Carlton Fredericks

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

IN HE MATTER OF CARLTOK FREDERICKS ORDER OF DISMISSAL, ETC., IN REGARD TO THE ALLEGED VIOLATION OF THE FEDERAL TRADE COMMISSION ACT Docket 866'8. Cmnplaint, Oct. 1965-Decision, Feb. 20, 1967 Order dismissing a complaint against an author and radio lecturer on diet and nutrition which charged respondent with allegedly misrepresenting his academic background and status, the number of radio stations carry. ing his program, and the copyright data of his book on diets. COMPLAINT 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 Carlton Fredericks, hereinafter refeyred to as respondent, has violated the provisions of 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:

PARAGRAPH 1. Respondent Carlton Fredericks is an individual whose home address is Spring Vallcy, Rockland County, York, and whose business address is 1440 Broadway, "'ew York New York.

PAR. 2. Respondent is now, and has been for some time last past, engaged in selling and distributing a radio program concerning nutrition, diet and health. Respondent's said program is recorded on tape by him at his home and place of business, and said tapes are then distributed by respondent or his agents to various radio stations throughout the United States. Respondent also writes, and has written and published, books and pamphlets concerned with nutrition, diet and health, which books and pamphlets are sold and distributed by respondent or his agents to purchasers thereof located in various States of the United States. Respondent maintains, and at al! times mentioned herein has maintained, a substantial trade in said radio programs, books and pamphlets in commerce, as "commerce" is defmed in the Federal Trade Commission Act.

PAR. 3. In the course and conduct of his business and for the purpose of inducing the sale and distribuUon of his radio program recordings to various radio stations throughout the United States and of his books and pamphlets to the purchasing public, respond- , J 94 FEDERAL TRADE COM'.IISSION DECISIONS Complaint 71 F.

ent hns made certain statements and representations with respect thereto in advertisements and promotional material, including advertising appearing in trade magazines and newspapers, and in brochures and cij:culars.

PAR. 4. Among and typical, but not all inclusive, of the statements and representations made and appearing in said advertisements are the following;

The scripts of the (respondent's) programs have been translated into braille by the Library of Congress * * "' His (respondent's) Ph.D. dissertation '" '" * was entirely in the field of nutrition * '" "

He (respondent) taught utrition '" '" '" as a member of the faculty of the School of Education of New York University Visiting Lecturer * '" '" College of Pharmacy, Columbia (University). For the public services rendered in his broadcasts, Dr. Fredericks has received an honorary Doctorate of Humanities degree Dr. Fredericks is a Founding Fellow in the Intf'rnational College of Nutrition, and has been awarded the Diplomate by this college. Dr. Fredericks' biography appears in: * '" '" Lthe) National Cyclopedia of American Biography.

These Top Stations KXOW Carlton Fredericks SELLS WE IV Ithaca, New York. WOIV, Syracuse, New York, WJIV, Albany, New York'" * "' Eat, Live and Be Merry-a Xew Book by Carlton Fredericks, Copyright 1961, by Nutrition Surveys, Inc.

PAR. 5. Through the use of said statements and representations, and of others not specifically set out herein, respondent has represented, and now represents, directly or by implication in his advertising:

1. That scripts of respondent's radio programs have been reproduced in braille by, or at the instigation of, tJc Library of Congress, an agency of the United States Government; 2. That respondent's doctoraJ dissertation or thesis was written on the subject of, or in the field of, the science of nutrition; 3. That respondent at one time held or enjoyed the rank of member of the fac.lty of ~ew York University, and of Visiting Lecturer in the College of Pharmacy of Columbia University; 4. That respondent has received an honorary Doctorate of Humanities degree from an institution or academic body lawfully authorized and empowered to award the same; 5. That respondent has been awarded the degree or status of diplomate" by an institution or academic body lawfully authorized and empowered to award the same;

6. That respondent's biography has been published in a cer- CARLTON FREDERICKS 195 \93 Complaint tain encyclopedia of professional biography, 1nz. The National Cyclopedia of American Biography 7. That certain radio stations viz. Station WEIV, Ithaca, New York, Station WOIV, Syracuse, Kew York, and Station WJIV Albany, New York, broadcast respondent's radio program; 8. That a certain book viz. Eat, Live and Be Merry, " \vas a new" book authored by respondent, and \vas copyrighted in the year 1961 by "Nutrition Surveys, Inc.

PAR. 6. In truth and in fact:

1. Scripts of respondent's radio programs have not been reproduced in braille by, or at the instigation of, the Library of Congress or any other agency of the united States Government; 2. Respondent's doctoral dissertation or thesis was not written on the subject of, in the field of, nor was it concerned with, the science of nutrition;

3. Respondent has at no time been a member of the faculty of ~ew York University, nor has he held the rank of Visiting Lecturer in the College of Pharmacy of Columbia University, nor has he held a teaching relationship with any institution of learning other than Fairleigh Dickinson University, Rutherford, ~ew Jersey;

4. Respondent has not received the honorary degree of Doctor of Humanities from an academic institution lawfully entitled or empO\vered to award or grant the same, but on the contrary has been "awarded" the said degree by a foreign school of theological learning which said school is not entitled or empowered by its charter to award or grant th( same;

5. Respondent has not been awarded the degree or status of diplomate" by any institution or academic body lawfully authorized or empowered to award the same;

6. Respondent's biography has not appeared in the publication entitled "The National Cyclopedia of American Biography 7. Radio Stations WEIV (Ithaca, ~ew York), WOIV (Syracuse, New York), and WJIV (Albany, New York) have not brondcast respondent's radio program;

8. The edition of the book referred to as "Eat, Live and Be Merry, a new book by Carlton Fredericks * * " copyright 1961 by Nutrition Surveys, Inc," was not a "new " and previously unpubjished book, but on the contrary was essentially the same book which had been published under that title in 1951: said book was not copyrighted in 1961 and was never copyrighted by "~utrition Surveys, Inc, Therefore, the statements and representations made by re- , .

196 FEDERAL TRADE COMMISSION DECISI01\S Initial Dccision 71 F. spondent as set fonh and referred to in Paragraphs Four and Five were and are false, misleading and deceptive. PAR. 7. The use by respondent of the foregoing false, misleading and deceptive statements and representations ir. advertising has had and now has the tendency and capacity to mislead and deceive those purchasing radio progralW: , and the purchasing public, into the mistaken belief that such statements and representations were, and are, true, and into substantial purchases of respondent.' s radio programs and books and pamphlets respectively by reason thereof.

PAn. 8. The aforesaid acts and practices of respondent, as herein alleged, were and are all to the prejudice and injury of the public and constituted, and now constitute, unfair and deceptive acts and practices in commerce within the intent and meaning of the Federal Trade Commission Act.

M1'. Richard Whittington Whitlock and lift. Edwanl F. Downs supporting the complaint.

M1'. Milton A. Bass (assisted by Mr. Robert Ullman), of Bass & F1'iend. New York, for respondent.

J:\ITIAL DECISION BY JOSEPH W. KAUFMAN, HEARING EXAMI:\ER Jl:LY 11 , 196C The complaint herein, issued on October 25 , 1965 , alleges the making of deceptive statements and misrepresentations constituting violation of the Federal Trade Commission Act, presumably Section 5 in particular. An answer was interposed, followed (on order of the examiner) by an amended answer. Various motions were filed directed to the complaint and the answer, and seeking discovery, as to 'which the examiner made various rulings. A nonpublic prehearing conference was held, and is reported in the stenographic transcript, consisiing of 99 pages. The examiner issued a detailed prehearing conference order of directions dated January 12 , 1966 , followed later by certain supplementary directions.

There 'vas considerable discovery. Each side submitted lists of proposed witnesses and exhibits, and also indicated ihe issue to be proved by each witness and exhibit. Copies of exhibits were exchanged. Both sides were very cooperative. The Commission authorized hearings in both Washington , and cw York, adopting a recommendation by the examiner , CARLTON FREDERICKS 197 193 Initial Decision that this be done pursuant to a plan obviating the necessity for going to Kew York more than once. The hearing commenced in New York City on March 30, 1966, where it continued until April , and concluded with one day in Washington, D. , on April 12. There is a hearing transcript of 969 pages. Practically all of the witnesses were called by complaint counsel most of them being faculty members of ~ew York University, where respondent took his Ph.D. and also briefly taught; they testiied as to the meaning, particularly at said University, of a Ph.D. thesis "in nutrition" and of "faculty member " the subjects of two alleged misrepresentations. Although complaint counsel gave notice that they were calling two faculty members of the School of Pharmacy of Columbia cniversity on whether or not respondent was a "visiting lecturer" there, they were not called nor was any evidence presented as to whether or not respondent was a "visiting lecturer" there.

Complaint counsel also had listed a proposed witness from Canada, stating that he had specialized knowledge on Canadian academic institutions, on the issue of the authority of a certain institution there to issue an honorary doctorate degree held or claimed to be held by respondent; however, they did not produce him, nor any other specialized witness, or any general proof of Canadian lenv as to the authority to issue honorary degrees. Paragraph Two of the complaint alleges that respondent has been engaged in selling and distributing a radio program concerning nutrition, diet and health, that the program is prerecorded by him and distributed by him or his agents to various radio stations throughout the United States. It also alleges that he has written and published various books and pamphlets, also concerning nutrition, diet and health, although-h the proof mainly and predominately concerns one book, to wit Eat, Live and Be Merry. " Interstate commerce is duly pleaded, and does not seem to be seriously contested as such. But respondent strenuously denies that he made the representations in commerce, rather than independent third parties.

Paragraph Three of the complaint alleges that in the course of his business, and for the purpose of inducing the sale of his radio program recording-s to radio stations, and of his books and pamphlets to the purchasing public, respondent has made "certain statements and representations with respect thereto in advertisements and promotional material, including advertising appearing in trade magazines and newspapers, and in brochures and circulars, Initial Decision 71 F. Said paragraph three expressly relates to representations not only to "radio stations" in connection with his radio program but to the "purchasing public " in connection with his writings. However, the proof is, for all practical purposes, that al! but one of the representations were made to radio stations, in connection with the sale of respondent's radio program. Only one representation was made to the general public, in connection with a book pamphlet, or othey writing, to wit, the book "Eat, Live and Be Merry.

Moreover, apart from the book representation to the public, al! of the proved representations to radio stations are made in a single " large advertis€lnent" in Broadcasting 1\1agazine, except for one of them made in a single "small advertisement" in Broadcasting Magazine; both advertisements appeared as far back as 1961. Furthermore, both of these advertisements were subscribed by CF Productions, Inc., not by respondent, and were inserted by said company.

It wil also be noted that the complaint alleges representations in advertisements and promotional material." Complaint counsel at the hearing, in order to bolster up their proof, contended that various Who s Who and similar biographical sketches of the respondent come within the meaning of "advertisements and promotional material." The examine:!' ruled that they are neither advertisements nor promotional material-although relevant on the issue Df respondent's responsibility for the derived representations in the advertising herein, since he referred the drafter of the advertising to the biographical sketches. In general, the hearing examiner finds in this decision that complaint counsel have completely failed in their proof as to aU the alleged misrepresentations to the radio stations, and have succeeded in their proof only as to the one representation to the general public in connection with the book "Eat, Live and Be Merry. " In general, the examiner has found that none of the representations to the radio stations have been proved to be false except perhaps two which were inadvertent and not worthy of serving as the basis for the issuance of a cease and desist order. The following is a quotation of paragraph four of the complaint purporting to quote the specific representations relied on. The subnumbering is added by the examiner but is the same as used in five and six of the complaint:

PAR. 4. Among and typical, but not all inclusive, of the statements and representations made and appearing in said advertisements are the following:

.

CARLTON FREDERICKS 199 193 Initial Decision (1) The scripts of the (respondent's) programs have been translated into braile by the Library of Congress * * * (2J His (respondent' s) Ph.D. dissertation ,. , * was entirely in the field of nutrition * * * (3) He (respondent) taught Nutrition ,;, * *' as a member of the faculty of the School of Education of Ney,l York University * '" "' Visiting Lecturer: " * College of Pharmacy, Columbia (University). (4) For the public services rendered in his broadcasts, Dr. Fredericks has received an honorary Doctorate of Humanities degree * 0; * (5J Dr. F'redericks is a Founding Fellow in the International College of Nutrition, and has been awarded the Diplomate by this college. (6) Dr. Fredericks ' biography appears in: ':' "' * (the) National Cyclopedia of American Biography.

(7) These Top Stations KNOW Carlton Fredericks SELLS * * * WEIV Ithaca, New York, WOIV, Syracuse, New York, WJIV, Albany, New York '"

(8) Eat, Live and Be Merry-a Xcw Book by Carlton Fredericks " " Copyright 1961, by :! utrition Surveys, Inc. These representations are quoted, but in some instances more fully, in Part FOUR of this decision. There is a fuller quotation herein, particularly as to o. 2 and No. , both of which make liberal uses of asterisks; K o. 2 also omits a preceding and a following sentence deemed by the examiner to be pertinent. For convenience, and for further use in captions of various subparts of this decision, the ajjeged misrepresentations will be listed here in the following cryptic form: 1. Brailling of radio scripts by Libra1'y of Congress. 2. Ph.D. thesis in "nutrition.

3. Faculty TiWmbeT, Nww York Uni I.)f:T8ity. Visiting lecturer, School of Pharmacy, Columbia Un. 4. Honorary Doctor of Humanities.

5. "Diplom.ate.

6. National Cyclopedia biographee.

7. On Ivy stations-WEIV, WOIV, WJIV.

8. New book, Copyright 1961.. autlwT thereof. Both sides have duly filed proposed findings and conclusions together with legal argument, as well as supplemental submissions subsequently authorized by the examiner. Important exhibits are reproduced herein as part of the decision FINDINGS OF FACT AND DISCUSSION All findings of fact in this case are contained herein. Any proposed finding not found here is disallowed, although not necessarily on the ground of lack of proof.

Salient findings of fact are emphasized. Evidentiary facts and 200 FEDERAL TRADE COMMISSIO). DECISIO Initial Decision 71 F. discussion are not, except where unavoidably intertwined with fact.

These "Findings " are subdivided into various parts, which follow the numbering, and essential content, of each of the below paragraphs of the complaint, as follows: ONE. Identification of Respondent.

TWO. His Occupation. Commerce.

THREE. Chargeability as to Representations. FOUR. Text of Representations.

FIVE. Meaning of Representations.

SIX. Truth or Falsity.

SEVE ) Substantial Effect.

EIGHT. ) Public Interest or Injury.

The following are typical abbreviations, and their meaning, used herein:

TR J99.-Transcript of testimony-page 199. TR J99: 3-Same-page J 99 , line 3.

CX l--Complaint counsel's Exhibit J in evidence. RX l-Respondent' s Exhibit 1 in evidence. CPF 9-Complaint counsel's Proposed Findings, number 9. RPF 9-Respondent s Proposed FiI'dings, number 9. Any pending and undecided motions are hereby denied. ONE Identi.fwtion of ReslJOndent Respondent Carlton Fredericks is an individual whose home address is 5 Patricia Drive, New City, Rockland County, New York State (TR 52: 23), and whose business address is in Kew York City.

TWO His Occupat-ion. C01n?nerce.

Respondent is well known as a radio lecturer on the subject of nutrition, diet, and health. He has o. popular radio proumm on this subject, and most of the challenued representations hen concern the advertising of his program addressed to radio stations. His program111 is ordinarily prerecorded by h'/XII in loew Yark, and at honw or in his place of busi-ness, and the tapes arc then sold and d1:stributed by hhn, or others forhiTlL, to 'lJarious radio stations throuuhout the United Slates, the pJogmm being widely broadcast-although so/neb:ltes his program, or a lectu. , 1TWY be CARLTO FREDERICKS 201 193 Initial Decision In' oadcast ll li'&' " Selling, dist (1:buting, and advertising the tapes, has been done, so far as concerns the present case, through CF ProducUons, Inc., of Ne," Y01'k City.

Respondent is also the aut hot of books and pamphlets conce-rned with nutrition, diet, and health, and is well known as the 1961 edition, isauthor of "Eat, L,:ve and Be Merry." Said book directly involved in this case but only in connection with one challenged representation, in two parts, to wit, the ' 'loew Book Copyright 196'1" 'representation, on the pci.perbnck book' as well as the 1951front cover. S id book, 'in said 1961 edition, , 01'edition, was sold, published, and distributed by respondent others fm' him, throughout the United States, and widely distributed throughout the country. Said book, in both editions, has been published by Paxton-Slade Publishing Corporation of New York and, presumably, directly distributed by it s the published,. The above findings, primarily as to respondent' s radio program and his book or books, are not believed by the examiner to be in dispute. They have been pieced together by resort to the com- , includ-plaint, the amended answer, and the Proposed Findings ing supplements, on each side. They are supported by the evidence.

Respondent TML'intains and at all t-irnes 'Inenhoned her' ein has rnainta,ined n substantial tradr; 'in COTilmerCe in his said radio program and his said book or books, and presumably the pamphlets-- s "colmnerce" is defined in the Federal TTade Commis- 81:on Act. "Commerce" is proved largely through his h,-' o Hagents named above, and his close lel tionship to them, which wil be detailed in THREE 'infnt.

As f01' h,' 8 Tad'Lo pTogru'rlL, the ckoJlenged 'repTesentahons were flu inse ted by CF Productions, Inc. , in two advertisements, both appearing 'in Broadcasting J.l1agazine, C'iTculated throughout the United States. Moreover, the "tapes" were distributed throughout the United States by said CF Productions, Inc. S1ibstantiality " of conrrne1' ce is also )JrorJed. Both 'respondent' progntTn and his writings, as alnady found, eeLCh widely distributed; and, L ie'll)ing both to qethc1' , with their1' sante subject matter' , the showing9 is clear. Substantiality is further indicated the well-known populority of books and bl'oadca$ts on Tespondper- ent' s subject of nutrition, diet, and health-to the extent, haps, of n"tional f"d--so that. respondent's booles and writings have ine,;'itc,bly been competit.ve with similar pro,qTams and writings 'IUthoTed by others.

