\TE'V BISSELL RUG SHA:\lPOO-Guaranteed twice the cleaning power of other leading rug cleaners. .

With Bissell Rug Shampoo, there s no scrubbing or wiping up-and your rugs dry sparkling clean.

'" * * :\TO scrubbing. No mopping With the new Bissell Upholstery Master up! You just apply evenly a,nd it dries clean. You get twice the cleaning power of other leading shampoos. '" '" * BISSELL UPHOLSTERY SHAMPOO Twice the cleaning power of other leading brands. PAR. 5. Through the use of the aforesaid statements, respondent represented that its rug cleaning device, known as a "Shampoo l\lastel' , when used with its rug shampoo: (1) is as effective in cleaning rugs and carpets as professional rug or carpet cleaning; (2) will remove every kind of stain that professional cleaning can remove; BISSELL , INC. 135 133 Complaint (3) will give rugs professional-type cleaning at one-tenth the cost of professional cleaning; (4) wil dry clean rugs; (5) wil clean a rug twice as clean as any other rug cleaner; and (6) wil clean a rug merely by wiping on the shampoo and letting it dry. Respondent also represents that its upholstery shampoo when used with its upholstery cleaning device, known as an "Upholstery Master, will clean upholstery twice as clean as any other upholstery cleaner, and will clean upholstery merely by wiping on the shampoo and letting it dry. PAR. 6. Said statements are false, misleading and deceptive. In truth and in fact said "Shampoo Master" and rng shampoo is not as effective in cleaning rugs and carpets as professional rug or carpet cleaning j will not remove every kind of stain professional cleaning can remove; will not give rugs professional-type c1meaning at onetenth the cost of professional cleaning; will not dry clean rugs; wil not clean rugs twice as clean as any other rug cleaner; and wi 11 not clean a rug merely by wiping the shampoo on i1 rug and letting it dry. Also, said "Upholstery Master" when used with respondent' upholstery shampoo wil not clean upholstery twice as clean as any other npholstery cleaner, and will not clean npholstery merely by wiping the shampoo on and letting it dry.

PAR. 7. In the course and conduct of its business, at all times mentioned herein, respondent has been in substantial competition, in commerce, with corporations, firms and individuals in the sale of products of the same general kind and nature as those sold by respondent. PAR. 8. The use by respondent of the aforesaid false, misleading and deceptive statements, representations and practices has had, and now has, the capacity and tendency to mislead members of the purchasing pubhc into the erroneous and mistaken belief that said statements and representations were and are true and into the purchase of substantial quantities of respondent's products by reason of said erroneous and mistaken belief. As a consequence thereof, substantial trade in commerce has been, and is being, unfairly diverted to respondent from its competitors and substantial injury has thereby been and is being, done to competition in commerce. PAR. 9. The aforesaid acts and practices of respondent, as herein alleged, were ,md are all to the prejudice and injury of the public a.nd of respondent' s competitors and constituted: and now constitute unfair and deceptive acts and practices and unfair methods of com petition, in commerce, within the intent and meaning of the Federal Trade Commission Act.

Mr. /?redeTia!c J. ll/ ci1! anus supporting the complaint. 11h. Gi/bett H. TVeil of Ncw York for respondent. 136 FEDERAL TRADE COlV\fISSION DECISIONS Initial Decisioll 00 F.

INITIAL DECISION BY J ORN LEWIS, I-IEAHING EXA::IINER STATEl\IEXT OF PROCEEDINGS The Federal Trade Commission issued its complaint against the above-named respondent on August 24, 1960, charging it with engaging in unfair and deceptive acts and practices and unfair methods of competition, in comnlerce, by misrepresenting the cleaning abilities and qualities of its rug and upholstery cleaning products. After being served with said complaint, respondent appeared by counsel and thereafter filed its answer in which it admitted, with certain exceptions, having made the various representations charged, but denied that such representations were false, misleading and deceptive. Hearings on the charges were thereafter held before the undersigned hearing examiner in "'Vashington, D. , on various dates between J1l1e 7, 1061, and September 13, 1061. At said hearings testimony and other evidence were of1eredill support of and in op position to the a.llegations of the complaint, the S lme being duly recorded and filed in the offee of the Commission. All parties were represented by counsel and were afforded full opportunity to be heard and to examine and cross-examine witnesses. At the close of all the evidence, and pursuant t.o leave granted by the undersigned, proposed findings of fact and conclusions of law and an order were fied by counsel supporting the complaint on K ovember 6 , 1961, and by respondent on October 30, 1061.

After having revie\yed the entire record in this proceeding, and the proposed findings,' conclusions and order, the undersigned finds that this proceeding is in the intcrcst of the public and, based on the entire record, and from his observation of the witnesses, makes the following:

FI?lTDINGS OF FACT 1. The Business of Respondent, Interstate Commerce and Competition 1. Respondent Bissell, Inc., is a corporation organized, existing and doing business under and by virtue of the laws of the State of Iichigan, with its principal offce and place of business located at 2345 1Valker Road 1V. in thc city of Grand Rapids, State of :Michigan.

2. Respondent is nm-v, and for some time bst past, has been engaged in the advertising, offering for sale, sale and distribution of 1 Proposed findings not herein adopted, either in the form proposed or in !;ubstanee, are rejected a!; not supported by the record or as involving immaterial matters. BISSELL , INC. 137 133 Initial Decision rug and upholstery cleaning devices and rug and upholstery shampoos, to distributors and jobbers and to retailers for resale to the public.

3. In the course and conduct of its business, respondent now causes, and for some time last past has caused, its said products when sold to be shipped from its place of business in thc State of Michigan to purchasers thereof locateclin v lTious other states of the United States and in the District of CollUllbia, and maintains, and at all tinlcs herein mentioned has maintained, a substantial course of trade in said products in commerce, as "commerce" is defined in the Federal Trade Commission Act.

4. In the course and conduct of its business, at all times mentioned herein, respondent has been in substantial competition, in commerce with corporations, firms and individuals in the sale of products of the same general kind and nature or those sold by respondent. II. The Alleged Illegal Practices Thc Issues 1. The allegations of misrepresentation revolve about statements made by respondent in advertisements appearing in magazines of national circulation, in newspapers and on television, concerning its rug cleaning and upholstery cleaning devices and shampoos. The complaint alleges that respondent has represented in such advertisements that its rug cleaning device or applicator: known as "Shampoo lIfaster, when used with its liquid rug cleaner or shampoo, (a) is as effective in cleaning rugs and carpets as professional rug or carpet cleaning, (b) will remove every kind of stain that professional cleaning CfLn remove, (c) will give rugs a pro-fessional-type rug cleaning at one-tenth the cost, (d) will dry clean rugs, (e) w111 clean rugs twice as clean as any other rug cleaner, and (f) will clean rugs merely by wiping on the shampoo and letting it dry. ' With respect to its upholstery cleaning device or applicator, known as "Upholstery )Iaster \ it is alleged that respondent has represented such product, when used with its upholstery shampoo, (a) will clean upholstery twice as clean as any other npholstery clcaner and (b) will clean upholstery merely by wiping on a shampoo and letting it dry.

