Crown Central Petroleum Corporation

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

IN THE MATTER OF CROWN CENTRAL PETROLEUM CORPORATION ORDER, OPINION, ETC., IN REGARD TO ALLEGED VIOLATION OF THE FEDERAL TRADE COMMISSION ACT Docket 8851. Complaint, July 14, 1971 - Decision, Nov. 26, 1974* Order requiring a Baltimore, Md., seller and distributor of gasoline and other petroleum products, among other things to cease misrepresenting that its gasoline additive will produce pollution-free exhaust.

*Petition for review filed Nov. 26, 1974, D. C. Cir. Complaint 84 F.T.C.

Appearances For the Commission: Fauster J. Vittone, Jean F. Greene and Michael A. Pearlman.

For the respondent: James H. Kelley, Leonard H. Tokus, Bergson, Borkland, Margolis & Adler, Wash., D.C. Morton A. Sacks, Cable, McDaniel, Bowie & Bond, Baltimore, Md.

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 Crown Central Petroleum Corporation, a corporation, hereinafter referred 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 Crown Central Petroleum Corporation is a corporation organized, existing and doing business under and by virtue of the laws of the State of Maryland, with its principal office and ‘place of business located at One North Charles, Baltimore, Md. Par. 2. Respondent Crown Central Petroleum Corporation is now, and for some time past has been, engaged in the sale and distribution of gasoline and other petroleum products under the trade name Crown and other names to the public.

In 1969 respondent Crown Central Petroleum Corporation’s sales were in excess of $90,000,000.

Par. 3. Respondent Crown Central Petroleum Corporation in the course and conduct of its business as aforesaid now causes and for some time past has caused its said products, when sold, to be shipped from its places of business in the States of Maryland and Texas to purchasers thereof located in various other States of the United States, and maintains, and at all times mentioned herein has maintained, a substantial course of trade in said products in commerce, as “commerce” is defined in the Federal Trade Commission Act.

Par. 4. In the course and conduct of its business as aforesaid, and for the purpose of inducing the purchase of Crown gasolines containing CA- 101, a gasoline additive, the respondent has made, and is now making, numerous statements and representations in advertisements published in newspapers and in other promotional material, and by means of radio broadcasts.

Typical of the statements and representations contained in said advertisements, but not all inclusive, are the following: 1493 Complaint NOW: NEW CLEAN-AIR GASOLINE WITH FORMULA CA-101 Dramatically reduces exhaust emissions Crown Premium 100 PLUS and Super Regular Gasoline now contain Formula CA-101. This remarkable new gasoline additive dramatically reduces exhaust emissions from your engine. Crown with Formula CA-101 reduces unburned hydrocarbons by as much as 66 percent*, deadly carbon monoxide 41 percent*. Clearly, this is a step toward cleaner air. Crown with Formula CA-101 works well in old cars and keeps new cars clean. Every car on the road should be using it.

Gives better mileage Crown with CA-101 is both new and different. You get better gasoline mileage. It cleans your engine and keeps it clean. Your engine performs better, more efficiently. It breathes easier. And so do you. Crown, with Formula CA-101 burns cleaner, more completely. You use less gasoline. As a result, you get more miles per gallon, more miles per dollar. NOW: NEW CLEAN-AIR GASOLINE WITH FORMULA CA-101 **REDUCES EXHAUST EMISSIONS * * * unburned hydrocarbons up to 66%, deadly carbon monoxide up to 41%.

**CLEANS ENGINES **GIVES BETTER MILEAGE* * * Breathe A Little Easier With Formula CA-101 *Source: “A Study on the Effects * * * of Exhaust Emissions” Dupont Chemical Company.

Par. 5. By and through the use of the statements and representations, set out in Paragraph Four above, and others of similar import not specifically set out herein, respondent has represented and is now representing that:

1. CA-101 additive produces pollution-free motor vehicle exhaust; 2. CA-101 additive will significantly reduce air pollution; 8. CA-101 additive will significantly reduce emissions of carbon monoxide and unburned hydrocarbons from every motor vehicle in which it is used;

4, Respondent had tests, or had conducted tests, or had had others conduct tests which proved or substantiated representations made for CA-101 additive in its advertisements before publication or dissemination of such advertisements; these representations include, but are not limited to, the following:

(a) CA-101 additive produces pollution-free motor vehicle exhaust; (b) CA-101 additive will significantly reduce air pollution; and will significantly reduce emissions of carbon monoxide and unburned hydrocarbons from every motor vehicle in which it is used; (c) Every purchaser of Crown gasoline containing CA-101 additive will obtain substantially better mileage by or through the use of such 575-956 O-LT - 76 - 95 Complaint 84 F.T.C.

gasolines that can be obtained by or through the use of any other commercially available gasoline.

5. CA-101 additive will clean or keep clean all engines and engine components.

Par. 6. In truth and in fact:

1. CA-101 additive does not produce pollution-free motor vehicle exhaust;

2. CA-101 will not significantly reduce air pollution; 3. CA-101 additive will not significantly reduce emissions or carbon monoxide and unburned hydrocarbons from every rotor vehicle in which it is used;

4. Respondent did not have tests, or conduct tests, or have others conduct tests which proved or substantiated representations made for CA-101 additive in its advertisements before publication or dissemination of such advertisements; these representations include, but are not limited to, the following:

(a) CA-101 additive produces pollution-free motor vehicle exhaust; (b) CA-101 additive will significantly reduce air pollution; and will significantly reduce emissions of carbon monoxide and unburned hydrocarbons from every motor vehicle in which it is used; (c) Every purchaser of Crown gasolines containing CA-101 additive will obtain substantially better mileage by or through the use of such gasolines than can be obtained by or through the use of any other commercially available gasoline;

5. CA-101 additive will not clean or keep clean all engines and engine components.

Therefore, the aforesaid statements, representations, and demonstrations set forth in Paragraphs Four and Five were and are false, misleading, and deceptive.

Par. 7. In the course and conduct of its business as aforesaid, and at all times mentioned herein, respondent Crown Central Petroleum Corporation has been and is now in substantial competition in commerce with corporations, firms and individuals in the sale of gasolines and other petroleum products of the same general kind and nature as that sold by respondent.

Par. 8. The use by respondent of the aforesaid false, misleading and deceptive statements and representations has had, and now has, the capacity and tendency to mislead members of the purchasing public into the erroneous and mistaken belief that said statements, representations and demonstrations were and are true and into the purchase of substan- 1493 Initial Decision tial quantities of Crown gasolines with CA-101 by reason of said erroneous and mistaken belief.

Par. 9. The aforesaid acts and practices of respondent, as herein alleged, were and are all to the prejudice and injury of the public and of respondent’s competitors and constituted, and now constitute, unfair methods of competition in commerce and unfair and deceptive acts and practices in commerce in violation of Section 5 of the Federal Trade Commission Act.

INITIAL DECISION By THEODOR P. VON BRAND, ADMINISTRATIVE Law JUDGE MAY 25, 1973 PRELIMINARY STATEMENT On July 14, 1971, the Federal Trade Commission issued its complaint against Crown Central Petroleum Corporation (Crown), charging it with having violated Section 5 of the Federal Trade Commission Act. Crown, a marketer and distributor of gasoline and other petroleum products, according to the complaint, misrepresented the performance of its gasolines containing CA-101, a detergent additive. Specifically, the complaint charges that respondent falsely represented that: CA-101 produces pollution free motor vehicle exhaust. CA-101 will significantly reduce air pollution. CA-101 will significantly reduce emissions of carbon monoxide and unburned hydrocarbons from every motor vehicle in which it is used. CA-101 will clean or keep clean all engines and engine components. Crown had tests or conducted tests or had others conduct tests which proved or substantiated certain of the representations made for CA-101 in its advertisements before publication or dissemination thereof. The product claims whose propriety is under consideration here are based essentially on the contention that the additive effectively reduces certain automobile emissions by preventing, removing, or reducing deposits in the carburetor and the engine’s intake system and thus keeping in effect or restoring the optimum air fuel ratio. Prehearing conferences were held on Oct. 22, 1971, Jan. 3, 1972, Mar. 24, 1972, Apr. 7, 1972, June 27, 1972 and Aug. 4, 1972. Evidentiary hearings commenced on Sept. 25, 1972, and the record was closed on Nov. 17, 1972. Oral argument on proposed findings was heard on Apr. 20, 1973. The Commission, at complaint counsel’s request, extended the time for the filing of proposed findings and replies fixing June 22, 1973 as the due date of the initial decision.

Initial Decision 84 F.T.C.

This matter is now before the undersigned for final consideration of the complaint, answer, evidence, and the proposed findings of fact, conclusions, and briefs filed by counsel for the respondent and complaint counsel. Consideration has been given to the proposed findings of fact, conclusions and briefs filed by both parties, and all proposed findings of fact and conclusions not herein specifically found or concluded are rejected; and the undersigned, having considered the entire record herein, makes the following findings of fact, conclusions drawn therefrom, and issues the following order:

FINDINGS OF FACT! I. The Respondent 1. Crown Central Petroleum Corporation is a corporation organized, existing and doing business under and by virtue of the laws of the State of Maryland, with its principal office and place of business located at One North Charles, Baltimore, Md: (Admitted in Answer) 2. Crown is now, and for sometime past has been, engaged in the sale and distribution of gasoline under the trade name Crown and other names to the public. In 1969, its sales were in excess of $90,000,000. (Admitted in Answer) 3. Crown, in the course and conduct of its business, now causes, and for sometime past has caused its products, when sold, to be shipped from its places of business in the States of Maryland and Texas to purchasers thereof located in various other States of the United States, and maintains, and at all times mentioned herein has maintained, a substantial course of trade in said products in commerce, as “commerce” is defined in the Federal Trade Commission Act. It is in competition in commerce with other corporations, firms, and individuals in the sale of petroleum products. (Admitted in Answer) 4. Crown, at the time of the advertisements challenged in this proceeding, had 30 stations in the Baltimore-Washington area and 17 stations in Virginia (CX 108, 108A). In 1970, its market share of gasoline sales in Maryland and Virginia was 2.65 percent and 1.42 percent, respectively (CX 120A-B).

' References to the record are made in parenthesis, and certain abbreviations are used as follows: CPF - Proposed findings of complaint counsel RPF - Proposed findings of ) for respondent CX - Commission Exhibit _ RX - Respondent’s Exhibit Tr. - Transcript page CRPF - C faint I's reply to respondent's findings RRPF - Respondent's reply to complaint counsel's findings Reference to the proposed findings of counsel are to page numbers, preceded by one of the abbreviations listed above. References to the testimony sometimes cite the name of the witness and the transcript page number without the abbreviation.

CROWN CENTRAL PETROLEUM CORP. 1499 1493 Initial Decision ;

II. Air Pollution:

5. Air pollution is the presence in the outdoor atmosphere of one or more substances in concentrations and over periods of time which have or tend to have a detrimental effect on human health, or adverse effect on vegetation, agricultural animals; reduce visibility, or interfere with reasonable enjoyment of one’s property (Schueneman 448). Among the principal air contaminants are sulfur dioxide, arising primarily from the combustion of sulfur containing fuels; carbon monoxide which arises primarily from motor vehicle exhaust and to some extent from industrial processes; nitrogen dioxide which arises from photochemical reactions in the atmosphere involving hydrocarbons and nitric oxide; nitric oxide arising primarily from the combustion of any fuel; and photochemical oxidants which are produced in the atmosphere through reaction between nitric oxides and hydrocarbons in the presence of strong sunlight. Another principal class of contaminants is particulate matter, which are particles in the atmosphere made up of _ dust, fumes, metallurgical fumes, and chemical particles. In addition, air pollution is also comprised of such contaminants as lead, asbestos, beryllium, mercury and fluorides (Schueneman 448-49). 6. Over the past 30 years, the major pollutants with the exception of particulates have increased significantly. Such increases may be ascribed to the major increase in population and industrialization marking this period and the short time in which serious control effects have been undertaken (RX 19, p. 6).

Weight of Emissions of Air Pollutants, 1940-1970 (Tons X 106) Year SO, co Particulates HC N 0, 1940 22 85 27 19 7 1950 24 103 26 26 10 1960 23 128 25 32 14 1968 31 150 26 35 21 1969 34 154 27 35 22 1970 34 147 25 35 23 Source: EPA, “Nationwide Air Pollutant Emission Trends, 1940-70,”. 1972, forthcoming. (RX 19, p. 6) The abbreviations stand for the following: SO, - sulfur oxides; CO - carbon monoxide; HC - hydrocarbons; NO, - nitrogen oxides.

Broken down by source, pollutants on a weight basis were set forth as follows in preliminary federal estimates for 1970: Initial Decision 84 F.T.C.

Estimated Emissions of Air Pollutants by Weight, Nationwide, 1970 (Preliminary Data) (In millions of tons per year) Source co Partic- so, HC NO, ulates Transportation 111.0 0.7 1.0 19.5 11.7 Fuel combustion in stationary 8 . 68 26.5 6 10.0 sources Industrial processes 11.4 13.1 6.0 5.5 2 Solid waste disposal 7.2 14 al 2.0 A Miscellaneous 16.8 3.4 a) val 4 Total 147.2 25.4 33.9 34.7 22.7 Percent change 1969-70 -45 -TA 0 0 +45 Source: Environmental Protection Agency (RX 19, p. 6) 7. The significance of air pollutants should not be evaluated solely in terms of their aggregate weight. Pollutants are of concern because of their effect on human health, damage to vegetation, livestock and structures and effects on atmospheric processes. For example, other things being equal, a pound of sulfur oxides is a greater threat to welfare than a pound of carbon monoxide (CX 72, p. 213, CX 74, p. 10, CX 75, p. 2).

Ill. The Automobile and Air Pollution 8. Air pollution from automobiles is a major environmental problem. While smog resulting from the automobile was originally considered to be a Southern California problem, it is now becoming a national phenomenon (CX 40E, The President’s 1971 Environmental Program). In terms of total national air pollution, the automobile is the greatest single contributor by weight. Among the pollutants emitted by motor vehicle exhaust are carbon monoxide, hydrocarbons, oxides of nitrogen, lead compounds, and sulfur dioxide. The amount of sulfur dioxide added to the atmosphere by the motor vehicle is, however, insignificant compared to the amounts from stationary sources (CX 7%, p. 1). ; 9. Emissions from uncontrolled automobiles manufactured prior to 1968, came from the crankcase blowby gases, fuel evaporation from the fuel tank and carburetor, and the engine exhaust. The crankcase and evaporative losses were controlled as of 1971. The emissions from the engine exhaust result from the combustion process occurring inside the engine cylinder. Hydrocarbons and carbon monoxide result from incomplete combustion of the fuel-air mixture; oxides of nitrogen form in the high-temperature burnt gases as the combustion process proceeds (CX 115, p. 10).

