Libbey-Owens-Ford Glass Company

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IN THE l\IATTER OF LIBBEY-OWENS-FORD GLASS COMPANY AND GENERAL :MOTORS CORPORATION ORDER , OPI IO:,T , ETC., IX REGARD 'IO THE ALLEGED VIOLATION OF THE PEDEHAL TRDE COM:MISSroX ACT Docket '1' 6.-3. Complaint, Oct. 30, 195D-Decision, Sept. 20, 1963 Order requiring a Detroit manufacturer of glass products for the automotive industry and a leading manufacturer of motor vehicles, to cease representing falsely that tbe afety plate glass used in the side windows of General :'10to1's automobiles was of the same grade and quality as that in the windshields, while the safety sheet glass used in competitors' cars was the same as sheet glass in home windows; and falsely comparing the grade and qualiy of their automobile safety plate glass with the safety glass of their competitors by such practices as using deceptive photographic techniques in television depictions which exaggerated the distortion inherent in the safety sheet glass used in competitors' automobiles and minimized the distortion inherent in the safety plate glass used in General ;)Iotors Cars.

C01\IPLAIKT 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 Commission, having reason to believe that Libbey-Owens- Ford Glass Company, a corporation and General J\iotors Corporation, a corporation, hereinafter referred to as respondents, have violated the provisions of the said Act, and it appearing to the Commission that a proceeding by it in respect thereof would be in the public interest, hereby issues its complaint stating its charges in that respect as follows:

PAHAGRAPJI 1. Respondent Libbcy-Owens-Ford Glass Company is a corporation organized, existing and doing business under and by virtue of the Jaws of the State of Ohio, with its offce and principal place of business located at 608 Madison A venue, Toledo, Ohio. Respondent General :Motors Corporation is a corporation organized existing and doing business under and by virtue of the laws of the State of Dclaware with its main offce and place of business at 3044 Grand Boulevard, Detroit, l)fichigan.

PAR. 2. Respondent Libbey-Owens-Ford Glass Company is now and for some time last past, has been engaged in the manufacture, advertising, offering for sale, sale and distribution of glass products to the automotive industry for installation in automobiles, and to wholesalers, distributors and retailers for resale to the public. LIBBEY-OWENS-FORD GLASS CO. ET AL, 747 746 Complaint Respondent General Motors Corporation is now, and for some time last past, has been engaged in the manufacture, advertising, and offering for sale, sale and distribution of motor vehicle.s and automotive parts to distributors for resale to the public. PAn. 3. In the course and conduct of their business, respondents now cause, and for some time last past have caused, their said products, when sold, to be shipped from their places of business and factories in various States of the "Gnited States to purchasers in other States of the United States and the District of Columbia, and do now maintain, and at all times mentioned herein have maintained, a substantial course of trade in said products in commerce, as "commerce is defined in the Federal Trade Commission Act. PAR. 4. Respondent Libbey-Owens-Ford Glass Company, at all times mentioned herein has been, and is now, in substa.ntial competition, in commerce, with individuals, firms and corporations in the sale and distribution of glass products, including those used by the automotive industry for installation in automobiles and respondent General fotors Corporation, at all times mentioned herein has been and is now, in substant,jal competition, in commerce, with individuals firms and corporations in the sale and distribution of automobiles. PAR. 5. In the course and conduct of its business respondent Libbey-Owens-Ford Glass Company, for the purpose of inducing the purchase of its glass products and particularly its automobile safety plate glass, and respondent General :Motors Corporation, for the purpose of inducing the sale of its motor vehicles in which said safety plate glass is installed, have advertised their products by means of advertisements in magazines of national circulation and radio and television commercials, broadcast over nation-"\vide networks. The television commercials, which are accompanied by audible statements are pictures of various scenes, taken from within automobiles, and in studio demonstrations, for the purpose of comparing views as seen through automobile safety plate glass produccd by respondent Libbey-Owens-Ford Glass Company and used in the automobiles produced by respondent General Motors Corporation with automobile safety sheet glass produced by competitors of respondent Libbey- Owens-Ford Glass Company and used in automobiles producerl by competitors of respondent General fotors Corporation. PAn. 6. Respondents by means of the aforesaid advertisements have represented directly or by implication that: 1. The said automobile safety plate glass, used in the side windows of General :Motors automobiles, is the same grade and quality as that used in the windshields of General :Motors automobilcs. 748 FEDERAI TRADE CO::nHSSIOX DEiCISIO?\S Compliint 63 r.

2. The said automobile safety plate glass, (as produced by the respondent Libbey-Owens-Ford Glass Company) used in the side windo,"s of General :Motors automobiles, is free from ajj optical distortion.

3. The automobile safety sheet glass, used in the side windows of automobiles, other than General Motors automobiles, has a high degree of perceptible optical distortion, when properly installed and under ordinary conditions of use.

4. The automobile safety sheet glass, used in the side windows of automobiles, other than General Motors automobiles, is of the Slime grade and quality as the sheet glass used in home windows. 5. The pictures, used in connection with said advertising matter are accurate demonstrations of the perceptible disparity between the optical distortion of automobile safety plate glass and automobile safety sheet glass under ordinary conditions of use. PAR. 7. In truth and fact, the aforesaid representations and statements are false, misleading and deceptive in that: 1. The automobile safety platc glass, used in the side windows of General ::rotors automobiles is of a lower grade and quality than that used in its windshields.

2. The automobile safety pJatc glass, lis produced by Libbey-Owens- Ford Glass Company, and used in the side windows of General Moiors alitollobiles is not free from nU optical distortion. 3. The automobile safety sheet glass, used in automobiles, other than Gene.ral JotOTS automobiles, under ordinary conditions of use does not have the excessively high degree of perceptible distortion as represented by respondents.

4. The antomobiJe safety sheet glass, used in the side windows of automobiles, other than General :Motors automobiles, is of a higher grade a.nd quality than the sheet glass, used in home windows. 5. The pictures and depictions, displayed in the aforesaid representations, are not accurate demonstrations of perceptible disparity, between the optical distortion of automobile safety plate glass and automobile safety sheet glass under ordinary conditions of use, because the photographic techniques and devices, used in making such pictures were designed to exaggerate the distortion inherent in automobile safety sheet glass and 111inimize the distortion inherent in automobile safety plate gbss. As for example, in one scquence of pictures, represented as shopping the clispa.rit:y between the optical distortion 01 safe.ty sheet glass ancl safety plate glass, different camera, h uses \\e1'e used, resulting in an in ccurate demonstration of such c01npaTfltivc distortion and in a,another 2equcnc'3 of pictures, t.he LIBBE.y-O'VE FORD GLASS CO. E'f AL. 749 746 Initial Dedsiol1 picture, purportedly taken through an automobile safety plate glass window, was actually taken through an open window, i. , with the automobile window rolled down.

PAR. 8. The use by the respondents of the aforesaid false, misleading a.nd deceptive representations and statements has had, and now has, the capacity and tendency to mislead and deceive a substantial portion of the purchasing public into the erroneous and mistaken belief that such statements and representations were and arc true, and into the purchase of substantial quantities of respondents' products because of such erroneous and mistaken belief. As a result thereof trade has been unfairly diverted to respondents from their competitors and injury thereby has been done to competition in commerce. PAR. 9. The aforesaid acts and practices of respondents, as herein alleged, were and are all to the prejudice and injury of the public and of respondents' competitors and constituted, and now constitute unfair and deceptive acts and practices and unfair methods of competition, in commerce, within the intent a.nd meaning of the Federal Trade Commission Act.

Mr. Edward F. Downs and NT. Anthony J. Kennedy, Jr. for the Commission.

Mr. Aloysi"s F. Pmuer 1111. William Simon and Mr. John Bodner, Jr. for respondent General Motors Corporation, with Mr. Fraze?' F. FIilde1' Detroit, :Mich. , and H oW1'ey, Simon: Bake?' and 31111'ellison 1Vashington, D. C., of counsel.

1111. Joseph J. Smith, Jr. and Mr. George W. Wise 1Vashington D. c. , and Mr. Julian M. Kaplin Toledo, Ohio, for respondent Libbey-Owens-Ford Glass Company.

INITIAL DECISION BY HARRY R. HINKES, HEARING EXA IINER JULY Ii, 1962 This proceeding is brought under Section 5 of the Federal Trade Commission Act, charging that the two respondents (hereinafter referred to as LOF and GM) violated that Jaw by advertising the foJ- Jawing allegedly false a.nc1 deceptive state,ments ancll'pl1rc8eniations: (1) That the safety p1atc glass llsec1 in the side ,yinc1aws of GI\I automobiles was the same grade and qua.lity as that used in windshields of GM automobiles; (2) That the safety plate glass used in the side windows of G1I automobiles is free from all optical distortion: (3) That thc safety shcet glass used in the side windows of automobiles other than G1I automobiles has a high degree of perceptible optical 750 FEDEiRAL TRADE COMMISSIO DEiCISIO Initial Decisroll 63 F.

distortion when properly installed and under ordinary conditions of use; (4) That the safety sheet glass used in the side windows of automobiles other than GM automobiles is of the same grade and quality as the sheet glass used in home windows; and (5) That the pictures used in connection with the said advertising matter are accurate demonstrations of the perceptible disparity between the optical distortion of automobile safety plate glass and automobile safety sheet glass under ordinary conditions of use. Counsel supporting the complaint defined certain of the terms used therein for the purposes of this proceeding, including the following: (1) Distortion: a distorting; a. t\yisting motion or t,yisted or misshapen condition; (2) Optical distortion: a twisting-motion or misshapen condit.ion relating to the optics or vision of which a viewer mayor may not be consciously aware; (3) Perceptible optieal distortion: a twisting motion or misshapen condition relating to the optics or vision which is perceived or discerned by the viewer; and (4) Perceptible distortion: the same as "perceptible optical distortion. Extensive evidence was presented in this proceeding by counsel in support of the complaint and the two respondents. Much of this evidence is technical and complex, relating to the qualities and manufacturing techniques in glass and photographic procedures involved in television. Ilea rings were held in many cities over an extended period of time. Proposed findings and bricfs have been submitted bv all parties. To the extent that such proposed findings are inconsistent with the findings made herein, they are deemed rejected. FINDINGS OF FACT 1. Respondent Libbey-Owens-Ford Glass Company is a corporation organized, existing and doing business under and by vjrtue of the laws of the State of Ohio, with its offce and principal place of business located at 608 Madison A venue, Toledo, Ohio. 2. Respondent General Yrotors Corporation is a corporation organized, existing and doing business under and by virtue of the laws of the State of DeJawarc with its main offce and place of business located at 3044 Grand Boulevard, Detroit Michigan. 3. Respondent Libbey-Owens-Ford Glass Company is now, and for some time last pa,st has been, engaged in the manufacture, advertising, offering for sale, sale, and distribution of gla,ss products to the automotive industry for installation in automobiles, and to whole, sakI's and distributors for resale to the public. 4. Respondent General !llorors Corporation is noi, and for some time last past has been, engaged in the manufacture, advertising, and LIBBEY-OWENS-FORD GLASS CO. ET AL. 751 746 Initial Decisioll offering for sale, sale, and distribution of motor vehicles and automotive parts to distributors for resale to the public. 5. In the course and conduct of their business, respondents now cause, ilnd for some t.ime Just past have caused, their said products when sold to be shipped fronl their phwcs of business and frwtories in various States of the LTnited States to purchasers in other St:Hrs of the Enitec1 States nncl the District of Cohnnbia, and do now maint:lin and at aU times mentioned herein hav!: nmintainecl, H, substantial ('course of trade in said products in commerce, n3 "connnerce" is defined in the Federal Trade C0l11nission Act.