2. Respondent does not deny making the statements attributed to it in the various a,advertisements referred to in the complaint. In 88\r. eral instances it denies that the statements made by it can be interpreted as constituting representations of the type alleged in the complaint. I-Iowever, ror the most part, -its de.fense it that its products will perform as represented. This is particularly true of those repre- Initial Decision GO F. sentations comparing its products with professional cleaning and with other shampoos.

3. The evidence relied upon by Commission counsel, as supporting the allegations of the complaint that respondent has misrepresented the cleaning Lbility and qualities of its rug cleaning device and shampoo consists of (a) the testimony of a chemist, employed as teclmical director of the National Institute of Rug Cleaning (a trade association of rug cleaners), c0l1cen1ing certain rug cleaning tests performed by him using respondent's products aud other rug cleaning methods and products and (b) the testimony of ty,o so-called professional rug cleaners concerning the methods used by them in cleaning rugs and carpets commercially. Insofar as respondent' s upholstery cleaner is concerned, counsel supporting the complaint called a single witness a commercial rug and upholstery cleaner, who testified with respect to a test performed by him using respondent's product and two other products. Respondent called no witnesses as part of its own case but merely offered certain documentary evidence. Its position, essentially, is that the evidence offered by counsel supporting the complaint fails to establish that its products wil not perform as represented. To a consideration of whether the allegations of the complaint have been sustained the examiner now turns. Oomparison With Professional Cleaning 4. The principal thrust of the evidence offered in support of the complaint relates to whether respondent' s rug cleaning shampoo, when applied with its applicator, will perform as effectively as professional cleaning. There is no doubt as to the fact that respondent has made certain representations in this respect, of which the following are typical:

Bissell Shampoo Master cleans a 9 x 12 rug professionally '" .. '" REMOVES EVERY KI TD OF STAIN that professional cleaning can remove. Bissell Shampoo Master Applicator and Liquid Rug Cleaner that wil give rugs professional-type rug cleaning at one-tenth the cost. 5. It seems evident, and it is so found, that by so advertising its rug cleaning shampoo and applicator respondent has represented that such products are as effective in cleaning rugs and carpets as professional rug or carpet cleaning, that they will remove every kind of stain that professional cleaning can remove, and that they 'will give rugs professional-type cleaning at one-tenth the cost of professional cleaning. The only issue presented concerning such representations is whether the evidence of!'ered in support of the complaint establishes that they are false, misleading and decepti ve. , BISSELL, INC. 139 Initial Decision 6. In order to determine this issue, it is ne,cessary to have some understanding as to what is meant by "professional" rug cleaning, since that is the standard with 'Ivhich respondent's products and method ha.ve been compared. Professional cleaning falls into two main categories, (a) in-plant cleaning, and (b) on-location cleaning. As the names imply, in-plant cleaning involves the cleaning of rugs and carpets in a special plant using fixed machinery and equipment set up for this purpose by a iirnl which is in the rug and carpet cleaning business. On-Ioeati.on cleaning involves the cleaning of rugs and carpets in the home using portable equipment which is taken into the home by the rug cleaner.

7. In in-plant cleaning the rug is first sent through a dusting machine which removes surface and sub-surface soils by a beating and vacuuming process. After pre-spotting, the rug is introduced into a rug cleaning machine where a detergent is applied by rows of reciprocating brushes, until it is thoroughly ,vet. It is then rinsed and sent to a drying room to dry. In the case of wall-to-wall carpeting and certain types of rugs, it is not practical to remove them to a cleaning plant, and the practice of cleaning them in the home developed.

8. In home or location" cleaning as it is called in the industry, the surface dirt is first renloved by a vacuuming process. Ami' prespotting, a detergent is applied by a mechanical rotary brush. BenULYcause of the danger of the back of the rug becoming wet, which cause "bro'lvn stain, there is less \vetting a,ction applied than in the case of in-plant cleaning. After the detergcnt has been applied, some cleaners use what is known as a wet-dry vacuum tD pick up the excess moisture, pi1rticularly in the case of detergents with a high foaming action. Others do not nse a wet-dry vacnnm. A pile brush or rubber rake may then be applied to erect the pile fiish so that it will dry in proper shape. The rug is then allowed to dry natnrally. It vacuumed a day or two later to remove the dirt which has been loosened by the detergent. This is done either by the rng cleaner using a commercial type vacuum, or by the housewife, using a regular home vacuum.

9. Therewas S0111e difference of opinion among the witne.sses called in support of the complaint concerning the el1'ectiveness of on- location cleaning, as compared with in-plant cleaning. According to the testimony of the teclmicltl director of the CI ational Institute of Rng ), and that of one of theCleaning (referred to herein as N.I.R.C. professional cle,aners, a higher degree of dirt removal is achieved in plant cleaning than in on-location cleaning. However, according Initial Decision 60 P.

to the other professional cleaner called by counsel supporting the complaint, it is possible to achieve the same results in on-location elcaning as in rug cleaning in the plant, e.xcept in the case of heavily soiled Tags Jnade of very closely woven yarns. 10. 'Whether or not in-plant cleaning is the ideal way to clean rugs or carpets, there is no question but that on-location clear.ning is recognized and neccpteel by the industry and the public as professional cleaning. :l\ally companies which operate cleaning plants also do on-locfltion rug cleaning. Both of the so-caned professional cleaners calJec1 to testify in support of the complaint are connected with companies which do both in-plant and on-location cleaning. At one time the N, , which is a national trade association of professional rug cleaners, limited its membership to companies and individuals which operated rug clear.ning pbnts, a.Jhol1gh some of them also did onlocation cleaning as '1'011. IIowever, its membership is now open to on-location cleaners who do not operate any plant facilities. The lnstitnte issues literature containing information and instructions regarding the, approved professional methods for "on-location" rug cleflning for its members.

11. Respondent' s method of rug cleaning is essentially the 011location method. It involves, first, the vacuuming 01 the rug before cleaning in order to remove surface dirt. Instead of a heavy eom 111eroin1 YfWlll1m, the house" yife uses her regular home-type machine. Respondent's rug shampoo is then mixed with water in a solution which is placed in the tank of respondents applicator, calleel the Shampoo IasteT , and is pushed across the rug by the housewife, who periodically releases the shampoo solution until the entire rug has been covered. After the rug has dried it is again vacuumed by the housewife.