CROWN CENTRAL PETROLEUM CORP. 1501 1493 Initial Decision 10. The annual pollution contributed by 90 million vehicles may roughly be estimated as follows:

66,000,000 tons of carbon monoxide 6,000,000 tons of nitrogen oxides 12,000,000 tons of hydrocarbons 190,000 tons of lead compounds (as lead) 1,000,000 tons of sulfur oxides ;

1,000,000 tons of particulates Within the automobile itself, the relative importance of various emission sources is estimated as follows:

Hydrocarbons: 55% from the exhaust, 25% from the crankease or “blowby” and 20% from carburetor and fuel tank evaporative losses Carbon monoxide: 99% from the exhaust Oxides of nitrogen: 99% from the exhaust Lead: 100% from the exhaust “The Automobile & Air Pollution: A Program for Progress Part II” (1967) (CX 75, p. 1). The Environmental Protection Agency has estimated the motor vehicle’s percentage of national emissions in 1969 as follows: Carbon Monoxide Hydrocarbons Nitric Oxides 64.7% 45.7% 36.6% (CX 43, p. 4-1) 11. Emissions from automotive vehicles are largely responsible for the formation of photochemical smog in certain areas (CX 74, p. 1). The extent to which the automobile contributes to this process varies area by area (Levy, CX 128A; Tr. 1269).

Smog formation is involved in the interaction between oxides of nitrogen, the hydrocarbons, particularly certain classes of reactive hydrocarbons and sunlight (Calvert 365). This stimulates a lengthy and complex series of reactions in which a part or all of the various hydrocarbons are consumed and various secondary products are formed as a result of the photochemical reaction. This entails the formation of products such as nitrogen dioxide, ozone, peroxyacy! nitrates (PAN), aldehydes, organic aerosols and other compounds (Altshuller, CX 124; Tr. 3367-69, CX 5, pp. 2-5, 2-6). In short, the reactions of hydrocarbons are important in the urban atmosphere because they give rise to secondary contaminants and reaction intermediates which cause most of the detrimental effects of hydrocarbon air pollution (CX 5, p. 2-2)2 12. In Maryland, the city of Baltimore and the Washington, D.C. metropolitan area have photochemical smog problems in the sense that 2 The rates at which the various hydrocarbons react covers a very broad spectrum. Some are considered unreactive or react very slowly in contrast to a whole range of hydrocarbons which are quite potent in causing the manifestations of the photochemical process (Altschuller, CX 124; Tr. 3369-70), 1502 ‘FEDERAL TRADE COMMISSION DECISIONS... “Initial Decision “84 FT. C.

concentrations of photochemical oxidants. occur substantially. above. national ambient air quality standards. Levels of photochemical oxi- dants have been observed which are more than double the standard — a considered safe from a public health point of view. Photochemical smog” in Maryland is of primary concern during the warm summer months. The smog. problem ‘is worst from May through September with occasional high concentrations occurring in April and October and perhaps into November. The most severe smog problems, however, occur during : July and August (Schueneman 457).

The State of Virginia has a photochemical smog problem evidenced by - higher levels of oxidants in those areas with high auto population. These areas are the Northern. Virginia area ‘associated with metropolitan ‘Washington, the metropolitan Richmond area, and the metropolitan Norfolk area. Smog in these areas is primarily a problem in the summer ~ months (Watson 959).

IV. Health Effects Associated with Automobile Pollutants 13. The long term. health effects of air pollution are of considerable concern. With continued exposure, those living in polluted air come.a little closer to a diagnosable diseased condition. Such diseases are mainly diseases of the bronchial tree ranging from the common cold to lung cancer, Air pollution may also irritate the eyes, and some pollutants | in the air, like lead, may build up in the e body until they reach harmful’ levels (CX 98, p. 4).

14..Carbon monoxide is a poisonous gas entering the blood stream replacing the oxygen needed to carry on the body’s metabolism. It is not cumulative in its. effects but at high concentrations, it kills; at lower concentrations, it brings on headaches and a slowing of physical and mental activity (CX 98, pp. 4, 8).

There is no measurable health effect from a 10 percent reduction in carbon monoxide from automobiles at the lower end of the scale of concentration which is the exposure for the majority of the population (Carrol, CX 130B; Tr. 2976, 3001). At either end of the scale, it would be difficult to pick a point where a 10 to 15 percent reduction of carbon monoxide would be meaningful in terms of health effects to the people exposed to it (Rokaw, CX 182;. Tr. 2542).

15. Most hydrocarbons are not considered directly. harmful in the amounts found in urban air (CX 98, pp. 11, 12). The adverse health effects of hydrocarbons result primarily from their participation in the photochemical process resulting in a number of secondary pollutants, the photochemical oxidants (Finding 11, supra.) CROWN CENTRAL PE Thun. o 1493 Initial Decision The most common effect of photochemical oxidants on humans is eye irritation. The level at which this occurs is commonly reached in almost every urban area of the country anywhere from a few days a year to as frequently as a third of the days per year depending on factors such as the amount of sunlight, the density of the automobile population and the ability of the local atmosphere to cleanse itself (CX 98, p. 10). Oxidants, at the levels routinely found in the cities, make it more difficult to breathe especially in the case of those already suffering from respiratory disease (CX 98, p. 10).

Ozone, one of the photochemical oxidants, can severely irritate the mucous membranes. At certain levels and exposures, it produces coughing, choking, and severe fatigue. At relatively high levels, ozone will interfere with lung function (CX 98, p. 10). At the temperatures commonly reached when fuels are burned, nitrogen in the air combines with oxygen to form nitric oxide which is relatively harmless, but which usually converts to the more dangerous nitrogen dioxide which is also considered a photochemical oxidant. The rate at which nitric oxide converts to nitrogen dioxide is greatly accelerated by the same conditions which lead to the formation of photochemical smog. It is usually considered to be one of the photochemical oxidants. However, nitrogen dioxide is present in the air wherever fuels are burned and whether or not photochemical smog has been produced. Nitrogen dioxide, which is directly toxic to man and animals, may result in eye irritation and increased susceptibility of infection (CX 75, p. 2, CX 98, p. 11).

The control of hydrocarbons is desirable. This, however, does not permit any findings as to the functional relationship between hydrocarbons and oxidants in any particular region. The purpose of controlling hydrocarbons is not to reduce hydrocarbons as such but to achieve such reductions thereof as will control oxidants (Altshuller, CX 124; Tr. 3400). It is not possible to determine whether a 10 percent reduction of hydrocarbons would have reduced smog in the area relevant to this proceeding. There is no way of predicting what such a reduction will accomplish in any atmosphere in view of the many other interrelated factors such as possible increases in nitric oxides, nitrogen dioxides, aldehydes or various meterological conditions (Calvert 406, 419, 437). 16. Certain hydrocarbons have produced cancer in laboratory animals (CX 98, pp. 11, 12). A 10 to 15 percent reduction of hydrocarbons would have no significant effect on the potential carcinogenesis of hydrocarbons, however (Rokaw, CX 132; Tr. 2533-34). -~~ssatat: TRADE COMMISSION DECISIONS Initial Decision 84 F.T.C.

17. Atmospheric lead became a public health problem in a significant new way, when in 1924, tetraethyl lead was found to be a useful gasoline additive (CX 75, p. 3). .

Lead, a biologically nonessential metallic element, is a pollutant which is clearly toxic under conditions of prolonged and excessive exposure as for example, when paint containing lead is ingested (CX 43, pp. 4-8). “Over 95 percent of the total lead emitted into the atmosphere derives from additives in gasoline. Lead particles ean penetrate the lungs and can be retained and absorbed in the blood stream. In urban areas, the _ margin of safety between blood levels of lead in humans and levels at which lead poisoning symptoms have been identified are growing smaller. While no clear case has been found of lead poisoning from automobile emissions, there is ample reason for concern.” (CX 40E). In densely populated areas such as Baltimore where motor vehicle traffic is heavy, lead in the opinion of the chief of the Division of Air Quality Control of the State of Maryland is a health hazard particularly to children living in such areas (Schueneman 454). 18. Particulate matter from automobile exhaust poses a health problem for the following reasons:

Most of the liquid and solid particles in auto exhaust are submicroscopic. Their concentration in automobile exhaust is often in excess of 107 particles per cubic centimeter and their emission rate may exceed 1 x 10}? particles per second at a speed of 30 miles per hour. One of the most serious aspects of modern-day widespread levels of air pollution is the generation and increasing concentrations of submicroscopic Aitken nuclei. These particles are of size less than 0.1 microns diameter and serve as “condensation” nuclei which may absorb pollutants. They constitute the majority of airborne particles now found in urban and most “country” air. Particles in this size range are readily coated with monomolecular layers of organic or inorganic chemicals while in the atmosphere or during passage through the upper respiratory tract. The particles thus may act as carriers for other pollutants and produce more serious adverse effects than larger size particulates which are intercepted in the nose or throat.

(The Automobile & Air Pollution: A Program For Progress Part H, U.S. Department of Commerce 1967; CX 75, p. 4).

The sulfur oxide pollutants aggravate existing respiratory disease and contribute to its development (CX 98, p. 9). 3 In a notice of proposed rulemaking on Feb. 23, 1972, 37 F.R. 3882 (RX 26A-D) pertaining to the “Regulation of Fuels and Fuel Additives,” the Administrator of the Environmental Protection Agency stated: “Based on the available evidence, the Administrator has concluded that air borne lead levels exceeding 2 micrograms per cubic meter, averaged aver a period af 3 months or longer, are associated with a sufficient risk of adverse physiologic effects to constitute endangerment of public health. Since airborne lead levels in many major urban areas currently range from 2 to somewhat over 5 micrograms, and since motor vehicles are the predominant source of airborne lead in such areas, attainment of a 2 microgram level will require a 60 to 65 percent reduction in lead emissions from motor vehicles* * *.” (RX 26B) (emphasis supplied). CROWN CENTRAL PETROLEUM Cokr.

1498 Initial Decision V. The Additive 19. DMA-101, referred to as CA-101 in Crown’s advertisements, is a gasoline additive manufactured by the E.I. du Pont de Nemours Company of Wilmington, Del. (RX 1A-B).

20. Du Pont has been selling detergent additives since 1958 (Scheule 818). Du Pont’s first offering was RP-2 which provided rust prevention and anti-icing properties. It was marketed about 1958 or 1959 (Scheule 818).

In the early 1960’s, RP-2 was modified to the DMA-4 and DMA-4A additives which were to provide carburetor icing protection, anti-rust protection and carburetor detergency (Scheule 819). In the period 1967-1968, du Pont began work on a second generation multifunctional additive to clean up existing deposits as well as to | prevent deposit buildup and to combat malfunctions of valves in engines due to deposit formation on intake valves. This work led to the development of the DMA-101 additive which is a combination of a hydrocarbon . polymer and DMA-4, an amine neutralized phosphate. Du Pont first introduced DMA-101 in Nov. 1969 (Scheule 819-20, Hagele 1156, Bettoney 1538-39).

21. An additive such as DMA-4 provides carburetor detergency by virtue of its surfactant mechanism. DMA-101 includes DMA-4, the surfactant, and a polymer which acts in concert with the surfactant (Bettoney 1533).

Another of du Pont’s detergent additives in the DMA-100 series is DMA-115. It has a higher DMA-4 content versus polymer content than does DMA-101. However, all additives in the series function similarly and are considered by du Pont to be in the same class (Scheule 821, 836). With respect to the reduction of exhaust emissions, du Pont found on the basis of laboratory tests and field tests that there was very little difference in their performance in this respect with a very slight edge in favor of DMA-115 (Scheule 836-37).

22. In DMA-101, the DMA-4 component works as a surfactant which has physical and chemical properties enabling it to attach to the surface of a metal vessel such as a carburetor. By interaction with the metal, the additive forms a water and dirt repellent film and thus prevents the buildup of deposits (Bettoney 1532-34). The polymer component of DMA-101 acts with the surfactant to soften and penetrate deposits which when loosened are washed away (Bettoney 1534). 23. The DMA-101 additive is probably an effective carburetor cleanliness detergent (Cattaneo 1919).

weve FEDERAL TRADE COMMISSION DECISIONS Initial Decision 84 F.T.C.

24. Carburetor deposits may form or accumulate in almost any place in the carburetor. The ones that are critical to the mixture of air and fuel are particularly those in the neighborhood of the throttle plate (Bettoney 1512-13). Such deposits interfere with the flow of air with an effect similar to the closing of the throttle valve (Tr. 1514). The net effect is to enrich the air-fuel mixture viz. the mixture has more fuel than the manufacturer had in mind when the carburetor was built (Tr. 1515). An enrichment of the air-fuel ratio will cause formation of higher amounts of carbon monoxide and hydrocarbons in automobile exhausts (Tr. 1575). In addition, the deposits on intake valves and some other parts of the engine reached by gasoline with DMA-101 can increase exhaust emissions (Scheule 910).

25. The amount of improvement in automobile exhaust emissions, as a result of the use of the CA-101 additive in a car, depends on how dirty the carburetor or intake system is (Bettoney 2100-01). Such reductions could vary from some small amount up to the order of 50 to 60 percent for some carburetors (id 2099-2100). Prior use of another additive such as DMA-4 would limit the formation of deposits in these areas (Scheule 852). And in the case of a clean or new carburetor, there would be little or no reduction of exhaust emissions as a result of the use of CA-101 (Bettoney 2099-2100).

26. Considered in the light most favorable to respondent, the available technical data would support a claim for a 10 percent overall reduction in the general car population of hydrocarbons and carbon monoxide as a result of CA-101, if used by all cars (Bettoney 2049, 2099, 2124).

27. The CA-101 additive will not reduce exhaust emissions of hydrocarbons and carbon monoxide below the levels that new cars will emit (CX 123C).

28. An automobile may have high emissions because of mechanical conditions which can only be improved by mechanical repairs and on which the additive’s detergent action will have no effect (Bettoney 2081, 2122; Cattaneo 1944).

Some cars are high emitters of pollutants because of bad spark plugs,* points, wiring, etc., and the use of an additive would not cure that ‘condition. The same would be true as to bad wiring (Bettoney 2047, 4 The opinion of the director of du Pont’s Petroleum Laboratory on this point was based on du Pont's testing and the literature generally pertaining to carburetor detergents similar in their function to DMA-101. It is further the opinion of this witness that CA-101 is one of the four most effective detergent additives and that it is possible these additives could achieve a result similar to CA-101 in reducing emissions (Bettoney 2101, 2050). 5 By. carbon monoxide emissions may drastically increase when the carburetor metering rod linkage is out of position (CX 152K; Tr. 2081). :

§ Spark plug misfires increase hydrocarbon and carbon monoxide emissions substantially (CX 115, p. 23). CROWN CENTRAL PETROLEUM CORP. Loui 1493 Initial Decision 2122; Cattaneo 1944). Similarly, a deterioration of the timing of an engine can also result in an increase of emissions (Bettoney 2047). Burned valves, although not occurring regularly at this time, nevertheless, exist in the general car population and a car with that condition would put out “extremely high hydrocarbons” (Mills, CX 129; Tr. 3085). In addition, the air-fuel ratio can be reduced by factors such as an automotive choke sticking closed or because of a very dirty air cleaner element. This would generally increase emissions of carbon monoxide and hydrocarbons (CX 65, p. 2-13). The additive would not remedy those conditions.