6. Respondent Libbey-Owens-Ford Glass Company at alj times mentioned herein has been, and is now, in substantial competition in commerce with individuals, firms and corporations in the sale and distribution of glass products, including those used by the automotive industry for installation in automobiles. Respondent General Motors Corporation at all times mentioned herein has been, and is now, in substantial competition in commerce with individuals, firms and corporations in the sale and distribution of automobiles. 7. The complaint and evidence in this proceeding relatc to certain advertising of LOF and GM involving safety plate glass which was dissemiuoted in 1957 and 1958.

Libbey-Owens-Ford Glass Oompany Advertising 8. For many years, including 1957 and 1958, GlII has purchased its rcquirements of automobile glass from LOF. Since before 1957 GJ\I has used safety plate glass in every 'window of e\'ery G)'I passenger car made in the United States.

9. Because sa.fety plate glass is more expensive than safety sheet glass, G11 has from time to time considered a c.change in its policy of using safety plate glass in every window of every antomobiJe. In 1957 it came to the attention of LOF that G:VI was contemplating a change from safety plate to safety sheet glass for its 1958 model automobiles. It was estimated that G:VI would save approximately 53.3 million for its 1958 model cars by such substitution. 10. In June 1957, LOF informed GJ\ that it was willing to invcst some $;:1,3 million in a safety plate glass advertising campaign pprovec1 by G1\1 if Gl\Ps car divisions would gear their ml,'n advertising to the same objective, This nclvertising campaign lS intended to promo:e the conhnl ecl llse of safety plate glnss by G:M as well lS tJ ' oi-l12:!' fllltomobiJc manufacturers. n. The,reaftcl' Ol:. June 12. 19;)7, G11 decided to continue the use of sa.:et.y plate glass in its 19;"58 cars in considerat.ion of LOF' s offer 752 FEDERAL TRADE CO:1nnSSIOX DECISIOXS Initial Decisiun 63 r.

to spend $3.3 million in advertising the advantages of safety plate gla.ss. The.re was, however, no formal contractual arrangement or ot.her agreement obligating LOF to aclyertise if G I bought its glass nor obligating GM to buy the glass if LOF advertised. LOF' promise to advertise, however, ",vas one of the factors considered G:.1 in continuing t.o use safety plate glass. 12. In Scptembcr 1957, LOF notified G:\1 that it had gone ahead with 1.he ru:h-eliising program. At. that dme it. noted "the enthusiastic a.approval of t.he GJf divisions. :: This, however, \Vas explained to mean that. G r seemed to be pleased with the program. There is nothing in the recanl to indicate tlult LOF' s de,cision to adycl'tisG, or not to advertise, depended upon G I. On the contrary, both re ponde.nts denied such obligation. On the otller hand it is clear that, witJlout the ccoperation of O::U, LOF ,;\'onld not hayc embarked upon this program since it originally considered t,he cost of the progrflm much too expensive and I\'ent ahe, ad only after it ha.d secured G:.rs approval.

13. The LOF advertising program consisted primarily of 22 tele, vision commcrcjals broadcast in 1957 and 1958. In general, these commercials c1crdt Iyith the ndvant,ages of sa.fcty pJatc glass O\" safety sheet glass 'with rc pect to visibility. 14, The commerce1als began and terminated with "billboards; \'Ihic11 orany ftnc1 pictorially stated that LOI'-' IYQ.,S the sponsor of the programs. In the commercials therHselves, hoi\ OY61' , there. were numerous shots of G:\1 alliomobiles. In the ilnc1iO portion of the commercials GI\I IYilS the only corporate.ion mentioned in connection with the Hse 01 safety plate, glass in its car windows.

15. In these LOF commel'ciaJs, the G:JI CRrs used in the so-called bea.llty scenes" (attractive picturizations) were obtaiuctl from G It is cllstoma.ry practice. to borrow products for background ll e in ma.king television commercials, and for manufacturers to lend tllcir products to commereiaJ makers such behavior being consicle.lec1 good business advertising.

16. LOF and GJ\1 agreed that the principals of the television show Iyere to use G 1 cars only. G::1 ga,ve pennission for the use of its name and supplied pictures of its cars for use in the HclverLiselnents. 'Vhen the 1 D58 model cars came Olll" 1958 pictures ,were s11bstit.uted for the 195T pictures.

17. In addition, LOF prepared and G:\f approved cert:in " sales aids" for general distribution. These sales aids were small brochures or canis, IYhich a(lYertised the TV programs referred to above. 18. Storyboards for the TV advertising program containing slides and crayon drawings, but none of the photographs or films which LIBBEY-O'VEXS- FORD GLASS CO. ET AL. 753 74G Initial Decision I offcialswere actually used in the progl, were shown to the G bdorc the public showing of the TV programs. 19. ,Vhen the Chrysler Corporation quest.ioned LOF about thc accuracy of the advertising, the LOF offcial went to G1\1 where he conferred with smne G::1 ofEcia.ls, At this conference the president of G:.I inquired whether G11:s divisions were "cooperating effectivcly 'Ivttll this splendid campaign.

20. In :\larch 1958, the prcsident of LOF wrote G:\! that LOF had aceomplished * what with the apprm'al and enclol'"ement of General j,Iotor s principal offcers, we aimed to do. You wil recall it was our joint purpose to make your investment in plate glass a more effective sales tool than it has been in years p:1St.

Xcvcrtheless, LOF' s purpose in advertising was to sen more safety plate glass for u c in nil aut.omobiles; G1\1's object.ive with the same advertising ,nls to sell more Gi\I cars.

21. The LOF television commercials "-ere broadcast by the Kational Broadcasting Company in conjunction ,with the NCAA football tcledsion programs, sponsored ill part by LOF, beginning September 21 lU37, and ending December 31 , 1957; and by the Columbia Broaclcastjng .Y'stem ,,-ith the Perry Iasoll television shows, sponsored in part by LOF from September 28, 1957, to June 21 1958. These television commercials consisted of short motion picture films 'Iyhich contfLine.d Loth visual and oral representations. There were H total of 22 separate commercials in a.n, varying in length from a half minute to a minute and a half. Four or five of these commercials Vile shown on each of tho nine footba.ll games broadcast, and t,,,o or three of the commercials were 5h01\'n on ea.ch of the 20 Perry 1Iason shows. 22. The material portions of several typical LOF television commercials were as follows:

ACTIOX SOUND 1. T\vo pieces of glass which are cut Announcer: Two pieces of safety identically in the shape of an auto- glass for the ,vindows of a car. mobile sidelight are set up side by 'l' bcy look alike side, with the announcer standing between them.

2. A close-up of the two pieces of but they don t "see through" alike glass. and you should know about the difference.

3. T\vo children seated in the back Especially if children ride in YOllr seat of a moving car. car. .. .

754 FEDERAL TRADE C01\ThnSSIOK DE'CISIOKS Initial Decision 63 F.

ACTI0X-Contillued SOll Colltinued 4. Scenery along the road side and a This is ordinary safety glass made sign "Entering J,"airlawn" which of window glass. It puts a wiggle show perceptible distortion are in the thlllgS you watch. seen through the side window of a moving car and the \words "OR- DINARY SAJ l'Y GLASS" are superimposed on the screen.

5. Scenery along the road side and a This is safety plate glass. It takes sign "Entering Fairlawn" which the wiggle out of what you watch. show no perceptible distortion are seen through the side window of a moving car and an LOF etch mark "SA)!'ETY LOF PLATE" is superimposed on thc screen 6. A. view of a car moving down a Because it gives the driver better road. vision, laminated safety plate glass is required by law in windshields 7. Different views of passing scenery but only cars ,with Body by Fisher seen from interior of a moving car. use safety plate glass in every win" dow of every car as standard equipment. It doesn t cost you a cent extra.

8. Close-up of exterior of moving car At first glance your family may with two children in the back seat. not notice the difference, but their eyes wil.

9. Close-up of the corner of a side )lake sure the ,vord ';Plate" is window with an LOF etch mark etched on every window of the next car you buy.

ETY I OF PLATE"

'Visible in the cornel'. Tbe word PLATE" zooms up to full screen size and then shrinks back to its place in the etch mark.

10. A boy and a girl seated in the For good looking " " ". back seat of a moving car. The words FOR GOOD LOOKn, are superimposed in full screen size.

11. Same as No. 10, above, except that look through safety plate the additl0l1al words and the LOF etch mark LOOK THROUGH- SAFETY LOF PLATE"

are snperimposed in full screen size.

LIBBEY-OWENS-FORD GLASS CO. ET AL. 755 74() Initial Deci.sion ACTION-Continued SOU::D-Continued 12. Same as No. 11 above, except that in Chevrolet. the superimposed ,"yards and. etch mark have been changed to read:

SAFETY LOF PLATE CHEVROLET"

END ACTION SOUND 1. A television screen showing a pic- Announcer: If children ride in the ture of a ,boy and girl seated in the back seat of your car, here s someback seat of a moving rar. thing important you should know 2. :\'1an and woman seated in living about the qualiy of glass used in room watching the television pro- car windows. gram.

Man Watching TV: Commercials! Eyeryhody knows all cars use safety glass today.

3. Announcer on TV screen holds up Anno-u,ncer: But they don t all use card with an LOF etch mark safety pla te glass. SAFJ;:TY LOF PLA'l' on it.

1. Close-up of man and woman Man Watching TV: \.h, \vhat's the \Va tching TV set. difference: 5. Announcer with two pieces of WiWHllcer: There s a big differglass which are cut identically in ence. the shape of aD automobile sidelight. 1'he pieces of glass are mounted on each side of tlle aJ1- 1101111('e1' and in front of zebra boards, i.e., square boards with parallel black and white lines rUllning c1iagionally across the surface of the boards.

6. Close-up of the glass on the an- 'Yateh tbe lines \\"iggle throng-lJ nonncer s right as he rotates it so ordinary safety glass that it is at an acute angle to the zel1la boarel behind it. The lines of the zebra board seen through the glass shall PCfCC1Jtible distor"

tion.

7. The announcer fotates the glass Distortion. '.ll a t meum: lifUd on his right bac1 to its original eycs. position.

756 FEDERAL TRADE COMMISSION DECISIO lilithll Decision 63 F.

ACTIOK-Continued SOl.XD-Continued S. Close- up of the glass on the an- Safety plate glass takes the wig nouncer s left as be rotates it so gle out of watching. that it is at nil acute angle to rbe zeul'a board behind it. The lines of the zebra baud seen through the glass show no l)erceptible lli.

tartion.

D. The l111lounge1' rotates the glass 011 Lets ;)' OLl ride relaxed. his left back to its original position.

10. Scenery and a bilboard which Just watch this bilboard throllgh sho\\' perceptible distortion are ordinary safety glass made of winseen through the side \Tindow of dow glass. It shimmies and wava moting car. ers 11. Scenery and a bilboard which hut through safety plate glass you get show 110 perceptible distortion are clear vision. seen through the side \'lindo\v of a moving car flnel 1111 LOF etch marl\"

SAFETY LOF PLATE"

is superimposed on the scene in large letters.

12. Flag poles which show perceptible Flag poles '! distortion are seen through the side \Tind'O\T of a moving car.

13. Flag poles ,,-bich show no percep- Well, no\V they are. tihle distortion are seen through the side window of a moving car.

14. Close-up of exterior of a moving' It' s eas,'; to get used to distortion. car with girl in the back seat. That' s why you may not notice the difference but your family s eyes do.

oetter 15. Head-on vie\\' 'of an approaching Because it gi,es the driver car. Yision, laminated safety plate glass is required by law in windshields 16. Side view of a moving car. but General Motors is the only manufacturer 17. \n LOF etch mark to gi,e yon safety plate glass SAFETY LOF PLATE"

is suverimposed in full screen size on :'nmoer 16 above.

18. Same as :'a. 17 above, with the in every windo,;\' addition of a line circling the car windows.

; ..

LIBBEY-OWENS-FORD GLASS CO. ET AL. 757 746 Initial Decision ACTIOK-Continued SOUND-Continued 19. The superimposed etch mark and of every car as standard equipment. It doesl1 't cost you a cent extra. line circling the car windo\',s Tanisb.