The alleged nlJresentat'ions proved in this case, both in con- 202 FEDERAL TRADE COMMISSIO DECISIONS Initial Decision 71 F. nection with advertising respondent's radio program to radio stations and with the " new boole" repTeserdat'ion advertising his book to the public were in comrrwTce " within the meaning the Federal Trade Commission Act for the purposes of jUTisdietion.

However, and in conclusion, although the requisite cor(t,?ncrce is found by the exa'fnineT in this case, the finding is dependent on the finding in THREE hereof that respondent is cha" qeable with the representations made by oike,;;;, Comnlerce" does not seem to be a real issue in this case, at least not as such.

Paragraph Two of the complaint alleges, in the first paragraph thereof, the ITlOVement of YE:spondent's radio ':tapes" and his writings throughout the United States;' The second paragraph of Paragraph Two alleges that respondent has maintained a substantial trade in his program and writings "in comnierce.

The amended answer (Par. 2) of respondent does deny "each and every allegation" of the complaint and it affrmatively alleges that the "correct facts " are that respondent is " a renowned (radio) commentator" and a " distinguished author" on nutrition, diet, and health. This Itial mean, of course, that respondent disassociates himself from any program distributor or book n and thatpublisher making the representations hin commerce therefore respondent claims he himself is not in commerce. However, this is more a question of the law of agency, a subject which is passed on in Part THREE infem.

IVloreover, respondent' s formal motion to dismiss the complaint herein, filed on K ovember 20, 1965 , although it expressly denies trade or commerce " (p. 3), does so only on the ground that the complaint "does not present a charge of public interest" (p. 3), citing and quoting (pp. 4 5) C. v. Klesner 280 V. S, 19. Responden t's Proposed Findings, in a presentation of 35 pages, does not contain a single reference to "cOlnmerce " or "substantial commerce.'; Furthermore, the sale reference to "jurisdiction" (Conclusions of Law, p. 4) is a naked statement that there is no showing that respondent sold or advertised the radio tapes or books. This again seems to raise the agency question, rather than the commerce que tion as such. It is only in his supplemental proposed findings, answering complaint counsel, that respondent, attacking complaint counsel' proposal as to commerce, explicitly states (p. 5) that the "ques- CARLTON FREDERICKS 203 193 Initizl Decision tion of commerce is very much in dispute and is denied and explained in respondent's answer and discussed in respondent' proposed finding, pages 2 through 4 thereof. We have already examined respondent's answer, that is, his amended answer, as to how the question of commerce is "denied and explained." We have found that the allegation of "commerce is not denied in the usual sense, although it is denied in the limited sense that respondent claims to be merely a radio lecturer and writer not bound up by the acts of a program distributor or book publisher coming within the commerce c1cause. As for the reference to pages 2 through 4 of respondent' Proposed Findings, we now turn to them and find there simpl.f two proposed findings with discussion to the effect that the radio program and the book or books were not sold by respondent but by C. F. Productions, Inc. , and Paxton-Slade, respectively, and that respondent was just a radio performer and writer, nothing more, This again, as in the answer, contends that respondent is out of commerce only by presenting questions of the law of agency, which are treated in this decision in Part THREE. Of course, the precise question here is whether the challenged representations (as attributable to respondent) were in commerce. Court.s are not too strict in finding such requisite commerce. See, for instance John A. Guzialc v. C. (U. A. 8th June 8, 1966) (8 S.&D. 188J.

Finally, it may be noted here that, inasmuch as the decision herein finds no violation except as to the "new book" representation. the commerce question is moot except in respect to the "new book" representation, made to the general public. The commerce question is therefore hardly important as to the other representations directed to radio stations through the two advertisements in Broadcasting :Ylagazine.

There are not too many statistics, but the following note is in order: First of all, there is no doubt that respondent' s radio talks and his books are intertwined in his nation-wide coverage. At its apex, he testified, possibly as many as 300 stations carried his program, scattered over the whole country (TR 54: 19-22). The 1951 edition of his book sold to the extent of possibly half a million copies (TR 497: 7), throughout the country (TR 493: 25- 494: 2). There are no figures in the record for the 1961 book, the book in question here, but this is simply the same book, with a few minor corrections, with the same publisher as the 1951 book (SIX (8). infra). The 1961 book sold until sometime in 1964 (TR 498: 22-24) .

Initial Decision 71 F.

THREE Chargeab'ility as to Rep,'esentations The statements and ,'epresentations as quoted -in the complaint are set forth in part FOUR below, although with some supplementation. All these statements and representations ?cere made to radio stations, i. , readen of Bro"dcasting Magazine, f01' the purpose of selling ?'respondent's mdio progmms except for No. (New book (Copyright 1961)) made to book ?'eaden or the general public, on r'spondent's pape,'brLCk book itself, for the purpose of selling same.

First, in the course and conduct of his business and for the pu"pose of inducing the sale and distribution of his radio progmm recordings to various radio stations throughout the United States, respondent hab made, or is chargeable with having made, as will be shown below, certa.in but not all of these strdements and representations, with respect thereto. These statements and representations, i. , to radio stations, were all made, except one, in a single full-page advertisement in Broadcnsting Magazine, dated November 20 1961 , the sa-called "large advertisement. '" The one exception, No. 7 (Ivy stations) was in an advertisement in the same magazine, dated November, 1961 the so-called "small advertisement" one of the represental',ons which respondent is held not chargenble w-ih having made.

Both advertisements we?'e inserted and subscribed by C. Product-ions, Inc., found here to be suffc-iently respondent's "gent and held out as such by its initials referring to respondent's name 1-with respondent' s acquiescence The examiner holds that respondent so made, 01' is cha.rgeable with having made, as distinguished from C. F. Productions, Inc. such statements and repl'sentations except that he is not chargeable with the following, for the ?'asons hereunder indicated: llla. Visiting Lecturer1J p01'Uon,)- Not in advertisement. No evidence on falsity. (Second part of No. No. 5 (Diplomate)-':ot furnished by respondent. Respondent promptly "stopped" it.

No. 6 (In National Cyclopedia)-Complete inadvertence; merely premature. Also de ?nInU/"S.

l Representations similar to No. 1 (Brailling' by Library of Congress) also appear on tile outside back cover of respondent' s books, thus reaching the g-cnera1 public. For various reasons, including nonfalsity, this is an unimportant qualification to the aoove st tement. See discussion at end of this Part THREE entitled Book Representatio1!8- atter part. entitled Outside Hack Cover. BraiUing RepTeSe1\tatio1\ (No. 1). CARLTON FREDERICKS 205 193 Initial Decision No. '1 (On Ivy StrLtions)- Not furnished by respondent. Also de minimis. (No. 7 is in "small advertisement. (Complaint counsel in their submissions after the hearing moved to reopen the hearing, so that they might rely on statements similar to the "Visiting Lecturer " portion of No. , and call witnesses not produced at the hearing to prove falsity. This motion has been denied, as set forth herein. Second, in the course and conduct of his occupation as a 1Driter and for the purpose of inducinq the srLle rand distribution of his book "ErLt, Live rand Be Merry " (CX 45) to the purchrLsing public, respondent mrLde, 01' is chrLrgerLble with havin,q made, CI distinguished from C. P. Productions) Inc. ! a certain statclnent 01' 1'representrLtions in respect thereto on the outside front cover of SrLid prLperbrLck book, namely that it WrLS rL new boole" (No. , supm), which strLtement 7IWY be Tered tOllether with the date 1961 the cOPYTillht notice inside the book.

Howe?!er, srLid " CoPYTillhi 1961" por' lion of No. 8 is not held to be a representat'on as such as d-istinguished I1'01n cOPYTight notice ' or rlt least not rL repl' esenta.tion rls such chrLrgeable to Tespondent More detailed discussion and findings as to both the radio program and the book representations will now be set forth. LrLrqe Advertisement In GeneroL-The large advertisement contains representations 1 through 6-except, as already stated, the second part (Visiting Lecturer) of No. , which is not to be found therein or in any other promotional material (and as to which there is no proof of falsity) .

The question as to respondent's liability for thc " large advertisement" subscribed and inserted by C. F. Productions, Inc" is not too critical in this case, inasmuch as the examiner finds that the representations have not been proved to be false or, in some instances, not chargeable to respondent for special reasons. (A similar observation also applies to the " small advertisement" containing representation o. 7 (Ivy stations) found to be not chargeable to respondent.

The examiner holds that C. F. Pl'odudions, Inc., was suffciently respondent' s agent, and by reason of having" his initials in its name with his acquiescence, suffciently his rLpprL/ent agent, to hold him responsible for all representations (subject to any special 2 Except that it ;R held that it i a i'epresentat;on (Illtr. ough not by respondent) that it wa istered in the Copyright Offce Initial Decision 71 F.

exception) in the advertising, provided he furnished the information cont.ained therein. In other' words, respondent is liable and chargeable to the extent that the representations were based on information furnished by him to the company or made available by him through the Who s Who and other biographical volumes ca1Jed to its attention by respondent, knowing, of course, the use to which they would be put (and put in commerce). This holding of the examiner eliminates the second part (Visiting Leeturer) of No. , since it is not even in the advertisement, or any other promotional material. The holding more pointedly eliminates No. 5 (Diplomate), which was not made on information furnished by respondent, nor contained in the biographir:al volumes he called to the company s attention. The general part of the holding does not, to be sure, eliminate No. 6 (National Cyclopedia), but the examiner, as a special exception, eliminates this representation K o. 6 as de 1nin'LTtlis inadvertence and merely a premature announcement of respondent' s listing in the encyclopedia. (This ruling also eliminates No. 7 (Ivy stations) of the small advertisement since the Ivy station information was not supplied by respondent, and also since said K o. 7 is a de minimis inadvertence.

In order to understand the picture better, some background facts wil now be set forth briefly, with further facts and further transcript references to follow later in this discussion. C. F. Productions, Inc., was orp;anized in 1959 or 1960 (TR 68: 6) primarily by two gentlemen, Mr. Nathan and NIr. Curtis. Its business was to sell radio shows, and apparently to concentrate on respondent's show in particular. The two men had in mind that respondent would join in organizing the corporation (TR 92: 10), since he was to be their first account (TIt 92: 9), if not their only basic account. That' s how it came about that they used the initials C. F. in the name (TR 92), which he did nothing to stop (TR 99: 23). However, instead of actual1Jy becoming part of the corporation, respondent signed a contract (CX 10) whereby the corporation syndicated his radio show and he was to obtain 80 percent of the gross, the company to retain 20 percent as syndicator" or " sales organization" (TR 96: 7-respondent' characterizations) .

Curtis owned 50 percent of the stock of the company and Nathan the other 50 percent (CX 13 C-D). The corporation m,ed as an advertising company, to wit, Curtis AdvertisiTig Company, closely connected with it: Curtis and his wife were the sole stockholders of the advertising company, which CARLTON FREDERICKS 207 193 Initial Decision also, was in the same building as C. F. Productions, Inc. Mr. advertise- Cunis or Mr. Nathan (TR 87: 21) got up the "large ment" (and also the "smal! advertisement" Respondent himself worked closely with Xathan and Curtis: They caned me on advertising copy. They caned me to announce that they had assigned new stations and to ask me to cut promotion spots for new stations . They called me to consult about the advisability of taking a given station * * ':' " (TR 100:10)- The material in the "large advertisement" was compiled on the basis of information supplied by the respondent, either directly or by refening to the biographical volumes, except the Diplomate representation, which he immediately caused to be stopped, after . reading the advertisement in the magazine (TR 93: 1) . (He did not supply the material (Ivy Stations) in the sman advertisement.

Eventually C. F. Productions, Inc. , became inactive, and respondent' s wife took over Kathan s 50 percent interest. Respondent says this was to facilitate collection by him of outstanding accounts (TR 95).

As to the advertising, it is, of course, true that it is subscribed by and was composed, as well as inserted, by C. F. Productions Inc. Respondent contends that this negates that the company acted as respondent's agent, rather than only as an independent contractor or other legal entity, or that respondent is in any way responsible here to radio station readers for the representations contained in the advertising.

However, entirely apart from respondent's exact legal status in relation to the company, the examiner holds that it is ciear that respondent must bear responsibility for the representations in the advertisement-subject to any exceptions which may be anowable.

To begin with, respondent is responsible for admittedly furnishing at least most of the information to the company-knowing the use to which the information would be put-either directly or by referring the company to Who s Who and similar volumes con. taining biographical sketches of himself. The notable exception to this general responsibility is No. (Diplomate). He merely told the company he had applied for the Diplomate (TR 140: 9). :\1moreover, there is no Diplomate statement in any of the Who s Who or other biographical volumes, to which he referred the company. A further exception is No. (j (N ational Cyclopedia), which, as already stated, is merely an Initial Decision 71 F. inadvertent and premature representation, and also de 1'1'inimis (merely the last of six publications, five correctly listed). It should be kept in mind that, except for explainable or inconsequential items, respondent has consistently asserted the truthfulness of these representations derived from the information furnished by him and/or the Who s Who and other biographical volumes, and also should be kept in mind that the examiner finds in respondent's favor thereon, upon the proof or Jack of proof in this case.

However, the examiner holds that the fact that respondent himself supplied the information (true or false) or directly made it available, is fairly decisive, apart from exceptions, on the question of respondent's responsibility for the use made of the information so supplied 01' made available by respondent, knowing the use to which it would be put.

Nevertheless, in the examiner s opinion, equally decisive on the question of general responsibility, is the consideration that the company had apparent authority to bind or speak for respondent, as wil now be demonstrated.

First, respondent concededly permitted the company to use the initials C. F., at least after he found out about it; which initials concededly must stand for his mvn name, Carlton Fredericks. Respondent himself testified: "' CF' represented my initials, undoubtedly" (TR 92: 13), although 118 immediately but unsuccessfully tried to qualify this somewhat. The initials obviously conveyed to radio station readers, in the examiner s opinion, that respondent was intimately identified with the company (as indeed he was in at least some important ways) and they created the effect that he was sponsoring and vouching for the representations.

Second, radio station readers were entitled to regard the company as respondent's agent or distributor ha-ving a "standard , as gen-relationship, " with limited functions, to the respondent erally understood in the industry. Respondent himself affrmed at the hearing that the company s relationship to him "was a standard relationship * * * standard in the industry" (TR 125: 8). Moreover, the surrounding facts in this case hardly support the conclusion in effect propounded by respondent' s counsel that the company was an independent contractor. It was not, particularly as concerns its functions relevant here, or was it so regarded in the radio industry.

Finally, apart from the first theory, as expounded above, based on respondent's supplying the company with the information CARLTO!\ FREDERICKS 209 193 Initial Decision used in the advertisement, and apart from the second theory of apparent authority," based upon the use of his initials permitted by him, as well as the industry-known limited power of the company, there is a further consideration.

This further consideration is that, first, on all the facts in this case, and, second, under the wording of the contract between respondent and the company, the company was indeed for all practical purposes in this case an agent or other instrumentality, subject to strict control by respondent in respect to important activities, expressly including the content of advertising copy and the consideration that respondent paid for advertisements. First, the background facts, already partially presented, are of significance:

Respondent testified that the organizers of the company had had in mind my becoming a member of the corporation (TR 92: 10) ; that is how, he thought, they came to use his initials in the company s name. \Vhy he did not become a "member" is not explained in the testimony, but the fact that the agreement negotiated with them gave him 80 percent of the gross suggests that he stood to gain nothing by organizational identification with the company.

Furthernwre, it is curious, and perhaps significant, that respondent' s wife eventually obtained and now owns the stock (elsewhere described as 50 percent) formerly held by Nathan (TR 58: 13-20)-Respondent explained that the company is now inactive and that this procedure aids him to collect accounts (TR 95). Finally, it cannot be overlooked that the company actually did begin its activities with respondent's program (TR 92:9) and that, although according to his testimony, the company was free to take on other accounts (TR 57: 25), the evidence indicates as already stated, that respondent's was at least its only one basic account, even though it had other accounts. We now turn to the written contract itself, between the parties to show that, entirely apart from the issue of apparent authority, the company as a matter of contract was, at least for the purposes of this case, and particularly as to advertising copy, an agent rather than an independent contractor, and a rather limited type of agent at that:

The written contract with the company expressly provides that advertising or promotional material shall be "subject to the approval of respondent" (CX 10 B, par. 4 (a) (3)). This seems to sho\v a more or less classical principal-agent relationship, at least insofar as affects the issue of responsibility for the text of adver- , Initial Decision 71 F. tisements. The company was definitely no independent contractor in respect to the text of advertising. Respondent himself testified (TR 66: 14) that the understanding was "that the copy would be submitted to me for approval, either by reading over the phone or by mail or in person" (TR 66: 14). Respondent' s counsel himself espouses this position (RPF 3; p. 5) and sets forth appropriate transcript references. The contract also provides that respondent should pay the cost of advertising. Indeed, respondent's counsel makes it a maj or point that the company in this instance did not submit the copy of the advertisement in advance (or discuss it by telephone in advance), which is true, and, presumably, that the respondent is not responsible to the readers of the advertisement .which is a false conclusion. The latter contention is a false conclusion because of the fundamental rule of law that a principal is responsible for the acts of his agent acting within the scope of his authority, or apparent scope of his authority.

However, it should be noted in all fairness that the real thrust of said counsel's argument in this connection is directed against the binding effect on his client of the concededly false representation Ko. 5 (Diplomate). Counsel stresses, of course, that respondent never supplied this information, and promptly stopped it as soon as he read the advertisement in the magazine (TR 93, 98), with the apparent result that the magaziue never carried the same adv€rtisenlent at all from tht time on. The examiner does not, o:f course, hold in this decision that respondent was chargeable \with this "Diplomate " representation, on reasoning which will be further stated in due course.

The contract in this same clause providing for approval by respondent of advertising 01' promotional material, although authorizing the company to create the same, adds the very significant phrase all of the costs thereof to be borne by Producer (ld. CX 10 B; par. 4 (a) (3)). Respondent in his testimony did not claim that any different practice was followed as to the advertising here in question.

Apart from retaining control on advertising copy in respondent, and providing that he pay costs. the said contract itself dated September 10, 1960, has a number of provisions and references spelling out something much less than an independent contractor relationship of the company with respondent. Complaint counsel have pointed this up in detail in their submissions. 3CX 10 , par 4(R) (3' . HSPonqent's testimony confirms this \vas the pn?l"i"e in respect tc Broadcasting Ma.:azine advertising (TR 96:21-22). ) .