29. The CA-101 additive will not clean all engine components. It will not affect deposits such as exhaust valve tulips, combustion chamber deposits, crankcase area deposits or rocker arm cover deposits (CX 123F; Scheule 872-73). Combustion chamber deposits increase hydrocarbon emissions (Bettoney 2085).

30. In fact, “there are many, many factors that influence the emissions of vehicles, * * * many of these factors are extremely subtle and cannot be detected in all cars at all times.” (Bettoney 1633; See also Mills, CX 129; Tr. 3079-80; CX 367).

31. The additive may work in a car but uncontrolled variables beyond the reach of the additive may nevertheless cause emissions from some vehicles to increase (CX 148, Scheule 883-87, 929-32).7 Certain vehicles suffering from mechanical defects and subjected to severe operating conditions will not realize significant reductions of carbon monoxide and unburned hydrocarbons as a result of a detergent additive such as CA- 101 (CX 152).

382. Gasoline with CA-101 will not significantly reduce emissions of carbon monoxide and unburned hydrocarbons in every vehicle in which it is used. (Findings 27 to 31, supra).

7 Respondent states in tion with du Pont’s road test, CX 148, “In other words, the additive probably worked in those cars, but uncontrolled variables beyond the reach of the additive caused emissions from those vehicles to increase (Scheule 883-87). In the other 18 cars, the action of the additive overwhelmed the variables and the net effect from all 23 cars was a net decrease of HC emissions by about 9 percent. (Scheule 883-87, 929-32)” (emphasis supplied) RRPF p. 18.

8 In the case of a nine thousand mile test “involving twenty high-mileage and high blowby taxicabs, no significant differences in exhaust emissions or other engine parameters were indicated with the use of DMA-115 relative to a control gasoline. Excessive variability caused by test severity and vehicle condition overshadowed the anticipated fuel effect.” (CX 152A) For future testing it was recommended: “1, Use other tests to evaluate the effectiveness of DMA-115 in reducing exhaust emissions. “2. In future tests with similar objectives, select fleets with engines and carburetors responsive to deposits and avoid severe operating and maintenance conditions” (emphasis supplied) (CX 152D). See also CX 65, “Control Techniques for Carbon Monoxide, Nitrogen Oxide, and Hydrocarbon Emissions from Mobile Sources” U.S. Department of Health, Education and Welfare (1970) p. 4-9: “In a large group of vehicles, a few of them could not meet any reasonable emission limit, no matter how much they were repaired or tuned up. This is due to the variability of emissions of both controlled or uncontrolled vehicles.* * *” 1vuo FEDERAL TRADE COMMISSION DECISIONS Initial Decision 84 F.T.C.

Crown gasoline with CA-101 will not produce pollution free motor vehicle exhaust (CX 123A-B). Motor vehicles using Crown gasoline with CA-101 emit unburned hydrocarbons, carbon monoxide, oxides of nitrogen, lead, particulates, sulfur oxides and other pollutants (CX 123B). Further, the CA-101 additive has no beneficial effects on emissions of oxides of nitrogen, lead, particulates and sulfur oxides and the use of the additive will not reduce the emissions of these pollutants (CX 123E). VI. Testing of the Additive 33. Du Pont has performed tests of the DMA-4, DMA-101 and DMA- 115 additives for the purpose of demonstrating their keep clean and clean up effects on carburetor and intake system deposits, and to measure the resulting effect on engine emissions of hydrocarbons and carbon monoxide. In that connection, du Pont has utilized laboratory engine tests (CX 110Q; RX 13), programmed chassis dynamometer tests (RX 7, 10, 71, 110F-DT, and road tests (CX 148, 149, 152; RX 69, 70) ' (Bettoney 1537, 1541, 1602-12).

Accelerated Laboratory Testing Procedures 34. The director of du Pont’s Petroleum Laboratory developed a laboratory test procedure for testing DMA-101 for its cleanup and emission reduction properties in early 1970 (Bettoney 1612). 35. Most of the laboratory tests were conducted on Plymouth engines mounted on an engine dynamometer and artificially “dirtied up” by the use of a reference fuel, MS 08, to form deposits in the carburetor and other parts of the induction system simulating deposits in “dirty” engines found on the road. Du Pont took steps to ensure that the deposits accumulated during the accelerated “dirty up” stage adhered to the carburetor and were representative of those on the road. The engine fuel was then switched to a commercial premium gasoline containing DMA-101 and the engine run for a number of hours. Emission measurements were taken at idle because at that stage, the emissions of carbon monoxide and hydrocarbon are greatest and the deposits on the throttle area affect the proper functioning of the carburetor. Measurements at idle correlate with measurements during deceleration of the vehicle when the throttle plate is similarly closed (Bettoney 1612-22; Verelli 1067-69; CX 65, p. 4-14; Scheule 904-16).

MS 08, which is used in the “dirty up” phase of such tests, is a reference fuel, the composition of which is controlled from the stand- §“Keep clean” means keeping a carburetor clean as opposed to cleaning up or removing deposits (Tr. 1534). CROWN CENTRAL PETROLEUM CORP. louy 1493 Initial Decision point of its tendency to form varnish and sludge. To this extent, MS 08 is a dirtier gasoline than most commercial gasoline (Bettoney 1546). It is a fuel widely used in the oil industry for testing purposes generally related to engine cleanliness and has been used in tests by the United States Bureau of Mines (Hurn 1657). MS 08 represents between 3 to 10 percent of the different types of gasoline sold in the United States (Bettoney 1546; Hurn 1658).

In the period Feb. through Nov. 1970, over 25 tests were run using this procedure and the range of reduction of hydrocarbon and carbon monoxide emissions found was on the order of 40 to 80 percent (Bettoney 1625-26).

36. Although du Pont took steps to ensure that the deposits created by the accelerated procedures were representative of those accumulated on the road, the memorandum of the director of du Pont’s Petroleum Laboratory dated May 15, 1970, seems to corroborate the opinion of the Commission’s expert that deposits accumulated during an accelerated test tend to be more sooty and fall off more easily than those encountered in actual service (Verelli 1032, 1044-54). 37. This accelerated testing procedure was devised to simulate th performance of a small group of high emission cars which may comprise 5 to 15 percent of the general car population. As to this group of cars, it is the opinion of the director of du Pont’s Petroleum Laboratory, a 50 to 60 percent improvement of emissions in road performance could be predicted on the basis of such laboratory tests (Bettoney 2096-98). 38. CX 110Q is a report dated March 30, 1970, entitled “A Study On The Effect Of DMA-101 On Exhaust Emissions From A Laboratory Engine.” The report summarizes the results of tests of DMA-101 on Plymouth engines mounted on a dynamometer stand. The accelerated test procedure set forth in Finding 35 was utilized, and a reduction of approximately 66 percent in hydrocarbon emissions and a reduction of approximately 41 percent in carbon monoxide emissions was reported (CX 110Q).

39. RX 13 is a report dated October 5, 1970, entitled “The Effect Of DMA-101 And DMA-115 On Exhaust Emissions In A Laboratory Engine.” The test procedure utilized was similar to that of CX 110Q, except that the reference fuel, MS 08, was used both in the dirty up and cleanup phases of the test. According to the test report, both additives reduced hot idle emissions of carbon monoxide and hydrocarbons in the case of a Plymouth 6 cylinder laboratory engine with an artificially dirtied carburetor (Bettoney 1623-24).

10 See Finding 55, infra.

1OLU FEDERAL TRADE COMMISSION DECISIONS Initial Decision 84 F.T.C.

Programmed Chassis Dynamometer Tests 40. Du Pont’s testing program for detergent multifunctional additives utilized chassis dynamometers and programmed chassis dynamometers (Bettoney 1478-81).

A chassis dynamometer is a machine which supports the drive wheel of a vehicle and can be adjusted to provide the power requirements imposed upon an engine as if the car were on the road (Mills CX 129; Tr. 3037). In the case of a programmed chassis dynamometer, signals are sent by a tape to the engine in order to simulate various conditions of on-the-road driving (Bettoney 1477-78). Use of this device eliminates many of the uncontrolled variables inherent in on-the-road driving (Scheule 901-02), 41. RX 9 is a report entitled “Effect of Carburetor Deposits and DMA-4 on Fuel Economy,” summarizing a number of programmed chassis dynamometer tests. According to this report, vehicles using the du Pont additive DMA-4, consumed less fuel than did vehicles using the same fuel without the additive. In the opinion of the director of du Pont’s Petroleum Laboratory, such tests confirmed the effects of carburetor deposits on fuel economy (Bettoney 1518). 42. RX 10 isa report dated October 1966, entitled “Effect of Du Pont Multifunctional Additive No. 4 (DMA-4) On Exhaust Emissions Of Vehicles Equipped With Air Injection Systems.” This involved a test on four new 1966 Chevrolets with 12,000 miles being accumulated on programmed chassis dynamometers. According to the test report, hydrocarbon emissions from the cars using the additive remained substantially unchanged throughout the 12,000 miles in contrast to the control ears while the carbon monoxide emissions increased to a lesser extent than in the control cars.

43. RX 7 is a report dated Nov. 1968 of a programmed chassis dynamometer test entitled “Effect of Du Pont Multifunctional Additive No. 4 (DMA-4) on Exhaust Emissions of Plymouths Equipped with CAP Exhaust Control Systems.” This was a 15,000 mile test involving four Plymouths equipped with CAP exhaust control systems. Two of the cars had gasoline with the additive DMA-4 and two cars were operated on the base gasoline. At the end of the 15,000 mile test, the two cars with the additive had lower hydrocarbon and carbon monoxide emissions than the cars running on the base gasoline (Bettoney 2073). 44. RX 71isa table summarizing the results of a test on taxi engines installed in automobiles and run on du Pont’s programmed chassis dynamometers. This test was done concurrently with the road test on CROWN CENTRAL PETROLEUM CORP. 1511 1493 oO Initial Decision “the taxi fleet set forth i in CX 152 (Bettoney 2114)."' The cars were yun on programmed chassis dynamometers for 16 or 18,000 miles and deposits were accumulated in the carburetors through the use of MS 08 and other gasoline components (Bettoney. 2149). The cars were then operated on a control gasoline and gasoline containing DMA-115. At the termination of the test, there was a decrease in the hydrocarbon and carbon monoxide emissions on the cars operated on DMA-115 (Bettoney 2147), -. Road Tests 45. In the case of road tests involving cars taken at random with different. drivers driving in different ways and different ways of maintaining the: vehicles, many variables are introduced which are completely uncontrolled. As a result, a large number of cars is required to get significant results (Scheule 901).

46. CX 149 isa report dated June 3, 1970, of the first road test on the DMA-101 additive. It was a 2000-mile road test employing three fleets of five privately owned automobiles. According to the report, “DMA-101 did not show a consistent trend towards reduction of engine emission levels when used at 100 and 200 Ib. concentrations in Getty premium gasoline.” (CX 149C). The only conclusion drawn from the test “was that we {du Pont] should run tests more carefully and for a longer period of time than we had in that: work” (Bettoney 2108). 47. CX 152A-AF is a test report evaluating the effect of the use of DMA-115 on exhaust emissions in a 9000-mile test involving twenty high mileage and high blowby taxicabs. The draft report dated Jan. 25, 1971,. indicated no- significant differences in exhaust emissions as a result. of DMA-115 (CX 152A). This report was not completed because du Pont, at the time, felt the work reported therein was inconclusive. (Bettoney: 2110). The mechanical condition of the vehicles, in du Pont’s view, was responsible for the excessive variability and inconclusive nature of the emission test results (CX 1521). 48. CX 148A-H is a report dated July 1971 of a road test of the “Effect of DMA-101 in. Reducing Exhaust Emissions and Improving Compression Pressures.” The test began in March of 1970, and finished in September (Scheule 882).