20. Close-up of a side ,,,indow with If the word "Plate" isn t etched all LOF etch mark on ('''cry window of your car, make sure it is on every window of the next car you buy.

SAFETY LOF PLATE"

yisible ancl with the -word PLATE" zooming up to full ",('reen size and shrinking back to ii.'S place in the etch.

21. A boy and girl seated in the back For good looking ':' , eat of a moting car. The ,words FOR GOOD LOOI\LYG"

are superimposed in full screen size.

2:? 82me as Xo. 17 ahoTc, except that look through safety plate * '" .. the nc1ditionnl words and tlle LOr etch mark LOOK TI-InOl GH- SAFETY LOP PLATE"

are superimposed in full screen :oize.

23. Same as Xo. 17 above, except that in Buick. the uperimposed words and etch murk 11a,e been changed to read:

\PETY LOr PLATE BLICK"

EYD C, Although most of the conunercials in the sound port.ions thereof stated "laminated snJety plaie glass is required by law in windshields but only General :;\01.ors eats use safety.y plate glass ill the ,yindows all the way nrounc1': some of the commcrc.ials used this language: Because it gives so much better vision, the law requires laminated safety . plate glass for all windshields. But as I said, only General 1oIotors puts U in every window of e'-ery car they make. (Emphasis added. '1' 0 give me better yision when I drive, the Imy says safety plate glass ha be put in the wind;;11field .. * * They re (G1I) t.he only car manufacturer' to use t.hat same safety plate glass in every window of every Cilr they make (Emphasis added, 23. In all the LOF advertisements, t.he visual demonstrations consisted of still and motion pictures of zebra boards or eye charts t.taken 780- 013--69- 758 FEDERAL TRADE COM:MIS6IOK DECIS,IONS Initial Decision 63 F.

through pieces of glass cut in the shape of automobile side lights. The comparison also was acemnplishec1 in part by pictures of scenery taken from the side windows of moving cars. Such demonstrations 8hm" no perceptible distortion when t.he objects are viewed through safety.y plate glnss and show perceptible distortion when the objects arb viewed through safety sheet glass. In addition, there are written or oral statements which represent that no perceptible distortion is seen through safety plate glass, but that safety sheet glass shows perceptible distOli.ion in automotive use. Typical of such statements arc:

Through ordinary safety glass made of window glass everything begins to wiggle. Safety plate glass takes the \viggle out of watching. Through safety plate glass you get clear vision. Only plate glass gives clear, undistorted vision. 2-4. Although most of the cCHllne.rc.-ials and advertising referred to above simply make it quite clear to the observer that the G1\T cars have windows made of safety plate which makes them free from perceptible cli storti 011: some of the television commercials could and lld lend some observers into thinking that the identical glass was used Ith- ,, e ':::.:lB winclO\ys and for the windshields. Thus, in the two illustrations quoted above, reference was made to laminated safety plate glass in the windshields, followed by the statement that it was used in every window. Similarly, another commercial stated that the same safety plate glass found in the windshield was used in every window.

25. Only lruninatccl plate glass is used in the windshields of American automobiles. Lamina.ted pbtc gla.ss consists of two lights glass held together by an interhyer of tra.nsparent plastic. The side windows! ,which must be safety gl lss, may be made of la,minatecl glass or of tempered glass. In practice, however! these side windows are nsnally made of tempered gln.ss. Tempered glass is gla,ss which has bee,n treated to give it greater breakage resistance. This type of safety glass hmyever, has a greater tendency to splinter and js not permitted in car windshields. There is some difference of opinion as to whether t.mnperecl glass is as safe as laminated glass. Industry usage and standards dearly aDow both types of glass to be represented as sarety gJnss, although one type might be considered s dcr for cerUlin a,ccidents than the other. \Vindmys made of tempered plat.e glass arc very muc.h unlike la,minated pla.te glass in breakage potentials and c.ha.ract.eristicB.

26. Industry specificntions permit lower quality.y grades of plate glass in the side windows tha,n in the windshields, and such lower LIBBEY-OWENS-FORD GLASS CO. E'f AL. 759 Initial Decb,ioll'746grades are so generally used. The fla"ws rendering such glass inferior in grade do not necessarily affe,ct the visibility of such glass and are not usually detectable except by experts.

27. Sheet glass is made from molten glass which has been drawn into a ribbon a.nd allowed to cool. Inherent in the process is the creation of waves or irregularities in t.he surface of the glass. Plate glass, however, is made from blanks which have been ground and polished so as to have removed: for all practical purposes, the surface irregularities eharacteristic of sheet glass. In the sizes used for automoti.ve purposes, flat plate glass provides an undistorted view. In larger sizes, hO\ycver, such as store windows, plate gla,ss made in the conventional manner, which involves the grinding and polishing of eac.h suria.cc separately, may, and oft.en does, have some perceptible distortion.

28. In a film cR!led "The Perfect Parallel " produced Rnd distributed by LOF , store windo'vs of conventionally-ma.de plate glass were Sho"l1 to have perceptible optical distortion when the Cfunera making the view through the glass was positioned some twenty feet from the glass. The distortion, however, beca,me imperceptible, and for a11 pract.ical purposes Yanj hed, when the cmnern, made the same view t.through the glass from a dist Lnce of some three feet. In automobiles, the passenger is usually but a few feet from the ",-jndow through which he looks. Under such circumstances the optical distortion perceptible in pla.te glass will not manifest itself. 29. PJate glass may be subject to optical deviation or double vision ca.used by nonparallel surfa,ces of glass. \Vhen that condition exists two images of an object will be seen t.through the glass instead of one image. The deviated or secondary image is not twisted or misshapen but. is true as to form and very dim, being usually observable only at night. Optical deviation is not synonymous with or included in the definition of optical distortion.

30. Sheet glass which is eharacterized by the presence of surface waves may have such waves running with, perpendicularly to or diagonally to, the draw. During the tune period here involved, safety sheet glass was not necessa,rily cut so that the predominant ,vave would be horizonta.l. A Commission witness testifying contrarily ,vas convincingly contradicted by the introduction into evidence of a light of glass Inade by his company having waves in both directions, with the vertieal wave mare dominant than the horizontal ',"an' 31. Although SOllle of the Commission witnesses testified that some of LOF' s advertisements used sheet glass with the predominant 'VfIye in a vert.ical position, thus exaggerating the distortion present, this , 760 FEDERAL TRADE CO).BJISSIO DECISIONS lni tial DedsIol1 63 l' evidence was not, persuaslye. In one instance the witness made no attempt to examine the glass, but only :1 photograph of it. In the other instant('e the witness also failed to exarnine the glass itself and more.Qver had but limited experience in this scientific area. 32. LOF' s advertisements showing perc.cptible distortion in safety sheet glass 'were made by cameras positioned within the car at a point vi-here a passcnger seated in the rear seat of that car, on the right side t.herear would look through the right front ,,,indm, glass. This position was approxinmteJy 38 inches from the glass, at an angle of not more than 20 degrees.

33. The degree of perceptible distortion in sheet glass increases as the angle of view becomes more acute. Thus, more distortion is apparent in sheet glass having waviness when the view is at 20 degrees than at 40 degrees.

34. Aut.omobile passengers seated in the front seat of a car generally look through the side windows of the front doors where the angle of view would be approximately 90 degrees. Pnssengers in the rear seat of the car will usually look through the rear windows of a car where the angle wiJj be about 45 degrees. If the view is through the front indow only, a passenger in t.he right rea,r would have a 20 degree angle of view, lls \yould the pa,ssenger in the left rear looking through the left front window. In a test ride taken by t.he examiner, howpver, the view through the front window was seldom used by him as he sat in the right rear seat, due to the presence of various obstructions, such as the door post and the ventilator window frames. 35. The LOF commercials showing the distorted vimv through shoot glass at an angle of 20 degrees, was not th.e usual.l experience of a car passenger but an unusual one and to that extent) exaggerated the experience of a passenger with respect to perceptible optical distortion. 36. Sheet glass is commercially re.ferred to and known as window glass, The terms are synonymous and used interchangeably in the industry. In common use, however, among the less informed, as well as the general public) window glass is often taken to 11ean home window glass. Although home window glass and glass used to make a.nt,omotivc safety sheet glass are manufactured by the same processes and cut from the same ribbon automotive sheet glass is of a superior grade and quality with respect to distortion. Both types :class may have distortion pe.rceptible at angles of view less than 45 (legrees, but automotive sheet glass, unlike home window glass, must not have perceptible distortion at 45 to 90 degrees. 37. In some of the scenes photographed, the plate glass scene was photographed through a normal camera lens. The sa.fety sheet glass LIBBEY-OWEKS-FORD GLASS CO. ET AL. 761 Jnitinl Decisionscene746was photographed through a telephoto lens which had the effect of showing less of the view but in larger image size. In this proces of magnification the perceptible distortion was magnified, as was everything else shown. Although the degree of distortion remained unchanged with either lens, the effect of the magnification made the comparison unfair and improper.

38. In five of the comparison sequences of the television commerciaJs, the safety plate glass scenes were photographed through an open window instead of through safety plate glass. The photographer did this to saye time, confident that thc end result was the same iu either event ,i. that the scene through the open window was identical with the scene that would have been shown through the plate glass. one, not even the glass or camera experts, was able" by looking at the scene, to detect in 'Iyhich instances the scenes were shot through the open ,vindow rather than through the plate glass. 3D. In one of the zebra board compa.rison shot51 the safety,y shcet glass was turned to a. sharper angle than was the safety plate glass. Since distortion is more apparent in sheet glass as tlw angle of view becomes more acnte" an unfair and improper comparison was thus made behyecn the two lights or glass.

40. In 0lH: comparison sequence, the safety sheet glass scene was photographed through the right front ,,,indow a.nd the, safety.y plate glass scene t.through the right rear ,,,indo\\. Here, too, the effect was to create a sharper angle of view for the sheet glass which could have the result or making the distortion more preceptib1c. The comparison was therefore unfair and improper.

41. All of the LOF advertisements in question were prepared by the LOF advertising agency, Fuller & Smith & Ross (hereinafter referred to as FS&R). FS&H arranged for LOF' s sponsorship of the ID57 NCAA football game of the weck and the Perry Iason show and LOF approved the TV schedules. FS&R had the responsibility for preparing the. television commercial.ls which it usually submitted to LOF for review in storyboard form. LOF gave detailed instructions to FS, R with respect to the production of the comparison scenes in the television commercials, including instructions as to obt.aining cars from rental agencies, placing the camera in the approximate posi tion of a passenger seated in the right rear seat, making comparable photograpl1s through safety plate glass and safety sheet glass, and employing no trickery in the photographs. FS&R, in turn, passed these instructions along to Television Graphics, a "New York firm engaged in the production of films for television which FS&R employed to make motion pictures for the LOF commercials. 762 FEDERAL TRADE CO::L\lISSIOX DECISIONS Initial Decision 63 F.

42. Television Graphics made the motion picture films used in the LOF TV commercials. It procured the Gi\I and non-GM cars used and, together with FS&R, edited the films.

43. The advertising campaign ended in June of 1958. Prior thereto LOF had decided to discontinue the comparison advertising with respect to plate versus sheet glass. This type of advertising has not been resumed to date.

(lenenllll1()to1' Arl(, o't:s;'ng 44. From September 1957 to Iay 1958, GAl sponsored fl national television network series called "IYide IYide IYorIel. There were approximately thirty separate commercials for the entire series and some of tho individual comnlercials \"ere shown two, t.three or four times during the series.