CARLTON FREDERICKS 211 193 Initial Decision The contract describcs respondent as "Producer" and the company as "Distributor. " It describes the company as having the organization and staff to perform the necessary functions for the sale, auditing, traffcking and distribution with respect to the syndication " of respondent's radio program (CX 10 A, preamble). The contract states that respondent desires the company to distribute and sell for broadcast this Show (ld. The contract also provides that respondent, among other things shah be "solely responsible" (CX 10 A; par. 2) for editorial content of his show and similar matters. Moreover, the contract in providing for the company s right to make contracts with radio stations uses the words "in its name and/or in the name and on behalf of Producer" (CX 10 C; par. 4(b)). The contract provides that respondent and the company shall jointly determine the price to the stations " for the radio program, and shah jointly determine the term or duration of each contract (l d.

The contract states that "every contract with a station must require an acceptance of any advertiser to this Show by the Producer " and "shall provide that the broadcast time of the Show shall be subject to the approval of the Producer (ld. The contract provides that the company has the right to bring actions for unauthorized broadcasts "provided, however, that the approval of Producer shall be obtained in each instance * * *" (CX 10 D; par. 5).

The contract provides that respondent agrees to indemnify and hold the company harmless for suits and claims arising out broadcasts, including liability and slander claims (CX 10 F; par. 8).

The contract, as already stated, gives respondent 80 percent of gross proceeds, the company retaining 20 percent. The above, in the examiner s opinion, is a fairly impressive enumeration, but respondent's counsel relies on the fonowing clause in the contract (CX 10 H):

12. Xothing herein contained shall constitute a partnership or joint venture between the parties, nor shall Distributor be deemed an employee of Producer in the performance of any of its duties hereunder. In the examiner s opinion, this paragraph of the contract does not negate the company s status as an agent, in a general sense and certainly does not do so for the purposes of this case before an administrative body. The paragraph expressly interdicts the construction only of a "partnership or joint venture " betvv een , 212 FEDERAL TRADE COMMISSIO;- DECISIONS Initial Decision 71 F. the parties, or a construction holding the company as an "employee. " Furthermore, it is the examiner s opinion that even stronger language, including words expressly interdicting a construction of a principal-agent relationship, would not be conclusive here, where a1l the facts, in the light of administrative law decisions, wil determine the company s actual legal status for the purposes of this case.

In determining the liability of respondent for representations in the large advertisement (and the small advertisement as well) , and proper exceptions to such liability or chargeability, the examiner has been guided by the following adjudicated cases: Libbey-Owens-FoTd Glass CompcLnY v. 352 F. 2d 415 (6th Cir. Nov. 1965) ;

Geneml Motors Corporation v. C. (companion case to above; same citation) ;

Regina COTporation v. 322 F. 2d 765, 768 (3rd Cir. 1963) ;

Charles A. BTewer Sons v. 158 F. 2d 74, 77 (6th Cir. 1946) ;

Goodman v. 244 F. 2d 584, 590 , 591 (9th Cir. 1957) ; StcLndard Distribut01s, Inc. v. 211 F. 2d 7 , 13 (2nd Cir. 1954).

(The last two are, to be sure salesmen" cases, but they announce broad principles obviously applicable here. First of a1l, all these cases amply demonstrate, in the examiner opinion, that in determining whether or not an alleged principal is bound by the acts of his alleged agent, the Federal Trade Commission is not bound by any strict common law rules as to what does or does not constitute a principal and agent relationship. On the contrary, the facts of each case, and presumably of each situation, should control. The real question thus is, perhaps whether and under what circumstances it is fair and realistic to hold a respondent responsible for representations made by another- ) as here, representations in advertisements as to respondent' s product or work. The Commission, in the exercise of its expertise, has special qualifications to determine this. Second, as demonstrated particularly by the fairly recent Libhey Glass case (6th Cir. Kov. 1965), courts are liberal and forthright in affrming Commission rulings fastening liability on respondents for representations made by others. The Libbey Glass concern was held, as held by the Commission, to be responsible SEe also In the Matter of Wilmington Chemical Corporation D. 8648 (F. , Jun() 17 1966), affrming Hearing Examiner Moore.

CARLTON FREDERICKS 213 193 Initial Decision for false "mock- " TV advertising perpetrated by its advertising agency, through a filming company. Ge'aeml MotOTS in the companion case, was held liable for its similar "mock- " advertising (although only a single commercial) through its advertising agency-as also held by the Commission.

The advertising purported to show the superiority of Libbey safety plate glass, used in all of the windows of G:\l cars, over safety sheet glass used in the side and rear windows of non- GM cars. Of course, the name of the advertising agency, or of any other third party, was not featured. Respondent here seeks to distinguish the case at bar because of this. The examiner, however, relates the Libbey case to the one at bar by the use here, with respondent's acquiescence, of CF , his initials, in the syndicating company s name as appearing in the subscription to the advertising. The examiner thus strikes down the distinction, sought to be drawn by respondent's counsel, between the Libbey Glass case (including the Geneml MotoJ's case with its special facts) and the case at bar. To this point of the initials must be added the mote impo?'tant factor that in the case at bar respondent admittedly supplied the company with the information used in the representations except as noted herein. The examiner, as already made clear, finds the respondent responsible for the advertisements in the present case only when both elements are present, namely the use of CF in the subscription to the advertisements and respondent' s having supplied the information; even if both elements are present, the examiner finds no responsibility in special situations, at least no responsibility ,varranting an order However, the element of furnishing the material or ideas used in the representations, which is present here but not in Libbey Glass-General Motors seems to be controlling in any event. Thus the case at bar by reason of the subscription with his initials in the advertising, suggesting respondent's sponsorship, is a somewhat stronger one for liability than Libbey.. and by reason of respondent's having furnished the information in the advertisement it is definitely stronger.

:l101'eove1' , paJdng for the advertisement-representations, even only part payment, is a factor given weight in determining that there is liability. Libbey paid the advertising agency, and respondent here, under his contract and apparent practice, was responsible for paying the advertising by CF Productions, Inc. Respondent here takes some oblique comfort in the consideration that the Commission did not hold GM liable for the TV , p.

Initial Decision 71 F. advertising placed through its advertising agency by Libbey, which was working together with G:v-Libbey spending $3 million for advertising and G:v buying the Libbey glass. But the Commission simply did not decide this particular liability question one way or the other (Commission Opinion, D. 7643 , July 16, 1963). It explained th2.t G 1's liability was demonstrated by GM's own TV advertising entirely apart from Libbey It is significant that-although the Commission found Libbey responsible for the advertising perpetrated by its advertising agency on the theory that there was a definite principal and agent relationship (D. 7643, p. H)-the Court of Appeals reached the same result by regarding, or assuming that the agency was an "independent contractor." The Court of Appeals opinion states (p. 418):

In our opinion LOF (Libbey GJassJ may not delegate it.s advertising to an independent contractor and escape liability for the acts of its advertising agency and film producer in advertising LOF products. Earlier cases clearly anticipate the thinking expounded in Libbey Glass.

In ReginrL (3rd Cir. 1963), for instance, the respondent manufacturer furnished the retailer advertisers with suggested list prices, which the manufacturer knew were the exception, not the rule. The retailers published these inflated prices alongside their advertised prices in newspapers published and sponsored by the retailers (much as respondent here claims as to the challenged advertising by the CF company). The opinion of the Third Circuit "states (p. 768 , CGI. 2), in respect to furnishing the information:

With respect to those instances where IJetitioner did not contribute to the cost of misleading advertising, it is settled that "One who places in the hands of another a means of consummating a fraud or competing unfairly in violation of the Federal Trade Commission Act is himself guilty of a violation of the Act. " (Citations omitted here. The opinion states as to sharing the cost of the advertising (p. 768, col. 1):

To the extent that petitioner contributed towards the cost of misleading advertisements, it was equally responsible with its retailers for the deceptive character of the representations that appear therein. It will be recalled that the contract here calls on respondent to pay for advertising.

The "instrumentality of deception" theory is not, of course CARLTON FREDERICKS 215 19.1 Initial Decision confined to furnishing' information, but is based on a broad general principle. In Brewe?' (6th Cir. 1946) the Sixth Circuit held that the manufacturer was guilty of an unfair trade practice in selling jOunchboards to retailers which could be used to conduct lotteries or games of chance in the sale of merchandise to the public. The manufacturer defended on the ground that the retailers were "independently engaged" (p. 77) in their business and the manufacturer had no connection with sales of merchandise to the public e., that the retailers were more independent than independent contractors. The opinion of the Sixth Circuit states (p. 77):

From the foregoing analysis of the Commission s findings, however, it seems th;1t the petitioners are not as independent of those to whom they sell and ship their products in interstate commerce as they would make it appear. With deliberate intent, using channels of interstate commerce, they pnt into the hands of others, including manufacturers and wholesale and retail dealers, the means of using " unfair methods of competition" and "unfair or deceptive acts or practices. In Goodman (9th Cir. 1957), a "salesmen " case, to be sure the defense was that the salesmen were independent contractors as stated in their?' core/mcts with the respondem there. The opinion of the Ninth Circuit re.iected this argument in broad language based on the inapplicability of the absolute letter of common-law definitions (p. 590):

However, when interpreting a statute the aim of which is to regulate interstate commerce and to control and outToot some evil practices in it the courts are not concerned with the refinements of commen-law definitions when the:,' endeaVOl' to ascertain the power of any agency to which the Congress has entrusted the regulation of the business activity for the enforcement of standards it has establisheo. In reviewing the authorities, the opinion stresses (p. 591), by a quotation, the placing " in the hands of another a means of eO!1summating a fraud " and also stresses apparent scope" of authority. Both these factors are present in the case at bar. In Standard Distributo?' (2nd Cir. 1954), also a "salesmen case, the opinion of the Second Circuit states (p. 13): The misrepresentations they made wee at least within the apparent scope of their authority and part of the inducement by which were made sales that inured to the benefit of the corporate petitioner. In the case at bar, there was, apart from apparent authority, the element that resulting sales of the tapes inured to the benefit of respondent, since he had an 80 percent interest in the gross. Initial Decision 71 F. (Although the foregoing discussion, as already indicated, may be regarded as largely moot since the examiner finds that respondent is in any event not responsible or not subject to an order in respect to the advertising, the discussion nevertheless applies with full vigor to the "new book" representation ~ o. 8, on the outside front cover of respondent's book, which respondent attributes to his publisher, but which the examiner regards as respondent's representation, as will be demonstrated in due course. ) The various representations in the large advertisement will now be treated, for convenience and reference purposes, in numerical order. However, they will be so treated only by way of summary-except as to the following: The second part (Visiting lecturer) of No. 3 wil be discussed at length in view of complaint counsel's motion to reopen as to this representation. No. 5 (Diplomate) wil be further discussed-although not at great length in view of its being excused although substantial. No. 6 (National Cyclopedia), which is not substantial, wil! be touched on but only very briefly. (No. , Ivy stations, of the small advertisement, wil be discussed immediately thereafter, followed by a full discussion of No. , the "new book" representation. 1. Brailling by Library of Congress.

2. Ph.D. thesis innutrition.

3. Member of faculty, New York Unive1"sity (First part of No. 3).

On the reasoning and discussion above, and the cases cited respondent is held to have made, or to be chargeable with having made, the above representations (although they are held to be true in Part SIX hereof infra).

3. Cont' d. Visiting lecturer, Phc1rmc1cy, Columbia Un. (Second part of No. 3).

This is a representation which does not appear, in the large advertisement or any other promotional material; nor \vas any evidence adduced of falsity.

In response to the examiner s prehearing order of directions of January 12 , 1966, requiring a list of exhibits and the issues to be proved by each, complaint counsel in their letter of March , 1966 , stated (p. 2) that this representation No. 3 "also" appears in the large advertisement (i. CX 1 , as then proposed) in Broadca ting :\1agazine. It simply does not appear there, nor in any other promotional material.

Complaint counsel's letter states-first to be sure-that the representation "was taken from American Men of Science (CX CARLTON FREDERICKS 217 193 Initial Decision 30), i. from respondent' s biographical sketch therein. However the examiner held at the hearing, and stil holds, that this sketch or the book itself, does not come within "advertisements or promotional material" of Par. Three of the complaint. The respondent did testify that he furnished preliminary material for biographical volumes in which his biographical sketches appeared (which might make them, if false, potential instruments of misrepresentation). However, unless the biographical material was used by others in advertisements " or "promotional material as specified in Par. Three of the complaint, the examiner s holding was and is that there are no advertisements or promotional material disseminabng ihe representations. Complaint counsel seemed well aware, at the hearing, of their deficiency in proof as to the making of the representation "Visiting lecturer " for they never produced the two witnesses designated by them (in a preceding letter dated January 28, 1966, also in response to the examiner s prehearing order) to prove that the representation was false. The witnesses designated were the Dean and a Professor of the College of Pharmacy, Columbia Vniversity, neither of whom appeared at the hearing. However complaint counsel ignored this in the argument in their Proposed Findings (CPF 13; p. 11) by referring only to the examiner refusal to allow respondent himself to testify on this (TR 482- 484), and not noting the examiner s stated (although not exclusive) reason that there was no proof of the Visiting lecturer representation once the biographical sketch or sketches were excluded (TR 483: 22). (Complaint counsel's motion to reopen "for the reception of testimony and exhibits " on this question was denied by the examiner s order of May 31 , 1966, although without opinion or statement of reasons.

Complaint counsel finally attempted (TR 493-494) at the hearing to establish the making of this representation by referring to the outside back cover of respondent's 1951 edition (CX 44) of the book "Eat, Live and Be Merry." The representation on the back of this 1951 edition merely reads that respondent "contributed his services to the faculties of (among other institutionsJ Columbia College of Pharmacy." There being no reference to Visiting lecturer " the examiner had no hesitancy in excluding it (TR 495: 14-25). Moreover, the book \Vas never listed for this purpose in complaint counsel's proposed exhibits. 4. Doctor of Humanities. This representation is held to have been made, or to be chargeable to respondent, on the reasoning and discussion, as well as the cases cited, above. (However, the , Initial Decision 71 F. representation is held not proved to be false, in Part SIX of this decision. ) 5. Diplomate. The examiner believes that he is amply justified by the adjudicated cases in not holding the respondent responsible for making this representation. Respondent did authorize the large advertisement, as fully found herein. But he definitely did not authorize the Diplomate representation. The crucial fact is that he did not furnish the information about the Diplomate (as it appears in the advertisement) to C. F. Productions, Inc., which seems to have garbled something he did furnish. The company nevel' supplied him with a copy of the advertisement in advance or telephoned him, as required by his contract and his understanding with it (CX 10 B, par. 4 (a) (3); TR 93: 3). As soon as he read the advertisement in the magazine he immediately advised the company by telephoning it upbraiding them" as to the statement in the advertisement about the Diplomate (TR 93). The representation as to the Diplomate was Dever made again in further advertising in the magazine. Complaint counsel himself stated at the hearing: "* .. * I am not inclined to press on the diplomate point" (TR 394: 25). Moreover, as elsewhere stated herein, the Diplomate representation does not appear in any of the biographical sketches, so that the respondent cannot be held responsible for it by having brought these sketches to the company s attention, or indirectly responsible even by the mere existence of the biographical sketches on information which might have been supplied by him. It may be added here that. apart from the initial question of theoretical responsibility, and even assuming such responsibility, there would be no public interest in a cease and desist order against the use of this representation, or against violation in general, when the facts are that respondent did not authorize the representation as such but on his own initiative had it stopped, after a single usage, as soon as he knew about it. 6. National Cyclopedia of American Biogmphy. There is no doubt that technically respondent must be held to have made or to be chargeable with having made, this representation. This follows from the general reasoning and the holdings of the adjudicated cases as set forth above. Respondent admittedly supplied the information that his biographical sketch was in the Cyclopedia of American Biography. However there are extenuating circumstances and persuasive explanations.

The representation as to there being a biographical sketch in this publication is the last, not the first, of six listings of Who :!.

CARLTON FREDERICKS 219 193 Initial Dccision Who and other publications containing biographical sketches of respondent. The first five do each contain respondent' s biographical sketch. The precise representation as to all of these, as contained in the large advertisement, is as follows: Dr. Fredericks' biography appears in:

The Biographical Directory of American Men of Science Leaders of American Science Who s Who in American Education Who s Who in the East Who s Who in Commerce & Industry ational Cyclopedia of American Biography It can thus be seen that the incorrectness of this one representation (Cyclopedia of American Biography) is, in the context of the other correct representations, a relatively unimportant matter. l\1moreover, as a matter of proof, there is no evidence whatever of a special uniqueness or importance of a sketch in the National Cyclopedia, as compared with a sketch in any of the other five publications.

Furthermore, the proof is that respondent's biographical sketch was definitely slated to appear in the Kational Cyclopedia having already appeared in galley proof, and that it did not appear only through inadvertence. Moreover, it is slated to appear in the edition currently being issued. Complaint counsel in their Proposed Findings (CPF 16; p. 17) themselves propose that the evidence does not establish that such representation was deliberate or wilfull (sic). " Moreover, complaint counsel submit no argument whatever as to why respondent should be held for this representation, considering all the circumstances. The facts in respect to hoy\' this representation came to be made are contained in an oral stipulation of counsel (TR 769-772). On June 1 , 1961 , the National Cyclopedia wrote respondent stating that it wished to publish his biographical sketch. On June 6 respondent advised it that he would be honored and would be glad to discuss his biographical data with it. On June 14 he was interviewed by an associate editor of the publication for this purpose. Later he was advised that, although there was no charge, there would be a charge for the cost of a cut if he desired that his photograph be printed with the sketch. On August 7 he sent a check to cover this cost. On November 16 , 1962, the publication sent him a copy of his biographical data for his approval (TR 771: 1). On December 21 , 1962, according to his records, he returned it with co:rrections and notations. According to the publication s records it sent him a galley proof (TR 771: 8), and Initial Decision 71 F. according to his records he returned the galley proof with corrections. However, the publication has no record of the return of the gal1ey proof by respondent. The stipulation, agreed to as the facts" (TR 772: 10-19), states explicitly (TR 771: 12) as follows:

The records of the National Cyclopedia therefore indicate that his biography did not appear in the issue at that time because, whether it was an oversight or some error, they did not receive the galley at that point but that Mr. Fredericks ' biography is appearing in the current issue which is being issued by the atjonal Cyclopedia of American Biography.