The test involved “23 privately owned American cars during approximately 3500 miles of normal driving” (CX 148A). According to the report, the 9 percent average reduction of hot cycle hydrocarbons The draft report of that test is dated Jan, 25, 1971. 575-956 O-LT - 76 -'96 1512 FEDERAL5 1 1 1 1 3 1032 206 122 26 96.920258 TRADES 1 1 1 1 4 1171 189 225 57 82.121162 COMMISSIONS 1 1 1 1 5 1421 185 192 50 82.121162 DECISIONS4 1 1 1 2 0 1123 267 827 56 -1 5 1 1 1 2 1 1123 290 87 26 96.662285 Initials 1 1 1 2 2 1223 290 155 29 0.612946 Decision:5 1 1 1 2 3 1577 275 58 29 38.794716 ee5 1 1 1 2 4 1705 321 3 2 0.000000 .5 1 1 1 2 5 1760 288 31 24 86.151649 845 1 1 1 2 6 1805 287 107 32 5.377312 BTC5 1 1 1 2 7 1943 267 7 4 16.278831 :2 1 2 0 0 0 558 329 1376 1661 -1 3 1 2 1 0 0 579 329 1346 165 -1 4 1 2 1 1 0 580 329 1345 78 -1 5 1 2 1 1 1 580 337 153 70 93.244888 collected5 1 2 1 1 2 749 338 167 67 91.007385 pursuant5 1 2 1 1 3 927 360 35 29 96.500031 to5 1 2 1 1 4 978 329 68 60 96.973122 thes 1 2 1 1 5 1048 348 85 41 92.752235 19685 1 2 1 1 6 1147 348 138 40 95.436386 federal5 1 2 1 1 7 1294 343 70 44 96.664360 tests 1 2 1 1 8 1378 338 205 57 96.839195 procedures5 1 2 1 1 9 1598 364 69 22 96.934280 was5 1 2 1 1 10 1683 344 210 49 63.938698 statistically5 1 2 1 1 11 1923 375 2 2 32.591606 .4 1 2 1 2 0 579 396 1314 75 -1 5 1 2 1 2 1 579 401 196 51 96.797386 significant.5 1 2 1 2 2 799 407 52 33 95.952995 No5 1 2 1 2 3 873 405 226 43 53.891197 statistically’5 1 2 1 2 4 1108 396 199 54 70.410248 significant.5 1 2 1 2 5 1314 403 193 63 73.251167 reduction:5 1 2 1 2 6 1519 402 45 33 62.106281 of.5 1 2 1 2 7 1576 398 120 73 83.264000 carbon5 1 2 1 2 8 1719 401 174 33 96.670944 monoxide4 1 2 1 3 0 579 455 472 39 -1 5 1 2 1 3 1 579 470 67 22 92.991203 was5 1 2 1 3 2 662 458 113 33 92.991203 shown5 1 2 1 3 3 792 457 73 43 93.051094 (CX5 1 2 1 3 4 883 455 136 37 17.148727 148C).!25 1 2 1 3 5 1049 484 2 2 4.060013 »3 1 2 2 0 0 578 466 1327 182 -1 4 1 2 2 1 0 619 466 1286 86 -1 5 1 2 2 1 1 619 509 68 31 96.621391 Thes 1 2 2 1 2 701 509 40 30 95.331642 235 1 2 2 1 3 757 509 74 30 95.826508 cars5 1 2 2 1 4 842 506 36 32 95.826508 in5 1 2 2 1 5 893 506 58 38 96.077087 thes 1 2 2 1 6 967 486 72 51 94.360901 tests 1 2 2 1 7 1050 501 67 51 95.665909 are.5 1 2 2 1 8 1126 483 72 53 93.781479 not5 1 2 2 1 9 1201 515 30 21 71.270355 a:5 1 2 2 1 10 1227 481 71 68 87.578323 full5 1 2 2 1 11 1312 513 92 28 95.670769 cross5 1 2 2 1 12 1420 480 130 64 96.915398 sections 1 2 2 1 13 1555 495 51 50 73.894104 of5 1 2 2 1 14 1614 492 61 41 95.930679 thes 1 2 2 1 15 1687 466 136 80 94.350883 general5 1 2 2 1 16 1839 502 66 31 66.792999 car.4 1 2 2 2 0 578 542 1316 61 -1 5 1 2 2 2 1 578 559 197 41 96.555794 population,5 1 2 2 2 2 789 569 38 21 94.141022 so5 1 2 2 2 3 839 568 41 22 94.141022 no5 1 2 2 2 4 892 556 166 46 96.586952 completes 1 2 2 2 5 1071 546 209 52 96.727013 projections5 1 2 2 2 6 1288 565 60 22 95.058060 cans 1 2 2 2 7 1360 554 43 32 95.058060 be5 1 2 2 2 8 1415 554 98 31 96.283592 made5 1 2 2 2 9 1526 542 88 61 96.266251 from5 1 2 2 2 10 1626 552 68 32 96.559807 this5 1 2 2 2 11 1706 554 72 30 96.401840 tests 1 2 2 2 12 1789 554 35 30 96.094124 to5 1 2 2 2 13 1836 552 58 32 96.788071 thea 1 2 2 3 0 579 603 655 63 -1 5 1 2 2 3 1 579 608 59 33 96.371689 full5 1 2 2 3 2 653 619 55 21 96.856560 cars 1 2 2 3 3 723 603 199 63 81.846901 population:5 1 2 2 3 4 929 600 189 43 96.362572 (Cattaneo.5 1 2 2 3 5 1129 605 105 36 93.640205 1862).3 1 2 3 0 0 558 629 1376 616 -1 4 1 2 3 1 0 569 629 1325 81 -1 5 1 2 3 1 1 569 692 3 1 0.000000 _5 1 2 3 1 2 619 659 48 31 69.622284 495 1 2 3 1 3 683 657 68 32 70.715630 RK5 1 2 3 1 4 766 656 84 32 22.821831 69's5 1 2 3 1 5 865 666 19 22 95.420334 a5 1 2 3 1 6 897 657 116 53 97.010742 reports 1 2 3 1 7 1029 655 84 31 77.849472 on.a5 1 2 3 1 8 1121 653 81 32 95.812553 roads 1 2 3 1 9 1217 656 72 29 95.812553 tests 1 2 3 1 10 1304 633 140 59 96.934402 entitled5 1 2 3 1 11 1460 629 137 59 70.233124 “Effects 1 2 3 1 12 1612 650 39 33 93.217590 of5 1 2 3 1 13 1663 636 180 47 91.998505 DMA-1155 1 2 3 1 14 1853 660 41 22 96.909561 on4 1 2 3 2 0 580 700 1315 46 -1 5 1 2 3 2 1 580 701 132 40 96.030220 Vehicles 1 2 3 2 2 724 704 256 35 95.923607 Performances 1 2 3 2 3 972 715 32 28 95.923607 in5 1 2 3 2 4 1017 704 104 40 96.663292 Eight5 1 2 3 2 5 1132 703 147 43 96.801514 Foreign5 1 2 3 2 6 1291 702 103 32 96.682213 Cars”5 1 2 3 2 7 1406 701 101 33 96.768738 dated5 1 2 3 2 8 1518 701 78 39 97.004471 July5 1 2 3 2 9 1609 701 87 31 95.994408 1971.5 1 2 3 2 10 1708 700 187 40 96.716324 According4 1 2 3 3 0 579 750 1324 47 -1 5 1 2 3 3 1 579 756 50 35 96.272636 to5 1 2 3 3 2 637 758 58 32 95.385002 thes 1 2 3 3 3 718 759 127 38 95.313873 report,5 1 2 3 3 4 868 755 59 32 96.635483 thes 1 2 3 3 5 951 754 111 32 95.716881 effects 1 2 3 3 6 1084 753 39 32 92.079414 of5 1 2 3 3 7 1144 753 180 32 92.079414 DMA-1155 1 2 3 3 8 1346 762 43 22 96.779213 on5 1 2 3 3 9 1412 750 131 33 96.333923 vehicles 1 2 3 3 10 1567 750 235 42 96.333923 performances 1 2 3 3 11 1825 750 78 31 96.690727 was4 1 2 3 4 0 580 791 1314 64 -1 5 1 2 3 4 1 580 806 229 34 96.011444 determined5 1 2 3 4 2 799 817 36 21 96.531433 in5 1 2 3 4 3 845 804 94 46 96.555397 eight5 1 2 3 4 4 953 791 168 64 96.989677 privately5 1 2 3 4 5 1135 803 118 33 96.754852 owned5 1 2 3 4 6 1270 800 63 34 96.771919 ands 1 2 3 4 7 1348 801 162 41 96.217407 operated5 1 2 3 4 8 1527 801 176 40 95.970818 European5 1 2 3 4 9 1719 800 65 32 93.233574 ands 1 2 3 4 10 1796 800 98 47 93.150650 Japa-4 1 2 3 5 0 580 849 1314 45 -1 5 1 2 3 5 1 580 867 79 23 96.822502 nese5 1 2 3 5 2 676 855 225 39 96.385017 automobiles,5 1 2 3 5 3 917 854 60 45 96.970558 thes 1 2 3 5 4 994 864 57 26 96.756180 cars 1 2 3 5 5 1067 857 114 28 96.140945 owners 1 2 3 5 6 1197 845 124 47 93.297966 adding5 1 2 3 5 7 1337 851 175 31 90.991066 DMA-1155 1 2 3 5 8 1530 852 35 30 96.879211 to5 1 2 3 5 9 1580 850 58 32 96.517403 thes 1 2 3 5 10 1654 849 148 41 93.091911 gasolines 1 2 3 5 11 1819 859 75 30 92.454025 pur-4 1 2 3 6 0 581 898 1341 43 -1 5 1 2 3 6 1 581 906 114 32 96.464035 chases5 1 2 3 6 2 708 908 35 29 96.945969 at5 1 2 3 6 3 754 905 65 31 96.661331 thes 1 2 3 6 4 826 904 127 32 93.288292 services 1 2 3 6 5 959 897 167 37 7.326241 station.!#5 1 2 3 6 6 1139 900 189 41 96.364685 According5 1 2 3 6 7 1339 903 35 29 96.427895 to5 1 2 3 6 8 1383 899 62 32 96.020561 thes 1 2 3 6 9 1456 902 127 38 96.825996 report,5 1 2 3 6 10 1595 899 91 32 96.964706 after5 1 2 3 6 11 1697 899 83 31 96.312721 30005 1 2 3 6 12 1792 898 102 39 92.616257 miles,5 1 2 3 6 13 1920 922 2 2 67.747116 ..4 1 2 3 7 0 580 947 1354 46 -1 5 1 2 3 7 1 580 956 96 31 96.637215 there5 1 2 3 7 2 694 965 67 22 96.627960 was5 1 2 3 7 3 780 965 42 21 96.821098 an5 1 2 3 7 4 842 963 143 30 95.984795 averages 1 2 3 7 5 1003 950 174 39 96.734474 reductions 1 2 3 7 6 1195 951 34 32 96.878799 in5 1 2 3 7 7 1246 950 61 33 96.878799 hot5 1 2 3 7 8 1324 950 64 32 96.818237 idle5 1 2 3 7 9 1407 948 144 34 96.338150 exhaust5 1 2 3 7 10 1567 948 175 33 96.338150 emissions5 1 2 3 7 11 1762 948 38 32 96.975418 of5 1 2 3 7 12 1815 947 85 33 62.475502 both5 1 2 3 7 13 1932 956 2 2 28.929024 -4 1 2 3 8 0 582 999 1319 48 -1 5 1 2 3 8 1 582 1002 245 45 95.912460 hydrocarbons5 1 2 3 8 2 844 1004 63 33 96.388062 ands 1 2 3 8 3 924 1004 124 44 96.542213 carbon5 1 2 3 8 4 1065 995 175 40 96.730766 monoxide5 1 2 3 8 5 1257 998 56 36 96.995041 for5 1 2 3 8 6 1329 1001 50 32 96.690880 six5 1 2 3 8 7 1396 1010 83 30 96.690880 cars,5 1 2 3 8 8 1496 1000 63 32 96.956970 but5 1 2 3 8 9 1574 999 181 33 96.822708 individuals 1 2 3 8 10 1771 999 130 43 87.575424 results4 1 2 3 9 0 581 1048 1314 44 -1 5 1 2 3 9 1 581 1064 88 24 96.811829 were5 1 2 3 9 2 684 1054 213 33 96.420746 “scattered.”5 1 2 3 9 3 912 1053 70 32 96.634361 Thes 1 2 3 9 4 997 1062 154 30 96.858246 averages 1 2 3 9 5 1157 1051 174 32 96.792603 reductions 1 2 3 9 6 1346 1050 39 32 97.015892 of5 1 2 3 9 7 1396 1044 255 47 96.283859 hydrocarbons5 1 2 3 9 8 1659 1048 178 32 96.184929 measured5 1 2 3 9 9 1851 1048 44 39 96.184929 by4 1 2 3 10 0 561 1097 1352 45 -1 5 1 2 3 10 1 561 1102 77 35 35.936325 thes 1 2 3 10 2 647 1105 117 37 90.912140 NDIR5 1 2 3 10 3 778 1103 133 32 96.373940 methods 1 2 3 10 4 925 1113 70 21 96.784904 was5 1 2 3 10 5 1008 1103 20 30 95.983070 95 1 2 3 10 6 1042 1104 146 38 96.705589 percent,5 1 2 3 10 7 1201 1100 65 32 96.737686 ands 1 2 3 10 8 1280 1100 58 31 96.564980 thes 1 2 3 10 9 1351 1098 174 33 96.564980 reductions 1 2 3 10 10 1539 1098 38 32 96.705971 of5 1 2 3 10 11 1586 1089 122 41 95.647591 carbon5 1 2 3 10 12 1720 1097 175 32 86.310455 monoxide5 1 2 3 10 13 1911 1109 2 2 0.000000 -4 1 2 3 11 0 558 1146 1337 47 -1 5 1 2 3 11 1 558 1168 2 2 30.499763 _5 1 2 3 11 2 582 1151 113 36 92.076950 shown5 1 2 3 11 3 709 1156 35 30 96.701134 at5 1 2 3 11 4 757 1153 75 39 96.815460 idle,5 1 2 3 11 5 849 1153 35 31 86.270287 185 1 2 3 11 6 898 1154 148 42 95.829163 percent.5 1 2 3 11 7 1062 1151 90 32 96.990753 Overs 1 2 3 11 8 1164 1150 59 32 96.944672 thes 1 2 3 11 9 1237 1149 82 32 97.008789 roads 1 2 3 11 10 1333 1148 70 33 96.975952 fuels 1 2 3 11 11 1417 1147 168 41 96.888451 economy,5 1 2 3 11 12 1600 1147 176 40 95.883591 according5 1 2 3 11 13 1789 1149 34 30 96.824013 to5 1 2 3 11 14 1837 1146 58 32 96.844116 thea 1 2 3 12 0 582 1202 528 43 -1 5 1 2 3 12 1 582 1200 122 45 96.944885 report,5 1 2 3 12 2 719 1202 172 42 96.886665 improved5 1 2 3 12 3 909 1203 35 30 94.195068 115 1 2 3 12 4 961 1204 149 38 96.487175 percent.3 1 2 4 0 0 623 1237 1272 56 -1 4 1 2 4 1 0 623 1237 1272 56 -1 5 1 2 4 1 1 623 1258 47 30 96.008553 50.5 1 2 4 1 2 694 1256 60 31 93.235184 RX5 1 2 4 1 3 767 1254 80 33 92.020485 70.is5 1 2 4 1 4 859 1265 20 20 93.947754 a5 1 2 4 1 5 890 1256 115 37 93.947754 reports 1 2 4 1 6 1017 1252 103 32 96.704239 dated5 1 2 4 1 7 1132 1237 203 55 96.687363 September5 1 2 4 1 8 1349 1250 75 32 96.518051 19715 1 2 4 1 9 1439 1249 39 32 96.634857 of5 1 2 4 1 10 1486 1259 21 22 95.240608 a5 1 2 4 1 11 1520 1249 203 32 96.117424 “Consumers 1 2 4 1 12 1737 1248 67 32 96.821983 Cars 1 2 4 1 13 1815 1247 80 33 96.502365 Test3 1 2 5 0 0 573 1297 1323 693 -1 4 1 2 5 1 0 573 1297 1322 41 -1 5 1 2 5 1 1 573 1303 206 33 0.000000 ‘__Effect5 1 2 5 1 2 799 1300 39 35 93.079216 of5 1 2 5 1 3 855 1299 173 36 92.515305 DMA-1155 1 2 5 1 4 1047 1299 44 34 96.017334 on5 1 2 5 1 5 1111 1301 154 31 96.162003 Exhaust5 1 2 5 1 6 1287 1298 185 33 96.467377 Emissions5 1 2 5 1 7 1492 1298 65 32 96.660240 ands 1 2 5 1 8 1578 1297 129 41 92.454239 Engines 1 2 5 1 9 1727 1297 168 31 91.904808 Perform-4 1 2 5 2 0 583 1346 1312 44 -1 5 1 2 5 2 1 583 1355 105 32 96.764946 ance.”5 1 2 5 2 2 706 1354 78 32 96.697968 This5 1 2 5 2 3 802 1353 70 32 96.692322 tests 1 2 5 2 4 890 1351 153 33 96.675407 involved5 1 2 5 2 5 1064 1361 21 22 96.564186 a5 1 2 5 2 6 1102 1350 79 33 96.649414 roads 1 2 5 2 7 1201 1349 189 41 95.899734 evaluations 1 2 5 2 8 1408 1348 