45. Of the thirty commercials for the series, one involved glass. This "-as a 2Y2 minute commercial and was llsed twice during the serjes. The pertinent video and audio portions were as follows: VIDEO A"Cmo 9. DROP 1;\- Vif;\VSHIELD III0.\Y- eye ." autollubile ha:- safety plate ILY OUTL1;\JW glass in the windshield. 10. DHO? IN OTHER 'YL\TDO'VS But onl:- General Motors has gone to the extra care and trouble of protecting 'our \'sion by puttlng safety plate glass all the way around in all its cars. Windsbield *' * * doors '" " '" and in tbe rear.

11. HORlZOX'JAL A:' I:I A TI 0 K Wllat' s the difference? Ordinary VERY TIGHT CU OF PROFILE window glass bas small bubbles and OF 0 R D I;.T A R Y 'V I N D 0 W imperfections that mar your ,jsion. GLASS SHOWI:-TG DIPERFEC- TIO:KS AXD :\IARKED " Orclinary Glass 12. long 1jP A:\D DISSOLVE IX But plate glass is ground and PLATE GLASS SHOWEG FLAT polished on both sides with jc\\, el- PLANES AXD :\IARKED s rouge to gi\e you the safest, PLATE" most restful ,iewing glass ImO'Vll. 13. WIDE SHOT OF WI:'DOW Try this test ill your own house. Look through a pane of window glass at the extreme edge, move your head hack and forth a few inches.

14. CU SHOWING DlSTORTlOX And this is the kind of distortion 'you ll see. Straight lines !Jcc:ome eur,ed, distances distorted.

LIBBY-OWENS-FORD GLASS CO. ET AL. 763 746 Initial Decision 15. REPLACE WITH CLEAR SCEKE But with plate glass, this is what 16. REPEAT #10 you see-everything sharp and clear.

That' s why General Motors feels it's important to give you this sharper, clearer vision in every window of your automobile.

46. GM employed t.he advertising agency of :.IaeJIanus, John and Adams to make all the commercials for the series. It was the decision of both GJ\1 and the ac1vertisting agency to run one commercial of sa.fety plate glass. In addit.ion, G I agreed to the general outEne for the commercial but delegateLl the responsibility for production to the agency.

47. The advertising agency chose ICJneger Filln Productions, Inc. to make the films for the comlnercial. O::U did noi participate in this selection. Klaegel' and the advertising agency jointly decided to make a C0l1ll11cl'cial comparing safety plate glass wit.h home window glass. 8. In making the film, a single piece of glass installed in the window in a \vooden frame was used. Although there is no positive evidence \y whether the glass was sheet or plate glass, it was reasonably inferable that it was shed, judging Ironl price paid for it. .1-D. The same scene was shot through the glass twice, in one instance purportedly showing the scene through plate glass and in the other showing t.he same scene through home window glass. In the plate glass shot, the camera was in a stationary position. In the home window shot, the glass was streaked with vaseline and the camera was panned from side to side as though the viewer were walking past the window. The film thus created showed an un distorted view for the plate glass shot, but a distorted view for the home window glass shot. The dist.orted view for the home window shot, however, was not an exaggerated one compared to the experience of witnesses viewing other window glass under similar circmnstances. 50. GM was not aware of the use of a single light of glass for boil shots nor of the nse of vaseline for the home window shots nor of the use of the moving camera technique, nor did the advertising agency have such knowledge at the time.

51. G ha.s not used any advertising comparing safety plate glass "Wit.h safety sheet. glass since the above-mentioned commercial was last used in )In.y 1858, nor does it intend to use such advertising in the future.

52. Although the Gll commercial referred to above compares the GM safety plate glass with home window glass specifically, it addi- 764 FEDERAL TRADE COM:-IISSION DECISIONS Inital Decision 63 F.

tionally states that. only GM puts plate glass in all its car windows. The inference is plain that non-GM cars used something other than plate glass in their side windows. The immediate comparison t.hat follows between the G I plate gla,ss and home window glass would unavoiclably cause some viewers to associate the home window glass with the glass used in non- I cars. This association must obviously be intended inasmlleh as G::1 would have no purpose for comparing 110me window glass with its plate glass unless the visual effects of home window glass were to be found in non-G1\I cars. DISOUSSIOX The LOF commercials which were prepared by FS&R and Television Graphics, as well as the printed material prepared by LOF for use by GAr, were reecived in evidence as to respondent LOF and were offered in evidence by counsel supporting the complaint as to respondent G I as well. The basis for such ofler, as stated by counsel supporting the complaint, was:

The exhibHs here in question are the acts of one "joint Rf1nntUll'r " find tlh' are therefore applicable and binding on both. Complaint counsel urges that. the cyidence prm es the joint venture a.nd that both respondents "took an equal part herein and cert.ainly both benefited therefrom To understlnd tile problem jt, is first necessary to arrive at an accurate definition of the term. Although Commission counsel cites a definition of joint adventure to the effect that it is a legal relation generally described as an association of persons to carry out a single business venture for profit, the courts have been 111uch more specific jn their definition. Thus, American Jurisprudence summarizes this attitude its follows:

A joint venture (the modern preference for the older technical term " joint adventure ) is an association of persons with intent, by way of contract, express or implied, to engage in and carry out a single business adventure for joint profit, for which purpose they combine their efforts, property, money, skil, and knowledge, but without creating a partnership in the legal or technical sense of the term, or a corporation, and they agree that there shall be a community of interest among them as to the purpose of the undertaking, and that each coadventurer shall stand in the rclation of principal, as well as agent, as to each of the other coadventurers, with an equal right of control of the means employed to carry out the common purpose of the adventure. 30 Am., Jur., Joint Adventures 2 (1958) (footnotes omitted). It js therefore apparent that there are several essential components jn a joint venture: first, an agreement or contra.ct whether express or implied; seconc1 a cOlnbining of efforts or properties or abi1itie, LIBBEY-Q\VEXS-FORD GLASS CO. ET AI,. 765 746 Initial Decision third. a eomnllnity of interest. as to the purpose of the undertaking; fourth, an eClualright. of cont.rol of the means employed to carry out the pl1rpo e of the common adventure.

1. The contract. I have considerable doubt that the behavior of the parties constituted a conti' ad, express or implied. A contract entails the assllmption of duties as \Yell as rights. There is some doubt in my mind that G)I assllmed any material obligation with respect to the ach-ertising c.ampaign. It has been said that the contract is a since qu,(l n01n of a joint venture which is a, status not imposed by law. CaiDonean v. Peterson 05 P. Qd1043 (Wash. 1030). 2. A combining of efforts 01' jJ1' operties or abilities. There was 110 combining of e,norts, propert.ies or abilities as bet\veen the respondents to carry out LOF' s advertjsing program. At most there was an agreeJnent that each respondent would further its own advertising cam pa 19n.

3. A c01nm/llmty of interest as to the purpose of the undertaking. Even if I assume that criteria one and t\vo above were met in this sitnation, I find it impossible to satisfy the third criterion or the fourth below". A community of interest as applied to the relation of joint YPJ1l11re has been defined as an interest common to both parties, that : n. mixture' or identity of interest in a ,-en! nre in ,which each or all are reciprocally concerned. For instance, two parties may be en: gaged in the performance of a purpose or objective which may be for the sale interest or advantage of one a.nd from which the other is to derive. no benefit ,,,whatever, or the interest of the one may be different and dist.inct from that of the other; in either of such cases there would 110t. be a joint adventure. OaTbonea' v. Peterson, s'l pl"a. That case cites the example of h,o boys nnc1ertaking a ride together for the purpose of visiting each party's home in order to obtain the key which each boy had forgotten. Although the joint ride was for their mutual bene.fit viz for each to get his own key, t.he purpose of that under. taking was separate and individual for each of them and not common 1.0 both of them, rendering it not a joint venture. So, here the adver. tising campaign 'Yas for the mutmt1 benefit of both respondents, but the purpose \"as eparate and independent as to each of them and not common to both. In the cftse of Gi\J the purpose '''as t.o sell more safety plate glass 110t meree)' to G::1 but to other car nwnufactlll'eI's and the public generally.

4. .1n equal ri.ght of control of the mea".s employed to carly out the JJ'Wp08e of the common a.dvenh)/re. Of greatest significance in this matter, however, is the element of joint control. This factor has been of considerable interest to the courts. Cases are numerous in which .

766 FEDE'RAL TRADE C0111ISSION DECISIONS Initial Decision 63 F.

the lack of a joint control or a mutual right to control dcstroyed the alleged joint venture. In Oarboneau v. Peterson, supra the court held that the relationship must have equal rights to a voice in the manner of performance of the enterprise; more specifically, thwt each party rnay equally govern how, where, and when the agreement will be performed. In Ohisholm". GilmeT 81 F. 2d120 (4th Cir. 1836) the court held that each 111USt have a voice in management. In Van Hoole 108 F. Supp. 3;, (R. , Il. , 1951), the Conrt referred to it a mutual right to control." Thus in Oross v. Pasley, 270 F. 2d 88 (8th Cir. 1958), where defendant embarked on oil discovery and production and hire.d a salesman to sell interests in oil rights, and the holder of intcrests, although having the right to enter the premises to view the progress of drilling, had nothing to do with its supervision, there was no joint venture. In a similar vein, see Potter Florida Motor Lines, Inc. 57 F. 2d 313 (S. , Florida, 1832); Balestrieri and 00. v. Oomm':88ioner of Internal Revenue 177 F. 2d 867 (9th Cir. 1849); and A,'line v. lJrmcn 190 F. 2d 180 (5th Cir. 1951). The t,television program was arranged by the advertising agency of respondent LOF; it was paid for by LOF; it was constantly reviewed by offcials of LOF; it was undertaken by LOF and discontinued by LOF. Even if G.:1 app,ovcd the program, this is not tantamount to a clear and equivalent right to control that program with the same authority as LOF.

Commission counsel puts great emphasis on the undisputed fact that both respondents shflrecl the benefits of t.he advertising campaign which indeed they did. The decisions are numerous, however, in the holding that the showing of benefits alone wil not make a joint venture. Pem7!eJ,ton Windsor Leasing 00. 58 S. 2d 202 (19+0); Brenner v. Plitt 1 A. 2d 853 pld. 1943). Thus, in Detachable Bit 00. v. Ti1nken Roller Bea,'ing 00. 133 F. 2d 632 (6th Cir. 1043) there was no joint venture in the absence of joint property or joint profits in the undertaking, nor any showing of the right of one to incur a debt obligating the other. Even where two parties reserve certain negative powers of control in an undertaking to one of the parties tho court found no j oint venture in view of the party s lack of a proprietary interest in the properties. S. v. TVest1nol'eland Jll anqene8e Corp. 134 F. Supp. 898 (B.D. Ark. 1955) , affirmed 246 F. 2d 351 (8th Cir. 1957). See also Hyman v. Regenstein 258 F. 2d 502 (5th Cir. 1958) cert. denied 350 S. 013 (1959) ; .. " .. an agreement to furnish the finances for a scheme or project does not necessarily constitute the transaction a joint venture, even though the profiti may be divided" '" * . The parties must intend that there be a joint proprietary interest and a right of mutual control" , LIBBY- OWENS-FORD GLASS CO. ET AL. 767 Initial Decision746The conclusion is inescapable that the admission of the subject exhibits as to respondent cannot be justified on the theory of joint venture between GM and LOF.

The same conclusion is achieved if we consider the, situation under the doctrine of joint that. In the recent decision In the !flatter of FTC Docket No. 7736, December Colgate-Palmolive Comlxtny, et al. , 1961 (59 F. C. 1452, 1471J, the Commission cited Federal Trade Commission v. 8tandaTd Edncation Society, 86 F. 2d 692 (2d Cir. 1936) to the effect that to establish indivichntlliability on a corporate offce,r for nn 11nf:111' trade pln,etice it. must be shown that such offcer had such connection "with the -wrong as would have made him an accompEce were it t c.rime, or a tort.ea,sor ere the corporation an individual."

To hold GM responsible for the corporate acts of LOF requires at least ,as much culpability on G1\l's part as a corporate offcer s responsibility for the corporate.e act.