Accordingly, since the biographical sketch definitely was slated to appear in the prior edition and is apparently being presented in the current edition, it would seem that the representation in question was simply premature, and that, in any event, it was and is de minimis for proving misrepresentation. It is the examiner opinion, therefore, that there would be no public interest in issuing an order thereon, or using it to support any other provision of a cease and desist order.

Small Ad1Jertisement In line with 7. On J.vy St(dions-WEJV, WOJV, and WJlV. the general discussion and cases cited above in this part of THREE the examiner holds that respondent did not make, or is not chargeable with having made, the above representation, contained in the small advertisement (CX 9), even though the advertisement, like the large advertisement but on a smaller scale, is subscribed with the name CF Productions, Inc. , containing respondent' s initials with his acquiescence. The reason for this holding is that it is clear that respondent did not supply the company with the information that his talks were being broadcast by these Ivy stations, and, moreover, that the information was peculiarly within the company s knowledge as the immediate negotiator with the radio stations. Actually, the list might change from \veek to week.

Apart from thjs, the examiner regards the representation, or misrepresentation, as d.e raini1nis in nature. Complaint counsel merely argues (CPF 17; p. 18), that although "the evidence does not indicate that respondent was personally responsible for the inclusion of these stations * " * the representation was made by his agent or representative. " The examiner does not, of course, regard himself as strictly bound one way or the other, under the cases, by the common law rules of CARLTON FREDERICKS 221 193 Initial Decision agency. The particular facts must govern as to each situation. A glance at the small advertisement (CX 9) shows that the above three stations are part of the listing of 52 stations. The advertisement may be constructed as listing these 52 stations as carrying respondent's program, although all that the advertisement actually states is: "These Top Stations KNOW Carlton Fredericks SELLS." Moreover, respondent' s program has been covered on about 300 stations. Naturally, there inevitably must be a turnover as to stations carrying the program, or so contemplating, so that it is easy to see how a mistake could be made, even by CF Productions, Inc., which was in direct contact with the radio stations. (See TR 54:19; 82:13; 98:23; 99:1; 115:17. The mistake in listing these three Ivy stations may well be held to be inconsequential. Complaint counsel argue to the contrary because the listing represents that respondent's program is broadcast in a specific local area. However, this is a representation not to the general public but to radio station people who, if affected by such a local claim, would probably not be deceived and certainly could easily check the matter. In addition, it will be noted that the print.d list contains such outstanding top stations as WOR, of New York City, so that the inclusion of the three challenged stations may for this reason alone be deemed inconsequential. The three stations, as elsewhere stated herein, are in upstate ~ ew York. However, although a ruling that the representation is de minimis is amply justified the examiner prefers to rule squarely that respondent is not responsible for the representation in question and that this is demonstrated by the fact that he did not furnish the information as to the three radio stations to the company, as he did with most of the biographical material in the " large advertisement. " Moreover, the information as to carrying stations was information peculiarly within the company s know ledge since the company made the actual contacts with the stations (TR 54, 82, 98). It would be diffcult and strained, therefore, to hold that respondent made, or is chargeable with having made, this representation as to the three radio stations. Since the respondent has already been held not chargeable for making the substantial Diplomate representation, he certainly is not chargeable for making this unsubstantial representation. Book Representations 8. "New Book. Also Copyright 1961 by Nutrition SUT'ueys Inc. As already Indicated herein, the examiner holds respondent Initial Decision 71 F. chargeable with having made the "new book" representation on the outside front cover of his paperback book "Eat, Live and Be Merry" (CX 45). In contrast, the examiner holds that respondent is not chargeable with the "Copyright 1961" statement or representation inside the book, although the date itself may, in the examiner s opinion, possibly be read together with the "new book" representation.

Respondent' s counsel strongly attacks any finding holding respondent liable for the "new book" representation (or, of course for the " Copyright J 961" representation). Respondent' s counsel points out, as is altogether correct, that complaint counsel have not adduced detailed factual material try support a holding that respondent is liable for the "new book" representation, certainly not of the specific kind which might ordinarily be expected. The examiner finds, however, after careful consideration, that respondent at the very least must have known about the "new book" representation, if only after the book was turned off the press to begin its motive circulation. He certainly must have looked at the outside front cover of his own author s copy and read: a new book by Ca?'ton Fredericks The quotation is, as nearly as possible here, exactly as it appears on the outside front cover. Indeed respondent' s real defense here is hardly that he did not know this, but that he is not responsible and that it was a new book.

Respondent, of course, did not stop or halt this representation nor take any steps to correct it. Thus the use of his name immediately under said representation "new book" without being stopped or corrected by him, and its continuation, makes it indeed, in the examiner s opinion, respondent's own representation for all practical purposes. This is so even if the representation is true, and it is certainly so if it is false (as found herein under Part SIX, inm).

Thus, as the examiner views it, it was simply a continuing representation over respondent's own name, \vhieh he could have stopped or corrected. Certainly he cannot stand by and disclaim responsibility on the ground that his publisher or anybody else allegedly made the representation and that he himself had nothing to do with it. He himself indicated that the book was sold until, apparently, sometime in J 964 two years prior to the hearing (TR 498; 22-24).

Since the "new book" statement is over his o\vn name CARLTON FREDERICKS 223 193 Initial Decision it is, of course, more explicitly tied to him thereby than the advertising in Broadcasting Magazine is tied to him by his initials in the name of CF Productions, Inc.

IVloreover, personal responsibility is emphasized, and vouched to-for, by the repetition of his name on the outside back cover, gether with a large photograph of himself, plus a biographical sketch.

The reasonable presumptions seem to support respondent' s responsibility for the "new book" representation or the continuation thereof. This would seem to be so in almost any case of such a book put out by a publisher. However, it is more so in this case because the book in question seems to be respondent's magnum opus. It not only had a 1951 edition, widely circulated in the United States, as he testified, but it came out ten years later in a 1961 edition, put out by the same publisher. It is listed by name in respondent' s Who s Who and other biographical sketches. He is hardly in any position to deny the obvious, namely, that he knew it was represented as a "new book " nor does he deny this. Respondent' s counsel contends that there is nothing in the record connecting the publisher, Paxton-Slade Publishing Company, Inc., of Kew York, with the respondent in respect to the "new book" representation. It is true that we do not know the actual contractual relationship with the publisher. However, this does not relieve the respondent fl'01TI responsibility, since, even if the representation was made by the publisher alone, it was made over the prominently printed name of respondent, and respondent did nothing to correct this, but on the contrary espoused and still espouses the "new book" claim. Thus it is proper to find that he made the representation or is chargeable with having made it. This is the issue, entirely separate from the falsity of the representation (as found in SIX infm).

The representation is also a substantial one, namely, that a tenyear-old book is new. To be sure the examiner has held respondent not charge"ble with making' the Diplomate (Ko. 5) representation in .Broadcasting ::\'lag'uzine, even though substantial as well as false. But the ,'respondent "stopped" that representation as soon as he knew about its one use-nor for that matter had he or has he, ever espoused it.

Finally, as to the Diplomate representation, the examiner held, supra, that even if respondent is chargeable with having made it no cease and desist order should issue thereon. As to the "new book" representation, the examiner does not so hold that despite respondent's chargeability with having made it, no cease Initial Decision 71 F. T. and desist order should issue thereon. The main question in issuing an order is likelihood of resumption of the misrepresentation. Whereas respondent "stopped" the Diplomate representation he did nothing to stop the "new book" representation. Whereas he always has recognized the Diplomate representation as false, he or his counsel even right now is taking the position that the "new book" representation is true. Thus, without an order he could continue to sell the book (CX 45) or one like it as new. Respondent at the hearing, without any leading, called the book "a new edition, a revised edition llot a new book. The examiner finds that respondent was perfectly willing to have his book (CX 45) advertised on its cover as a "new book" with the extra profit it can be assumed this would bring him knowing that it was only, at the most, a new or revised edition. This fell far short of the utmost good faith he showed in connection with the Diplomate representation in the magazine. This willingness of the respondent to go along with a "new book" representation even though he himself seems to think of it as " new edition, a revised edihon although referred to immediately above on the question of the issuance of an order-does seem to have a bearing, however indirect, on the question of his chargeability with having made the "new book" representation. The very fact that respondent did make some corrections or changes-however few or slight-in getting out the 1961 edition here in question, also, in the examiner s opinion, ties in respondent factually with the one publisher of both editions, as does the very fact that he kept the same publisher. And his puny corrections were the instrument of the deception.

Perhaps it is also noteworthy that the outside front cover of the 1961 edition is precisely the same-incluciing the "new book" representation, table of contents, and even color scheme-as the cover of the 1951 edition. This shows that all the respondent had to know was that the same cover was to be used (by the same publisher) and he then would automatically also have known that the "new book" representation "vas t.o be used ten years after the 1951 edition. There is something incomplete and utterly inconclusive about respondent' s cryptic ans\vers H J' 0 " to his counsel's questions as to whether he knew who wrote the cover' and whether it was submitted to him for approval (TR 951: 15 17). Respondent argues that since the 1961 edition has the same cover, with the same "new book" wording as the 1951 edition, it is not a representation, or representation of newness, at al1, but merely a representation that it is the same old book. This is a ,:.

CARLTON FREDERICKS 225 193 Initial Decision tenuous argument. The 1961 cover not only represents that the book is new, but it represents, since it reads as of the time it is seen, that the book is or was new in 1961 or the year of publication.

Respondent also makes the point that there is no evidence that the book or its cover was displayed publicly for sales purposes (see TR 529-030). The examiner is not impressed. First, it can be assumed, in the absence of clear contrary evidence, that a substantial number of people bought the book only after reading the cover. Second, it is obvious that if a book is bought containing promotional material on its cover, the representations on the cover continue there for both the buyer and others to read, and may well tend to induce sales on the basis of alleged newness of the book.

Respondent also contends, at least by strong implication, that the "nc\v book" representation on the outside front cover is not within the meaning of "advertisements and promotional material " as used in Par. Three of the complaint. The examiner rejects this contention. The outside front cover of the paperback book is an excellent vehicle for advertising and promotional material, and serves that purpose here very well, perhaps even better than a separate piece of advertising, in view of the subtlety with which thc "new book" representation is projected in the intimate closeness to the text proper. :\or can it be plausibly contended that the outside front cover containing the "new book" representation is really the title page of the book and therefore, at least arguably, not to be regarded as promotional material at all. Thc fact is that the very first sheet after the cover is the title page with no claim at all that it is a new book.

It is true that the representation as quoted in the complaint A ~ew Book by Carlton Fredericks .. * * Copyright 1961 , by Nutrition Surveys, Inc. " perhaps suggests, by the use of asterisks, that this is a representation or advertisement. separate and apart from the book. However, thc complaint certainly is broad enough to include the promotional statement on the outside front cover, as here.

Although it is not necessary so to find, it is also no doubt true and is found, that respondent at least knew of the "Copyright 1961" statement inside the book at least after the book was published. The complete copyright statement is " Copyright 1961 by Nutrition Surveys, Inc. " It is significant that respondent was one of the three men who incorporated this company (TR 492: (;

FEDERAL TRADE COMMISSIO:\ DECISIONS Initial Decision 71 F. 900: 17), and at one time he was an offcer (TR 901: 22). It is also noteworthy that above the copyright notice, occupying the larger part of the page, is a statement entitled "Author ote subscribed by Carlton Fredericks. It may be assumed that respondent, as an author, would read this note in the book subscribed by himself, and easily pass down to the copyright notice. 1V101'eove1' , even if respondent should not be charged \with knowledge of the 1961 date in the copyright notice, it must perforce be round, since he knew that the book was published in 1961, that it was represented as a "new book" in 1961-whether by the publisher, himself, 01' both-and, of course, in the years following, during which respondent presumably took his royalties or profits although doing nothing to conect the representation over his own name.

However, the examiner does not find that the " Copyright 1961 by Nutrition Surveys, Inc, " wording or statement, nor any part thereof, is a representation chargeable as such to the respondent. It is thus unnecessary to discuss respondent' s legal argument that Copyright 1961" can in no event be regarded as a representation or copyright, as distinguishcd from the legal claim of copyright even if not registered in the Copyright Offce. The examiner is of the opinion that the legal discussion herein with case citations, set forth in connection \'with the advertising in Broadcasting :NIagazine is applicable here even though the facts differ from those of the magazine advertising. In determining whether respondent is chargeable with making the representation made on the cover of the book by his publisher or any third party the genen.d principal governing is that the courts and the Commission ::le not bound by or "concerned \with the refinements of common-law definitions, when interpreting a st2.tute the aim of which is to regulate interstate commerce and to control and outroo! SOn1€ evil practices in it. " See Good- Jr/,an," supra p. 590.

The question, therefore, is not what is the exact jegal status of respondent' s publisher in relation to respondent, but rather whether there is a relationship of such a nature and under such circumstances as to warrant possible sanctions by the Commission to "control and outroot some evil practices " (if so found) contrived in 01' through this relationship. Certainly it is an evil practice if a1'J author permits, and is able to perm-; , his publisher to make or continue representations on the outside front cover of his book right over the aU-Lhol"s name, Goodman v. c., 244 F. 2d 5SJ. (9th Cir. 1D57). CARLTOl' FREDERICKS 227 193 Initial Decision and if the author is still able to disown responsibility for the representation even if the representation is fah.;€. Thus it is appropriate that Goodmnn notes (p. 591) the factor quoted from another case, of placing "in the hands of another a means of consummating a fraud " and also notes the factor of apparent scope" of authority. These two elements of, first instrumentality of perpetrating a fraud 6 and, second, apparent scope of authority,7 are frequently mentioned in the relevant court cases, If an author is aliowed to have his book published by a publisher and to per!1it, even by standing by while the book is distributed, any such representation as in the case at bar, the author has indeed, by action and non-action, placed in the hands of the publisher the means of consummating" a fraud, if the representation is false. This is the case at bar, Respondent's very "corrections " were the instrument of deception here. Moreover, a publisher of a book is acting within "apparent scope" of authority if the publisher makes the representation over the author s name, that a book is a new book by that author l:. even though it may be an oid book. Tlds, too, is the case at bar. Even if respondent were not entitled to royalties or other re- 111uneration from the publisher, and if the publisher alor.e stood to gain from the "new book" representation over respondent' s nance respondent, it SGems to the examiner, \vould still be in the position-by standing' by and doing nothing about the representation while the book is being distributed and sold of being chargeable for the act of the publisher within "apparent scope of authority, of so representing over respondent's name although only for the publisher s own enrichment. Xo author should have the right to permit a publisher to do such a thing, even for his own enrichment, once commerce jurisdiction can be established. On the face of it (if the representation is false), it is an unfair trade practice tending to mulct the public. And it is the Commission s function to find 'what type of practice is an unfair trade practice. It is true that respondent here did not, so far as the proof shows, furnish the publisher with the information that the book was a j' neyv book " nor suggest it. All that \ve J\no\V is that the '''lording on the froni cover, including "new book " is exactly the same 2S in the 1951 edition. Thus the situation is different from the advertising ir. Broadcasbng l\Iagazine, the material for which, or most of it, was supplied by respoCldent. But, important 6 See, fls on:y two exampirs, quotations fror'1 Regina and 15nnce1" SUj,,a-. 7 Sl' e l;uotation from Sta11dard Dist,.ibutors, supra , Initial Decision 71 F.

as it is, the element of furnishing material or ideas is not indispensible in finding responsibility in this type of case. For instance, there was no furnishing of material or ideas in Goodman. Nor was there in Libbey Glass s supm. The publisher in this case is suffciently like the advertising agency in Libbey Glass for the purposes of finding the respondent here chargeable. In L,:bbey it was an advertising agency with the authority, obviously, to advertise. Here, it was a publisher with "apparent authority " to advertise. The court in Libbey declined to exonerate Libbey even if the advertising agency were regarded as an j'independent coniractor " nor did the court even discuss Libbey s exact legal status as an agent, independent contractor, or as occupying any other status. The court simply states as quoted earlier in this decision, that Libbey, e., even as an independent contractor, could not escape liability by delegating its advertising. In the case at bar the respondent should not be able to escape liability by delegating advertising to his publisher or by permitting the publisher to advertise over respondent' name and standing by while the publisher continues to do so. Of course, the respondent himself has gained by this "new book" representation. Respondent has undoubtedly gained not only money but publicity and status as well. Courts naturally look askance at respondents who disavo\v the representations or misrepresentations of others working with them. One court frankly stated in a case that it will not permit such a respondent to "reap 9 Other pertinent cases maythe fruits from their acts and doings." not use the same language, but the same type of thinking is revealed, whatever the words and stated reasoning. It may also be noted here, although perhaps by way of repetition, that the "ne\v book" representation is more explicitly chargeable to respondent than the radio program advertising, since it carries the subscription of respondent's full name, Carlton Fredericks, rather than merely his initials CF , as part of the name of the company which placed the advertising. Outside Rack Cover. "Emill'in!) epresentat1:on (IV o. 1) . already found in this part THREE, complaint counsel have proved that respondent made, or is chargeable with having- made, the e., in the brailling" representation (No. 1) to radio stations large advertisement " stating that respondent's radio scripts ELibbell..1/Jens-Ford G1U8$ Campall)! v. 352 Y. 2d 4:5 (6th Cir. Nov. 1965). International Art C() . v. 'J. C.. 109 F. 2d 3 )3. 3% (7th Cir, 1940) JQ This matter has hlready bt=en referred to, w;thout details, in the footnottO at the beginning of this Part THREE.