39 32 92.247635 of5 1 2 5 2 9 1462 1347 175 32 92.017830 DMA-1155 1 2 5 2 10 1655 1346 99 40 95.804192 using5 1 2 5 2 11 1772 1347 38 31 92.833366 515 1 2 5 2 12 1829 1356 66 26 92.926254 em-4 1 2 5 3 0 574 1395 1321 50 -1 5 1 2 5 3 1 574 1404 124 41 76.952835 ‘ployees 1 2 5 3 2 710 1403 116 32 96.887413 owned5 1 2 5 3 3 841 1402 63 32 97.013367 ands 1 2 5 3 4 917 1400 162 41 96.502419 operated5 1 2 5 3 5 1092 1398 219 33 96.289421 automobiles5 1 2 5 3 6 1325 1408 62 22 96.289421 ones 1 2 5 3 7 1399 1400 35 29 96.926048 to5 1 2 5 3 8 1448 1396 94 41 96.826767 eight5 1 2 5 3 9 1553 1407 99 30 96.963127 years5 1 2 5 3 10 1665 1395 62 33 96.693604 old.5 1 2 5 3 11 1741 1395 68 32 96.907188 Thes 1 2 5 3 12 1822 1406 73 22 96.982391 cars4 1 2 5 4 0 583 1445 1311 44 -1 5 1 2 5 4 1 583 1464 88 22 96.775093 were5 1 2 5 4 2 685 1452 132 33 95.897057 divided5 1 2 5 4 3 834 1452 68 31 96.560043 into5 1 2 5 4 4 917 1462 20 21 96.966080 a5 1 2 5 4 5 952 1449 128 33 96.349304 controls 1 2 5 4 6 1094 1459 107 30 96.153267 groups 1 2 5 4 7 1216 1448 39 32 96.742943 of5 1 2 5 4 8 1267 1449 41 30 96.556625 265 1 2 5 4 9 1323 1457 73 22 96.093567 cars5 1 2 5 4 10 1411 1446 99 40 96.093567 using5 1 2 5 4 11 1525 1456 20 22 96.295334 a5 1 2 5 4 12 1559 1446 198 39 93.233055 completely5 1 2 5 4 13 1771 1445 123 43 92.765923 formu-4 1 2 5 5 0 583 1495 1311 50 -1 5 1 2 5 5 1 583 1505 87 43 96.520699 lated5 1 2 5 5 2 686 1503 164 42 96.398918 premiums 1 2 5 5 3 865 1501 156 41 95.735687 gasoline,5 1 2 5 5 4 1038 1500 66 32 96.819527 ands 1 2 5 5 5 1119 1510 20 21 96.819527 a5 1 2 5 5 6 1155 1499 121 31 96.681038 seconds 1 2 5 5 7 1294 1498 82 41 96.679703 fleets 1 2 5 5 8 1393 1495 37 35 96.420616 of5 1 2 5 5 9 1439 1497 44 31 96.666290 255 1 2 5 5 10 1499 1497 75 31 96.341011 cars5 1 2 5 5 11 1590 1496 176 40 96.153130 operating5 1 2 5 5 12 1780 1506 42 21 96.565102 on5 1 2 5 5 13 1837 1496 57 31 96.892784 thea 1 2 5 6 0 584 1545 1309 48 -1 5 1 2 5 6 1 584 1551 89 35 95.919495 same5 1 2 5 6 2 689 1554 79 39 96.314743 bases 1 2 5 6 3 784 1551 146 42 96.314743 gasolines 1 2 5 6 4 946 1554 35 29 96.442474 to5 1 2 5 6 5 996 1549 109 32 93.301117 which5 1 2 5 6 6 1121 1548 175 32 91.032684 DMA-1155 1 2 5 6 7 1312 1538 64 41 96.847069 had5 1 2 5 6 8 1392 1547 85 31 96.874016 been5 1 2 5 6 9 1493 1545 118 33 96.564560 added.5 1 2 5 6 10 1627 1545 266 32 96.336388 Measurements4 1 2 5 7 0 584 1594 1311 44 -1 5 1 2 5 7 1 584 1614 87 21 96.826920 were5 1 2 5 7 2 689 1602 95 32 95.937233 made5 1 2 5 7 3 804 1604 36 29 95.937233 at5 1 2 5 7 4 856 1600 57 32 96.750130 thes 1 2 5 7 5 931 1602 88 30 96.425926 starts 1 2 5 7 6 1037 1599 40 32 96.425926 of5 1 2 5 7 7 1090 1599 58 31 96.712067 thes 1 2 5 7 8 1166 1608 158 30 96.712067 programs 1 2 5 7 9 1342 1596 64 32 96.818398 ands 1 2 5 7 10 1425 1596 91 32 96.425705 after5 1 2 5 7 11 1534 1594 264 41 96.270844 approximately5 1 2 5 7 12 1815 1595 80 30 96.446846 30004 1 2 5 8 0 584 1643 1311 47 -1 5 1 2 5 8 1 584 1653 92 31 96.119453 miles5 1 2 5 8 2 694 1652 38 31 96.630981 of5 1 2 5 8 3 747 1650 115 40 96.920074 family5 1 2 5 8 4 880 1649 139 40 96.710526 driving.5 1 2 5 8 5 1038 1647 188 40 96.599388 According5 1 2 5 8 6 1243 1649 35 29 97.018890 to5 1 2 5 8 7 1297 1646 58 31 96.830551 thes 1 2 5 8 8 1373 1648 70 29 96.558678 tests 1 2 5 8 9 1460 1647 117 38 96.754669 reports 1 2 5 8 10 1595 1644 32 30 96.618736 in5 1 2 5 8 11 1645 1644 58 30 93.300110 thes 1 2 5 8 12 1722 1643 173 31 89.925781 DMA-1154 1 2 5 9 0 583 1693 1312 50 -1 5 1 2 5 9 1 583 1704 90 39 94.001656 fleet,5 1 2 5 9 2 687 1703 121 41 95.081261 carbon5 1 2 5 9 3 822 1696 172 38 96.850365 monoxide5 1 2 5 9 4 1009 1698 175 33 96.991119 emissions5 1 2 5 9 5 1198 1697 182 33 96.603401 decreased5 1 2 5 9 6 1393 1697 45 40 97.000618 by5 1 2 5 9 7 1452 1697 19 31 96.971397 65 1 2 5 9 8 1483 1698 139 38 96.680847 percent5 1 2 5 9 9 1635 1698 35 29 96.259659 at5 1 2 5 9 10 1682 1695 59 32 96.259659 hot5 1 2 5 9 11 1754 1694 64 32 96.907425 idle5 1 2 5 9 12 1831 1693 64 32 96.705231 anda 1 2 5 10 0 587 1741 1308 52 -1 5 1 2 5 10 1 587 1754 36 31 96.192154 135 1 2 5 10 2 632 1747 139 46 96.863983 percent5 1 2 5 10 3 783 1754 35 29 96.872482 at5 1 2 5 10 4 833 1752 37 30 96.872482 155 1 2 5 10 5 881 1745 93 37 96.657997 miles5 1 2 5 10 6 987 1759 62 31 96.290833 pers 1 2 5 10 7 1061 1749 91 31 96.220032 hour.5 1 2 5 10 8 1165 1748 158 39 96.779198 Averages 1 2 5 10 9 1336 1745 230 40 96.560493 hydrocarbons 1 2 5 10 10 1579 1744 174 32 96.685699 emissions5 1 2 5 10 11 1765 1741 130 34 92.429955 accord-4 1 2 5 11 0 584 1792 1311 53 -1 5 1 2 5 11 1 584 1803 74 42 96.133736 ings 1 2 5 11 2 652 1805 33 28 96.013885 to5 1 2 5 11 3 697 1802 58 31 96.283066 thes 1 2 5 11 4 767 1803 116 38 83.375153 reports 1 2 5 11 5 895 1809 88 22 86.662231 were5 1 2 5 11 6 997 1792 146 38 96.773712 reduced5 1 2 5 11 7 1157 1797 44 40 96.788033 by5 1 2 5 11 8 1217 1797 35 30 96.914215 115 1 2 5 11 9 1267 1798 139 39 96.652077 percent5 1 2 5 11 10 1419 1805 38 22 96.992317 or5 1 2 5 11 11 1468 1795 21 31 96.959343 85 1 2 5 11 12 1501 1797 139 37 96.769463 percent5 1 2 5 11 13 1652 1792 191 41 96.690094 depending5 1 2 5 11 14 1854 1803 41 21 96.995148 on4 1 2 5 12 0 584 1842 1309 43 -1 5 1 2 5 12 1 584 1852 57 32 96.586395 thes 1 2 5 12 2 654 1842 134 41 96.620094 methods 1 2 5 12 3 803 1851 39 31 95.780952 of5 1 2 5 12 4 853 1851 248 30 96.352303 measurements 1 2 5 12 5 1116 1846 91 33 96.894676 used.5 1 2 5 12 6 1222 1846 72 32 96.585327 Thes 1 2 5 12 7 1307 1848 115 37 96.596138 reports 1 2 5 12 8 1436 1843 136 33 96.360374 furthers 1 2 5 12 9 1586 1842 111 33 96.468414 stated5 1 2 5 12 10 1711 1842 76 32 96.687698 that5 1 2 5 12 11 1801 1852 42 22 96.076981 an5 1 2 5 12 12 1859 1843 34 30 96.591522 114 1 2 5 13 0 584 1891 1312 51 -1 5 1 2 5 13 1 584 1903 136 39 96.664459 percent5 1 2 5 13 2 736 1909 145 30 96.530228 averages 1 2 5 13 3 898 1898 245 40 96.742996 improvements 1 2 5 13 4 1159 1896 34 31 96.851501 in5 1 2 5 13 5 1210 1894 70 32 96.698326 fuels 1 2 5 13 6 1300 1904 157 29 95.219887 economy5 1 2 5 13 7 1474 1892 68 32 96.796844 had5 1 2 5 13 8 1558 1892 84 32 96.624557 been5 1 2 5 13 9 1660 1891 165 38 96.588188 observed5 1 2 5 13 10 1843 1891 53 32 97.018814 fora 1 2 5 14 0 584 1947 1250 43 -1 5 1 2 5 14 1 584 1952 57 32 96.128181 thes 1 2 5 14 2 656 1961 72 22 96.686661 cars5 1 2 5 14 3 745 1949 174 41 96.615685 operating5 1 2 5 14 4 933 1959 41 21 93.299484 on5 1 2 5 14 5 992 1941 184 37 91.628853 DMA-115.2 1 3 0 0 0 804 2048 869 91 -1 3 1 3 1 0 0 804 2048 869 91 -1 4 1 3 1 1 0 804 2048 869 44 -1 5 1 3 1 1 1 804 2048 212 39 96.116882 Correlation5 1 3 1 1 2 1033 2052 41 40 96.831390 of5 1 3 1 1 3 1085 2052 74 31 96.955643 Tests 1 3 1 1 4 1173 2049 142 33 96.072578 Results5 1 3 1 1 5 1332 2049 86 31 96.072578 With5 1 3 1 1 6 1432 2048 241 40 96.212051 Performance4 1 3 1 2 0 946 2097 585 42 -1 5 1 3 1 2 1 946 2103 43 31 95.828903 In5 1 3 1 2 2 1006 2102 54 32 96.586693 thes 1 3 1 2 3 1075 2099 144 35 96.528122 General5 1 3 1 2 4 1236 2100 74 31 96.543831 Cars 1 3 1 2 5 1321 2097 210 42 95.929718 Population2 1 4 0 0 0 584 2180 1311 100 -1 3 1 4 1 0 0 584 2180 1311 100 -1 4 1 4 1 1 0 625 2180 1270 49 -1 5 1 4 1 1 1 625 2193 46 29 96.136246 51.5 1 4 1 1 2 696 2191 31 31 96.663330 It5 1 4 1 1 3 743 2190 27 31 96.663330 is5 1 4 1 1 4 788 2190 59 31 97.001900 thes 1 4 1 1 5 862 2188 129 41 96.802261 opinions 1 4 1 1 6 1009 2187 39 33 96.272263 of5 1 4 1 1 7 1063 2187 58 31 96.647186 thes 1 4 1 1 8 1138 2186 145 31 96.841972 directors 1 4 1 1 9 1301 2184 38 31 97.004295 of5 1 4 1 1 10 1353 2183 43 32 93.281960 du5 1 4 1 1 11 1414 2182 114 32 93.049446 Pont’s5 1 4 1 1 12 1546 2181 188 32 93.296333 Petroleum5 1 4 1 1 13 1753 2180 142 32 91.532234 Labora-4 1 4 1 2 0 584 2229 1311 51 -1 5 1 4 1 2 1 584 2244 75 36 96.054436 tory5 1 4 1 2 2 670 2240 74 32 96.054436 that5 1 4 1 2 3 756 2239 96 32 96.551392 there5 1 4 1 2 4 864 2238 28 32 96.551392 is5 1 4 1 2 5 914 2248 9 21 94.586723 a5 1 4 1 2 6 935 2236 164 41 94.586723 completes 1 4 1 2 7 1111 2234 200 33 95.739273 correlation5 1 4 1 2 8 1323 2233 153 32 96.372131 between5 1 4 1 2 9 1489 2231 172 32 96.729645 reductions 1 4 1 2 10 1675 2230 37 32 97.004745 of5 1 4 1 2 11 1722 2229 173 33 96.875252 emissions2 1 5 0 0 0 628 2372 949 64 -1 3 1 5 1 0 0 628 2372 949 64 -1 4 1 5 1 1 0 628 2372 949 28 -1 5 1 5 1 1 1 628 2378 17 14 95.767540 125 1 5 1 1 2 651 2380 27 19 95.382675 Of5 1 5 1 1 3 686 2381 34 17 95.179855 thes 1 5 1 1 4 728 2380 24 18 95.179855 235 1 5 1 1 5 761 2385 45 13 96.555443 cars5 1 5 1 1 6 817 2379 71 21 94.923721 tested,5 1 5 1 1 7 897 2381 21 16 94.923721 at5 1 5 1 1 8 928 2378 49 18 96.386276 least5 1 5 1 1 9 993 2378 5 17 96.730438 55 1 5 1 1 10 1008 2376 82 19 96.116379 showed5 1 5 1 1 11 1101 2382 24 12 94.255051 an5 1 5 1 1 12 1136 2376 89 18 94.255051 increases 1 5 1 1 13 1235 2374 18 18 96.587959 in5 1 5 1 1 14 1264 2373 149 24 93.251358 hydrocarbons5 1 5 1 1 15 1423 2372 95 21 92.516563 (Scheule5 1 5 1 1 16 1528 2372 49 20 96.328697 936).4 1 5 1 2 0 628 2407 754 29 -1 5 1 5 1 2 1 628 2411 17 14 23.550385 135 1 5 1 2 2 651 2414 40 18 23.550385 Thes 1 5 1 2 3 700 2419 45 13 94.464653 cars5 1 5 1 2 4 754 2418 53 13 96.290894 were5 1 5 1 2 5 819 2412 93 24 96.930946 operated5 1 5 1 2 6 922 2411 31 19 96.515915 for5 1 5 1 2 7 962 2418 12 11 95.351875 a5 1 5 1 2 8 983 2413 42 17 95.351875 tests 1 5 1 2 9 1035 2409 68 25 96.607224 periods 1 5 1 2 10 1114 2409 24 19 94.998734 of5 1 5 1 2 11 1144 2409 46 23 95.559494 July5 1 5 1 2 12 1200 2410 20 17 96.793289 to5 1 5 1 2 13 1231 2408 89 19 96.509270 October5 1 5 1 2 14 1331 2407 51 18 95.983856 1970. CROWN CENTRAL PETROLEUM CORP. 15138 1493 Initial Decision by DMA-101 shown in laboratory tests and the reductions of emissions in actual service (Bettoney 1632). The view that such correlation is complete conflicts with other testimony. (Findings 52-56, infra). 52. Accelerated test procedures are commonly used by the automobile or oil industries. They may be used for initial screening purposes to separate the marginal from the more promising candidate products or to obtain the earliest possible answers at the least possible expense (CX 129; Mills 3149-50). However, “accelerated testing could be a poor predictor of real life operation.” (id. at 3081). 53. The test procedures utilized in testing the emission reducing properties of du Pont’s detergent additives were essentially accelerated procedures. Tests such as CX 110Q utilizing accelerated procedures are valid as laboratory tests and the data therein was properly obtained (Cattaneo 1963). Such a laboratory test gives a good indication that the additive reduces emissions. Accelerated procedures, although they are appropriate as development tests for an indication of what might happen in the general car population do not, however, support claims as to actual performance in the general car population without further testing (Cattaneo 1962-63).