A superfielal examination of the decisions concerning joint tort feasor is suffcient to discredit the applicability of that doctrine here. Thus, in Allis Chalmers MawufactuTing 00. v. Board 118 SW 2d 996 (Texas 1938) the court said To be guilty as a tortfeasor one must be guilt.y of some wrongful or negligent conduct." This attitude ha.s been exemplified in two landmark cases. In Wert v. Potts NW 374 (Iowa, 1889), several people were engaged in making a lawful arrest. One of them committed an unlawful act without the concurrence of the others. The others were held not liable for the unlawful act even though it was done in the furtherance ofa purpose common to all. Similarly, in Richardson v. Emerson 3 Wis. 319, 62 Am. Dec. 694 (1854), several people were engaged in the rcmoval of dam. Some of them did so under improper and unlawful circumstances. The court held the others not liable: Where several persons are engaged in the accomplishment of a la wful object, if one or more shall become a tortfeasor, even with a view to nid such purpose, the others, who neither direct nor countenance such tortious acts, are not liable. Assuming that respondent LOF committed a tort in the a.leged deceptive advertising, it nowhere appears that respondent G I concurred, countenanced, or dire,cted such tort. Gl\1: did countena,nee and concur in an advertising campaign dcsigned to sell more safety plate glass and more GM cars. None of this was allegedly improper. Assuming that there was a deceptive pra.ctice employed by respondent LOF in the furtherance of the purpos of selling glass and cars there can be no liability attached to respondent GM for LOF' activities.

768 FEDERAL TRADE COMMISSION DECISIOXS I nitinl Decision 63 F.

Accordingly! the Illotion of couse1 support.ing t.he complaint that the LOF commorcials be received in evidence as to respondent GM is herebv denied.

",Ve turn next to the liability of each respondent :for the advertising disseminated by or through it separately.

LOF argues that its advertising did not represent that the safety plate glass used in the side windows was the same grade and quality as that used in the windshields. It points to the fact that in every inst.ance the attention of the viewer was directed to the e1arity of vision and that for such purpose the windshield and side window glass was the same. It is true that for many, if not most, of the commercials the only comparison between the two ,vindows was a comparison of c.arity of vision. In some commercials (see Findings 22 and 24 above), however, such as ex 51 , there was a representation that laminated sflfety plate glass was put in every window of the ear. Similarly, in CX 53 there is the statement that safety plate glass is put in windshields and the same safety plate glass is in every windm, . Had the statement been simply that safety plate glass is in eve.ry ,,'indow, it might have been unobjectionable, but by using the expressjon "the same safety pla,te glass there "as a clear representation that the. safety plate glass of the side window ''"S identical to the safety plate glass of the windshield. The record makes it quite dear that tl,e laminated plate glass of the windshield is not always found in the side windows where tempered plate glass may be and is often used. This even goes beyond a represe,ntation of grade and quality.y, it is a representation of the identical product and as such is patently untrue. It is untrue without reference to whether or not the side 'Iindow plate glass is as good, better, or worse in performance tlum windshield glass. It js enough that it is different in lnaterial respects and has been represented to be the same. J\loreover, since (as found earlier) a lower grade of plate glass is permissible and generally used in the side windows than in the windshield, it is inaccurate to represent that the side windows of plate glass are of the same grade and quality as the windshield.

The complaint further charges that LOF in its commercials represented that its automotive safety plate glass was free from all optical dist.ortion when admittedly all glass, e,-en safety plate glass, has some dist.ort.ion, perhaps only discernible with scientific instruments. I do not find, however, that the respondent made such a representation in its eommercia.l. In all of its commercials the absence of distortion referred to is perceptible distortion; that is, distortion that can be seen by the car passenger. The fact that there may be Rnd probably .:.

LIBBY- QWENS-FQRD GLASS CO. ET AL. 769 746 Initial Decision is soma dist.ort.ion in plate glass which is instrumentally obsernlble does not render the represent.at.ion which was made false. There was no such representat.ion of instrument-observable distortion made or inferable from these commercials. As was said in International Parts 001poration v. Federal Trade Oommission 133 F. 2d 883 (7th Cir. 194:3), the Commission may not inject novel meanings into advertising which expand the claims beyond their intended scope and then strike down the advertisement because the expanded claims cannot be supported. There is nothing in the record here to justify a conclusion that anyone ,yollJd have taken the commercials to represent that the distortion is such as cannot. be detected even with the use of scientific instrument-5. The, commerce.ials make it quite clear that t.he distort.ionl is such as CRnnot bc detected by the eye.

The LOF film "The Perfect Parallel" docs not alter this result. That film merely proved dmt perceptible distortion is present in large panes of plate glass \"hen viewed from a suusta.ntial dist.ance. Such distortion is not apparent in glass pa.nes of automobile window size nor even in larger panes 1\-hen viewed from a short distance of about three feet.

The complaint. further charges that, LOJ' falsely repre,scnted an excessive allount of perceptible distortion in autollotiye safety sheet glass. This charge must. be distinguished from the later charge concerning deceptive camera techniques to exaggerate distortion. .. suming for the moment that there \"ere no dccepti\-c camera techniques employed: t.he complaint in effect charges the re.spondent with having shown more perceptible distortion in sheet glass than occurs. To support this charge it \"as incumbent upon Commission c0l111sel to prove the normal amount of perceptible distortion in sheet glass ,lud compare t.hat with the amount of distortion shown in the commercials. The only record evidence perta.ining to the normal amount of perceptible dist.ortion in automotive sheet glass is the testimony of one witness to the efiect t.hat in his opinion the commercials exuggerate( the amount of distortion percept.ible in automotive sheet gJa.ss made. by his company. Xo physical sa.mples of such sheet glass were oHereel hy the ,witness. In fact, the witness sho\ycd considerable confu::ioll whell on cross-examination he was confronted wit.h a pane of his 0\\"11 slw):t glass which ditTel'ed in many material respects from the description previously made Ly hin1. I cannot attach much significance' to the tesbmony otfered in this connection and conclude that the COD1mission11 has not sustained its burden of proof with respect to. the' charge that LOF has exaggcrated the, perceptible distonion in. auto,. mob \"e sheet. gla.ss.

:: , 770 FEDERAL TRADE COl\L\llSSIOX DECISIO:'VS Initial Decision 63 F.

The fourth charge in the complaint aUegcs that both respondents have falsely represented that automobile safety sheet glass is of the S(line grade and quality as home window glass. The LOF commercials at no point make specific reference to 1101ne windows. Instead, the language usually employed referred to "ordinary safety glass ma.de of window glass. " Since the industry uses sheet glass synonymously with windmv glass, LOF contends there \\a8 no misrepresentation in their commercials in this respect.

The meaning to be given an advertisement cannot be limited to the meaning within the indust.ry. Instead, it is the meaning that the casual unsuspecting reader or viewer or listener will attach to the language employed that is the crit.erion in false advertising. Oharles of the Ritz v. Fedeml Trade Commission H3 F. 2d 676 (2d Cir. 19H); Wal'd Laboratories v. Fedeml Tmde Commission 276 F. 2d 952 (2d Cir. 1960), ceJ't. denied 364 U.S. 827 (1960). Statements susceptible of both a misleading and a truthful interpretation win be construe.d against the advertiser. United States v. 95 Bullets of Yineg(U' 265 U.S. 438 (1\)24). In this instance, some viewers or listeners subjected to ,1, statement \with respect to window glass are 11101"e likely than not to think automatically of home windows, which ca,nnot be tL "llovclmcauing. (cf. Intel'llatiollal Pads C()' ) 8'u.pia) I-1ome ,,-indmvs, however, ate of an inferior grade and quality when compared with automotive windows even though both types are made frolll the same ribbon of glass. The representation, therefore, that non- l cars use ordinary window glass is false and deceptive in conveying the impression that such windows are made of home window glass.

This misrepresentation is even more clearly demonstrated in t.he case of the "Wide Wide ,Vorld" commercial of GM. In that fiJm cmnparison is made between the plate glass of the G I car with an ordinary home window. The point of the commercial is that the G window is superior to the home window. Coupled vlith this repre. senta.tioll is t.he statement that only G:\i has plate glass the most restful viewing glass known. " The viewer necessarily associates the home \"judO\v glass with the glass used by non-Gill: cars. Since, however, home window gla,ss is of an inferior grade and quality compared to automo6vc sheet glass, the comparison is unfair and deceptive. The fifth and final charge of the complaint relates to the accuracy 01 the representations made by the respondents in the commercials. As found above, certain photographic techniques were used by both respondents which 11itde the comparison shots deceptive. The use a camera shot from the rear seat of a car through the front window resulted in a, sharper angle of vision ,'with attendant greater percepti- LIBBY-OWEKS-FORD GLASS CO. ET AL. 771 746 Initial Decision ble distortion than a passenger would ordinarily experience since he would probably be looking through the rear window. The use of telephoto lens for the distortion shot, while not increasing the degree of distortion, hau the effect of magnification of such distortion making a proper comparison between it and the plate glass shot di cult, if not impossible. The picture of a zebra boaru taken through the sheet glass turned to an angle which was lnore acute than the angle of the plate glass picture was similarly an unfair and deceptive comparison, in that the sharper angled sheet glass would ordinarily tend to show greater distortion. Likewise, the photographing of a scene through the right front window for the sheet glass shot and through the right rear window for the plate glass shot had the similar result of creating a sharper angle of view for the former. which accentuated any distortion present.

In all these instances, the principle is essentially the same. A comparison should be as comparable as possible. Disparity should be eliminated, particularly if the disparity has thc tendency to exaggentle the comparative differences claimed. Otherwise, the vie\ver is apt to be misinformed. In this respect the principle is the same as the enunciated In the 31atter of Colgate-Palmolive Company, supra. III that. decisioll the Commission found that the advertised product could not shave sandpaper as claimed in the advertisement. The decision, however, went on to rule that even if the product could do what was cla.imed of it, the advertisement \vas deceptive in not showing iL shaving sandpaper, but shaving plexiglass. * * * the commercials would be deceptive, within the meaning of the statute, in the manner in which they deliberately misinform the viewer that what sees being shaved is genuine " tough, dry sandpaper " rather than a plexiglass mock-up.

The ca,me1'a techniques described above cannot be said to have resulted in a portra,ya.l which the vimver could depend upon as a fair comparison, even though what was claimed of the product llay have been, awl in many instances was, actually true. It is necessary, addition, that the demonstration of what may be actually true be fair, representative, and accurate. \V11ero a sharper angle of view accentuates perceptible distortion, the use of such an angle for one piece of glass but not for another with which it is being compared misinforms t.he vie\ver. This deception is obviously illustrated in those insta,nccs where the plate glass shot was taken through a rolled d01;n window. The public \\a5 told to observe for itself the elu'rit.y of iheglass when in fact there was no glass. Even if the view through the glass would1luwe been the same as -without a glass, the public \vas entitled to make that cleeision and judgment for itself and not have the matter prejudged by the advertiser.

772 FEDERAL TRADE CQ)'L\IISSION DECISIONS Initial Dt.'dsion 63 F.

Similarly, in the G I commercial where vaseline was streaked across some sheet glass to emphasize the distortion in the glass, even if the distortion t.hus shown iyas no greater t.han that usually found in sheet. g1fss, the public '"'IRS entitled to make its own judgment in t.he issue or, in the nlternati V8., to be told that vaseline had been used t.o accentuate the distortion.

Both respondents nlisc llllllnher of a,dclitionallegal defenses to the action.