, CARLTON FREDERICKS 229 193 Initial Decision were brailled by the Library of Congress (although the representation is held not proved to be false in part SIX infra. Complaint counsel also point out, although largely as an afterthought, that representations, similar but by no means identical with the representation as quoted in the complaint, are made to the general reading public, on the outside back covers of respondent' s books in the 1951 edition (CX 44), the 1961 edition (CX 45), and even in an alleged 1964 edition (CX 68) or enlarged version, issued under a different title by a California publisher. Inasmuch as the question of respondent's responsibility or chargeability is moot (in view of the examiner s finding of no proof of falsity) and in view of the relative unimportance of this additional contention, no finding will be made here as to whether or not respondent is chargeable with having made the representation, addressed to the general book public, on the outside back covers of the books as described above. The examiner does not however, the following:

The statement on the outside back covers of both the 1951 and 1961 editions is merely that respondent' s radio scripts have been transcribed into Braille by the Library of Congress (",d the AmeTic((n Red Cross (emphasis supplied), which is hardly the representation alleged in the complaint.-Furthermore, so far as the examiner recollects, no notice was ever given that the 1951 and 1961 editions would be offered for this purpose; they were certainly not listed in complaint counsel's list of exhibits in their letter of :\Iarch 8, 1966.

As to the 1964 alleged "edition" (CX 68), although it does contain on the outside back cover a statement suflkientiy !;ke the quotation in the complaint, the fact is that there is no extrinsic proof whatever, even as to prior dealings with the publisher, to connect respondent with this California publisher. Actually the statement' s grammatical error a portion of his radio scripts we?'e translated into Braille by the Library of Congress " (emphasis supplied), does not help to connect respondent-an English major, a Phi Beta Kappa and a Ph. Moreover, the book was not listed at all on complaint counsel's list of exhibits and notice of intention to rely thereon 'vas not given until shortly before the hearing itself.

FOUR Text of Representations The statements and representations appearing in certain ad- : .. 230 FEDERAL TRADE COMMISSIOJ\ DECISIO"S Initial Decision 71 F. vertisements or promotional materials-as well as the one representation in the book itself-which are quoted in the complaint although in certain instances only in part, are set forth in full in the following listing, 1 through 8.

The listing contains some statements and representations found (under THREE supm) not to be chargeable as having been made by respondent. Notations as to such prior finding are made accordingly after each quotation.

The reason all statements and representations are stated and quoted, even though respondent may have been found not responsible in THREE hereof, is for completeness of presentation in this decision.

The said representations are as follows: Large Advertisement 1. The scripts of the programs have been translated into braille by the Library of Congncss ., . CAs quoted in the complaint. 2. Dr. Fredericks' Ph, D. was taken in the area of Public Health Education. His Ph.D. dissertation which was entirely in the field of nutrition constituted a study (If the response of his audience to his broadcasts. It may, therefore, be said that this is a broadcaster who knows his audience their characteristics, income and education, better than any other in the Industry. rComplaint quotes only fnm1 second sentence of the above, and eliminates the main pan:: of this sentence by the use of asterisks. 3. He (respondent) taught Nutrition * * .. as a member of the faculty of tht School of Education of New York University * .. * . lThis is as quoted in Visitingthe complaint.)Lecturer College of Phannacy, Columbi.s IUniversitYJ. (Quoted as in complaint, but there is iaiiure of proof as to this representation.

4. For the public services rendcred in his broadcasts, Dr. Fredericks has received an honorary Doctorate of Humanities degree . IThis is as quoted in toe complaint.

5. Dr. FrcdHicks is a Founding Fellow in the International College of Nutrition, and has he en awarded the Diplomate by this college. (As quoted in complaint. This representation as to "Diplomate " not chargeable to respondent; see THREE.

6. Dr. Fredericks' biography appears in: The Biographical Directory of Men of Science Leaders of American Science Who s Who in American Education Who s Who in the East Who s Who in Commerce & Industry National Cyclopedia of American Biography. (Challenged representation as to National Cyclopedia held not chargeable to respondent; see THREE.

Small Advertisement 7. These Top Siations KNOW Carlton Fredeyicks SELLS 52 radio CARLTON FREDERICKS 231 193 Initial Decision stations listed by radio station designation, city and State, starting with WOR, New York, New York, and including the following: WEIV-Ithaca Were-Syracuse, N. ; and WJIV-Albany, N.Y. (Representation set forth more fully than in complaint. Found not chargeable to respondent; see THREE.

Book 8. EAT, LIVE , and BE MERRY a new book by Carlton F'redericks America s Foremost Nutritionist (Outside front cover of paperback bool(J COPYRIGHT 1961 BY NUTRITION SURVEYS INC.

(Contained on reverse side of book' s title page, at bottom thereof, upper portion being an "Author s Note " subscribed by Carlton FredericksJ FIVE Meaning of Repnsentations The representations set forth in FOUR have the meanings, directly or indirectly, set forth belmv. The examiner s construction of meaning is in some instances more qualified and limited or otherwise different, than the construction set forth in the com plaint (Par. Five).

Large Advertisement 1. Bmilhn.q by Library of Con!lress. Meaning. Tlwt scnpts of respondent' s radio progrmns hwue been reproduced in braille by, 01' at the 'instigation of, the Library of Congress, an agency of the Unded States Go'cernment-or under the sponsoTsMp of the Library of Cong.,ess. (This is as alleged in the complaint except as to the added wording, after' the dash (adding the alternatives sponsorship ), an addition which is not too important. 2. Ph.D. Thesis in Nutrdion. M ealring. That Tespondent' doctoml disse1.tation 01' thesis 1V((S written in the field of nub'dion (or on this subject 01' concerned theTewdh (Compl. Six (2)). (This modifies somewhat the meaning as stated in the complaint.) It may be noted at once that although the declaration is made in the representation that the thesis is in nutrition, it is aflrmatively stated in the very same sentence that the subject matter of the thesis is a study of the response of respondent's audience to his , Initial Decision 71 F. T. broadcasts on nutrition (an unchallenged description of the subject) .

3. Faculty Member, N. U. Meaning. That ,' respondent at one time was a member of the faculty of Ne1u York University. (Much the same as alleged in the complaint. 3. Cont'd. Visiting Lecturer, Columbia. Meaning. That Tespondent was a visiting lecturer in the College of Pharmacy of Columbia Un'i'uendy. (Much the same as in complaint. However, there is a complete failure of proof as to this representation.

4. Doctomte of Humanities. Meanin That -rspondent has ncel:ved an honorary Doctomte of Humanities degree from rrn institution 01' awdemic body ICLwfully CLuthoTized and empowered to u10ard the same-this meaning being subfect, however, to a qualification such as "as far Wi he knew OT should have known unimpQ1.tant for deciding this case. (This is as alleged in the complaint, except for the qualification after the dash. The qualification above referred to would require the addition of some such clause as " at least so far as respondent knew or should have known" and/or language recognizing the implications here of a presumption of regularity. The qualification is of no practical importance in this case inasmuch as complaint counsel have failed to prove the ingredient of lack of authority of the institution in question. Such proof would be necessary in any event. Lack of authority is clearly pleaded by the complaint (Par. Six (4)).

0. "Dl:plomate " Degree. Meaning. That -rspondent has been awarded the degne 01' 8trrtus of "Diplomrrte" by Inte,'naUonal College of Nutrition. (Some change from complaint. The making of this representation not chargeable to respondent; also excusable; see THREE supm.

6. Nrrbo,,,l Cyelopedin Biogrrrphy. Meaning.'-ThCLt respondent' s biognqJhy hrrs been published 1n n certrrin encyclopedirr of professional biogmphy, i. The National Cyelopuliu. of Americrrn Biogmphy. (As alleged in complaint. The making of this representation not chargeable to respondent; also de minimis; see THREE.

Small Advertisement 7. On 11.' 11 Stations. ean1:ng. That certain radio statl:ons, viz. Strrtion WEIV, Ithaca., New York. rrnd Station WOIV , SY1'1 C's Ne1c York, as 1vell a.8 Strrtion WJ1V, Albany, New York, brorrdcast respondent's radio program- , possibly, 'were about to (j. , , CARLTON FREDERICKS 233 193 Initial Decision broadcast respondent' s mdio TJTogmm. (As in complaint except portion after dash. The making of this representation not chargeable to respondent; also de mini1nis; see THREE. Boole Representation 8. Representation "a new boole by Carlton Fredericlc. " Mean- 'ing. That a certain boole viz. Eat, Live and Be Me1'' " (CX 45) was a "new " boole authored by respondent. (This follows the wording of complaint. Respondent is found chargeable in THREE (8) with having made this representation on the book' outside front cover.

That this is the meaning of the representation cannot seriously be disputed. The argument of respondent' s counsel that this is not the meaning because the same "new book" statement is made (in the same place and context) in the 1951 edition is, as already indicated, without any merit It -is also found that the "new boole" representation means that the boole was new as of 1961. (This is because of the "copyright" date of 1961 inside the boole and beamse the book WCU issued in 1.961. ) (This varies from the allegations of the complaint charging respondent with full responsibility for the " Copyright 1961" statement inside the book.J Once it is found that the representation is that the book is a new" book, it is diffcult to see how respondent can dispute this further finding of its being new in 1961. Respondent has not disputed the 1961 date.

8. Cont' d. Copyright 1.961 by Nutrition SW'1eY8, Inc. Meanthis )Onl?ng is not a Although, under THREE (8) SU)JHL, epresentation chargeable Wi uch to respondent, its 1neaTu:ng, contmry to respondent' s counsel, is that the copyright 1cas 1'gistered in the COjJyright Offce, Washington, D. It may be stated immediately here that respondent concedes that the copyright "\vas not registered. His counsel contends that as a matter of law, copyright is obtained by the very insertion of the notice in the book, and that registration is merely to invoke various statutory rights and protections. It is not necessary to rule on this.

The important consideration, although the matter is moot in view of respondent's non-chargeability, is that to the average reader, and certainly to a substantial egment of readers, a copy right notice means that the copyright was duly registered. Furtherm01' , although the queshon in'Uol'ued 'is 1fwot in ruievJ of respondent' s non-chargeabiUtJjIoith having lIuule the 1'epresenta- (( 234 FEDERAL TRADE COMMISSION DECISIOKS Initial Decision 71 F. tion as such, it is he,.by found that the naked "Copyright 196." nohee, 'in view of the 1'rity of not applying fat registmtion, (md n view of all the sUTyounding facts in this case, is a repl'esentation to the a1.'erage ?'ader that the book is a J 96'1 boole, i. , p1'esU'ma, blJj new book a8 of that year.

Finally, even though " Copyright 1961" is not chargeable to respondent as having been made by him as a representation, the date " 1961" may be used, together with the 1961 issuance of the book, to fix the year \vhen it was represented as a "new book." This the examiner has already done in finding, in his discussion of the "new book" representation, that it was represented to be new as of 1961.

SIX Truth 01' Fals1:ty The actual facts found by the examiner as to the subject matter of the representations are stated below\v. These facts are stated and found in respect to all alleged misrepresentations, that is, even those not found by the examiner to be chargeable to respondent as representations made by him.

Large Ad'verUSC1nent 1. Bmilling by Lib1'ry of Congress. Ths scripts of Tespondeufs rO-dio p'(ogramluere reproduced in bFaille by, 01' at the instigation 0/ the Libra.ry 0/ Congress, (Ln agency of the United States Gm:ernment--nd certainly under its 8jJonso?'i:hfp. The representation is therefo1'; true, and it L'i so found. The Library itself so l'eljurded the TCpToduc(ion of the scripts of respondent' s 1'adw JY(og'l'arn, so that a cease and desist ordel' on the ba. is of this representation 1uould ,in an'ij cuent be unjustified (Lnd inequitable.

There is no dispute whatever, and no doubt whatever, as to two basic factors. First, the scripts of l'€sponrtent's radio program were translated into braille. Second, this was done under the regular brail1ing program of the Library of Congress, which itself solicited the authorization to braille the book containing tne scripts. Furthermore, one brain1ed copy (in four volumes) was kept in tbe Library of Congress itself, and another brailled copy deposited in the New York Public Library (TR 884-885). The book in which respondent s radio scripts were contained and compiled, prior to brailling, is entitled " Living Should be Fun " which is also the title of respondent' s radiu program (TH. , , , CARLTO FREDERICKS 235 193 Initial Decision 949-950). This is the book which was brailled after the authorization solicited by the Library of Congress was received by it. Complaint counsel contend that the scripts were not brain1ed " the Library of Congress as expressly represented in the advertisement, or at its "instigation " as alternatively construed in the complaint, or even under its "sponsorship, " as further construed by the examiner. Complaint counsel contend on the contrary that the scripts were brailled entirely apart from any such auspices of thc Library of Congress. They strongly rely on the undisputed fact that the actual brailling was done by voluntary braillists 'i. of the American Red Cross, who volunteered their braiJling services to the Library of Congress. The examiner regards this as a most picayune point, particularly in respect to a representation addressed not to the public at large, but to readers of Broadcasting IVlagazine, to wit radio stations, The true ndure of the connection of the Library of Congress VI"ith the brailhng, as held out to the outside ,varId, is contained in the Library s letter of July 26, 1946 (CX 64), twenty years ago, in respect to this very brailling. The letter is signed by its Director, Division of Books for the Adult Blind. It requests the copyright holder of respondent's book to permit the braiJiing (which permission was thereafter granted). As just indicated, the letter is from the Division of Books for the Adult Blind, of the Library. In its body, it actually refers to the "program in the Braille Transcript Section of this Division. The letter also states that the brailling is done by "specially trained volunteer braillists, " thus implying Library of Congress supervision or control, at least in some degree, of the volunteer braillists.

In exact words, the letter reads in part as follows: Under our program in the Braille TI'anscribing Section of this Division it is planned to have single copies of the book: Living Should Be Fun by Carlton Fredericks hand-transcribed for the use of blind reaners. All of this \vork is done by specially trained volunteer braillists. Sincerely yours APHON P. S)l1T. Di1' ectm' Di'LJision of Books for the Adult Blind. The volunteers, incidentally, are actually trained by this very Division of the Library of Congress. Mr. Gallozzi, the present Assistant Child of the Division, testiied (TR 874 :18) : 236 FEDERAL TRADE COMMISSIO:- DECISIO"1S Initial Dccision 71 F.

Well, the Division encourages and helps volunteers, individual volunteers and groups of volunieers, to learn, master and transcribe braile, and this we refer to as our Braile Transcribing Program. We train them and ask them to do particular books for us It will be noted that Mr. Gal10zzi referred to our "Brail1e Transcribing Program.

:YIoreover, the brailled version of respondent' s book contains on the face of each of the four volumes of the set a description expressly noting the Library sponsorship. The description first lists Redthe title, the author s name, and the name of the "American Cross" brailist. The description ends up, at the bottom, with the following wording (RX 16):

Under The Sponsorship of The Library of Congress Washington, D.

1919.

This sponsorship statement as just quoted, added to the Library s own letter quoted and described above, would seem to be conclusive on the question of the correctness and truthfulness o. 1 , as to brailing by of the alleged misrepresentation, to wit the Library of Congress.

Complaint counsel, hO\vever, are resourceful and take another tack. They attempt to impugn the idea of Library of Congress sponsorship on the ground that the Library does not initiate the request that a book be brailed. They cite the testimony of 1\r. Gal10zzi that the Library relies, at least largely, on outside requests that books be brail1ed, rather than its own initiative. This, in the examiner s opinion is a doubtful tack insofar as concerns the question as to whether thc Library of Cong"!ess does or does not sponsor the brailling.

However this may be, the fact is that :vr. Gallozzi testified that perhaps 2 000 or so requests come to the Library in a one-year period, of which only 300-500 are accepted by the Library under s opinion, im- its program (TR 878: 8,14). This, in the examiner , if anything, sup- plies selectivity of some kind or other, which ports the conclusion of Library of Congress sponsorship of the brailing, and extends the scope of the sponsorship beyond the necessities of this case.

Incidentally, iVh-. Gallozzi, although the sole witness called by , was not even an employee complaint counsel on the brailling issue of the Library at thc time here in question (TR 8(;5: 13), Accordingly, his attempt to contradict or explain the Library as well as the own apparent position stated in its letter of 194(;, CARLTON FREDERICKS 237 193 Initial Decision sponsorship statement on respondent's brailed volumes, is not entiled to too much consideration. He admittedly (TR 891: had no knowledge of just how respondent' s book containing the radio scripts came to be brailled, whether, for one thing, at the request of an outside person or a Library staff member. His testimony, trying to explain the Library s 1946 letter, and the sponsorship statement placed on respondent' s brailled volumes, as well as his testimony attempted to construe such wording as brailled " " (TR 854 ff. ), disclose to the examiner a witness rather willing, if only unconsciously, to be led by, and to please the attorneys who called him.

Complaint counsel discuss this alleged misrepresentation Ko. 1 only very briefly in their submissions (CPF 18; p. 18). They state therein that Mr. Gallozzi testified that the Library has no record (so far as he knowsJ that the respondent's radio scripts were brailled " " the Library (TR 854-889). They refer also, to his testimony, when he was asked whether the Library was the "initiating factor" in the brailling, and he ans\vered that there was no such evidence (TR 858). The record actually quotes him as answering, in pertinent part: HI have not found any such evidence. I have examined the records that were available" (TR 858: 6). Complaint counsel also dwell on a Library policy, as testified to by :VII'. Gallozzi (TR 856), to have "very popular " books brailled by paid contractors, and the less popular books by volunteer braillers. :VIr. Gallozzi testified :hat in the case of a "very popular book" or "one of wide interest" (TR 879: 10), or supported by "many requests" for brailling (TR 891-892), the book is brailled by nonvolunteers. The Library accompJis'led this by contracbng with outside firms and paying; the contract price. He testified that this is done when the brailling is " in large quantities" (TR 860), or a "great many copies " are required (TR 879: 10). He further testified that this procedure must be approved by staff experts, following certain standards (TR 892). He was testifying, of course, only as to present procedure, and could not testify as to what the exact situation was with respondent' scripts in connection with their brailling. HO\vever, the examiner flnds that for the purposes of this case, and in respect to the question of Library sponsorship, there is little distinction whether the books are brailled by unpaid volunteers trained by the Library, incidentally at its expense, or by paid contractors brailling a book in quantity. The brailling-the terms or meaning of the alleged misrepresentation is by or at the instigation of the Library of Congress, and certainly under , Initial Decision 71 F.

its sponsorship, whether the brailling is done by volunteers or by paid contractors.