54. Du Pont’s laboratory test given as a reference to support the claimed emission reductions incorporates a procedure simulating the performance of a small group of high emission cars comprising 5 to 15 percent of the general car population. Reductions in the case of cars not in this group might be much smaller (Finding 25, supra). 55. On May 15, 1970, the director of du Pont’s Petroleum Laboratory wrote as follows to D. R. Diggs, the technical director of the company’s Petroleum Chemicals Division:

Several major oil companies have shown a high interest in buying DMA-115, provided du Pont can supply data showing vehicle emission reduction properties. Preferably, DMA-115 should reduce emissions in normal automotive service, but most, if not all, potential customers will probably buy our product if it can be shown to reduce emissions in an onthe-road accelerated test procedure such as was used by Chevron in their promotion of F- 310.

Such accelerated procedures are usually devised to simulate the performance of that small group of high-emission cars in the population which have deteriorated through the use of poor lubricants, infrequent oil changes, or severe operation such as encountered in taxi or police operation.

We have demonstrated that DMA-115 will reduce emissions by cleaning carburetors that have been dirtied by an accelerated laboratory test procedure, but we have been unable to 4 According to one of the Commission’s expert witnesses, tests on vehicles with very dirty or heavily deposited engines suggest that “if the general motor vehicle population is composed of vehicles with varying degrees of induction system deposit formations to the point of fouling that there would certainly be a general reduction: in hydrocarbons and carbon monoxide resulting from the use of an extremely effective additive.” (Mills, CX 129; Tr. 3143). 1514 FEDERAL TRADE COMMISSION DECISIONS.

Initial Decision: 7 $4 FTC. i.

“demonstrate cogiclusibely such benefits for either DM.A-115 or F-31 0% in cars operated am... normal, service, presumably because the carburetors. were. not. particularly dirty.or S : “because the dirt was of the type that could not be removed from the additives. (Bettoney ge 2065- 67) (emphasis supplied) ~ ‘This contemporaneous ‘statement by the director of du Pont’s Petro- fom leum Laboratory, preceding by approximately two months, Crown’s advertisement of the additive in July of 1970, tends to corroborate the © ~ testimony of Commission witness Dr. Cattaneo on this point. 56. It takes numerous tests on many different engine configurations, carburetor configurations, and vehicle assemblies to determine what the’: overall effect of an additive would be (Verelli 1031). To secure data valid for the general car population, you would need a sample representing . the different vehicles registered by type, years, models, etc., and within such groups, it would be necessary to consider items such as engine sizes or transmissions (Verelli 1036-37).

-VII. Crown’s Advertising and Promotion of CA-101, 57. In the late winter and spring of 1970, Crown’s officials became aware that the automotive emission problem was attracting a great deal of concern particularly in the California area (Loving 1247-48). In this connection, Crown’s corporate officials had read about the Chevron F- 310 additive (Loving 1248).

Du Pont’s account manager involved in the sales talks with respondent was also aware that “back in 1970 the environmental movement was just really getting under way” (Hagele 1165). 58. In connection with the automotive emission problem, Crown’s officials felt there were two courses open to them, namely, to market a low lead or no lead gasoline or to take the additive approach (Loving 1249). Crown decided to market a gasoline with an additive because it considered the low or no lead approach impractical and too expensive (Loving 1250, 1317-18).

59. Crown accordingly called in a number of manufacturers of additives which were “designed to be effective in the control of automotive - emissions” (Loving 1251). Sometime after June 18, 1970, Crown’s officials decided to purchase du Pont’s additive DMA-101 (Loving 1253, 1257).

60. As a part of its selling effort, du Pont furnished Crown, in the | course of oral discussions and through brochures, bulletins and test 5 According to respondent, “DMA-101 and DMA-115 are closely-related additives. They are similar chemically and : functionally. Performance obtained through the use of DMA-115 should be indicative of similar effectiveness through the use of DMA-101.” (RPF 34).

1493 Initial Decision reports with technical data relating to additive’s detergent action and to its effect on automobile emissions (RX 1A-F, RX 2A-2PP; Hagele 1158- 59, 1161, 1164-65).

In connection with the decision to purchase DMA-101, John I. Loving, Crown’s vice president of sales, asked du Pont’s officials whether du Pont would approve its advertising of DMA-101 and support Crown’s statements therein. He received assurances that Crown would get such approval assuming that du Pont had a chance to review respondent’s advertising copy (Loving 1257-58).

Crown’s vice president of sales and its advertising department took full control of the preparation of the advertisements for the additive. An outside agency placed such advertisements in the media (Loving 1264). Crown submitted its proposed advertising copy to du Pont’s officials for review and in those instances where du Pont’s employees suggested changes such revisions were made (Loving 1260-64). Radio scripts promoting the additive and point-of-sale materials such as pole signs were also forwarded to du Pont for review (Loving 1274), and Crown received du Pont’s approval prior to dissemination of any of the advertising concerning the additive (Loving 1279). 61. Respondent’s promotion of gasoline with CA-101 was dominated by a clean air theme. That theme was selected by Crown for the following reasons:

Well, as you do in advertising, you look for a shorthand word to convey to the public whom you are addressing what you are talking about. Clean-Air was the name of the legislative Act which Congress passed in the 1960's. It had become a word or a phrase in common usage which related to the air pollution problem, and probably in particular the automotive emission problem. So clean-air was taken * * * out of common usage. (Loving 1270). and it was the intention of Crown in using that term to give “a slogan type of impression, that clean-air was descriptive of what we were talking about” (Loving 1270).

62. The promotion of Crown as the Clean Air gasoline capitalized on the public’s concern with pollution and the fact that back in 1970, the environmental movement was “really getting underway.” (Finding 57, supra) Newspaper Advertisements 63. On July 138, 1970, respondent ran an advertisement in the Balti- -more Sun papers and the News American promoting Crown gasoline 16 According to the witness, the clean air theme was analogous to slogans such as “A tiger in your tank” (Tr. 1270). Initial Decision 84 F.T.C.

containing formula CA-101 (CX 108)!7 which was not rerun in any of those papers after that date (Loving 1268). The advertisement was dominated by the headline: What’s behind the new Crown sign? NOW: New Clean-Air Gasoline CA-101 The phrase “NOW: New Clean-Air Gasoline” was in type approximately twice as large as the remainder of the headline of this advertisement. The advertisement under the headline contained a number of headings in smaller type viz:

Dramatically reduces exhaust emissions Gives better mileage Crown guarantees its gasoline quality Express-lane service at the pump island No stamps or games means savings Save your cash Maryland’s fastest-growing gasoline stations Each heading is followed by text material in apparently ordinary type.

Under the heading “Dramatically reduces exhaust emissions” respondent further represented:

Crown Premium 100 PLUS and Super Regular Gasoline now contain Formula CA-101. This remarkable new gasoline additive dramatically reduces exhaust emissions from your engine. Crown with Formula CA-101 reduces unburned hydrocarbons by as much as 66%*, deadly carbon monoxide 41%*. Clearly, this is a step toward cleaner air. Crown with Formula CA-101 works well in old cars and keeps new cars clean. Every car on the road should be using it.

Under the heading “Gives better mileage” respondent represented: Crown with CA-101 is both new and different. You get better gasoline mileage. It cleans your engine and keeps it clean. Your engine performs better, more efficiently. It breathes easier. And so do you. Crown, with Formula CA-101 burns cleaner, more completely. You use less gasoline. As a result, you get more miles per gallon, more miles per dollar. Under the heading “Crown guarantees its gasoline quality” respondent represents in pertinent part “Now Crown, with Formula CA-101, gives you better mileage and cleaner air.”

64. Crown also advertised its gasoline with the CA-101 additive in a Richmond, Va. paper on August 14, 1970. That advertisement in the lower right hand corner represented:

17 Appendix A.

1498 Initial Decision NOW: NEW CLEAN-AIR GASOLINE WITH FORMULA CA-101 New Crown with Formula CA-101 dramatically reduces exhaust emissions from your engine. Reduces unburned hydrocarbons by as much as 66%*, deadly carbon monoxide 41%*. Burns cleaner, more completely. You use less gasoline. New Formula CA-101 is now available in both grades of Crown gasoline. Costs no more. Every car on the road should be using it.

*Source: “A Study on the effects * * * of Exhaust Emissions”-Dupont Chemica) Co. (CX 108A)38 Some or all of the foregoing statements appeared once in each of two Richmond, Va. papers and once in each of three Baltimore, Md. papers (Answer, par. 4).

65. In Sept. 1971, Crown ran an advertisement in the Atlanta, Georgia area representing in pertinent part that “Crown gasolines contain Formula CA-101 from Du Pont for cleaner air. You can’t buy better gasoline” (CX 108 O; Tr. 2016).

Direct Mail Advertising and Handouts 66. CX 108F was an advertisement sent to credit card holders, Bankamericard and Mastercharge holders. In Maryland and Virginia, 15-20,000 of these brochures were distributed in the mail (Loving 1305). And approximately 4000 copies of these brochures were printed for the use of respondent’s service stations (Loving 1306). CX 108F which is dominated by a banner heading stating “New Clean-Air Gasoline with Formula CA-101” is virtually identical to CX 108.

67. Crown used another direct-mail handout in Virginia in Sept. of 1970, which was mailed to credit card holders and utilized at service stations (CX 108N; Loving 1306-07). This brochure also continued the “New Clean-Air Gasoline” theme in a box in the lower right hand corner.

Radio Commercials 68. Crown disseminated over Baltimore stations WFBR, WCBM, WBAL, and WWIN, a radio commercial with the following script between July 13, 1970 and September 11, 1970 (Tr. 1236). The commercial stated in pertinent part:

[* * *] Crown is the gasoline you should be using. It’s now the Clean-Air gasoline because it now has formula CA-101 [* * *] What is this CA-101? Well * * * it’s an additive made by Du Pont * * * and what it does is to reduce exhaust emissions. That’s right. Your 1S Appendix B lols FEDERAL TRADE COMMISSION DECISIONS Initial Decision 84 F.T.C.

exhaust will have as much as 66% less unburned hydrocarbons * * * and 41% less deadly carbon monoxide. How about that? You breathe easier * * * and so does your car’s engine. Because Crown with CA-101 burns more completely * * * keeps your engine cleaner * * * helps it run more efficiently * * * so you get better mileage. And you stzll save up to 5 cents a gallon with Crown. So come on over to Crown * * * do your bit for cleaner air* * *. (CX 108L)!9 _ 69: Crown ran a radio commercial in the state of Virginia stating in relevant part:

cy [* * *] Fill up with Crown’s High Octane Clean Air gasoline * * * gives you up to 66% less unburned hydrocarbons in your ear’s exhaust * * * 41% less deadly carbon monoxide [part omitted] Fill up with Crown’s Clean Air gasoline now* * *. (Tr. 1236-37; CX 108H).2° Point of Sale Materials 70. In keeping with the “Clean Air” theme, respondent distributed the following point of sale materials to its stations: Buttons for station attendants with the legend “BREATHE A LITTLE EASIER with FORMULA CA-101” (CX 108B);

Pole signs with the slogan “NEW Clean-Air GASOLINE With Formula CA -101” (CX 108C);

Pole signs stating “Clean-Air GASOLINE Good for All Cars Costs No More” (CX 108D); and pump signs stating “New CLEAN-AIR FORMULA CA-101” followed in smaller print with the following representation:

Reduces Exhaust Emissions * * * Unburned Hydrocarbons to 66%, Carbon Monoxide to 41% Cleans Engines Gives Better Mileage (CX 108E). At present, Crown utilizes a pump sign with the representation “100 Octane contains Formula CA-101 For Cleaner Air” (CX 108M; Loving 1302-03).

71. Pole signs such as CX 108C and 108D usually last about ninety days (Loving 1275, 1299). Pump signs such as CX 108E would last about six months (Loving 1277, 1801-02). In the case of the buttons to be worn by station attendants with the legend “Breathe A Little Easier With Formula CA-101,” while it is difficult to determine how long they were actually utilized, it was Crown’s intention that they would be worn for three or four weeks (Loving 1800-01).

Crown’s Representations 72. Crown’s promotion of gasoline with the CA-101 additive is directed to drivers and owners of automobiles in the general car population. No distinction is made as to the effectiveness of the gasoline containing the additive as it might pertain to different makes, models or '9 Blisions in brackets were not contained in original. 20 Elision in brackets not in original.

1493 ; Initial Decision age groups of automobiles. Nor is any distinction made on the basis of the usage which a car might have been given (Findings 63 to 70, supra). 73. Crown, by use of the “Clean-Air Gasoline” theme in newspaper advertising, radio commercials, point of sale materials, handouts and direct mail advertising, represented that the advertised gasoline is pollution free in the sense that it adds no contaminants to the air (CX 108, 108A, 108L, 108H, 108C-108E, 108F, 108N).21 Crown gasoline with CA-101 will not produce pollution free motor vehicle exhaust; rather, automobiles using such gasoline will emit: unburned hydrocarbons, carbon monoxide, oxides of nitrogen, particulates, sulfur oxides, lead and other pollutants (Finding 32, supra). The claim that Crown gasoline produces pollution free motor vehicle exhaust is misleading.

74. In the case of respondent’s newspaper advertising and direct mail advertising, the Clean-Air slogan so dominated the text of such materials that the explanatory material therein cannot, as a practical matter, be considered as qualifying the claim. Similarly, Crown’s point of sale material, as a practical matter, contained no text qualifying the Clean- Air theme.