12. The contention of counsel supporting the complaint, that responde,nt' s Shnmpoo :Master and Rug Shampoo are not as effective in c1e.a.ning rugs and carpets as professionnJ rug cleaning, is based on the fact that the housewife does not have the skill of professional rug cleaners and that she does not have flvn,ilnble the "heavy and specialized equipment" used by professional cleaners in on-location c1eilning. Counsel cites, in this connection, the testinlony jn the record c.oneerning the methods and equipment used in professional on-lociltion cleaning. 1Io,\"over, there is nothing in the testimony cited to e,stablish that such methods and equipment wjth necessarily result in, or do, in iact result in a better cleaning job than can be achieved by respondent' s method and products. :1 Fifth proposed finding of counsel supporting complaint. BISSELL INC. 141 133 Initial Decision 13. "While it may be that the equipment used in applying respondent' s shampoo is not as heavy or as specialized as that used in professional on-location cleaning, it essentially involves the same proce elures. Instead of using a commercial-type vacuum as the initial step, to remove surface dirt, respondent's method involves the use of a home-type vacunm by the housewife. It may be that the commercialtype vacuum is larger and operates more rapidly than the home type but there is noth ing in the record to establish that it does 11 significandy better job in removing surface dirt 3 or to indicate that such differences as may exist materially affect the ulhmate cleaning result a-chievec1. Similarly, ,,,while the mechanical rotary brush used in applying the detergent is larger, heavier and operates more rapidly than respondents Shampoo :Master, there is nothing in ihe record to indicate t.hat it is any 110re effective in applying the detergent to the rug or carpet. The purpose of a ppJying the detergent is to Joose11 the more tenacious soil or dirt which has not been removed by the initial vacuuming and to cause it to come to the surface \\here it can be removed by a later vacuuming after the rug has dried. There nothing in the testimony cited by counsel supporting the complaint which establishes that better cleaning results are achieved by mae-hine application than by Hmllllal-type application of a. detergent. the contrary, the record discloses that professional cleancrs themselves use manual methods of application in corners and other areas where it is not practical to apply a Inechanical rotary brush, and that they achieve satisfaeiory results, albeit the mflnlUll method takes longer and is not economically feasible for commercial purposes in clenning large areas.

Additional professional equipment referred to by counsel supporting the complaint, as not being used in respondent's method ate (a) the wet-dry vacuum, (b) the pile brush ancl (0) the commerical Vacuunl forflnal pickup. I-Iowever, t.here is no showing that any of these results in a materia.lly better cleaning job than does respondent.' method. The ,yet-dry vacuum is used by professional cleaners only ,with certain types of detergents, and was not even used by one of the Commission s "witnesses in conducting a test in accordance with the so-called professional method. The pile brush is used by some profes- 3 The technical director of the R.LR. C., whl1e claiming that the commercial Hoo,er '\acunm was more powerful Ulan the borne type, admitted that he had no information as to whether the former would pick up more dirt than the latter. (R. 213, 215). -I The only testimony citerI by counsel supporting the complaint .which suggests that more effective detergent action is achieved 1Jy mechanical application is that of the teclmical director of the N.I.R.C. (R. 174). However, this testimony is based on tests COIl. dllcted by him wJlicl1, as wjl llcreafter appear, are of dubious ,validity and are not even cited by cotlIsel supportingUJe complaint.

, Initial Decision 60 F.

sionals because of the matting action caused by the heavy rotary brush which is used in applying the detergent. This would be unnecessary in the case of respondent's lighter applicator. Finally, there is no showing that a commerical-type vacumning is needed for the final soil removal after the rug has dried. Many professionals do not perform this operation themselves, but direct the housewife to do it with her mvn vacuum a clay or two after the professional cleaning. In fact, the N. R.C' s recommended method for professional on-location cleaning envisions that the final vacuuming will be performed by the housewife using her own equipment, rather than by the professional using his own equipment.

14. The only evidence in the record purporting to show a difference qnantitatively or qnalitatively, in the results achieved by the so-called professional method of on-location cleaning, in comparison with those achieved by the use of reponclent's products, involves a test conducted by the technical director of the N.I.R.C., Mr. Ned Hopper. This test (referred to herein as the Hopper test) was allegedly undertaken, at the request of the Commission, and purports to compare respondent' s and other home-type rug cleaning products with professional-type cleaning. Although the test was offered in evidence by counsel supporting the complaint, ancl although a major portion of the record consists of Hopper s testimony concerning the test counsel supporting the complaint makes no reference to the test as establishing his position that respondent's product is not as effective as professional-type rug cleaning. The test does purport to establish that home-t.ype cleaners, including respondent' win not remove as lunch soil as professional on-location clcaning 6 The failure of counsel supporting the complaint to refer to the test, as supporting any finding that respondent's shampoo is not as effective as professional cleaning, suggests that counsel recognizes the lack of probative weight which should be assigned to the test. However, in the event it may later be urged that counsel's failure to refer to the test in support of the allegation of the complaint here under consideration was me.rely an oversight or, to the extent the Commission may regard the te.st as material on this issue, the examiner \vill hereinafter set forth his views concerning the probative weight which should accorded to it.

15. The Hopper test, conc1uctcd under the auspices of the N.I.R.C. involved the soiling of clean, white samples of carpeting and the 5 Counsel does cite the test as supporting his position that respondent's product does Dot possess twice the cleaning power of other leading home rug cleaners, but mal;:eO! no reference TO the test as supporting the allegation with regard to its effectiveness in comparison with professional cleaning.

CX 2- ,, BISSELL, INC. 143 133 Inital Decision separate cleaning thereof by (a) respondent's cleaner, (b) three other do- it-yourself" home clear.ners, and (e) the so-c.alled professional method. The results of each of the tests were measured by a. photoelectric machine known as the Gardner Automatic Photometric Unit , as it was sometimes referred to, the Ga.rdner Re.fectometer. This l11machine has a light source which shines through two mirrors and strikes the carpet at a 45 angle. The light is reflected back into a photometric unit which then magnifies it and causes the activization of a dial on which a reading is made. The machine dOPB not actually measure the anlount of dirt or absence of dirt in the carpet, but the degree of grayness thereof, i. , the various gradations of color from white to black. The darker gray the carpet is, the lower the reading on the dial win be; conversely, the whiter the carpet is, the higher the reading on the dial.