Both respondents ask for ,1 dismissal of the complaint because the deceptions were committed by a photographer employed by a tlm company, in turn hired by an advert.ising agency which was reta.ined by the respondent and given full authority over the preparation and production of the film. The relat.ionship of the advertising agency to each respondcl1t is said to be that of individual euntractor, making the respondents not responsible for the wrongs of the entity. Although this deeision absolves the respondent G)1 from liability.y for the tortious acts of respondent LOF this same approach is not proper with resped to each l'e.spondent and its own ac1\rert.ising agency. CD1 did not. direct: conntenance 01' concur in the tort of LOF, nor did it employ LO.F. It did, hO\veyer, direct 01" have the right- to direct the \york of the a"clvertising a,geney which it did employ. The deception practiced by the Hthertising agencies \vas within the direct scope of their employment even as independent contractors, and the fact of employment is suffcient to bind the cmployer. Bot.h respondents urge that the complaint be dismissed because the issues have become moot. They point to the fact that the fith'ertisements involved were the product of a single campaign of fixed duration and that they had been voluntarily discontinued e\ren before the institution of the Government investigation. In addition a Gl\l offcer testified that there \,as no intention to resume the type of advertising involved. All of these factors must be considered to detennine \\"whether thc public interest requires the issuance of a cease and desist order. It is noted, however, that the objectionable ach-ertising was not discontillucct because of a realization of the ilnpropriety of the adn'.rtislJlg. In fact, such ilnpropriety is still not eOIlce,clecl by either respondent. There hfts been no assurance of the specific steps that would be taken by either respondent to assure the nonreenrrence of such clecepti\-e advertising. Thc expression of the Commission in the Colgate-Pa.lm, olive ca, supra is most pertinent: Another factor miltating against dismissal of this complaint on the grounds of abandonment is respondent' s continued insist.ence that its adnrtising i not false. In our view, this attitude Oil the part of the respondent has a detinite bearing on whether there is any likelihood of a resumption of the practice either for competitive or for other r('a.':ons. , LIBBY-OIVENS-FORD GLASS CO. ET AL. 773 746 Initial Decision See, also O. Howa1Ylllunt Pen 00. Y. Federal Tnule Oom11. 197 F. 2d 273 (:Jd Cir. 1952) ; Gaiter v. Federal Tmde OOllun. 186 F. 2(1 810 (7th Cir. 1951).

Finally, counsel supporting the complaint has proposed an order in this pro( eding ,which prohibits the false representations made re garding the automobile glass. In addition, howc1'cr, Commission counsel proposes that thc order be applicable to '; any other merchandise" of these respondents. In this suggestion I cannot concur. GenerallHotors Corporation, a giant among the manufacturing giants of this country, manufactures many products-as counsel states from locomoti",-es to washing machines. ' This proceeding concerns only one of its products, aut,omobiles, and only one of the many component parts of sneh a product, the glass. There is no suggestion of any jrregularities elsewhere or otherwise. Sim.ilarly, although to a lesser degree, the Libbey-Owens-Ford Glass Company is involved here in only one of its many lines. An order broad e.enough t.o cover all of the products of these respondents is lIllwa.rranted unless the advertising operations of these respondents provide a conunon denominator for aJl of them. This has not been shown and is quite unlikely. COXCLl!SWNS 1. Respondent LOF has falsely represented that the safety plate glass used in the side windmys of G i automobiles is of the same grade and quality as that used in the windshields of GM cars. 2. Respondent LOF and respondent Gl\I have falsely represented that the automobile safety sheet glass used in the side windo'ys of automobiles other than G l automobiles is of the same grade and quality a.s the sheet glass used in home windows. 3. Respondent LOF and respondent. G:.1 have falsely represented that the pict.ures used in connection with its advertising are accur.lte delTlOllst.rations of the perceptible disparity between the optical distortion of automobile safety plate glass and automobile safety sheet glass under ordinary conditions of use.

4. The USe by the respondents of the aforesaid false and de,cepti ve representations has had and now has the capacity and tendency to Inislead and deceive a substantial portion of the purchasing public into the erroneous and mistaken belief tha.t such statements a,nd representatiol1swere flnd are true, and into the purchase of substantial quantities of respondents' products because of such erroneous and mistaken belief. As a result thereof, trade has been unfairly dinrted to respondent.s from their competitors and injury thereto has been clone t.o competition in commerce.

7S0- 01S.-- EHJ-- 774 FEDE'RAL TRADE- CQIDnSSION DECISIO:VS nitial Deri."lon GR F. 5. The aforesaid acts and practices of the respondents were to the prejudice and injury of the public and of respondents' competitors and constitute unfair and deceptive acts and practices and unfair methods of compet.ition in commerce within the intent and meaning of the Federal Trade Commission Act.

ORDER Jt i8 ordered, That Libbey-Owens-Ford Glass Company, a corporation, alld its ofiicers, agents, representatives, and employees, directly or through any corporate or other device, in connection with advertising, o:tl'ering for sale, sale, and distribution of its automotive glass products in commerce, as "commerce" is defined in the. Federal Trade Commission Act, do forthwith cease and desist from: 1. H.epres€',nting, directly or by implication, that: (a) The automobile safety plate glass used in the side windows of General fotors automobiles is of the same grade and quality as that used in the windshields; (b) The automobile safety sheet gla s used in automobiles other than General Motors automobiles is of the same grade and quality as the sheet glass used in home windows. 2. Hepresenting, directly or by implication, in describing, explaining, or purporting to prove the quality or merits of any such products or the superiority of any such products over competing prod net.s, that pictures, depictions, or demonstrations, either alone or accompanied by ora.l or written statements, are genuine or accurate representations, depictions, or demonstrntions of, or prove the quality or merits of any such products, or the superiority of any such products over competing products, when such pictures, depictions or demonstrations are not in fact genuine or accurate representations, depictions, or demonstrations of, or do not prove the quality or merits of any such products or the superiority of any such products over competing products. It is further onlered That General :Motors Corporation, a Corporation, and its offcers, agents, representatives and employees, directly or through any corpomte or other device, in connection with the advertising, offering for sale, sale, and distribution of automobiles and automotive parts in commerce, as "commerce" is defined in the Federal Trado Commission Act, do forth,with cease and desist from: 1. Representing, directly or by implication, that the automobile safety sheet glass used in automobiles other than General Motors automobiles is of the same grade and quality as the sheet glass used in home windows.

LIBBY-OWENS-FOI-W GLASS CO. ET AL. 775 746 Opinion 2. R.representing, directly or by implication, in describing, explaining, or purporting to prove the quality or merits of any such products or the superiority of any such products over competing products, that pictures depictions, or demonstrations, either alone or accompanied by oral or written statements, are genuine or ac curate represent.ations, depictions, or demonstrations of, or prove the quality or merits of any such products, or the superiority of any such products -oyer competjng products, when such pictures depictions or demonstrations are not in fact genuine or accurate repre,sclltations, depictions, or demonstrations of, or do not prove the quality or merits of any such products or the superiority of any such products over competing products.

OPINION OF THE COl\BnSSIOK J1JLY 16 , 1063 By 1:AcINTYRE Oommissioner:

In this matter the respondents, Libbey-Owens-Ford Glass Company (LOF) ,md General Motors Corporation (G1\), are charged with violating the Federal Trade Commission Act by the use of false and deceptive advertising statements and representations as to safety glass used in automobiles. The hearing examiner found that some of the charges were sustained and entered a cease and desist order as to such practices against the respondents. "While he found respondent GM in violation of law for practices inclividufLlly engaged in, he, declined to hold this respondent also responsible with LOF fol' the alleged acts of LOF.

All patt.ies have a.appealed. The exceptions of counsel supporting t110 complaint are taken to specific iindings and rulings of the ex aminer adverse to the allegations in the complaint. One of their exceptions ' is to the refusal of the e,xamincr to receive LOF com mercials and other evidence in the record aga.inst respondent GM and to find GM jointly responsible with LOF for such commercials. Complllint counsel also except to the form of the order. Respondents G:il and LOF, in separate briefs, J1aye filed exceptions to most of the bilsic findings and conclusions holding each individually in violation of la TV and to the examiner s order to cease and desist. The examiner has succinctly outlined the facts which gave rise to this litigation. It does not appeal' that there ale any substantial differences between respondents and complaint counsel as to these facts although there is disagreement as to their interpretation. Hespondcnts are well-known concerns in their respective fields. They are Libbey-Owens-Ford G lass Company, an Ohio corporation 776 FEDE.RAL TRADE COMMISSION DE'CISIONS Opinion 63 which manufactures and sells gJassproducts to the automobile industry for insta1Jation in automobile,s and to other distributors for resale to the public, and General Iotors Corporation, a Michigan corporation which TI1akes and sells many products, including motor yehic1es and automobile parts. Both corporations ate engaged in business in interstate commerce.

The LOF advertising ehaJJenged by the complaint developed out of the circumstances ",which wil be descrjI)ed below. GM, which had been purchasing its requirements of automotive glass from LOF for' mally years, considered, in 1957 , a change frolll safety plate gla.ss superior product made by grinding and polishing) to safety sheet glass (nol a ground glass) for the side winclovi's of its automobiles at an CSbl1flJed savings of $3.;1 million for the 1958 model cars. In June 1957, LOF informed GJI that it was ' willing to invest some $3.3 million in a safety plate glass advertising eampa,ign approved by Gl\I jf Gl'1's car division ,,' ould gear their own advertising to the same objective. LOF s a.advertising campaign ,vas to be L general promot.ion of safety pla.te gla.ss.

Thereafter, on .June 12 1957, GJI decided to cont.inue the use of !'afety pla.te glass in its l\J.jt: cars in consideration for I.OF' s ot1'er to spend 83.3 million in advertising safety plate glass. The examiner found that there Vial no formal contractual arrangement or other a.agreement obligating LOF t.o advertise if G:\1 bought its glass nor obligating G)1 to bl1Y the glass if LOF advertised. But he further found that LOF:s promise to advert.ise was one of the factors considered by G I in continuing to use safety plate glass. The LOF advertising program consisted primarily of twenty two television commercials used in 1 57 and 1958. These commercials were brondcnst by the N atianal Broadcasting Company in conjunction with the KCAA (Kational Collegi'de Athletic Association) football teledsion programs, sponsored in part by LOF: beginning September 1957, and ending December 7 1957; and by the Columbia Broadcasting System with the Perry 1\1a.son television shows, sponsored in part by LOF from September 28 , 1 , to .June 21, 1958. In general these commercials dea.J with the advantages of safety plate glass over safety.y sheet glass with respect to perceptible distortion. They represented by visual demonstrations a.nd written and oral statements that in automotive use, no percep6ble distortion was seen t.through safety.y plate glass, but that it wa seen t,hl'Ol1gh safety sheet glass. The viewer was acb- ised in these Hlvert.isements that LOF was the sponsor of the 1 Perceptible distortion 1s defined 1n the initial decision as follow. D. twist1ng motlOT! or misshapen condition relating to tbe optics of vision which is perceived or discerned the viewer.

, , , LIBBY-OWENS-FOR.D GLASS CO. ET AL. 777 746 Opinion program. In t.he commercials ,themselves there were numerous shots of GM automobiles and in the audio portion GM was the only corporation Inent.ioned in connection with the use of sa-fety plate glass in car windows. The advertisements ,,,ere prepared by an advertising agency, FuJ1er & Smith & Ross, which employed Television Graphics a film-producing firm, to make the motion picture films for the commercials.