The use of the Clean Air slogan in newspaper advertising, radio commercials, direct mail advertisements and handouts were disseminated in a setting where Crown’s point of sale materials continued and reinforced the theme essentially without qualification for periods of three weeks (station attendant buttons) to six months (pump signs). (Findings 70-71, supra) To the extent that respondent’s dominant representation of “Clean- Air Gasoline” is modified by phrases such as “a step to cleaner air” or references to reductions of emissions in smaller type in the body of the text, the meaning of such advertising or promotional claims may become ambiguous. The Clean-Air theme as thus modified could still leave the impression that the gasoline is pollution free although the more careful reader might construe the claim as representing that it emits fewer pollutants.

75. Crown’s promotion of the Clean-Air theme, coupled with the reference to “Dramatically Reduces Exhaust Emissions” (CX 108, 108A, 108F), the reference to deadly carbon monoxide and the claims “It [your 21 The adjective “clean” is an express representation that the product or material referred to is free of contaminants or “not dirty.”

22The possible exception being pump signs where there is a specific reference to reductions of unburned hydrocarbons and carbon monoxide, and even here the clean air slogan dominated by virtue of the disparity in type (CX 108E).

23CX 108, 108F, and 108L state “do your bit for cleaner air.” Initial Decision 84 F.T.C.

engine] breathes easier. And so do you” (CX 108, 108F), “You breathe easier” (CX 108L), and “Breathe a Little Easier with Formula CA-101” (CX 108B), gives the net impression that the additive will cause a reduction of automobile exhaust emissions significant in the sense that it will effectively reduce the adverse effects of air pollution including the health hazards associated therewith in a meaningful or tangible way.4 The most favorable finding which can be made from respondent’s point of view is that use of CA-101 might overall reduce carbon monoxide and unburned hydrocarbons by 10 percent in the general car population (Finding 26, supra).

A reduction of hydrocarbons and carbon monoxide by 10 percent in the general car population would not support a claim that the effects of air pollution would be reduced to the extent that health hazards would be diminished in a meaningful way (Findings 14 to 16, supra). The additive leaves untouched pollutants from automobile exhaust which are detrimental to health, namely, lead, particulates, nitric oxides, and sulfur oxides (Findings 32, 17, 18, supra). The additive does not significantly reduce the health hazards associated with air pollution and the implied representation to the contrary in ~ respondent’s advertising and promotion of Crown gasoline with CA-101 is misleading.

76. The claims “New Clean-Air Gasoline,” “Dramatically reduces exhaust emissions,” “reduces unburned hydrocarbons by as much as 66 percent, deadly carbon monoxide 41 percent,” “Crown with Formula CA-101 works well in old cars and keeps new cars clean: Every car on the road.should be using it” (CX 108, 108F), and “Good for all cars on the road” (CX 108F) imply that the CA-101 additive will significantly reduce emissions of carbon monoxide and unburned hydrocarbons from every motor vehicle in which it is used.

The representations “New Clean-Air Gasoline” and “Dramatically Reduces Exhaust Emissions” imply that there will be substantial reductions from existing levels of emissions emitted by cars using respondent’s products. The overall impression to this effect is not dispelled by the additional and far Jess conspicuous claim that Crown with CA-101 “keeps new cars clean.”’%5 “The representation “Now Crown, with Formula CA-101, gives you * * * cleaner air” in CX 108, reinforces that impression.

2 The technical meaning of the “keep clean” representation is essentially that the additive by controlling deposit formations will prevent emissions of carbon monoxide and hydrocarbons from increasing (RPF 27, 28). The challenged advertising does not, however, provide the consumer with that explanation. Under the circumstances, the statement is ambiguous and does not effectively modify the claim of “dramatic” reductions. 1493 Initial Decision Crown gasoline with CA-101 will not significantly reduce emissions of carbon monoxide and unburned hydrocarbons in every motor vehicle in which it.is used. (Findings 27 to 32, supra). This representation is misleading and has the capacity to deceive. 71. The claims “It [Crown with CA-101] cleans your engine and keeps it clean” (CX 108, 108F) and “keeps your engine cleaner” (CX 108L), represent that the additive will clean the engine of any car owner reading or listening to such claims. The claims that Crown gasoline with the additive will keep the engine clean makes no distinction as to the engine components subject to the cleaning process. Respondent has accordingly represented that this product will keep clean all engines and all engine components.

The representation is misleading. Crown gasoline with CA-101 will not clean all engine components (Finding 29, supra). 78. The footnote reference in CX 108, 108A, 108F and 108N, “Source: ‘A Study on the Effects * * * of Exhaust Emissions’ Du Pont Chemical Company”s, tied expressly to the claimed reduction of “as much as” 66 percent unburned hydrocarbons and 41 percent carbon monoxide represents that this claim was supported by adequate test data (CX 108, 108A, 108F, 108N). The foregoing reference to the Du Pont Study is not tied to the performance claims challenged by the complaint such as the better mileage claim. With respect to these claims, there is no express representation that they were supported by test data. Rather, the advertisements imply Crown had an adequate, factual or technical basis for making the claim.

79. The technical and scientific data available to and considered by Crown including the test reports furnished by the manufacturer such as in RX 14, do not constitute a reasonable basis for the claim that Crown gasoline with CA-101 is pollution free or that this product will significantly reduce air pollution. The test data submitted to Crown such as CX 110Q indicates to the contrary in the case of the pollution free claim. The technical data and scientific data available to Crown do not furnish a reasonable basis for the representation that CA-101 will significantly reduce air pollution. The du Pont materials submitted to Crown were not concerned with the environmental impact of the claimed reductions (e.g., RX 14). Accordingly, respondent does not have a reasonable basis for the representation that such reductions are significant in the sense that they will meaningfully reduce the adverse effects of air pollution.

26 The du Pont study referred to in Crown’s advertising and promotional materials is included in the record as CX 110Q (Tr. 1266-67).

Initial Decision 84 F.T.C.

In the case of the claims that the additive will significantly reduce emissions of carbon monoxide and hydrocarbons in every car in which it is used and the better mileage claim, Crown relied on the technical data and the explanations in connection therewith furnished by the manufacturer. The record does not show that Crown had the “inhouse” expertise with respect to additives and additive testing to go behind the representations in the technical reports and the explanations given by du Pont employees. Under the circumstances, no finding can be made that respondent did not have a reasonable basis for believing the claims to be true.27 80. The advertising and promotion of Crown gasoline with CA-101 has the tendency and capacity to deceive because of the failure to disclose material facts necessary to an informed evaluation of the product claims in respondent’s advertising and promotion. The representation of emission reductions of carbon monoxide and unburned hydrocarbons of the magnitude claimed are misleading because they fail to inform the public that only cars with very dirty carburetors, approximately 5 to 15 percent of the general car population could expect to realize reductions on that scale. (Finding 37, supra). The failure to disclose that the additive will not remedy mechanical conditions which may result in substantial emissions of carbon monoxide and hydrocarbons is misleading. (Finding 28, supra). The failure to disclose that automobile exhaust contains harmful pollutants other than carbon monoxide and unburned hydrocarbons* is misleading in the context of the clean air theme and the claimed “dramatic reductions” of unburned hydrocarbons and carbon monoxide. These representations imply that the additive will reduce all harmful emissions from automobile exhaust.

VIII. Discussion The central issue in this case is whether respondent has misrepresented the performance characteristics of a gasoline additive in relation to “Air Pollution * * * one of the most notorious types of public nuisance in modern experience.” Washington et al v. General Motors Corp., et al, 406 U.S. 109, 114 (1972). The question is not whether the gasoline with the additive is a worthwhile product or whether it is a step in the right direction from the viewpoint of air pollution control. Rather, the princi- 27 For example, Crown apparently did not have before it the memorandum of Mr. Bettoney to Mr. Diggs of May 15, 1970, indicating that it was difficult to prove such claims in the course of actual car operation. (See Finding 55, supra). 2 Finding 32, supra.

1498 Initial Decision pal issue is simply whether Crown misrepresented the effectiveness of the product as a device for the control or amelioration of air pollution. Respondent, it is alleged, engaged in two kinds of misrepresentations. First, the complaint challenges Crown’s performance claims directly on the ground that they are false. Second, it is charged that respondent has falsely represented that it had tests, conducted tests, or had others conduct tests which proved or substantiated certain representations as to the performance characteristics of the additive. The following allegations challenge Crown’s performance claims directly on the ground that they are false viz., it is alleged respondent misrepresented that: 1. The CA-101 additive will produce pollution free motor vehicle exhaust.

2. CA-101 will significantly reduce air pollution. 3. CA-101 will significantly reduce emissions of carbon monoxide and unburned hydrocarbons from every motor vehicle in which it is used. 4. CA-101 will clean or keep clean all engines and engine components.29 In the case of the second category of charges, the complaint alleges essentially that respondent falsely represented it had test data to substantiate the following:

A. The CA-101 additive will produce pollution free motor vehicle exhaust;

B. CA-101 will significantly reduce air pollution; and will significantly reduce emissions of carbon monoxide and unburned hydrocarbons from every motor vehicle in which it is used; and C. Every purchaser of Crown gasolines containing the additive will obtain substantially better mileage by or through the use of such gasolines than can be obtained by or through the use of any other commercially available gasoline.

The proposed findings, replies, and associated memoranda have put in issue the standards which should be applied in construing the challenged advertising and point of sale materials. The factual record in this case may be complex. Nevertheless, the applicable criteria in Commission cases for evaluating allegedly false and misleading representations are well established and of long standing.

The Commission may utilize its accumulated expertise to determine what direct and implied representations are contained in such advertising. Pfizer, Inc., F.T.C. Docket No. 8819 (1972); FTC v. Colgate-Palmolive Co., 380 U.S. 374 (1965), and its expertise may be similarly applied to 29 Paragraph Six 1, 2, 3, 5.

30 Paragraph Six 4(a)(b)(c).

Initial Decision 84 F.T.C.

determine what facts are material to consumers and whether such information has been withheld. (Pfizer, supra). Moreover, in making such determinations, the Commission may draw its own inferences from the advertisements and need not depend on testimony or exhibits, aside from the advertisements themselves, introduced into the record. Carter Products, Inc. v. FTC, 323 F.2d 523 (5th Cir. 1963). In evaluating the challenged advertising and promotional materials, consideration has been given to the testimony of respondent’s experts who testified as to the meaning thereof. The testimony of the two psychologists, however, does not have sufficient weight to overcome the inferences to be drawn directly from the challenged advertising. This determination is supported by the recent Commission decision in The Firestone Tire & Rubber Company, F.T.C. Docket No. 8818 (1972) Slip Op., p. 20. There, the Commission held that it need not rely on a respondent’s survey but could base the requisite findings on its own reading of the advertisements to determine the meaning thereof and whether they had the capacity to deceive. A fortiori if testimony pertaining to the meaning of advertisements to rebut the allegations of the complaint is based on essentially generalized experience, then the Commission may independently evaluate the claims under consideration.22 Moreover, the two psychologists in reaching their conclusions, relied heavily on the expectations and beliefs which, in their view, consumers would bring to advertisements. That approach should be evaluated in light of the recent Firestone decision, supra. There, the Commission held that it should not assume a degree of sophistication on the part of consumers such that they would themselves read into respondent’s advertisements, disclaimers with respect to the representations made. That principle applies here.

3! Respondent’s expert who gave the most detailed findings had performed prior studies for oil companies, but had not concerned himself with air pollution advertising on the part of such firms. Nor was his testimony based on actual research conducted with respect to the challenged advertisements (Tr. 1765). Respondent's other expert testified that his firm had recently completed a study concerning what consumers think about air pollution and its causes (Tr. 1727- 30). There is, however, insufficient information in this record to facilitate a determination as to whether such expérience provides an adequate foundation for the testimony in support of Crown’s position. #2 See also Bantam Books, Ine. v. FTC, 275 F 2d 680, 682 (2nd Cir. 1960) cert. den ied, 364 U.S. 819 (1960) holding on a similar question:

“The Commission was not bound to accept the opinion evidence of petitioner’s witness even though petitioner asserts this was uncontradicted. No real basis was laid for the expert's conclusion, the interviews having dealt generally with book-buying habits and having made no attempt to determine whether buyers of petitioner’s books were actually deceived* * *.”

The Commission cannot and should not assume 2 degree of sophistication on the part of tire buyers such that they will themseives read into respondent's advertisement certain disclaimers with respect to its safety claims which are made in such absolute and unqualified terms. The law aims to protect the vast multitude of consumers which includes, ‘the ignorant, the unthinking and the credulous’ * * * Whatever amount of information consumers may have about tire safety, the burden is hardly on them to read material facts into an advertisement in order to make it truthful* * +.” Slip Op., p. 28.

1493 Initial Decision Where the truth of falsity of respondent’s claims are directly in issue and the claims prove false, good faith or lack of intent to deceive are irrelevant. National Dynamics Corp., F.T.C. Docket No. 8803 (Comm. Opinion, February 16, 1973, Slip Op., p. 9). A showing of an intent to deceive is not prerequisite to a finding of violation, and lack of know]edge as to the falsity of the challenged representations is not a defense to a charge of misleading advertising; the purpose of the statute is the protection of the public and not the punishment of a wrongdoer. Gimbel Bros., Inc. v. FTC, 116 F.2d 578, 579 (2nd Cir. 1941). The decision as to whether material facts have been misrepresented does not depend on the good or bad faith of the advertiser. Koch, et al v. FTC, 206 F.2d 311, 317 (6th Cir. 1953); Ford Motor Co. v. FTC, 120 F.2d 175, 181 (6th Cir. 1941). Under the circumstances, whatever reliance Crown may have placed on du Pont’s clearance of the advertisements and promotional materials challenged here is immaterial in the case of those performance claims challenged directly on the ground that they were false. A finding of actual deception is not prerequisite to proof of a violation of the Federal Trade Commission Act, and representations merely having the capacity to deceive are unlawful. Charles of the Ritz Dist. Corp. v. FTC, 143 F.2d 676, 680 (2nd Cir. 1944). “The important criterion in determining the meaning of an advertisement is the net impression that it is likely to make on the general populace.” National Bakers Services, Inc. v. FTC, 329 F.2d 365, 367 (7th Cir. 1964). In determining the impression created by an advertisement, the Commission need not look to the technical interpretation of each phrase but must look to the overall impression likely to be made on the buying public. Murray Space Shoe Corporation v. FTC, 304 F.2d 270, 272 (2nd Cir. 1962).