In conducting the tests in question, the original sa.mples, which ,were white in color and unsoiled, were placed under the reflectometer and a reading was taken. They were then soiled in a so-called soiling machine with dirt which had been taken from dusting machines used in professional rug cleaning plants, and a reading was taken on the rcflectometer. The soiled samples, which were each 512 x 6 inches in size, were then tacked down in groups of four on a board 4: x 6 feet in size, surrounded by clean, unsoiled carpeting. Each group of four samples was separately cleaned using a different one of the llethods referred to above, and a reading WftS taken on the Gardner reflectometer aft.er each cleaning. A computation W tS then made as to the percentage by which the clear.ning process returned each group sal11ples to its original reflectance rmLding. The basic assumption on which the Hopper tests rests is that there is a direct correlation between the gray reflectance reading and the presence or absence of dirt.' It is thus assmned tha.t the extent to hieh t11e samples were restored to their original reflectance reading reflects the pel' cent of cleaningflchieyec1. On this basis, the samples cleaned with the so.called professional method purported to show the highest percentage of cleaning, yiz, 68.2%. Those eleaneel ''with re spondent's product by a female employee of the N. R.C. , who allege.dly used little or no pressure in applying the Shampoo :Alaster applicator, purported to show a percentage of cleaning achieved of 31.1 %. IImvever, when the process was repeated by Hopper himself on other samples, using more pressure all the a.pplicator and more of respondents solution, a percentage of 62.0% was achieved. The tests As Hopper testified (R. 149) : "The grayer a white piece of goods is, the more soh that it has on it.

144 FEDERAL TRADE CQ::D1ISSIQN DECISIONS Initial Decision 60 JT. using three other home rug cleaning products purported to show cleaning results of 5.0%, 23.0% ancl52.7%, respectively. 16. It is respondent's position that the Hopper test fails to establish that its rug cleaning shampoo is not as effective as professional cleaning methods for three reasons: (a) because of the bias of Hopper and the N.I.R.C., by whom he is employed, the test "is not entitled to credibility, (b) even if accorded credibility, the test "did not measure the cleaning effciency of either the Bissell or the 80called professional method" , and (c) even if the test is accepted, it ctually cl81nonstrates that respondent s product will cle,an as effectively as the profe sional method. The basis and validity of each of these contentions is hereinafter discussed. 17. 'With respect to the matter of bias, it is undisputed that the , as the trade association of professional rug cleaners, is interested in promoting professional rug cleaning 8 Conversely, it is clear that the Institute looks with disfavor on the competition of home, do-it-yourself cleaning products. The concern "dtll \which it regards such competition may be g(Lugec1 from the follo"wing comment made by Hopper to a member of the organization, in requesting him to nlake certain tests on horne and professional upholstery cleaning products and methods: "It wil be bad for us if you happen to give an opinion in favor of the (homes product" ' It was conceded by Hopper that the outcome of the test conducted by him could be influenced by the manner in which it Iyas earried out, such as applying more brushing action and detergent in connection with the use of one method than another. In its proposed findings, respondent calls attention to various ways in which Hopper departed frolll the methods recommended by the Institute for professional on-location cleaning which, it is argued, \\"a8 done in order to influe,nce the outcome of the tests. Tho examiner finds it unnecess:Lly to discuss these matters. It is sufcient to note that, under all the circumsta,nces, a serious doubt is created in the mind of the examiner as to the objectivity of the manner in which the Hopper test was conducted. However, the probative weight which should be accorded to the test need not be determined on the basis of the objectivity or lack of objectivity of those ho conducted it, since there are 1110re fundamental grounds for fmding that the test fails to support t.he allegations of the complaint. 18. Respondent's second contention, to thc effect that the test did not measure the cleaning effciency of any of the products or methods involved, is based on the fact that the reflectometer actually measured 5 R. 125.

9R. 30.

BISSELL, INC. 14.

133 Initial Decision the degree of grayness of the samples tested, rather than the amount of soil therein. As above noted, it was Hopper s position that there is a direct correlation between the two, in that the more dirt there is in the sample, the darker gray its color becomes and the lower the rcflectance reading thereof; whereas the more dirt that is removed, the lighter thc sample becomes and the higher the reflectance reading. Assuming, for purposes of this decision, that there is a significant correlation between the reflectance readings and the presence or absence of dirt in the samples being tested, it does not necessarily follow that because certain of the salnples had a higher reflectance reading after the use of the so-called professional method such method is more effective in c1meaning.

The Gardner refiectometer only reads the color of the surface of the sample on which the head of the machine is placed. If, as a result of the action of the rotary brushes or other method of applying the detergent, the dirt is driven deeper into the pile or is transferred to other portions of the rug which are not read by the reilectometer, a true test of cleaning ability wil not be achieved. The outcome of the test 111ay also have been influenced by the fact that some detergents contain optical brighteners or blcaches. These make the carpet appear brighter, but are not indicative of the amount of dirt removed. The extent to which these factors may have determined the outcome of the test at issue cannot be precisely determined. It is clear, however, that some or all of them playcd a part in influencing the results since some of the readings achieved are otherwise unexplainable. For example, on one group of samples tested by a home rug cleaning product other than respondent' , the test purported to show that the samples were returned to 52.7% of their original reflectance reading after having been cleaned. Yet, in following the manufacturer directions, Hopper admittedly did nothing to remove the dirt from tho samples. Thc manufacturer s directions provided for the application of the detergent with a bristle brush, but made no reference to subsequent vacuuming, possibly on the assumption that the housewife would do this anyway, without instructions. Hopper applied the detergent, but did not vacnum the samples after they had dried. Since the application of the detergent merely loosens the dirt and it is the subsequent vacuuming which removes it, it is clear that in this instance nothing was dono to remove the dirt. Yet the samples showed a significantly higher reflectance reading than they did after being soiled. Hopper sought to explain thc results as being due to the fact that the soil had merely "migrated down " " * to the middle of the tuft" where it would not be visible to the reflectometer, or to Initial Decision 60 the fact that it had been "transferred from these (soiledJ swatches to the unsoiled area" surrounding them.

It seems evident that the same factors which could have affected tho reflectance reading of the samples cleaned with the competitive do-it. yourself product, were also present in the case of those cleaned by the professional method. In fact, the margin for error would appear to be even greater. Thus, instead of applying the detergent with a hand applicator, under the professional method it was applied by a powerdriven rotary brnsh 16 inches in diameter, operating at a speed of approximately 175 revolutions per minute, and weighing approximately 50 pounds. The machine was used to clean four small swatches of carpet, each 51j2 x 6 inches in size, which were surrolUlded by clean carpeting on a board 4 x 6 feet in size, the entire area being cleaned bnt only the soiled samples being read by the reflectometcr. The soiled samples were thus less than one square foot in size in an area of 24 square feet. It seems evident that in the operation of the rotary brushes, under such circumstances, some "wjoking" of the dirt from the soiled to the unsoiled carpeting was inevitable, a possibility which l1 as in the case of the h011e typeHopper conceded in this instance cleaner discussed above. Any reading taken of the soiled samples would, at best, indicate that a certain percentage of the dirt had been removed from the surface of those portions of the carpet tested, but would not establish the over-all ability of the cleaner to remove dirt from an entire carpet in the home.