Complaint counsel also contend in their submissions that respondent has "persistently" (CPF 18) misrepresented that the brailling of his scripts was by the Library of Congress. To support this contention, they point out that representations similar to No. , i e., in the large advertisement, appear on the outside back cover of respondents book Eat, Live and Be Merry, " in its 1951 edition (CX 44), its 1961 edition (CX 45), as well as an alleged 1965 enlarged version (CX 68) under a different title. This contention by complaint counsel is something of an afterthought. However, it is obvious that the .examiner, having already found as true the representation as originally relied on by complaint counsel, can hardly find that similar representations are false. This is particularly true of the representations as they appear on the outside back cover of the 1951 and 1961 editions of the book, which refer to the American Red Cross, as well as to the Library of Congress, as having done the brailling. This conclusion follows even though the representations, since they are contained in or on books, are addressed to the general public, rather than to radio stations. In the examiner s opinion, the meaning of the claimed brailling is much the same to the general public as to radio stations. Certainly, the examiner can in no event find that the maker of the representations has "persistently" ma(le a false representation as to brailliEg by the Library, even if the contention is made by complaint counsel only to obtain a broad order assuming one should issue at all in respect to a hrailling representation.

The above findings and discussion dispose of the book representations as to brailling entirely apart from the question as to \vhether respondent is ehargeable with having made them, as contrasted with the publisher or publishers of the books, for instance. See THREE supra 2. Ph.D. in lVutrition. ResjJondent' s doctoral dissertaiion 01' these') ?Ons written in the field of nutrition. as represented (although only paTenthetiwlly). It constituted a study of the response of his audience to his nu/'lition uroadcasis, us cX1J1essly stated in the 1Ywin part (mnitted 1n the c01nplaint) of the sentence cha.llenged fL') being the representai':on. F1lrthennore, 'd 'Icas not represented that his Ph.D. de(jree (as d'istinrJuished f'i'OYH the thesis) 'wu,' in nutrition, but tJwJi. n' us " in the urea of Pubhc Health Edl/.cation." (a correct staJenunt contained 'in the prior'!' sentence) . The challenr;ed representation 'is trv" , pUl'f'culaTly CARLTON FREDERICKS 239 193 Initial Decision since addressed to radio stations, ns contrasted with the general public, nnd since definitely "pitched" to radio stations nnd their business interests.

It definitely has not been proved that the thesi was not written on the subject of, in the field of, nor was it concerned with" (Compl. Par. Six) nutrition or the science of nutrition. On the contrary, the thesis was so written, particularly if it is considered within the context of a study of the re ponse of respondent' audience to his broadcasts, constituting the main part of the representation, as aforestated.

It is the examiner s opinion, as expressed at the hearing, that the matter of the Ph. . thesis has been blown up far out of proportion, even to the extent of distortion, by the cryptic way in which the representation is quoted in the complaint-actually the tail wagging the dog, even without the dog-to wit: His (respondent' s.l Ph.D. dissertation * was entirely in the field of 'I' 'I.nutrition The full statement or representation, as found herein (FOUR (2), supra) is as follows:

Dr. Frcdericks' Ph. D. 'Nas taken in the area of Public I-iealth Education. His Ph.D. dissertation which was entirely in the field of nutri:ion, constituted a study of the response of his audience to his broadcasts. It may, therefor" , be said that this is a broadcaster \vho knows his audience their characteristics, income and education, better than any other in the Industry. The complaint version, by using asterisks in the OEe s ntence quoted therein, gives the impression that the representation (that the thesis is in the field of nutrition) is a main affrmative representation, instead of being merely parenthetical or of an adjective na.ture. IVloreover, the complaint version, by omitting the first of the three sentences, tends to give the impression, or lends itself to the implication, of which complaint counsel take full advantage, that the representation is also that respondent's Ph.D. was taken in the field of nutrition; whereas actually, of course, the fn' st sedence expressly states that the degree was taken in the area of Public Health Education. Finally, by omitting the third sentence, the complaint version eludes construing the representatior; in the language of its radio station readers and for their specific commercial purposes.

In the full version the second sentence reads as follows: His Ph.D. disse?' tation which was entirely in the field of nutrition cunsti. tuted a study of the respunse of his audience to his broadcasts. (Emphasis ours.

Initial Decision 71 F. We have emphasized in the above quotation the main declarative statement in the sentence, to wit, that the dissertation "constituted a study of the response of his audience to his broadcasts " entirely omitted from the complaint version but represented by asterisks. The complaint version limited itself to " His Ph.D. dissertation was entirely in the field of nutrition " thus even replacing "which" by the asterisks. The primary part of the representation, as above emphasized, and contained in the unabridged second sentence of the representation, is a full and complete disclosure of the true facts, in the examiner s opinion. Actually the thesis is entitled "A Study of the Responses of a Group of Adult Female Listeners to a Series of Educational Radio Programs." It is undisputed that the thesis is the study indicated by the title, and that the radio programs concern nutrition or diet.

The parenthetical part is, of course, that portion of the sentence referring to "field of nutrition " as contained in the complaint version. However, in p3ssing on whether or not this portion is misrepresentation, the examiner is not dwelling unduly on the consideration that it is parenthetical or adjective in nature. The same general result follows jf it were not parenthetical but a full primary and affrmative statement. It is the examiner s opinion that any possible obj ectionable ambiguity therein in respect to the thesis and its being in nutrition is eliminated by the affrmative disclosure in the sentence as to just what the thesis constitutes namely, a study of the responses of the radio audience to respondent' s broadcasts. This result is reached on a familiar principle in Federal Trade Commission law, particularly as applied by the Commission in framing orders permitting certain representations provided there is specific affrmative disclosure. Actually, however, it is the examiner s opinion that there is no " representationambiguity or misrepresentation if the "nutrition is read in context, and that, on the contrary, there is golden clarity if read in respect to its radio station readers and in the light of the third sentence, pointing up this factor. Rhodes Pharmacal Co. v. 208 F. 2d 382 , 387 (7th Cir. J 953), afj' 348 l:S. 940, with its holding as to dual meanings, is therefore hardly applicable to the present case. P.T. C. v. Sterling Druq Co. (Bayer Aspirin), 317 F. 2d 669, 675, 676 (2nd Cir. 1963), is the case which is applicable, as contcnded by respondent. Bearing all this in mind, as well as the fact that the complaint gives the impression that this and the other representation (in the advertisement) were made to the general public, the examiner CARLTON FREDERICKS 241 193 Initial Decision is inclined to believe that the Commission would not have authorized the inclusion of this Ph. D. representation in the complaint had it been fully apprised of the facts even as then available. The examiner has emphasized this aspect of the full threesentence version of the Ph.D. representation, instead of a onesentence version with asterisks, and the aspect of the representation s being made only to radio stations, because they both support the examiner s resolute conclusion that the determination of the truth and falsity of this representation as to the Ph. . thesis requires no "expert" witnesses, although complaint counsel called a number of witnesses more or less falhng in this category.

With or without these "expert" witnesses the examiner unequivocally finds that respondent' s thesis on the responses of his audience to his radio broadcasts was and is in the field of nutrition, particularly insofar as concerns the radio stations to whom the advertisement containing the representation is addressed. The representation, for the purpose of this proceeding, must be construed in relation to these radio stations, or their executives managers, and owners, and particularly in relation to the purpose for making the representation, namely, to sell respondent' s radio scripts on nutrition to them, by showing, among other things that the programs were worth buying for commercial reasons particularly radio advertising.

The Commission, and the examiner, can judge the meaning simply by reading the representation without the aid of witnesses. The law on this is so clear that no case citation is necessary.

At the risk of some repetition, the full representation, as contained in the advertisement, will be reviewed again. Respondent is represented as having written a Ph.D. thesis constituting a study of the responses of his audience to his broadcasts. This particular portion of the full representation is not contested, as already pointed out. This is the primary representation, giving the respondent substantial dollar value in the estimation of radio stations 'i, as being not merely a theoretical lecturer, but one who has scientifically studied his audience, so that he knows just what impact his radio talks make, particularly in terms of diet and commercial food products. Parentheticrlly the representation in thc advertisement also nails down the point that respondent's broadcasts upon which his thesis was founded, were on or about nutrition or diet.-This nutrition " slant increases respondent's dollar value to radio sta- Initial Decision 71 F. tions in that executives can well say to themselves that respondent must be a man who can bring in advertisers and sponsors specifically in the nutrition field, particularly by reason of his specialized knowledge of his audience.

Moreover, incidentally, the thesis has a substantial amount of material which is speciflcally on nutrition in its strictly scientific sense, as distinguished from audience responses in the communications sense (CX 36; see, for instance, pp. 113-119; also extensive bibliography.

We return to the first sentence of the representation; "Dr. Fredericks' Ph. D. w s taken in the area of Puhlic Health Educa. tion," This points up, at the very beginning, respondent' s capacity as an educator and a lecturer, or for that l11atter a radio speaker on the subject of nutrition, rather than as a nutritionist-scientist. In conjunction with the second sentence as to the nature and title of his thesis, the first sentence makes it almost impossible to regard the advertisement as representing that the thesis is on the science of nutrition per se, since it actually represents anything but that.

The testimony of the so-called "expert" witnesses called by complaint counsel for the purpose of proving that the thesis was not in the field of nutrition, was received by the examiner with great sufferance. The testimony, apart from opinion, could hardly do more than expose the operating fads of the meaning of the field of nutrition among professors on the university carnpus or among medical specialists.

Actually the testimony, as given, weakens the complaint coun- SerB case, inasmuch as it sho\vs a duality of meaning on the part of one or more professors and as among all professors. If a less scientific " meaning of "nutrition " is at least tolerable anlOng professors, it tende: to corroborate the hearing examiner s independent opinion of its meaning, particularly in an advertisement addressed to radio stations.

Although the examiner adheres to his belief that no testimony is necessary on the issue of whether respondent's Ph.D. thesis was in the field of or related to nutrition, he will now describe salient portions of the testimony of some of respondent' s witnesses. Professor Flick of New York University gave a broad, not narrow, definition of "nutrition " defining it as " a study of the physiological, economic, psychological and sociological aspects of food as it pertains to the nourishment of an individual" (TR 590: 3).n She stated that "the meaning of nutrition actually 1J TR 590: 3 med-ns transcrjpt of testimony, page 590, line 3. , , , CARLTON FREDERICKS 243 193 Initial Decisions ernerges in a situation ,vhere you are applying it or you re using it" (TR 590: 10). It has a different meaning for the " expert" than for the "layman (TR 591: 13-14). Asked the question You did speak about 'field of nutrition' as being a very wide thing?" she answered Yes, it is" (TR 596: 10-12). Asked the question Jt might include the communicc;ting of dietary principles or accepted dietary principles, is that. con:ect?" she answered "Yes" (TR 596: 24, 597: 1). She did add that the person communicating these principles would be assumed to be "qualified" (TR 597: 5), but she agreed that a health educator would be so qualified if a nutritionist 12 were "available" to him (TR 601: 6-12). In respect to Peace Corps workers in undeveloped countries (TR 604) she was asked the question Then they are working in the field of nutrition?" and her ans\ver was "Yes (TR 605: 11-13).

Dr. Van Italie, described by complaint counsel as a "distinguished nutritionist " started out in his testimony with H very scientific definition of nutrition. But he readily and quickly admitted that "nutrition is a very broad area" (TR 780: 11). As to Professor Flick's definition which we quoted above, he stated: Well, in the broader sense that could be a definition" (TR 781: 4). He added: " I think in a very broad sense nutrition enters into every phase of life, agriculture, economics, psychology , (TR 781:7).

Hmvever, so far as Dr. Van Italie \vas concerned in his specialized interest. nutrition relates to the "clinical aspects" of human nutrition (TR 781: 11-12). In particularizing on this meaning of "nutrition " limited to say "physiology and biochemistry" (TR 787: 2) he referred to requirements imposed on graduate students studying under him (TR 786-787). It was only in this context that he testified (TR 788: 2), as to respondent' thesis: Vlell from my standpoint, in the context of my own department, I would feel this would then be in the field of Public Health Education, " Complaint counsel' s reference to this quotation should be read in full context.

Even Professor Siepmann of Kew York L'university testified that (l study which involves an analysis of the vitamin and mineral content of diets involves the field of nutrition (TR 839: 14). Respondent' s thesis and study did this very thing, using a control gTOUp and an experimental group for the purpose of study and analysis (CX 36 A , p. 2, TR 95R).

1J The complaint does not attacl: rcspondcnt' own claim to being a " nut itionist" prom:ently set forth in the ia:rg advertisement. 244 FEDERAL TRADE eOMMISSIOl\ DECISIONS Initial Decision 71 F. T. Accordingly, the examiner can do nothing but hold that misrepresentation No. , as to nutrition and the Ph.D. thesis, is not proved, to wit, that it is not proved, as alleged in Par. Six of the complaint that it was not written on the subject of, in the field of, nor was it concerned with the field of nutrition.

It is a certainty that the thesis at the very least \vas iiconcerned" with the field of nutrition. And in any event there is certainly no deception of radio stations, or the readers generally of Broadcasting Magazine, as distinguished from the general public. 3. Member of Faculty, New York University. Respondent was, despite CO'lnlJla1:nt counsels' contention, at one time a rnem, ber of the faculty of New York University. It is undisputed that he taught and 'was a IiLectU1'CT on Educahon " (CX 62 A) in a COUTse entited "Applied Nutrib:on for Health Supervisors. " The examine1' holds that this suffc-iently qualified him as a "member of the faculty" in the word's first dictionary meaning in tleis connection, as 'well a8 in C01nl1Wn parlance, including ad1jCrtising addressed to radio station ?caden. Inapplicable here -is the second dictionary rneanin,q in this connection, and the l\ e'W York University By- laro definition (CX 61), definin o fCLculty CLR necessarily including participation -in the gov8Tn1nent of un' ive?' sdyY Despite its By-ICLws, the geneml Bulletin of New York Unive?'ity for the pertinent year (RX E; TR 672:7) concededly listed respondent as (I nUlnbeT of the faculty of New York University. Despite the IJy- Ia1u8 ) also) tlw annual Catalogues of the Unive'i'S'ity list insiructm' s and lecturers as 1nelnbe1'H of the faculty (TR 705), even though they have no ?Oight to vote 01' to partic'ipCLte in Uni' versity g01;e1"nnent.

According to the Charter and By-laws (CX 61, par. 86, p. 36) the faculty of a school in the university consists of: the President, Chancellor '" '" the dean of the school, professors, associate professors, and assistant professors, all of \whom shall be voting members, It is also provided that:

Professors emeriti, adjunct and clinical professors, and instructors arc entitled to attend faculty meetings but shall not have the right of vote * * * However, as founo above and as is undisputed, respondent' name is listed in the pertinent Bulletin of the l:university (RX 1" " First dictionary meanir,g anti " second,' i\5 ,-"ed here, du not n ce5sar:iy meat! one meaning preferred over the other, CARLTON FREDERICKS 245 193 Initial Decision 5 E) as a member of the faculty and the annual Catalogs regularly list instructors and lecturers as members of the faculty. Through inadvertence the catalogs (CX 58 A though 58 were apparently not marked in evidence, although complaint counsel refer to them as " in evidence" (TR 702: 3), and the examiner has had the impression that they were in evidence. Complaint counsel also refer to the latest Catalog, obviously as something' of an example, as listing' instructors as faculty members (TR 702: 4 , 19-21), for the purpose of having their witness testify that this was incorrect procedure. This same witness agreed that the documents followed this type of listing (TR 705:1-5), as does the Jaw school Catalog' (RX 10). In the examiner s opinion the Bulletin and Catalog usage on the part of the Lniversity constitutes at least a de facto definition which should definitely rank as the first and truly realistic meaning of "member of the faculty, " as against the hierarchic meaning in the By-laws. The fact that respondent lectured for only one semester (in 1949-1950) does not affect this faculty status. This is so, in the examiner s opinion, however a limited period of teaching may affect Tenu1' even if the teacher is a professor and a participant in University government,H Certainly, in the examiner s opinion, in view of the showing in this case and the circumstances disclosed, respondent, even without resort to the right of reasonable "puffng" in advertising, was justified in claiming to the radio broadcasting industry that he was at one time a member of the faculty of ew York University. Further support for the finding herein, and refutation of complaint counsel's proposed finding or finding's thereon, is as follows: The fact that respondent lectured for only one semester has no particular bearing on the question whether he was a faculty member. Complaint counsel did not in any way make such a contention at the hearing, so far as the examiner can recall. Moreover, their witnesses did not draw a distinction based on whether the teaching was for one semester rather than for a longer period of time.

Dictionary definitions are as follows:

Webster s Kew Collegiate Dictionary states (RX 7 B), by way of definition of the word "faculty 6. A branch of learning or instruction in a university. 7. The body of persons to whom are entrusted the government and instruction as of a university or college.

14 Facu;ty Handbook, HX g, :p. 22.

Initial Decision 71 F. Webster s Unabridged Dictionary states (RX 6): 6. (from L. faculta!' trans!. of Aristotle dyn(1Jnis branch of learning. any of the depart.ments of learning in a university; 3S , the faculty of la,v the science faculty.

7. all t,he teachers of a school, college, or university. Black' s Law Dictionary states (RX 8):

The corps of. professors, instructors, tutors, and lecturers. To be distinguished from the hoard of trustees, who c0!lstitute the corporation. Of somewhat crucial significance in reaching for a general definition for the purposes of construction of the alleged misrepresentation is the fact that the rigid tetTninology of Kew York University s By-laws js apparently not followed at all at Harvard University, for instance. Harvard definitely and unequivocally includes lecturers and instructors as members of the (' faculty, although they are referred to as "junior faculty" as contrasted with "senior faculty," These significant facts were extracted by respondent on cross-examination (TR 722; also 721). Complaint counsel can obtain little comfort from the consideration that the word "faculty" may have alternative meanings resulting in ambiguity which itself may often be found to be misrepresentation. The Rhodes case, 208 F. 2d 382, 387 (7th Cir. 1953) ; ah" 348 U. S. 940, already cited in this decision, had a fact situation not applicable here. Far more applicable is the Sterling Dr"g (Bayer Aspirin) case, 317 F. 2d 669 (2nd Cir. 1963), also already cited herein, where the court stated, at page 675, the following:

Surely the fact that the \vord "supported" might have ahlOrnative dictionary definitions of "endorsed" or " approved" is not alone suffcient to show reason to believe that the ordinary reader will probably construe the word in this manner. ::Iost words du have alternative dictionary definitions; if that in itself were a suffcient legal criterion, few advertisements would survive. (Emphasis by court.