Libbey-Owens-Ford Advertising The LOF teledsion commercials as nbm-e indicated purport to show the relative merits of safety plate glass and safety sheet glass and in particular the lack of distortion in safety plate compared with the pre.senco of dist.ort,ion in safety sheet glass. Thus, in one the action shows two pieces of glass which are cut iden6cally in the shape 'Of an automobile side light set up side by side whh the a,nnouncer st.anding betwPEm thell. The announcer st.ales Two pieces of safety glass for the windows of a car. They look aJikc but they don t 'see through' alike and yon should know about t.he difference. ' Subsequently the Hct,ion moves to scenery along the roadside and a sign reading "Entering Fairla" ' which11 sho\, perceptible distortion seen through the f:iclo window of (l, modng car. The words "ORDIKARY SAFETY (TLASS: are superimposed on the screen. The announcer at this IJoint states: "This is ordinary safety glass made of window glass. puts a, \yjggle in the things you \vatch. " The next scene shows scenery along the roadside and a sign reading " Entering FairJawn " which sho"" no perceptible distortion seen through the side window of a moving mr. An LOF etch mark SAFETY LOF PLATE superimposed on the screen. The announcer here states This is sa.fety plat.e glass. It takes ,the "iggle out of what you watch." The announcer additionally makes other st.atements in this commercial such a8 follows: "Because it gives the driver better vision, laminated sa.fety plate glass is required by law in wjndshields * * * but only cars with Body by Fisher use safety plate glass in every window every car as standard equipment. It doesn t cost you a cent extra. In another commercial the action at one point shows the announcer ,yj th tto pieces of glass which are cut identically in the shape of an automobile side light. The picees of glass are mounted on each side of t.he a.nnouncer and in front of zebra boards 1:. square boards with pa.ralle,l black and white lines running diagonally across the surface of the boards. The action next shows a close-up of the glass on the announcer s right as he rotates it so that it is at an acute angle to the zebra board behind it. The lines of the zebra 'board seen through y.

778 FEDERAL TRADE CO llSSION DECISIONS Opinion 63 F.

the glass show perceptible distortion. The annonncer states: "'\Vatch the lines wiggle through ordinary sa.fety glass * * * Subsequently the action shows a close-up of the glass on the announcer s left as he rot.oJcs it. so t.hat it is at an acute angle to the zebra board behind it. The lines of the zebra baarel seen through the glass show no perceptible distortion. The announeer then states: "Safety glass takes the wiggle out of watching.

The above descriptions refer only to portions of the respective commercia.ls. The examiner founel that a number of tlh comparisons were untrue a.nd improper because t.hey exaggerated or tended to exaggerate any distortion found in the sheet glass. Such findings are fuUy supported by the record.

In one sequence the use of the eamera shot from the rear seat of an automobile through the front "indow resulted in a sharper angle of vision and greater distortion than a passenger would ordinarily experience. Here the challenge is not necessarily to the degree of distortion shown, which may be the distortion which would be ODserved from the angle used. The decept.ion is in the fact that the angle at which the pictures were t.taken is not a normal viewing angle for the occupant of a ear. The examiner so found in Finding 34 of the initial decision. The eommercial, by using an extreme and UIlusual.l a.ngle, unfairly exaggerated the distortion present in the sheet glass. The decept.ion in the commercial resulted from a partial or half-trutb, a form of misl'epl'.'sentatinl1 ('oJJdenmecl in P. Lon"llUid (' Fedeml Ti'ode Commission 186 F. d 5 (lth Cil'. 1950). In one of the, commercials, the C'mnparisoll sequence uses films taken through different. \vinclmvs of the car. The sheet glass shot WtlS made through t.he right front \..inc1ow and the plate glass shot. was made through the right rear. The testimony ' indicates that the scene t.through the sheet glass was taken at a sharper a.ngle than that through the plate glass. The examiner found that this cu.,mern tec nique, accentuated any distort.ion present. Sneh fin (ling is amply supported by the record, including the testimony of )(r. Alexander of LOF and Mr. Shaneyfelt., a special FBI agent. In another comparison sequence the pJa,te gla.ss scene .,YflS photographed through a no1'11a11ens whereas the sheet, glass scene ''"as h(Jt through a t.ele.phot.o lens. The examiner found that this had the effect of magnifying the distortion in the sheet gla,ss scene. E\ idence of record such as the t.testimony of Jlr. Shane,yfeJt supports such nn\ling. In the cDrmnercinJ using the zebra boards, the sheet glass shot was at an a.ngle more acute t.han t.hat for t.he plat.e glass. This was a deceptive comparison since, as the examiner found and the record LIBBY-OWENS-FORD GLASS CO. ET AL. 779 746 Opinion shows, the more acute angle would tend to show greater distortion in the sheet glass.

Finally, comparison sequences were made in which the picture of the safety plate glass was lilade through an open window instead of through an actual piece of safety plate glass. In the latter cuse, the exa,minel' found that witnesses, including experts, by looking at the scene, were unable to detect in which instances scenes were shot through open windows rather than through plate glass. The film producer testified that the open window shots were taken because of a shortness of time and bad ,T"ea.ther conditions which eurtailed shooting. No contention is made that it was necessary to use the open window substitution for real glass or the other "techniques " above mentioned because of any technieal limitations in the television medium.

Genel'alllf oiors' Adv61'tising From September 1957 to May 1958 General :\loto1's Corporation sponsored a national television series caned " ,Yiele 1Vide IV orId. The series included approximaiBly thirty separate commercials, one of which involved glass. The glass commercial was used twice in the series. 0:.1 employed adn rtising agency l\Iac)lanlls, John & Adams, B100miield Hills, :.Iichigan, to m Lke the commercials for this program. IGaeger Film Productions, Inc., of Kew York made the films for the glass commercial. Pertinent video and audio portions were as follows:

VIDEO AUDIO 9. DROP IN WINDSHIELD, HEA V- " '" * every a automobile has safety ILY OcTLINED plate glass in the windshield. 10. DROP IN OTHER WI:\TDOWS But only General Motors has gone to the extra care and trouble protecting 3'Our vision by putting safety plate glass all the way around in all its cars. Windshield ' doors . * * and in the rear.

11. HORIZOKTAL A:\TIMA'l' ION What' s the difference? Ordinary VERY TIGH'", CLOSE-UP m' window glass has small bubbles PROFILE OF ORDIKARY \VI:\T and iruperfedions that mar your DOW GLASS SHOWI:\TG IM- vision.

PERFECTIO ',T AND MARKED Ordinary Glass 12. :;love UP AKD DISSOLn: E\ But plate glass is ground and PLATE GLASS SHOWIXG FLA polished on both sides with jew- PLANES A:\D MARKIU) eler s rouge to give you the safest PLATE" most restful viewing glass known. 780 FEDE:RAL TRADE COMMISSION DECISIO:- Opinion 63 F.

VIDEO-Continued AUDIO-Continued 13. ,VIDE SHOT OF WINDOW Try this test in your o n house. Look through a pane of window glass at the e3.'ireme edge, mo,e your head hack and forth a few inches.

H. CLOSE.UP SHOWIKG DISTOR. And this is the kind of distortion 'l' lox you ll see. Straight lines become cm' yell, di:-tances di:;:oned.

13. REPLACE WITH CLEAR SCE But will1 plate glass . this is what you see-cyerything sharp and clear, 16. REPEAT KO. JO rhat' s why General :\lotors feels it"s important to give you this sharper, dealer ,is-ioll in every window of ollr llltomobile. In making ihe comparison scenes in this commercial, a single piece of glass was installed in a wooden frame in the studio. Baekground scenery was arranged to simulate an outdoor scene,. The glass used appa.rently \vn.s sheet glass. The same scene was shot through the glass twice. First, photographs were made through the glass as purchased purporting to show the scene through safety plate glass. Thereafter, other photographs were made through the glass with streaks of vaseline applied to it, purpOli.ing to show the seene through home \yindmy glass. In the platc glass shot, the camera was in a stationary position. In the home winclmv shot, t.he Clunera was panned from side to side as though the viewer were walking past the window. The fi1111 thus created showed an undistorted view for the "plate glass " shot, but a distorted view for the "home window glass: shot. The exa,mincr found that the distorted view for t.he home \yindo\y shot was not an exaggerated one compared to the experiences of ,witnesses vic\ying other window glass under similar circumstances. X 0 contention is made that technica,l limitations in the television medium required the use of t.he faked demonstration above described. '\\'while the demonstration purported to compare plate glass with home windmy glass, the advertisement may reasonably be construed as comparing the sa.fety plate glass in the side and rear windows in G::1 cars -with the glass in such windows in other makes of autOIno. biles. ..\s fonnel by the examiner, the association with the glass in non-GJ1 cars wa.s obviously intended, for there would be no purpose in compa.ring home \vindow glass with the plate glass in G31 cars unless the claim \vas that the \-isunJ elIeets of home window" glass ,were to be found in other makes of cars.

LIBBY-OWENS-FORD GLASS CO. ET AL. 781 746 Opinion The Issue of 0111 Liability t01' LOF Oommercials The hearing examiner ruled that he would not receive the LOF commerclaJs a.nd cert.ain other documents in evidence as against re spondent G:\r. He in effect held that no basis was established for finding G Iliable for the representations contained in the LOF commercials. lie ca,me t.o t.his conclusion in spite of his findings that G:\r continued the use of safety plate glass in 1958 automobiles in consideration of LOF s offer to spend $3.3 minion in advertising safety plate glass and that LOF embarked on such a program "only after it had secl1red G s approval" The examiner fol1nd that the undertaking could not be considered a. ;:joint venture" and that there could be no liability under the "doctrine of joint tort." Since find, as ,,,i11 be further discussed belmy, that respondent G11 separately and independently engaged in practices similar to those of LOF which "-ere found t.o be unlawful, there appears to be no necessity for consideration of the question of whether G I may also be liable for t.he representations in the LOF cOlnmercials. Accordingly, the exa,miner s rl11ing denying complaint counscFs motion to recei,"e the LOF commercials and other evidence as against G:Ji win be sustained, but his specific findings OIl this issue "ill not be adopred. Respondents hldt?)hhlal Representations The first anegation in the complaint charges that respondents falsely represented that a.automobile safety plate glass used in the side windows of GJ)I cats is the same grade and quality as that used by \f in the w"indshiclds of its cars. The exmniner found this charge sustained as to LOF but not as to G r. In this he erred. GM advertised t.hat e\'ery automobile has safety plate glass in the windshield but that only G:\I has "safety plate glass all the way around in all cars. V-jndshielcl ::' doors ':: ::: * and in the rear. :: The advert.ising contains the clear inference that all the windows arc equal in quality to the windshield. This is not true. The record clearly shows that G 1 used different types of safety plate glass in different windows of its cars and that the plate glass in the windshields generally was of a higher quality than t.hat in the side windows. This is disclosed by the material speeifica.tion for glass in G-:)1 cars, recei,-ed in the record as Commission Exhibit 69 A- , and other evidence. The init.ial decision will be modified to incorporate appropriate findings and conclusions sustaining the charge on this point as to G The primary issue in this ease concerns the use of demonstrations on television ,,,which arc fake or at least partly rigged performances but , 782 FEDERAL TRADE COMMIS'5IOK DECISIO:YS Opinion 63 FT. C'.

which give to the y-jewel' of the television screen the impression that an actual experiment. or an actual.J demonstration is taking place. For example, what appears to be, in OTIe commercial, a real comparison in c1istOli,ion chanlcteristics between plate glass and sheet glass is not that at an; it is actual1Jy a comparison between empty space and sheet glass. In other instances, the substitution of material or the use of phot.ogra,phic techniques makes the compar1S011S fictitious. The viewer of the television screen is led t.o believe that he is seeing a real comparison which has previously been filmed and which is now shown to him as it actually happened. But what he is led to believe is Jwt true.

The.sc spurious or f lke demonstrations contravene the Federal Trade, Commission Act in two ways. The first concerns the accuracy or the truth of the representation or claim which is being made. The commercials convey the impression that sheet glass shows more distort.ion than is true in ordinary u, a claim "which is a misrepresentation of compa,rat.ive quality between products and a fa.1se disparagement of competing products. See the Commission s opinion in Carter Products, Inc. , et al.. Docket No. 7943 (April 25, 1962) (60 F. 782, 792J.