10. Assnming, however, that the Hopper test is valid, to the extent of permitting a comparison between respondent's cleaner and the pro fessional method, it fails to establish that respondent' s cleaner wil not clean as effectively as professional cleaning. The test disclosed that when TP.spondent's product wasappEed "with force" it achieved a cle Lling eifoctivcness of 62.0%, as compa-red with 68.2% for the samples cleaned by the so-called professional method. According to Hopper s testimony, a result of 65% of soil removal is considered satisfactory by professional cleaners for on-location cleaning and, further there is no significant difference between a score of 62% and 68.270, insofar as the alllount of additional dirt removed is concerned. It may also be noted, in this connection, that in performing the so-called professional test Hopper used the allegedly more powerful commercialtype vacuum for the final dirt removing procedure, whereas ordinarily (and according to the N.I.R.C.'s own instructions) this is done by the housewife herself using a home-type vacuum. 10 R. 225.

llr. 289.

BISSELL , I:W. 147 T33 Initifll Decision It is true that the test also pnrports to show a percentage of cleaning of 31.1 % when respondent' s product was applied not using "force I-Iowever, it is dubious whether this reflects a true test of the cleaning effciency of respondent' s product. Hopper did not himself apply the rug shampoo in the latter test, but it was done by a female employee who apparently applied it lightly without rubbing it into the carpet. Hopper was extremely vague as to the amoullt of detergent and amount of pressure used by the female employee, who was not herself called to testify. In his own test of respondent' s product, he allegedly applied greater force aud a greater RmolUlt of liquid. He WftS uncertain whether it was either or both oJ these which produced a result. indicating a cleaning effciency twice as great as that achieved by the fenwJe employee, or as to hmv much less force could have been use.c to achieve a substantially similar result.

The record fails to establish that a housewife, using a reasonable amount of pressure and a proper alTIOunt of solution tnnot achieve results equal to those achieved by I-Iopper in using respondent' s cleaner. While Hopper claimed that a mechanical rotary brush would have greater 111cchanical power and thus result in greater cleaning action than would be achieved by a housewife lightly moving a hand applicator across a carpet, he conceded that the machine could deliver only a certain amount of pressure effectively without damaging the carpet. Although covering a wider area than respondent's applicator, a 16J inch rotary brnsh would normally exert a pressure of only one-third to one-fourth of a pound per sqnare inch of carpet. A housewife using respondent' s applicator, could achieve the equivalent amount of pressure by exerting one pound of pressure per square inch on the ap. plicator. There is not.hing to indicate that this could not be done by the average housewife. There is likewise nothing in the record to indi eate that respondent' s shampoo is 110t as effective in Joosening dirt as professional detergents. No chemical analysis was made of respondent' s product or of the products used by professional cleaners, so as to disclose that respondent's product is incapable of cleaning a rug as effectively as professional-type detergents. The evidence also fails to establish that the loosened dirt cannot be removed effectively by home vacuuming, as recommended by respondent. This method, as above noted, is that recommended by the N.I.R.C. and by a number of professional cleaners. Thus, the record does not disclose any scientific reason why respondent' s product, applied through respondent's applicator will not clean rngs as effectively as professional methods. The test made by the I.R.C. fails to establish that it wil not in fact do so. 148 FEDERAL TRADE COM)lission DECISIONS Initial Decision 60 F.

20. at only does the Hopper test fail to support the complaint but it is at variance with an carlier test conducted by him, insofar as the test discussed above purports to establish an lmfavorable comparison between respondents product and professional 1nethocls. The earlier test, which was conducted by Hopper considerably prior to the Illotive of the present litigation, invol\red a so-called jury t.est. This consisted of the cleaning of rugs separately, by the use of respondent' product, by the use of the professional method and by thc use of other do-it-yourself products. A jury of lay persons was asked to examine the rugs and to dcsignate the order of cleanliness of each. The results of the tests disclose that five persons selected the rug cleaned by respondent's product as being the cleanest, while five members of the jnry selected the rug cleaned by the professional method as being the cleanest. .While no quantitative analysis of the dirt removal was made tho fact that half of the jurors selected the rug cleaned by respondent' method a.s being the cleanest, from a practical point of view, is a factor which cannot be ignored, particularly in view of the weaknesses in the later Hopper test.

21. Considering, (a) the presence of circumstances which raise serious doubts as to the objectivity of the National Institute of Hug Cleaning test using the Gardner reflectameter, (b) the existence of factors which militate against the scientific accuracy of the test as a proper indicator of cleaning effciency, (c) the fa,ct that the test, even if accepted as an adequate test of dirt removal, fails to establish that respondent' s product is incapable of dirt removal to an extent 8ubstantially comparable to that of the professional method, and (d) the fact that a jury test conducted ante lite1J11nota1n establishes that on a practical visual basis, respondent's product was found to clean rugs better than rugs cleaned by the professional method, by at least as many persons as found the professional method to clean better, it is concluded and found that counsel supporting the complaint has failed to sustain the burden of proving the allegations of the complaint that respondent's rug cleaning shampoo will not clean rugs and carpets as effectively as the professional method. The mere fact that some of the equipment or techniques used in cleaning Tags pro fessional1y are not used in respondent's method does not, as counsel supporting the complaint contends, establish the allegations of the complaint in the absence of substantial reliable and probative evidence that such equipment or techniques will necessarily insure the more effective cleaning of rugs. Such evidence, as heretofore 110ted, is lacking in the record.