It may also be noted here that complaint counsel assert, correctly, that this representation or its equivalent, as to being a member of the faculty, was also made in biographical sketches of respondent in Who s Who and other biographical volumes. This adds nothing to complaint counsel' s case. First, the examiner held at the hearing, and still holds, that these biographical sketches do not constitute "advertisements " or "promotional material" within the meaning of Par. Three of the complaint. Second, even if they did, the biographical sketches constitute a true representation to the pub lie at large; the examiner holds that p.

CARLTON FREDERICKS 247 193 Initial Decision the meaning of this particular representation in the biographical sketches is about the same as the meaning conveyed to radio stations by the representation in the " large advertisement, . Cont' d. Visitin,q Lecturer, Columbi". There iB no proof whxtever of the alle,qed jalsity of the representation that at one tim.e Tespondent was a visiting lecture1' in the Colle,qe of Pharmacy oj Columbia University. Complaint counsel simply failed to call the t100 'witnesses named by theit to prove this in their letter of .January 1966 pursuant to the examiner s prehearing order of directions. The witnesses specified were the Dean oj the Coile,qe oj Pharm.a,cy and one of its pmfessoTS. Complaint countosel admitexpl,,'inthis f"iluTeit ,(CP/?which does not constitute11), and proof,at the Actually,most attemptthe failure to call them seems to have been due to their?' fiLilure to prove the TepresentiLtions themselves throu,qh the two sources 3pec1fied, jar such pro oj, in their supplemental letter of March 1966, namely, the I' large ad'uertiscrnent" and a biographical volume held by the examine?' not to constitute ad'uertising or promotional material.

Whatever the explanation for not producing the two witnesses the fact remains that there is no proof in this case as to the truth or falsity of the representation as to respondent's being a visiting lecturer in the College of Pharmacy of Columbia University. As elsewhere noted herein, complaint counsel seem to imply (CPF 13, p. 11) that their failure to produce the witnesses was due to the examiner s refusing to consider as relevant the biographical volume offered by them. However, it may well be that this is merely to bolster up their motion to reopen made after the hearing, a motion which has been denied. Complaint counsel take umbrage at the examiner s ruling at the hearing that he would not permit them to question the respondent himself as to the truthfulness of the representation as to being a visiting lecturer. However, the examiner based this ruling on his other ruling that the biographical volume or volumes are not advertising or promotional material within the meaning of the complaint (TR 483: 14-23), thus leaving complaint counsel without any proof of the representation. Moreover, it does seem somewhat imappropriate to call the respondent on this question after failing to call the very two witnesses, from Columbia cniversity, listed by them on the issue.

4. DoctoTate of l-Ium.anit1:es. Construing the representation as compla.int counsel constyue 1:t, and consistently constTuedit na,mely, that respondent definitely represented that the doctomte /:, Initial Decision 71 F. degree came from an institution lawfully nuthoTizcd nnd empowered to award the same, they have completely failed to prove that Philnthen College wns not authorized nnd empowered to do so. The fact that its chnrter does not expressly 'include this power 'is insuffcient proof; the chnrter does not even expressly include the power to .grant ordinn,'y degrees. No matter on 1chat additional grounds complaint counsel mny bc relying, the failure to prove this laclc of authority is fntaZ. It undisputed that respondent did receive an honorary DoctoTCLte of Hurnan'iies degree, that is, an appropriate certificate duly attested nnd signed (RX 37), 'i. from PhiZnthea College-referred to in the complaint itself a, school of theologiCtllenrnin,q " (Compl. Pnr. Six (4) located in London, Cnnndn. Incidentnlly, the complfeint does not chnllcn,qe that part of the representation statin,q that respondent received the de,qree UJ or the public se'ivuiees rendered 'in his brandcnsts. Acconlin,qly, complaint counsel ha-ue failed to p' prove the fal8ty of this ?'epresentation.

That the record as it stands contains no evidence showing lack of authority to confer the degree is apparently uncontested by complaint counsel. Actually they moved, after the hearing, to reopen on this issue, and the motion has been denied. The only witness they called was one of the offcials of Philathea College a very old gentleman whom they happened to find in Kew York and who did not help support their contentions. They never produced the witness originally scheduled to testify in connection with the authority to issue the degree, a person from Canada stated by them to have specialized knowledge of degree-conferring institutions in Canada. They produced only the charter of the college, which states nothing one way or the other about degrees, honorary or otherwjse, although containing language conferring general power.

Particularly in view of complaint counsel's ;notion to reopen therefore, it may be pertinent to show that complaint counsel have consistently regarded authority to issue the degree as the issue in the case, and certainly a necessary issue. The complaint itself alleges that the respondent represented that the honorary degree ,vas from an institution "lavvfully authorized or empowered to award the same " (Compl. Par. Five (4) ). In its charging paragraph, the complaint states that the degree is not :from an institution "law:fully entitled or empowered to award or grant the same " but from "a foreign school of theological learning which said school is not entitled or empowered by its charter to award or grant the same" (CampI. Pal'. Six (4)). CARLTOX FREDERICKS 249 193 Initial Decision Thus both in construing the meaning' of the representation in the advertisement, and in asking for l'clief, the complaint proposes, as the issue, the power to grant an honorary degree and apparently proposes nothing more ann nothing less. The construing' paragraph (Compl. Par Five (4)), to be sure also reads into the representation that the claimed degree came from Han institution or academic body. " But complaint counsel can hardly contend that Philathea Collcge does not come within this description. Philathea College certainly is an "institution " as complaint counsel themselves frequently refer' to it. Moreover, the charging' paragraph of the complaint itself refers to it as a school of theological learning, " as above quoted. Finally, complaint counsel themselves introduced in evidence catalogs of the institution (CX 41, 42) which cel'tainJy on their face and by their contents establish this, as was c:orrobated by the sale, however ineffectual, witness produced by them. lVIoreover, it is true, to be sure, that the charging paragraph (Six (4)) denies that respondent "received" the degrce from an academic institution, " However, it continues by expressly and affrmatively stating that the institution is a foreign school of theological learni.ng which said school is not entitled 01' e1np01 l)eted by its charter to a\varc1 or grant the same." (Emphasis supplied. ) Thus, again, the full weight of the complaint is on the issue of authority to confer the degree. Even at the prehearing conference complaint counsel expressly disclaimcd that they were trying to prove that Philathea College was a "diploma mill " as they put it (PREH. TR 56:23). The term "diploma mill " of course, generally refers to a college having the authority to issue degrees, but misusing it. Thus complaint counsel were saying that they were trying to prove that Philathea College had no authority to issue the degree, unlih a diploma mill" which has the authority but abuses it. Said counsel did state that Philathea \vas "gravely suspect as an educational institution." But they regarded this as a matter of whether it was an accredited institution, to be established or disproved through an apparent accrediting agency named by them (PREH. TR 56-57) ; and counsel indicated that they would take a deposition in Canada thereon from Dr. Sheffeld of the accreditingagency (PREH. TH 58:4). Actually no deposition was ever taken of Dr. Sheffeld, or anyone else; nor was any motion lnade for one. 110reover, Dr. Sheffeld was not produced at the hearing, although he was listed as a witness having' the titlc Director of Research, Association of lJniversities and Colleges of Canada, in Initial Dccision 71 F. complaint counsel' s letter of January 28, 1966, furnished pursuant to the prehearing order of directions. In this letter it was stated (p. 3):

It is hoped that Dr. Sheffeld (or his delegate) wil he available in this country to testify as to the nature and status of the institution known as Philathea College, London, Ontario, Canada, in support of the allegations of Paragraph Six, sub- section 4 of the complaint. In the event that neither Dr. Sheffeld nor his delegate is available to come to the United States for this purpose, the Hearing Examiner wil be requested to authorize the taking of Dr. Sheffeld' s deposition in Ottawa, at a time convenient to counsel for the respondent.

As pointed out above, Par. Six (4) of the complaint-referred to in the letter by complaint counsel-is predicated solely on the issue of power to confer the honorary degree. Complaint counsel finaUy proposed and produced an entirely different witness, and dispensed with Dr. Sheffeld or any delegate. This witness was Dr. Harry Cohen, Chancellor of the theological institution in question. He is thc witness above referred to who contributed very litte, and nothing of help, to complaint counsel. (See also complaint counsel's motion of March 7, 1966, to substitute Dr. Cohen in place of Dr. Sheffeld. Most surprising of aU is that complaint counsel, although offering in evidence the charter of Philathea College on the issue of authority or lack of authority to confer the honorary degree never came in with any proof whatever of foreign 1mv, to ,vit the law of Canada as to the construction of this charter, issued on its face to " Philathea College" or on the law generally of Canada on powers of academic institutions to issue honorary degrees.

:VIoreover, the pertinent proposed finding (CPF 14, p. 12) is limited to the issue of authority to confer the degree, the very issue completely unsupported by proof. It reads, in full, as follows: The institution .."which awarded the l"respondent an "Honorary Doctor of Humanities " degree viz. PhjJathea College, of London, Ontario, Canada, is not authorized or empowered by its charter to award degrees of this type and, accordingly, it is misleading and deceptive for respondent to represent that he has received a IJOna fide Honorary Doctor of Humanities degree. It wil be noted that the reference to a bona fide degree is not stated as the proposed misrepresentation as such, but merely as a consequence of the proposed misrepresentation, to wit, that Philathea College "is not authorized or empowered by its charter to award degrees of this type. " So far as the examiner can recollect, this is the first time that the word "bona fide" or an CARLTON FREDERICKS 251 193 Initial Decision equivalent, such as Hg-ood faith " was used or mentioned in this proceeding in any connection whatever.

The examiner will now discuss in detail, and in the same sequence followed by complaint counsel, the arguments set forth by them in support of their Proposed Finding on this point (CPF , pp. 13-17). Complaint counsel' s opening quotation from the prehearing transcript as to "diploma mill" has already been discussed and needs no further discussion.

Complaint counsel then point out that the Philathea College catalog for 1958-59 (CX 41) contains a statemcnt (p. 4) as follows:

Besides earned degrees, as previously outlined, provision has also been made in ihe charter for the granting of :: * the degree of Doctor of Humanities (D.Hum. upon persons in secular life who have distinguished themselves in the field of human relationships. Complaint counsel then point out that catalogs for subsequent years do not contain this statement. Kor does the charter (CX 43) expressly provide for honorary (or earned) degrees. However, it is clear, in the examiner s opinion, that the omission of the quoted statement in subsequent catalogs does not necessarjly mean that Philathea College withdrew any prior claim to the world that it has the authority to confer an honorary degree. The omission may mean any of a number of things. It may even mean that the school, in its judgment, thought that honorary degrees should not be publicized routinely in the catalogs. The fact is that the document given to respondent and certifying to the degree is duly attcsted by the officers of Philathea College including Dr. Cohen, Chancellor, complaint counsel's only witness. Complaint counsel also contend that the testimony of respondent is "curious" as to how he came about to receive the honorary degree. On the face of it this does not seem to be particularly pertinent to the issue of the powe?" to confer?' the degree. However the facts 01' considerations noted by complaint counsel will be examined.

First, complaint counsel point to respondent's testimony that prior to receiving the degree "somebody" called him to advise him that the college had decided to award the degree to him which is not an altogether unusual event. Second, complaint counsel state that thc degree was awarded to respondent at a luncheon (respondent's testimony states it was preceded by a ceremony" (TR 455: 11)) at the Lotus Club in ~ew York, attended by "perhaps a dozen or fifteen" persons (TR 448: 14). ) .

Initial Dccision 71 F.

This seems to add somewhat to the reality of the honorary degree rather than subtract from it.

Third, they point out that respondent testified that he had looked up the school, found out that it was growing and building buildings (TR 447: 1), and also ascertained that Mrs. Eleanor Roosevelt and Harry Truman had received similar degrees (TR 454: 23). This hardly impairs the good faith of respondent, assuming- that this is an issue in the case. Jn addition, complaint counsel state that respondent, apart from receiving thc certificate itself, did not receive a scroll or citation, although the testimony (by respondent) is that it is possible that he did but he did not remember (TR 455: 19). The examiner does not consider this scroll matter very weighty, particularly in the absence of evidence as to Canadian practice in this respect. Complaint counsel also make the point that respondent admittedly made a contribution to the school's scholarship fund at or about the time he received the deg-ree-explaining, however that he made similar contributions to other colleges and universities (TR 470: 8 If. The examiner is unable to draw any clear inference from this.

Furthermore, nOlle of the foregoing points or considerations urged by complaint counsel, it must be repeated, secm to have much to do with the real issue, the power and authority of the school to award an honorary degree.

Complaint counsel go on to cite alleged errors of the examiner in refusing to permit certain questions of their one witness on this aspect of the case, to wit, Dr . Harry Cohen, Chancellor of the school. Incidentally, he is a person of distinguished professional background, with the degrees of :'1.D. , Ph. , and Litt. (CX 42, p. 2; TR 744).

The examiner made his ruling on complaint counsel' s statement at the prehearing that they were not claiming that the school was a "diploma mil" (TR 756: 14), and also on the allegations of the complaint (TR 756: 16; 758: 7-8). According-ly, on objections of respondent' s counsel, the examiner refused to allow a question of Dr. Cohen as to how many full-time teachers the school had in 1961 (TR 708: 22). The examiner similarly refused to permit an answer to the qu€sti(m as to what sort of physical plant or buildings the school had in 1961 (TH 761:8). The examiner also refused to allow an answer to the question Dr. Cohen, what is the reputation in Canada of Philathea J5 As already pointed out, the complaint raises no issue what"ver C\bemt res)lOnricI, t's receiving the degree for "public services rendered in his broadcast CARLTOX FREDERICKS 253 193 Initial Decision College?" (TR 765: 25) . Incidentally, complaint counsel are mistaken in stating that Dr. Cohen testified that he knew that subsequent catalogs of the school had omitted its statement of the authority to grant honorary degrees; he testified: "I wouldn know that" (TR 751: 3).

Complaint counsel also try to make a big point about the examiner s refusal to keep the record open until April 15, or later pending the availability or return from Europe of a newly proposed witness, to wit, one John ivi. Keesing. The real and controlling fact in connection with this newly proposed witness is that the complaint counsel at the hearing, before actually calling Dr. Cohen, stated that he would rather call Mr. Keesing instead and as a substitute for him. Respondent's counsel agreed, and the examiner permitted this. However, complaint counsel were unable to produce Mr. Keesing, and thereupon moved that in addition to being allowed to call Dr. Cohen, they also have thc right to call or "depose" Mr. Keesing, if they could not get suffcient information from Dr. Cohen (TR 516: 1). In greater detail, the facts are as follows;

Complaint counsel stated at the hearing that his proposed witness, Dr. Cohen, appeared to be very elderly, in bad health and very agitated (TR 467: 1), and that he would like to "skip (TR 467: 3) him and call Mr. Keesing instead. Complaint counsel did not state what Mr. Keesing would testify to but did say that lVir. Keesing 'vas a guest lecturer in international jurisprudence at Philathea College ('l'R 465: 20). Counsel also stated: I do gather that Mr. Keesing is a teacher at this school or lecturer. Certainly, he must know something about it" (TR 4G5-6). Respondent testified that he met Mr. Keesing at the time of the award of the diploma and may have received a call from him prior thereto (TR 461:11 , 20).

Respondent' s counsel said that it was very "strange " that complaint counsel were looking around for witnesses at this late hour, but that he would not object to thc "substitution place of Dr. Cohen (TR 4(;7: 9, 17). The examiner issued a subpoena for IVI1'. Keesing accordingly, on -complaint counsel' s representation that he thought he was connected, or might have some connection, with a New York law firm, although the school catalog apparently lists him as Q. , Queen s Counsel. Complaint counsel later informed the examiner (TR 515) that a colleague had tried to serve 1\r. Keesing at a ~ew York law offce, but had been informed by Mr. Keesing s brother that :VIr. Keesing was in Europe and would not return until April 15 (TR 515: 9). 254 FEDERAL TRADE COMMISSION DECISIO:-S Initial Decision 71 F. At the same time, complaint counsel advised the examiner thrt he would call Dr. Cohen (as he eventually did) but that in the event he could not get any information from him he ,vould move to keep the record open to "depose JVlr. Keesing, as an additional witness (TR 516: 1-.1). This time respondent' s counsel objected strenuously. Complaint counsel t.hen made a formal motion (TR 517: 17), and the examiner denied the motion (TR 519:4) .

Complaint counsel also offered in evidence an article in :Mac- Lean s Magazine (Canada), dated or stamped April 6 , 1964, which is critical of degrees in a number:l' of colleges, including Philathea College. The examiner rejected the article (TR 767: 20; CX 63 , Rejected). The article i3 the rankest kind of hearsay. IVloreover, apart from its statement, however inconclusive, that the charter (act of incorporation) of Philathea Colleg-e does not authorize it to offer honora:i'Y degrees, the article is deemed irrelevant by the examiner on the issue in this case. Finally, the article is not listed in complaint counsel's list of exhibits as directed by the examiner s prehearing conference order of directions.

In the discussion in their Proposed Findmgs (CPF 14 , p. 15) complaint counsel describes the magazine as the " Saturday Evening Post" of Canada, of which there is no evidence in the record and as to which none \vas offered. l\loreover, although the exhibit was curtly rejected (TR 766: 11; 768: 3) by the examiner, complaint counsel have seen fit to quote " (wJhat this article had to say about Philathea College " consisting- of three short paragraphs.

This includes, to be sure, the statement that the institution " a bible-training school of the First Church of Christ (Disciples) , which now has an addition built "on to " it for additional workingspace for the school. It also contains the statement that Eleanor Roosevelt and John P. Robarts, premier of Ontario, have been the recipients of honorary degrees from it (however questionable) .

However, complaint counsel no doubt rely upon the statement in these paragraphs that the students of the institution are not required to comply with the admission requirements of recognized universities \which, for all the record shows, may, even if true. be appropriate for a bible-training- school, or permitted a bibletraining school, of college status, in Canada. Complaint counsel no doubt also rely upon the statement in CARLTON FREDERICKS 255 193 Initial Decision the article that the institution has no right by its act of incorporation to grant honorary degrees, as already referred to above and upon comments in the article on the number of honorary degrees conferred.