In the LOF comme.rcials the representation is that a comparison between safp.ty plate glass and safcty sheet glass ,, iJl show no pcrceptible distortion in safety pbte but a degree of distortion (the distortion actnaJ1y shown and observed in the conune.rcials) in safety sheet. The demonstrat.ion and comparison of the two products on the t.television screen is supposed to prove this point. The fact is, and the record 8ho\vs, that the distortion in the sheet glass under ordinary conditions of use would not be as great as that represented. The means by ,which the dist.ort.ion in sheet glass was exaggerated have been note.d above, t.hat is, by t.he use of different camera angles and diIrerent lenses and other photographic techniques. The result was a misrepresentation in comparative quality between the two products and a false disparagement. of the quality of safety sheet glass. The Gl\:I c0l111nercial conta.ins a simlJar quality misrepresentation and a disparagement of competing products. Therein the claim is made, that every automobile has sa.fet.y plate glass in the windshields but only Gj)I has it all the way around, and a comparison is made v;:ith home ,yinc1(w,- quality glass. The home window shot (which by inference: is the side and rear window glass found in cars other t.han Gills) ,vas made by smearing ordinary sheet glass with vaseline. In using such a mockup for demonstration, G1\1 ,vas, in efiect, saying to the viewer 8eB the distortion in home window glass which is like LIBBY-01VEXS-FORD GLASS CO. ET AL. 783 i46 Opinion the distortion you wil see in the side and rear windows of other cars. But. the home window glass distort.ion, since such glass as established bv t.he record is inferior to that used in automobiles, is not the distorion found in automobile sheet glass. Thc assertion of GYI that the distortion wa.s greater in the side ,\"inclows in other cars than it nct-ually is equivalent t.o that in home window glass, was a false l'eprespntation as to the comparati'Te quality of t.he glass products and disparflging of the glass in other cars. It wa.s also a. false disparagement of other cars.

The represent.ations made uy the respondents in their respective c.ommcrcials ate violations of the Federal Tra.de Commission Act in yet another way. The fake or pnrious demonstrations ,were unfair methods of competition in that they purported to prove the merits or qualities of products but did not do so. ' This is aside from the quest.ion of ,,-het-her an actu:1l demonstration would give the same re suits. The Commission discussed this kind of practice in its recent decision in Colqate-Pabnoli- e Company, Docket 1\0. 7736 (February lD63) l6Z F. 126D, 12"'J. There we said in part: '" II '" If, relying on falsehoods told them by a seller, consumers have been persuaded to buy bis product. they may perhaps not be deceived or hurt in :;trict pecuniary sense if the falseboous did not relate to the quality or merits of rile product. But such " deception" of purchasers is by no means essential to a finding of unfair competition. Regardless whether consumers are "injured" when they are induced to buy thr':mgh false advertising claims, honest competitors are injured-because some or many of such sales have been made at their expense. And the Federal Trade Commission Act has enacted into law the fundamental concept that businessmen may Dot, in competing with each other for the consumer s dollar, resort to "unfair methods of competition in commerce and unfair * "' * acts or practices in commerce. " Even apart from any moral or ethical considerations, Congress considered that such methods and practices must be outla,ved in a competitive system where sellers should have fair add equal access to markets and where SliCl'eSS should be the reward the most effdent rather than the least scrupulous. Vc concludecl in Colgate that if people are lecl by misreprcsentation to buy an advertised product, in preference to an honest competitor it 15 not 81tjj'icient fustificatio' n to say that the p1'oduct actually p(j88e., 8e8 the clai?ned qaali.y O'! merits. These same considerations cl-; C'ussec1 in Oolgat.e apply wit.h equal force in this proceeding. Both respondents raise the question of discontinuance or abandonme,llt. of the unf-"Llr praetiees. It seems t.hat this argument is based on the assertion that the pal'ticllJa.l' commercials ,were used for The LOF commercials contained false demonstrations purporting to prove the superiority of safety plate glass over safety sheet glass. The G.:f commercial had a false demonstration purporting to prove the superiority in plate glass over sheet glass and superiority in GM cars over other makes of cars. Opinion 63 F.

specjiic advertising campaign and will not be used again. This does not by any means establish conclnsi,"ely that similar practices will not Lgaill be engaged in. "lve believe that it is clear that the public interest in this proceeding is substantial and that an order to cease and desist is \,al'ranted.

Respondent LOF makes a, further argument that it is not responsible for the acts of what it terms an "independent contractor." There is no question in our view that the relationship between respondent LOF and the a,c1vcrtising compn"ny \Va,s one of agency and t.hat LOF \\'as responsible for the acts of its agent. Exceptions have been taken to the scope and form of the order in the initial decision by each of the parties. ,Ve believe that some cha,nges in the order are justified. These include limiting the General :Motors Corporation order to automotive glass products sold eit.her as a part of the automobile or a separate item. The order against Gl\:I on the ot.her hand: should induclc a prohibition against misrepresenting the quality of the glass in the side windows of its aut.omobiles and other closely rehtcd practices. A clear prohibition against t.he use of false disparagernent of competing products should be included against both respondent.s. These and other changes for clarification and for coverage of eJosely related practices will be incorporated in the proposed order to be issued herewith.

Complaint counsel except ill particular to the examiner s holding on page 700 of the init.ial decision to the effect t.h,lt compbillt counsel have not, sustained their burden of proof wit.h respect to the charge tllat LOF has exaggerated the perceptible distortion in automotive sheet gla,s8. This holding concerns only the third allegation under Paragraphs G and i of the complaint. The examiner distinguished this charge from ;;the later charge concerning the deceptive camenL techniques to exaggerate distortion. ' Thus, the holding in this instance is not inconsistent with his other findings and conclusions. --\8 limited 1.0 the particular charge, we will sust Lin the holding.

Excep1.ions taken by the parties not covered by the discussion above hate all been noted and they are rejected. The exceptions of complaint counsel arc sl1sta,inec1 to the extent above indicated and otherwise rejected. The exceptions 01 respondent Gi\f ate sl1SHtined to the extent of limiting the order to automotive glass products and other- "\yise rejected. The exrcptions of' respondent LOF are rejected, The initial decision will ue modified in i1cconlance with the views expressed in t.his opinion and as modified will be adopted as the decision of the Commission. An appropriate order will be entered. LIBBY- OWE S-FORD GLASS CO. ET AL. 785 746 Final Order FINAL ORDER Sell.E. MBER IUD;;

Pursuant to Section 4.22 (c) of the Commission s Rules of Practice published :\ay 16, 1962, 27 Fed. Ileg. 4609, 4621 (superseded August 1963), respondents ,ye,re served with t.he Commission s decision on appeal and afforded the opportunity to file exceptions to the form of the order ,which the COll1nissjon cont.emplates entering; and Hespondents, having timely filed separate exceptions to the order proposed, which exceptions were opposed by respective replies thereto fihxl by counsel supporting the complaint, and the Commission, upon review of these pleadings, ha\cing determined that the exceptions filed by both respondents should be disallowed and that the order as proposed should be entered as the final order of the Commission: It is ordered That the Fn.n)!1-GS OF ACT in the initial decision be and they hereby are, modified by adding at the end of such findings on p3.ge 764 the follo'iying ncw finding:

53. G?ll advertised that every automobile has safety plate glass in the windshield but that only GM has "safety plate glass aU 01 * doors * * * and the ,yay around in an m1rs. \VindshieJd;j in the rear. :: This statement represents by inference, contrary to fact, that the side windows in GJ\I cars are made of safety plate glass oJ the same grade and quality as that in the windshields of GAl cars.

It is fZlTthe1' onle1'ed That paragraph 1 of the CO.:CLUSlONS canaine,d in the initial decision be, and it hereby is, nlodified to read as foJJmn:

Respondent LOF and respondent G?ll have falsely represented that the sa fety plate glass used in the side windows of GAl automobiles is of the same gra,cle and quality as that used in the windshields of G?lI cars.

It is f'llTthet o1Ylererl That the paragraphs in the initial decision beginning with the first paragraph under the heading DISOuSSION on page. 76-t and ending with the first paragraph on page 7GS : inelusi "8 , and they hereby are, stricken, and tllat the followillg be substituted therefor:

The LOF commercials which ,,'ere prepared by FS&R and Te1eyision Gn1phics, as wen as the printed material prepared ' LOF for use by G I were received in evidence as to respondent LOF and were offered in evidence by counsel supporting the complaint as to respondent G::I as wen. In view of the showing hereafter discussed as to the individual and separate liability 'Of 786 FEDERAL TRADE CO nlISSION DECISIONS Final Order 63 F.

each respondent for acts and practices alleged to be unlawful by the comph1int, it becomes unnecessary to consider the possible liability of G l for the LOF commcrcials. The motion of counsel supporting the complaint that the LOF commercials be received in evidence as to respondent G1\1 is hereby denied. It is fU7,that o"dete,l That the findings, conclusions and order contained in the initial decision, as modified herein, be, and they hereby are, adopted as the findings and conclusions and order of the Commission.

It i8 j!t1,ther o"dered That Libbey-O"ens-Ford Glass Company, a corporation, and its officers, agents, representatives, and employees directly or through any corporate 01' other device, in connection with the advertising, ,offering for sale, sale or distribution of its automotive glass products in commerce, as "c.commerce" is defined in the :Fcc1era.l Tra.ce Commission -,c\.ct, do forthwith cease and desist from: 1. Representing, directly or by implication, that: (a) The automobile safety.y plate glass used in the side windows of General Motors Corporation automobiles is of the same grade and quality as that used in windshields of such automobiles or otherwise misrepresenting the grade or qualit.y of glass used in any window.

(b) The automobile safety sheet glass used in automobiles other than General Motors Corporation automobiles is of the same grade a.nd quality.y as the sheet glass used in home windows.

2. Using in advertising any picture, demonstration, experiment or comparison, either alone or accompanied by oral or written statements, to prove the quality or merits of any such products or the superiority of any such products over competing products when such picture, demonstration, experiment or comparison is not in fact gellullle or accurate a,nel does not constitute actual proof of the claim because of the undisclosed use and substitution of a mock-up or prop instead of the product, article, or substance represented to be used therein.

3. Disparaging the quality or properties of any competing product or products through the use of false or misleading pictures, depictions, demonstrations, or comparisons, either alone or accompanied by oral or written statmnents.

4. :\lisrepresenting in any mallner the quality or merits of any such products, or the superiority of any such products over competing products.

y,y, LIBBY-OWENS-FORD GLASS CO. ET AL. 787 746 Filla.l Order It furthe1' ordered Th,.t General ylotors Corporation, a corpora- , and employees, directlytion, and its offcers tgents representatives or through any corporate or other device, in connection with the advertising, oiIering for sale, sale or distribution of its automotive glass products, sold either as part of an automobile or separately, in C01nmerce, as ;' commerce" is defmed in t.he Federal Trade Commission Act, do forthwith cease and desist from: 1. Representing, directly or by implication, that: (a) The automobile safety plate glass used in the side windows of its automobiles is of the same grade and quality as that used in windshields of such automobiles or otherwise misrepresenting the grade or quality of glass used in any window.

(b) The automobile safety sheet glass used in automobiles other than General Motors Corporation automobiles is of the same grade and quality as the sheet glass used in home. windows.

2. Using in advertising any picture, demonstration, experiment or comparison, either alone or accompanied by oral or written statements, to prove the quality or merits of any such products or the superiority of any such products over competing products when 'Such picture, demonstration, experiment or comparison is not in fact genuine or accurate and does not constitute actual proof of the claim because of the undisclosed use and substitution of a mock-up or prop instead of the product, article, or substance represented to be used therein.

3. Disparaging the quality or properties of any competing product or products through the use of false or misleading pictures, depictions, demonstrations, or comparisons, either alone or accompanied by oral or written statements.

4. Misrepresenting in any manner the quality or merits of any such products, or the superiority of any such products over competing products.

It further ordered That respondents shall, within sixty (60) days after service upon them of this order, file with the Commission a report, in writing, setting forth in detail the manner and form in which they have complied with the order to cease and desist set forth herein.

, 788 FEDERAL TRADE COM liss10N DECISIO Complaint 63 F.