BISSELL, INC. 149 133 Initial Decision Removal of Stains 22. Counsel supporting complaint has offered no proposed findings with respect to the allegation of the complaint that the representation by respondent to the effect that its shampoo will remove every kind of stain that professional rug cleaning can remove, is false, misleading and deceptive. It is not clear whether counsel has a.abandoned this charge in the complaint. It may be that counsel is relying on the evidence offered in support of the broader charge, concerning the falsity of the representation that respondent' s product is a,s effective as the professional method in rug cleaning, as also sustaining the charge with respect to the removal of stains. In any event, as above found the broader charge has not been sustained. There is no other evidence in the record which separately establishes that respondent's product is not as eil'active in removing stains as professional rug cleaning methods. It is, accordingly, concluded and found that counsel supporting the complaint has failed to establish by reliable, probative and substantial evidence the allegation of the complaint that respondent has falsely represented that its rug shampoo and applicator will not remove every kind of stain professional cleaning can remove. Oost of Oleanin 23. As above found, respondent has represented that rugs can be clean cd by its method at one-tenth the cost of professional-type cleaning. The issue raised is whether this representation is true. Respondent' s rug shampoo is sold in three sizes, viz, a 22-ounce can selling for $1.98 , a 64-ounce container selling flt $3.98 and a gallon container selling for $6.08. The advertisements in evidence involve principally the 22-ounce can. Some of them state that the can will clean a "9 x 18 rug area " or "one-and- ha1: 9 x 12 rugs or 162 square feet of carpet. ing." 12 The cost of cleaning is also stated to be 114 a square foote 24. The evidence in the record as to the CDst of professional rug cleaning involves the ,Vashington, D. , area, and indicates that the charge therefor ranges between 80 to 10ct a square foot, depending on the amount of furniture in the room. Two of the cleaners had mini mnm charges of $17.50 and $15. , respectively, and one had a minimum charge of $0.72 for a 0 x 12 rug. On this basis, a professional cleaner would charge between $12.06 and $16.20 for a 0 x 18 rug, except for the cleaners ,vhose minimum charges would be 815.00 and $17. , respectively. Since $1.8 is 10% of $10. , it is evident that. the cost of respondent's 22-ounce can is more than one tenth of the cost of cleaning an area 0 x 18, professionally. 12 ex 23 24,. and 27.

13 ex 23 and 27.

719-B03 64-- 150 FEDERAL TRADE COMMISSION DECISIO Initial Decision 60 F.

25. Respondent seeks to jnstify its advertising claims on several grounds. First, it points out that the cost of cleaning a 0 x 12 rug with its rug cleaner is only $1. , on the basis that it requires only 14. ounces to do so. This, it notes, is less than 10% of the minimum charge of two of the three professional cleaners who testified in this proceeding. The trouble with this argument is that it assumes respondent's advertising clainl with respect to cOlllparative cost is limited to a o x 12 rug. Respondent's claim is not so limited. In one of the advertisements at issue it stated that the "regular " 22-0111ce can "cleans a 9 x 18 rug area " and in another that it "will clean one-ancl-a-half 12 rugs, or 162 square feet of carpeting. 14 In the latter advertisement respondent itself fixed the cost of cleaning with its product at 11,4 cents ' a square foot. This figure is certainly more than 10% of the usual cost 'Of cleaning a square foot of G,l,rpeting, 'liz, 81 to lO\? 26. As additional jnstification for its advertising claims, respondent cites the fact that the cost per ounce of its shampoo in the larger containers is even cheflper than in the 22-ounce can. Thus, the -cost per ounce of the shampoo in the 64-ounce container is 6-1, and in the gallon container is 5'11, compared to 01 in the 22-ounce can. IVhile this may be true, it is completely irrelevant, since the advertising claims made by respondent involve principally its 22-ounce ca.n. It does refer in one of the advertisements to the fact that it has an "Economy Half Gallon for only $3. " but its comparison with the cost of professional cleaning is not limited to this Size.

27. In the foregoing discussion it has been assumed that the cost comparison made by respondent with professional cleaning includes only the cost of the shampoo itself and not the applicator. This is the frame of reference of the proposed findings of counsel supporting the complaint. However, when respondent' s advertising material is viewed as a whole, it is clear that the comparision made is not so limited. The advertising material features the "Bissell Shampoo Master, which is the hand applicator sold by respondent for applying its shampoo. The offerings include the Shampoo 1aster and the shampoo as a "Kit" for the combined price of $14. , stating that the shampoo is being offered "free." 16 rrhe comparison made with t.he cost of professional cleaning sugge,sts that the cost of both the applicator and the shampoo are .0nJy one-tenth that of professional cleaning. Thus, one of the advertisements spediically states that: 14 ex 24, and 27.

:ucx 24.

16 ex 24 Ilnd 27.

. .

BISSELL , INC. 151 133 Initial Decision Bissell has now perfected a new Shampoo Master Applicator and Liquid Rug Cleaner that wil give rugs professional type cleaning at one-tenth the costas easily as using a cal'Jet sweeper,1 Another advertisement sbttes that " this convenient new method CHat merely the shampoos costs only one-tenth as much as professional cleaning When the cost of tho applicator is added to that of the shampoo, and until such time as the cost of the applicator has been amortized, it is clear that the combined cost is greatly in excess of one-tenth of the cost of professional cleaning. 28. Respondent contends, finally, that there is no likelihood of deception since even if its claims of one- tenth of the cost of professional cleaning are inaccuratc, it does disclose that the cost ' is 11; a square foot, and that the customer is therefore advised what the actual cost is. \Vhilc it may be that the customer is advised what the actual cost per square foot is, he is at the SRIIle time told that this does not exceed one-tenth the cost of professional cleaning. The latter representation, as above indicated, is not in accordance ,with the facts. Furthermore, in at least one advertisement the flat statement is made that respondent's method costs only one-tenth as much as professional cleaning, wjth no indication of the per square foot COSt.

20. It is concluded and found that, whether respondent' s comparative cost claims are limited to its rug cleaning shampoo alone or the combined cost of the applicator and shanlpoo, its representations are false, misleading and deceptive since the cost thereof, separately or in combination, exceeds one-tenth the cost of prnfess-ional cleaning. Dry Cleaning of Hugs 30. The complaint alleges that respondent has falsely represented that its rug shampoo will " dry clean" rugs. Un1-ke the allegations of the complaint heretofore discussed, with respect to which respond ent admits making the representation but denies the falsity thereof in this instance respondent denies making any clailn that its shampoo \\.ill dry clean rugs. It concedes that its cleaning method, which involves the use of a detergent in a solution of water, is not dry cleaning. The issue, therefore is as to the interpretation to be given to respondent' s advertising.

31. The evidence discloses that respondent did advertise its rug shampoo as follows:

17CX 27.

cx 24.

19 CX 24.

Initial Decision 60 F.