Complaint counsel state that the article was for the "sole purpose " of alerting the examiner to the facts about the College and the desirability of keeping the record open, apparently for the purpose of further examination of Mr. Keesing. Actually, the only purpose stated in the record is that it had been intended to use it to interrogate Dr. Cohen if he had been allowed to answer as to what the Colle!;e s reputation is (TR 766: 7), plus, perhaps the observation that the pleadings raise the question as to whether this is a proper schoo! and that there is information in this article " (TR 767 :4). The discussion in the Pl'posed Findings (p. 16) states, among other things, that the "legitimacy of its status as an actual and bona, fide educational institution cannot be determined on this record. " However, as already noted by the examiner, the Pl'posed Finding itself does not propose anything about good faith except as a conclusion from the alleged lack of authority to award honorary degrees. Finally, in a footnote, complaint counsel point out that, although respondent's list of proposed witnesses proposed one Mayer Lerner, Q. , London, Canada, as a witness, to testify with respect to the powers and rights of Philathea College to confer honorary degrees, he never did appear. In vie,v of the absence of any evidence submitted by complaint counsel on the authority to confer the honorary degrees, and in view of their failure to produce Dr. Sheffeld, or one of his delegates, from the Canadian accrediting agency, as noticed in their own list of proposed witnesses, this criticism of respondent for not produr ing a witness in defense seems to be touched with a grain of unconscious humor.

The examiner has gone into considerable detail as to this alleged misrepresentation as to the honorary degree, not because it is unclear that the issue should be squarely resolved in favor of the respondent, but because of complaint counsel' s n1otion that the record be reopened for further testimony, which motion as already indicated, has been denied.

5. The "Diploma,te. The Fepresentationin the adt' crtiseTnent that respondent holds a Diplo1nate iidegl'ee 1:8 untrue, but the conb' olling consideration is that Uu:s representaNon is not cha,rgeable to respondent. As shown under THREE 8UPT(/" re- , Initial Decision 71 F.

spondent never even supplied the information for the representation (nor did it appear in the Who s Who or other biographical volumes), and he took immediate steps actually stopping it as soon as he knew about it. Complaint counsel, as already noted stated on the record: "I am not inclined to press on the diplomate point." (TR 394:25) In support of their Proposed Finding as to falsity of this representation (CPF 15; p. 17) they do not utter a single word of argument or say anything except the three words This is conceded." The examiner, therefore, believes that they are not seriously pressing their Proposed Finding as to the Diplomate. This is so even though they perfunctorily include it and every other pleaded representation in their proposed order. Accordingly, the examiner finds that the Diplomate representation is false, although not chargeable to respondent as having been made by him and in no event warranting an order (see THREE supm).

6. iVaNonal Encyclopedia IhogTaphy. This 1'qJTesentation is untnw, although, as fully developed under1 THREE supm, it is de minimis. Complaint counsel in their Proposed Finding (CPF 16; p. 17) merely propose that "although" the representation is untrue" it was not "deliberate or wilfull" (sic). There is no argument thereunder, merely the words " Stipulation of Counsel Transcript, pp. 769-772." As fully expounded in THREE, the misrepresentation is de 1J ini1nis in any event. S11wll Advertisement 7. On Ivy Stations. This Tepresentation that respondent' program 1/JS GaTTied on the three IV1J statl:ons-WEIV, WOIV, and WJIV, all in upstate New YOTk-is false, although held I:n THREE sU)JTo itis not chov1u able as having been nwde by respondent.

:Moreov€l', the misrepresentation is of a trivj ll and de 1nininl1s nature considering' the large number of stations listed in the advertisement, and considering the total of all stations carrying the program, jncluding such leading stabons as \VOR, and bearing in mind the apparently minor stature of the three stations involved (despite complaint counsel's point of local coverage). This, too, is developed in Part THREE supm. Book We shall now discuss the book itself and the two alleged misrepresentations each of which will be discussed separately. The CARLTON FREDERICKS 257 193 Initial Decision new book" representation is definitely found to be false. The Copyright 1961" statement is found, in view of the c:customary registration, \which \vas not applied for and obtained, to be a limited misrepresentation that registration had been applied for and obtained. However, under THREE, it is not chargeable to respondent.

In finding falsity in this Part SIX (8), the examiner wil elaborate on the meaning of the representations or statements as found in FIVE SLlp'ta.

8. New Book" (Outside F"ont Co'eer) . The paperback book in question (CX 45), cantu/ining on its outside front cover the words "new book" (and 'identified as to date by the "Copyright 1961'! on an inside pa,ge), definitely is not a "lW1J) book," as As (1clearlu represented, advertL'Jcd and pro1noted, on said co/ver. rnatte1' of fact, it is essent'ally and almost identiwll'v the same book ,n its text rend entire " et-up, as published under the same title in 19.51 (CX 44), with the very same outside front cover including the same representrdion Ua new book by Carlton Fredericks, Respondent' s Proposed Findings do not argue to the contrary except to prescnt the futile argument that since the 1961 book has the same outside front cover and the same "new book" representation as the 1951 book, there is no intent to misrepresent by the 1961 book, ergo no misrepresentation. Apart from the general irrelevancy of intent in pn)\ing misrepresentation under section 5 of the Federal Trade Commission of the 1961 bookAct, the plain situation hero is that the rcader will judge it by the "new book" representation he sees on the outside front cover', Such a reader may well not even knmv that there has been a 1951 issue (CX 14), and that the latter represented that the book was "new " ten years before the 1961 book. The actual changes, such as they are, were stipulated by counsel on both sides (TR 891-897). They are approximately a dozen in number, and can hardly be regarded in any sense as substantial enough to make the 1961 edition, here in question, a new book or anything other than a revised book, and revised only in a fe,,, edition the details. For example, in two instances in the 1961 words "folic acid" were deleted, and in apparently a majority of instances recommended dosages 'were altered, such as a change fronl "rutin, 60 milligrams!' to "rutin, 50 milligrams, The exact changes 'were as follows (TH 895- H97): (.,: ..) ... ................... . . .... ;: ,. FEDERAL TRAm; COM MISSION DECISIONS Initial Decision 71 F. 1951 Book Page 1901 Boole folic acid" - -- .. 23, 48 I deleted.100 milligrams (para-amino- 60 milligrams (same). benzoic acid) ........

60 milligrams, Rutin .......... 50 miligrams, Rutin, 50 milligrams (para-amino- 30 milligrams (same). benzoic acid) -- 6 miligrams (no: Riboflavin)- 5 milligrams (re: same). Dosages "5 to 30" ........ 7i.J Same: "5 to 25" :Minimum of 5 milligrams_ Minimum of 2 milligrams. Minimum of "30 to 100 milli- Minimum of " 35 to 100 milgrams " (re Niacin) ligrams" (re same). milligrams (mgs) , 82 International units, milligrams.

2 sentences on folic acid sain 2 sentences are deleted. Rutin: "60 milligrams Rutkin: " 50 milligrams. as stated" words "as stated" deleted. See TR 897 :3-7 Vitamin D, etc.

certain spelling spelling changed. Pyrodoxyn Pyridoxin. The list of these changes indicates very clearly that at the very most the 1961 book is merely a "revised" edition of the 1951 book and might very well have been represented as such instead of as a nev book.

8. Cont' d. Copyright 1961 by Nutrition SUlveys, Inc. Concededly, there 'Iua;: no 'regist?ation of th-is copyright. SiTwe 'i Iws already been found under FIVE (8), supra, that the meaning to the a !;e' age reader is that the clo.,'inwd copy1' ight has been registered in the Coppa1:ght Offce, there is embodied in this claimed "copy,,.ight notice" a false repl'esentation that the claimed copyright has been duly registend. Moreover, in ;;iew of the few and very mino- ' changes it is doubtful that the boo1cw((s copyrightable at all (CX 67 , from Copyright Office), thus invol'cing H01ue'Uwt' J QB found 'infurther p'(obable ?nisrepresentation. THREE supra respondent is not cha.rgea ble 1uith hewing ynade the abo've-quoted representat-ion as such. Furtlumnore .it is hereby found that the " Copyright 1961 * .. *" statement is definitely" representation that the book is of 1961, , a new book as of the year 1961. 11oweve,. further found under THREE suprCL , respondent is not chnrgeable 1vdh having adr this 1961" representation as such. X evertheless, further reference is made to THREE supra including THREE (8) thereof, in connection with the finding therein that the "new book" representation can be read together with the date " 1961" in the copyright notice, and in connection with the issuance of the book in 1961, so that respondent is responsible CARLTON FREDERICKS 259 193 Initial Decision for having made the false representation that the book was a new book as of 1961, SEVEN (AND EIGHT) Substantial Effect and Public Intenst 01' Injury 8. The eXCLminer finds third the use and utilization by nspondent of the "new book" representationc-which was and is a false misleading and deceptit' e statenwnt by 'Way of ad'Uertiseraent 01' promotional mateTiCLI-hCLs had CLnd no," has the tendency and capacity to 1n'mislead the purchasing public into the mistaken belief that said representation and statement wa- , and is, true and into substCLntial purchases of said book by Teason thereof, The exam'inGr CLlso finds, or concludes, that the aforesaid act ((nd practice of respondent in using and util?:zing said "new book" representation, was and 'is to the preiud'ice and injury of the public, and constituted, and now const'iutes, an unfai-r and decepti' ue act and practice in COln1nerce lvithin the -intent and meaning of the Federal Tra.de Commiss-ion Act. There is litte doubt that in the present posture of this case "nd on the facts os proved, a cease and desist order should issue. It is true that the sale of the book in question, or the particular 1961 edition, ended, according to respondent, considerably prior to the filing of the present complaint. However, there is nothing to prevent him from publishing the same book right now, with the same "ne\\! book' representation, with or without minor changes. It may be that respondent does not intend to do this, and is willing to enter into a firm agreement not to do so and not to make any further "new book" representation as here found to be false. But the examiner does not regard this matter as before him or even presented io him by respondent. It is a matter for the Comnlission to pass on on proper application by respondent to avail himself of informal enforcement or related procedure. The examiner dehberately refrains from making any findings one way or another, on substantial effect and public interest or injury, in respect to any of the alleged representations or misrepresentations herein, apart from the "new book" n1isrepresentation In part, of course, this is because none of the others have been proved within and under the allegations of the complaint. However, the more important reason is that the bulk of the alleged misrepresentations -i. those addressed to the radio stations through advertising in Broadcasting I\'agazinc, seem to be relatively minor and of no great significance-at least each one 260 FEDERAL TRADE COM MISSION DECISIO/oS Initial Dccision 71 F. by itself-except for the "Diplomate " which is clearly excusable in vie,v of respondent's voluntary and prompt action putting a stop to it.

The respondent, concededly a Phi Beta Kappa, a Ph. , and a well known radio lecturer on diet and nutrition, and whose biog-raphical sketches appear in a null1ber ot vVho s \Vho and other biographical volumes, has been subjected here to a veritable avalanche of charges, each and all of them relatively petty to his main claim and outstanding representation that he is HAmerica Leading Kutritionist " a claim which is not attacked at al!. Par. Seven of the complaint uses the word "substantia!." Pal'. Eight speaks of "injury to the public. " The preamble to the complaint contains, of course, the Commission s preliminary finding of "public interest, Where is the proof of substantial injury to the public or of public interest in connection \with the advertising to radio stations as to each of the pertinent alleged misrepresentations? Where is this proof even by implication, unless all of them, or most of them, had been fully proved"

One outstanding fact is that both advertisements in Broadcasting Magazine appeared only once, and as long ago as 1961. The large advertisement was immediately stopped when the respondent first noted the "Diplomate " representation and loudly complained about it. The "small advertisement " erroneously listing the three Ivy stations, among many others, could hardly have any substantial effect in any overall sense. .Moreover, there is the outstanding fact that both these advertisements, containing seven out of the entire eight representatiems, were addressed to presumably hard-boiled radio station executives, not to members of the general public, including the gullible and the weak of understanding, who on high court authority make this general public the special ward of the Commission.

There may be even doubt as to whether the Commission would have found suffcient " public interest" to issue the complaint herein in respect to the radio stations, had it known that it was based on a single advertisement in each instance, appearing as far back as 1961 , addressed only to the radio industry, and actually subscribed not by respondent but by CF Productions, Inc. Let us look at the large advertisement, which accounts for all but one of the alleged n1isrepresentations to the radio stations. The advertisement is captioned in bold type Station Ivlww,qers Should Knou; thus making it clear that it is not the public CARLTON FREDERICKS 261 193 Initial Decision at large that is being addressed. Then follows the capitalized caption THE FACTS ABOUT AMERICA S LEADI:-G )'1!TRITIONIST , a characterization of respondent (in the last three words) not attacked in any way in the complaint nor during the entire proceeding. Similarly, there has been an omission to attack in the complaint or in the proceeding' the statements in the advertisement, such as respondent's associate professorship in :F'airleigh Dickinson L'university, the actuality of his biographical sketches being contained in five Who s Who, or in similar publications.

Moreover, the "pitch" of the advertisement is obviously to the profit-making proclivity and not to any function of radio stations to obtain the best-qualified nutritionist to address the public. For instance, the advertisement concludes and closes with the statement:

For more facts on how your station can benefit from this award-winning' show and obtain national business " " write, phone, or wjn A further example is the advertisement's frank description of respondent' s Ph.D. thesis as " a study of the response of his audience to his broadcasts " in the field of nutrition-and the follow-up statement: " It may, therefore, be said that this is a broadcaster who knows his audience, their characteristics, income and education, better than any other in the Industry. " Thus the advertisement seems to be playing up respondent as an attraction in acquiring national food advertising, and only secondarily for his attainments.

Hmvever, as to respondent's attainments in the sense of strict biographical data, it is interesting to note that the complaint does not attack the folowing data in the advertisements, quite a few of which eclipse the items which are attacked: Founding Fellow in the International College of Nutrition lwhich erroneously is stated to have a\varded the DiplomateJ. Member, American Academy of Nutrition, American Academy of Dental Medicine.

Taught utrition extension division, Brooklyn College and City College of New York.

Associate professor in Public Health Education, Fairleigh Dickinson University.

Taught Nutrition for Dent sts in two of the New YOJ'k Societies. Consultant in Nutrition to many physicians and dentists. His hroadcasts completely documented; extensive bibliography 1Jtilized, :W. , etc.

Has scientific staff, comprising a diplomate physician. Awarded Grand Cross, Eloy Alfaro International Foundation , , Initial Decision 71 F. CONCLUSI01\S 1. There has been a failure of proof as to all alleged representations except as to the "ne\v book" misrepresentation (but not excepting the "Copyright 1961" alleged misrepresentation as such). X 0 showing has been made for the reopening of the proceedings, as moved by complaint counsel. The motion was heretofore denied by a separate order of the examiner dated May 31. 1966. 2. The statement and representation, a " new book " appearing on the outside front cover of the book Eat, Live and Be Merry, by Carlton Fredericks, was and is misleading in materiall'€spects and constituted and now constitutes false, misleading, and deceptive statements and representations in advertising within the intent and meaning of the Federal Trade Commission Act. 3. The use and utilization by the respondent of the foregoing false, misleading, and deceptive statement and representation in advertising-to wit new book" had ::nd now has the tendency and capacity to mislead and deceive members of the purchasing public into the erroneous and mistaken belief that such statement and representation was, and is, true, and thereby into the purchase of respondent's book so represented to be "new " by reason thereof.

4. The aforestated act and practice of the respondent, as herein alleged, was and is to the prejudice and injury of the public and of respondent' s competitors, and it constituted, and now constitutes an unfair and deceptive act and practice and an unfair method of competition, in C01nmerce, \within the intent and meaning of the Federal Trade Commission Act.

5. The Federal Trade Commission has jurisdiction of this proceeding, the subject nlatter thereof, and the parties therein. ORDER It is ordered That the complaint herein be dismissed as to each and every alleged misrepresentation except the "new book" alleged misrepresentation, as contained on the outside front cover of a paperback book entitled "Eat, Live and Be Merry, " by Carlton Fredericks. (Said book is marked on an inside page thereof Copyright 1961 , By Xutrition Surveys, Jnc. " which is not found to be a misrepresentation as such by respondent. It i8 ordered That the motion of complaint counsel to reopen CARLTO:- FREDERICKS 263 193 Order the record be noted here as denied, having heretofore been denied by order of the examiner dated May 31, 1966-such denied motion being for the reception of testimony and exhibits as to the "Visiting lecturer" alleged misrepresentation, and the l'cception of iestimony (by formal hearing 01' deposition) from one John JIL Keesing as to the "Doctor of Humanities" alleged misrepresentation, more specifically, as to the status of Philathea College. It is ordered That respondent Carlton Fredericks, individually and doing busin ;;ss under his own name, or trading and doing business under any other name, his agents, representatives, and employees, directly or through any corporate or other device, in connection with the offering for sale, sale or distribution of any book or sin1ilal' publication in COmn1€lce, as "commerce" is defined in the Federal Trade Commission Act, do forthwith cease and desist from representing, directly or by implication: That any book or similar publication is a "new " book or publication vlhen, in fact, the said hook or similar publication has previously appeared in essenbally the same form or content.

ORDER DIS !ISSING CO IPLAINT This matter is before the Commission on the cross-appeals of counsel supporting the complaint and of respondent, and has been heard by the Commission on briefs and argument in support thereof and in opposition thereto.

The Commission has considered the transcript and the briefs and arguments of the parties and has concluded that the decision and order of the hearing examiner should be set aside and that the complaint should be ciismisseJ in its entirety. This action is being taken because of deficiencies in this record. The Commission emphasizes that respondent's business activities will be kept under surveilance, and should it appear that the public interest so demands, the Commission will not hesitate to take whatever future action is \varranted.

Accordingly, It is ordered That the initial decision and order of the hearing examiner be, and they hereby are, set aside. It ':8 further ontered That the complaint be, and it hereby is dismissed.

264 FEDERAL TRADE COMMISSIO:\ DECISIONS Complaint 71 F.