'l' he rug shampoos that dry clean truly a one-step cleaning method. This statement is clearly subject to the interpretation that respondent has represented that its rug cleaner will "dry clean" rngs. I-Io\yever respondent contends that such an interpretation was not intended. It claims that what it meant to say -was that its rug shrunpoo "drips clean, rather than that it will " dry clean" a TUg. Thus it points out that in a number of television broadcasts the statement ,''us made that its shampoo "dries clean 21 and Uint rugs so cleaned "dry sparkling clean 22 It claims that such statements were made in the context that it is not necessary to scrub or wi e the 1"10" in c.eanillO" it but b ,that by applying the shampoo with the applicator the rug will "dry clean 32. In the opinion of the examiner respondents advertising is, at best, ambiguous and is subject to the inte-lpretation that it irill "dry dean" rugs, not. merely that a rug so cie,aned " dries de. . It may be noted that in the advertisement ,,-here the statement: at issue appears, respondent uses the plural of the word shamp.oo, referring to its product as: "The rug shampoos that dry clean . \Vhile several 1110deals of the rug applicator arc referred to in the advertisement only one rug shampoo is mentioned. So far as appears from the record, respondent makes only a single-type shampoo for Tug cleaning. Its choice of the plural appears, under the circumstances, to be a deliberate play on words calculated to associate its product with the dry cleaning method. In any event, since the language used by respondent is readily subject to the interpretation that its shampoo will "dry clean" rugs, it is immaterial whether it intended to convey this impression Dr not. The Federal Trade Commission Act is violated if the statements made have a tendency to deceive. Intent or bad faith are not necessary elements of the offense. Furthermore oven the meaning which respondent allegedly intended to convey, viz that a rug cleaned with its shampoo " dries clean, is open to question as to accuracy since, as a minimum, further vacuuming is necessary to remove the dirt insofar as it has been loosened by the shampoo. 33. Respondent further contends that the 1advertisement at issue appeared only in a single publication, the Home FUTI1ishing Daily, 20CX 26.

21 ex 14, 16 find 19.

CX17.

""'Gimbel Hr08. v. FTC 116 F. 2d 578, 579 (C.A. 2); Koch v. FTC 206 F. 2d 311 , 317 '(C. 6).

" Fot' further discussion of this point, see portion of this decision dealing with charge otf "Cleaning Merely by Spreading BISSELL, INC. 153 133 Initial Decision which it claims is a trade publication not addressed to the consuming public, and that there is therefore no likelihood of deception in the future. It is true that. the only advertisement in evidence in which the challenged statement appears is in the Home Furnishing Daily of i\farch 17, 1960. However, there is nothing in the record to disclose that this is the sale such advertisement inserted by respondent or that its circulation was limited to dealers. It was not incumbent upon counsel supporting the complaint to introduce any particular nUlIlber of advertisements in evidence. Having introduced a sample of 1'epondent' s advertising into evidence" the burden shifted to respondent to show that the advertisement appeared only once in a paper not circulatcd to the public. Considering the record as a whole, including the a,mbiguity of the statements appearing in the other advertisements upon which respondent relies for support, the examiner is not convinced tlmt there is no likelihood that the challenged advertisement or one resembling it -will not again be inserted by respondent in the future. Even if it be assumed, arguendo, that the advertisement appeared only in a trade publication whose circulation was limited to dealers, this is no bar to a finding that the statement is calculated to mislead. Presumably, it vms intended to encourage the purchase of respondent' s product by dealers and to give them a basis for nul-king advertising clainls in the sale thereof. One who places an instrumentality for deception in the hands of another is equally as guilty as thc person who makes the misrepresentation directly to the public. 34. It is concluded and fonncl that respondent has represented that its rug shampoo will dry clean rugs and that such claim is false, 1nisleading and deceptive since admittedly, respondent's product does not dry clean rugs, but is a llctergent which is applied in a solution of water.

Oomparison Whh Other Rug Gleaners 35. The complaint alleges responde,nt has represented that its rug shampoo will clean rugs "twice as dean as any other rug cleaner Respondent' s actun,l advertising claim is not that its rug shampoo will clean twice as elean as any other' cleaner but twi( e as clean as other-r leading shcwnpoos. Thus in one of the advertisements in evidence, it is stated that its shampoo is "guaranteecr' to have " twice the cleaning 25 FTC v. Winsted Hosiery Co. 258 D. S. 483; Irwin v. F'l' 143 F. 2d 316, 325 (C.A. 8). 26 Respondent su;:gests that the fact it reveals its shampoo must be diluted in water preclUlles finy possibility of deception. 'This assuIUPS that the puhlic is aware of the technicalities of the dry cleaning method to such fin extent that it wil know that water is never used in so-called dry cleaning. Such assumption cannot he made. Furthermore, it overlooks the fact that the revelation was not made In the advertisement at issue. Where the first contact is dccepth'e the law is violated, e,en though the true facts are later made known. Garter Products V. FTG, 186 F. 2d 821, 824 (C.,A. 7). , Initial Decision 60 F.

power of other leading shampoos, and in a television broadcast it stated that its shampoo "has twice the cleaning power of other leading brands COllnsel snpporting tho complaint apparently concedes in his proposed findings that the comparison made by respondent is with other leading rug cleaners rather than with all other rug clcaners, but claims that such representation is, nevertheless, false, misleading and deceptive.

36. The contention of counsel supporting the complaint concerning the false and misleading nature of respondent's statements relative to the cleaning power of its shampoo, in comparison with other leading cleaners, is based entirely on the so-called Hoppcr report " which has been previously discussed in connection with the allegations concerning the comparison made between respondenes shampoo and professional cleaning methods. As there indicated, the Hopper test purported to test not merely respondent's rug shampoo and the professional method of cleaning, but also three other home rug cleaners, viz, Easy Glamur, Glamorene (powdcr), and Glamorene Shampoo. Wl1either these are the other leading brands of rug cleaners does not appear from the record. In any event, the test purports to show that respondent' product is not twice as effective as all of the other cleaners tested. 37. For the reasons discussed above, no finding can be made as to \vhether respondent's product is or is not twice as effective as other leading rug cleaners, based on the Hopper test. The same infrmities which apply to the test, insofar as it purports to measure thc cleaning ability of respondent's product and the professional method also apply to thc testing of the other cleaners. As previously noted with respect to one of the other cleaners tested, viz, thc Glamorene Shampoo the test purports to show that the sample tested was restored to 52. of its original state, even though no steps had been taken to actually remove any of the soil from the sample after the application of the shampoo. In view of the unsatisfactory nature of the Hopper test and the absence of any other evidence, it must be concluded and found that counsel supporting the complaint has failed to sustain the burden of proving, by reliable, probative and substantial evidence, that the state.ment that respondent' s product is twice as effective as other leading cleaners, is false, misleading and deceptive. Gleaning Merely by Spreading 38. The complaint alleges respondent has represented that its rug shampoo, when applied with its applicator will clean a rug merely 21 ex 24 find 15.

28 Ninth Proposed Finding.

BISSELL, INC. 155 133 Initial Decision by wiping on the shampoo and letting it dry . Respondent's position as to whether it made such a representation is not entirely dear. apparently contends that any statements made by it, in this connection were merely intended to convey the impression that the shampoo could be applied easily by the housewife in a stand-up position, as distinguished from a hands and knees, scrubbing operation. As thus qualified, respondent contends that the representation is true. 30. The record discloses that respondent has made the following statements, in advertisement.'3, concerning its rng shampoo and the method of application thereof:

Easy as using a carpet sweeper! This is all you do: Simply push the Bissell Shampoo Master Applicator over your rug or carpet. .A trigger in the handle releases the liquid rug cleaner which sponges deep into the fiber of the rug, removing all soil and stains. VlThen rug is clean, simply vacuum. For the easiest, quickest rug cleaning you ye ever known-use Bissell Rug Shampoo in one of these famous Bissell ShamlJoo Masters, and you shampoo your rugs standing up. With llissell shampoo, there s no scrubbing or wiping up-and your rugs dry sparkling clean.

40. 1Yhile respondent does, as it contends, emphasize in its adver tising material the fact that its shampoo may be applied sblnding up and that it is unnecessary for the honsewife to get down on her hands and knees and to scrub the solution into the rug, it goes beyond this in suggesting the lack of effort ,,,which is required in cleaning a rug. Viewing the advortisements as a whole it is clear that respond ent suggests to the housewife that little or no effort is required in cleaning and that all that is necessary is to guide the applicator over the rug, thereby causing the rug to become clean by merely rcleasing the shampoo.

41. The record establishes that a rng cannot be cleaned in the effortless manner suggested by respondent. The detergent does not automatically cause the rug to become clean merely by releasing it as the applicator is pushed over the carpet. It is necessary to apply a reasonable amount of pressure in order to cause tho solution to penetrate into the carpet, so as to result in a loosening of the sub-surface soil. Furthermore, the rug does not dry sparkling clean. As a minimum it js necessary to vacuum the carpet in order to remove the dirt which has been loosened by the shampoo. The extent to which the carpet has been cleaned wil depend on the care and effort used in applying the detergent and in vacuuming the rug when it is dry. 2ECX 27.

30 ex 17.

156 FEDERAL TRADE COMMISSION DECI&IONS Initial Decision 60 F.

42. It is concluded and found that (a) respondent' s advertisements convey the impression that rugs can be cleaned merely by spreading on its shampoo with its applicator, using little or no effort, and (b) that statements made by it to this effect are false, misleading and deceptive in that rugs cannot be cleaned merely by spreading the shampoo on the rug and letting it dry but additional effort and steps are required.

Upholstery Shampoo 43. As previously noted, the complaint contains hyo allegations of misrepresentation concerning respondent's upholstery shampoo, first that when applied with its applicator it will clean twice as clean as any other upholstery cleaner and, secondly, that it will clean upholstery merely by wiping on the shampoo and letting it dry. The record discloses that respondent has advertised that its upholstery shampoo has twice the cleaning power of other leading shampoos No scrubbing. Ko mopping up! You jnstand that it requires: apply evenly and it dries clean. Ilespondent contends that its upholstery cleaner wil perform as advertised. 44. The only evidence concerning the performance of respondent' upholstery cleaner involves the testimony of a professional rug a, upholstery cleaner called by connsd supporting the complaint. The witness performed a practical test in the cleaning of a sofa using, (a) respondent' s product, (b) a competing "do-it-yourself" product and (c) the normal method used by him in cleaning upholstery professionally. According to the witness' testimony, respondent's product did "a far better job than the competitive do-it-yourselfer, but not as good a job as the professional method."' The test was performed by the witness at the request of Ned Hopper, technical director of the National Institute of Hug Cleaning, who, as previously noted formed him that: "It wil be bad for us if you happen to give an opinion in favor of the (BissellJ product.

45. Counsel supporting the complaint has proposed no findings with respect to the charges of the complaint involving respondent' s upholstery shampoo, and has submitted no order prohibiting such practices. itPresumably counsel has abandoned these cha,rges. In any event, is the opinion of the examiner that no findings in support of the complaint can be made on the basis of the testimony of the sale witness who testified with respect to respondent's upholstery shampoo in view of the duhious circumstances of the test conducted by him, and 1!CX 20.

3:R. 13.

30.

BISSELL, INC. 157 133 Initial Decision its incompleteness insofar as affording a basis for determining (a) whether respondent' s product does or does not have twice the cleaning power of other leading home cleaners and (b) what steps, if any, are required in order to achieve effective cleaning of upholstery through the use of respondent's cleaner other than the wiping on thereof. is concluded and found that counsel snpporting the complaint has failed to sustain the bnrden of proving, by reliable, probative and substantial evidence, that respondent has made false, misleading and deceptive statements to the effect that respondent's upholstery shampoo will clean upholstery twice as clean as other leading shampoos and that it wil clean upholstery merely by wiping on the shampoo and letting it dry.

CONCLUSIONS 1. The use by respondent of the statements, representations and practices hereinabove found to be false, misleading and deceptive has had, and now has, the capacity and tendency to mislead members of the purchasing public into the erroneous anc11nista.ken belief that said statements and representations were and are true, and into the purchase of substantial quantities of respondent's products by reason of said erroneous and mistaken belief. As a consequence thereof, it may be inferred that substantial trade in commerce has been, and is being, unfairly diverted to respondent from its competitors and that substantial injury has been, and is being, done to conlpetition in commerce. 2. The acts and practices of respondent, as thus found, were, and are, all to the prejudice and injury of the public and of respondent' competitors and constituted, and now constitute, unfair and deceptive acts and practices and unfair methoels of competition, in commerce within the intent and meaning of the Federal Trade CODllnission Act. OImER It ordered That Bissell, Inc., a corporation, and its offcers, em ployees, agents and representatives, directly or through any corporate or other device, in connection with the offering for sale, sale and distribution of any rug cleaning device and any rug shampoo in commerce, as "commerce" is defined in the Federal Trade Commission Act do forthwith cease and desist from representing, directly or by implication, that such rug c1meaning device and shampoo: 1. 'Vill give professional-type cleaning at one-tenth the cost of professional cleaning.

2. ,Vill clean a rug merely by spreading the shampoo on the lug and allowing it to dry.

Complaint 60 F.

3. Will dry clean rugs.

It;8 further ordered That the complaint be, and the same hereby is dismissed insofar as it alleges that respondent made false, misleading and deceptive statements other than those hereinabove found to be false, misleading and deceptive.

DECISION THE CO)_C'IISSIOX AND ORDER DO FILE REPORT COl\fl' IANCE Pursuant to Section 4. 10 of the Commission s Rnles of Practice effective July 21 , 1061, the initia) decision of the hearing examiner shall, on the 17th day of January 1962, become the decision of the Commission; and, accordingly:

It i8 OTdoTed That the respondent hereiu shall, within sixty (60) days after service upon it of this order, fie with the Commission a report -in writing setting forth in detail the manner and form in v,rhich it has complied with the order to cease and desist.