Although a statement “may be obviously false to those who are trained and experienced [this] does not change its character, nor take away its power to deceive others less experienced.” FTC v. Standard Education Society, et al, 302 U.S. 112, 116 (1937). Clean is an adjective expressly representing that something is not dirty, and respondent’s clean air theme dominating its advertisements and promotional materials is an express representation that respondent’s gasoline is pollution free. The fact that the representation may be obviously false to the more sophisticated is immaterial. The Commission has only recently reaffirmed the principle that “(t]he law aims to protect the vast multitude of consumers which includes ‘the ignorant, the unthinking, and the credulous” (Firestone, supra, Slip Op., p. 28). In addition, advertisements which are capable of two meanings, one of which is false, are misleading. Rhodes Pharmacal Co., Inc. v. FTC, 208 Initial Decision 84 FLTC.

F.2d 382, 387 (7th Cir. 1953), affirmed, 348 U.S. 940 (1955). And statements susceptible of both a misleading and truthful interpretation will be construed against the advertiser. Murray Space Shoe Corporation, supra at 272. In this connection, respondent’s dominant clean air theme is an express representation that the gasoline is pollution free. To the extent that this representation is modified by phrases such as “a step to cleaner air” or references to reductions of emissions in smaller type in the body of the text of the advertisements, the claim may become somewhat ambiguous. The clean air theme as thus modified however, could still leave the impression that the gasoline is pollution free although the more careful reader might construe the claim as merely representing that respondent’s gasolines emit fewer pollutants. Under the applicable precedents, representations susceptible of both true or misleading interpretations nevertheless violate Section 5 of the Federal Trade Commission Act.

A continuing point of controversy throughout the proceeding has been the meaning which should attach to the term “significant” in connection with the charge that respondent has falsely represented that its gasoline with CA-101 will significantly reduce air pollution. For the purposes of this decision™, the finding is made that the additive may reduce emissions of carbon monoxide and unburned hydrocarbons on the order of 10 percent in the general car population if everyone were using it. Complaint counsel urge that it is not the amount of the reduction alone which determines its significance. Rather, they contend, the question turns on whether the additive effectively eliminates or ameliorates the effect of air pollution. Respondent apparently asserts that if the reductions resulting from the use of the additive show a downward trend that in and of itself is significant. On the basis of the net impression created by respondent’s advertising, it is evident that respondent’s claims imply that there will be a reduction of air pollution by the additive significant in the sense that it will, in a tangible way, reduce the adverse effects of air pollution including the health hazards associated therewith. That finding is compelled by association of the clean air theme with the representation of dramatic reductions of emissions and the breathe easier claims.

The record shows that a 10 percent reduction of carbon monoxide and . unburned hydrocarbons from automobile emissions will not meaning- 44 The evidence as to whether the du Pont test results can be projected with confidence to actual operations in the general car population is in conflict (Findings 5) to 56, supra). However, the resolution of that question is not crucial to the decision here, in view of the finding for the purposes of this decision that the additive could reduce carbon monoxide and unburned hydrocarbons in the general car population on the order of 10 percent. As a result, there is no need to dwell on the minutiae of testing procedures. 1493 Initial Decision fully reduce the health hazards associated with air pollution generated by those pollutants. (Findings 14 to 16). The record further demonstrates that the additive has no effect on other elements of automobile exhaust which constitute a serious potential health hazard. (Findings 17, 18, 32).35 Under the circumstances, the claim is misleading.3 It is immaterial that at the time such claims were made, the federal programs under the Clean Air Act required reductions only in the case of hydrocarbons and carbon monoxide*’ or that a 10 percent reduction of such emissions might approximate the reductions required by the Act from 1970 to 1972. The overall emission abatement, prescribed by the © Act, for cars in the years specified, ranging from 42 to 97 percent and presumably necessary for effective control exceed by a wide margin any reductions which the additive might achieve in the general car population.*8 The thrust of respondent’s advertising, is an implied promise of a tangible benefit flowing from the use of this product, rather than a mere claim of a step in the right direction.%s In short, the question of the additive’s possible relation to an overall air pollution control program is not relevant here.

The record also demonstrates that respondent has failed to disclose material facts necessary to an informed evaluation of the challenged performance claims. The complaint does not expressly charge respondent with the failure to disclose material facts. Nevertheless, the withholding of this information is related to the product claims challenged by the complaint and an order requiring the disclosure of such information is reasonably related to and required to help cure the deception alleged in the complaint and demonstrated by the record. 35 In view of the findings on this point, complaint counsel's proposed findings with respect to the impact of such reductions on other aspects of the envir it or the y are superfluous. . 436 Since respondent's market share is on the order of 3 percent, the likelihood of such a 10 percent reduction of emissions in the general car population is remote. 37 Stated in percentage terms, the degree of emission abatement required by the Clean Air Act, as amended, is as follows (based on a scale of 100 percent vs. pre-1968 cars); Pre-1968 Vehicles (Uncontrolled) 1968 1970 1972 1973 1975 1976 Unburned Hydrocarbons 0% 59% 3% 80% 97% Carbon Monoxide 0% 42% 62% 69% 96% Nitrogen Oxides 0% 0% 0% 0% 50% 93% (CX 115, p. 12) 38 In this connection, see the report of the Subpanel on Current Automobile Systems, U.S. Department of Commerce Technical Advisory Board, stating that work on certain additives had been abandoned because a 5-10 percent reduction of hydrocarbons “was not deemed significant relative to the large reductions desired.” (CX 76, p. 46). 39The advertisement states in the text “Clearly this ia a step to cleaner air.” (CX 108). Nevertheless, even if this statement were literally true, it would not vitiate the overall impression on thia point which is misleading. See Rhodes Pharmacal Co. v. FTC, supra and Murray Space Shoe Corporation v. FTC, supra. Moreover, the additional claim in a succeeding paragraph in CX 108 viz., “Now Crown, with Formula CA-101, gives you better mileage and cleaner air.”, adda to the ambiguity on this point. (emphasis supplied) 575-956 O-LT - 76 - 97 Initial Decision 84 F.T.C.

For example, the additive will only achieve large or dramatic reductions of carbon monoxide or hydrocarbons in those vehicles having very dirty carburetors comprising approximately 5 to 15 percent of the general car population. Further, the additive will have no effect on a large number of mechanical defects resulting in emissions of carbon monoxide and hydrocarbons. The failure to disclose these significant facts about the additive’s performance in connection with the emission reduction claims, is related to representations in the advertising that the additive will effectively work in every vehicle in which it is used and that it will significantly reduce air pollution. To cure such deception, respondent should be required to refrain from claiming any numerical reductions of carbon monoxide or hydrocarbons as a result of the additive unless it also discloses the circumstances under which. the claimed reductions will be achieved, and the percentage of cars in the general car population which can expect to achieve such reductions. Respondent should further be prohibited from claiming that the additive reduces emissions of hydrocarbons and carbon monoxide unless it clearly discloses there are mechanical conditions which will increase such emissions and on which Crown’s product will have no effect. In connection with the clean air theme, respondent has also. withheld material facts in not advising the public that the additive fails to reduce in any manner certain constituents of automobile exhaust which are an actual or potential health hazard. The order should require a disclosure of such pollutants if future claims of emission reductions are made. The Commission has ruled it is an unfair practice violative of Section 5 of the Federal Trade Commission Act to make affirmative product claims absent a reasonable basis therefore. Pfizer, Inc., supra, Slip Op., p. 10. The determination of what constitutes a reasonable basis depends upon the circumstances of the particular case. Cf. Firestone, supra, Slip Op., p. 33. In short, the law on the seller’s responsibility for implied or express representations of substantiation for product claims appears to be evolving on a case-by-case basis, and the obligations of advertisers in this area have apparently not yet been defined in complete detail. See Firestone, supra; Pfizer, Inc., supra; and National Dynamics, supra. In any event, where the complaint puts in issue not the truth and falsity of the representations made but raises the question of whether respondent had “a reasonable basis for believing [its] claims are true,” then the Commission may appropriately consider the reasonableness of the advertiser’s action and his good faith. National Dynamics, supra, Slip Op., p. 9. As already noted, there is a sharp distinction between the standard for evaluating representations of this nature and those claims directly challenged as false.

1493 Initial Decision ~ The making of such performance claims is an implied representation that there is a reasonable basis therefore. Whether the particular claim implies that it is supported by fully validated test data or by a lesser measure of substantiation depends upon the nature of such claims and the surrounding circumstances. Cf. Firestone, supra. The standard for evaluating the substantiation claims set forth in the complaint is narrower than the criteria actually applicable to this proceeding. The complaint alleges that Crown represented it had competent, fully validated test data to support the performance claims made.” The record developed in this proceeding demonstrates that the challenged performance claims implied that Crown had adequate factual or technical data to support the representations made. At the oral argument, it became apparent that the question of whether respondent had met this broader standard became an issue during the course of the trial. The record shows that respondent did not have such substantiation in support of the pollution free representation and the claim that the additive would significantly reduce air pollution. The question in the case of the better mileage claim and the representation that the additive will significantly reduce emissions of hydrocarbons and carbon monoxide in every car in which it is used is more complex. The technical data furnished in support of those claims‘! purported to relate to the representations of performance made. Further, respondent relied on the representations of the manufacturer that these claims could be substantiated. The testimony of Crown’s vice president that he did not have the expertise to go behind du Pont’s representations with respect to such data seems uncontradicted. The record, moreover, is not clear whether Crown had other inhouse expertise permitting it to make a more searching evaluation.” In the case of these claims, it appears that respondent has met the subjective standard of National Dynamics pertaining to the substantiation of such claims and these allegations should therefore be dismissed.

40 The footnote reference in the advertising to a “Study on the Effects * * * of Emissions, E.I. du Pont Company” on which complaint counsel rely to support those allegations, is an express representation that the claims for reductions of “as much as” 41 percent and 66 percent of carbon monoxide and unburned hydrocarbons, respectively, were supported by adequate test data. This footnote is on its face confined to the numerical reductions claimed, and the reference to the study in small type is not promi: in the challenged adverti: ts. As a result, this citation does not appear related to the more generalized, express or implied performance claims pertaining, for example, to better mileage or to the “significance” of such reductions.

41 In connection with the better mileage claim, see RX 9. In connection with the representation that the additive will significantly reduce carbon monoxide and hydrocarbons in every car in which it is used, see RX 14 and testimony of Loving and Hagele.

© The evidentiary record in this case was closed before the issuance of the National Dynamics decision stressing this factor. It may be that Crown as a gasoline refiner, in fact, has such knowledge as complaint counsel suggest in their reply to respondent's proposed findi CRPF 12, et seq. In view of the complexity of the technical and scientific issues involved herein, such a finding on this point would be speculative since, in fact, the record was not fully developed on this issue.

Initial Decision 84 FC.

Turning to the question of remedy, although substantiation is properly in issue, the standard originally set forth in the complaint for evaluating the substantiation claims did not encompass the violations actually found. Further, the charges in Paragraph Six, Subparagraph 4, related to substantiation have only been partially sustained and relate to a novel area in terms of the legal, scientific and technical issues presented.43 Under the circumstances, the provisions of the notice order pertaining to substantiation and covering all products and all performance claims appear too sweeping. The order’s provisions on this point as a result should be limited to such claims as respondent may make in connection with reductions of exhaust emissions or any claim that a gasoline additive has a beneficial effect on air pollution. Complaint counsel’s request for an order requiring Crown in the future to disclose that gasoline is a product which is harmful to human health and welfare should be denied. The need for such a remedy was not litigated, and the Commission does not have before it a record which would support a fully informed decision on whether such a provision is necessary to remedy the violations demonstrated in this proceeding. CONCLUSIONS The use by respondent of the aforesaid false, misleading and deceptive statements, representations and practices relating to the performance characteristics of its gasoline with CA-101 has had and now has the capacity or tendency to mislead members of the purchasing public into the erroneous and mistaken belief that said statements and representations were and are true and into the purchase of substantial quantities of respondent’s products by reason of said erroneous and mistaken belief. The acts and practices of respondent were and are all to the prejudice and injury of the public and of respondent’s competitors and they constituted and now constitute unfair methods of competition in commerce and unfair and deceptive acts and practices in commerce violative of Section 5 of the Federal Trade Commission Act. ORDER It is ordered, That respondent Crown Central Petroleum Corporation, a corporation, and its officers, representatives, agents, and employees, directly or through any corporate or other device in connection with the advertising, offering for sale, sale or distribution of Crown gasolines, or the additive CA-101, or any other product in commerce as “commerce” 43 Cf. Swanee Paper Corp. v. FTC, 291 F.2d 833 (2nd Cir. 1961) cert. denied 368 U.S. 987 (1962), indicating that in determining the appropriate scope of orders, some consideration should be given to the novelty of the issues encompassed by the proceeding.

1493 Initial Decision is defined in the Federal Trade Commission Act, do forthwith cease and desist from:

1. Representing directly or by implication that any such product is free of pollutants or produces pollution free exhaust. 2. Representing directly or by implication that any such product will reduce any pollutants from automobile exhaust without clearly and conspicuously disclosing or identifying those pollutants on which the product will have no effect.

3. Representing directly or by implication that any such product will significantly reduce air pollution or have any beneficial effect upon the environment or misrepresenting in any manner the importance, significance, or effect of any gasoline product or development.

4, Representing directly or by implication that any such product will reduce the emissions of pollutants from automobile exhaust by any percentage or numerical quantity unless in connection therewith there is a clear and conspicuous disclosure of the type of vehicle which can expect to achieve reductions of such magnitude and the percentage of such vehicles in the general car population. 5. Representing directly or by implication that any such product will significantly reduce emissions of unburned hydrocarbons and carbon monoxide in every vehicle in which it is used. 6. Representing directly or by implication that any such product will significantly reduce emissions of carbon monoxide and unburned hydrocarbons in any automobile unless in connection therewith there is a clear and conspicuous disclosure that there are mechanical conditions which will increase such emissions and on which the respondent’s product will have no effect. 7. Representing directly or by implication that any such product will clean engines unless there is a clear and conspicuous disclosure in connection therewith of the engine components which will not be cleaned by the additive.

8. Making any representation that a gasoline additive will reduce automotive exhaust emissions or has any beneficial effect on air pollution unless such claims have been fully substantiated by adequate scientific or technical data.

It is further ordered, That the respondent corporation shall forthwith distribute a copy of this order to each of its operating divisions. It 1s further ordered, That respondents shall notify the Commission at least thirty (80) days prior to any proposed change in the corporate respondent such as dissolution, assignment, or sale resulting in the emergence of a successor corporation, the creation or dissolution of Initial Decision 84 F.T.C.

“ar ne ie 3 he pas unt irs ein re Meur WAS. os Chet aaa de been becom nintinie oe He Tin roti bate ws tabi inn Spt Sa :

aeeracd Syrtoatertntin Pe Gi Banc iy. a a Sa : 5.

- What's behind the new Crown sign? Clean modern stations...Express-lane service... Ton quality. gasoline...and you Save up to 5¢.a gallon. meaMonn | ; Save every mile! CROWN CENTRAL PETROLEUM CORP.

Initial Decision Crown. guarantees its gnsaiine q ality Ho stamps oF games mean savings realtime Yay can't bay tort Now New Clean-Air Gasoline ve Tom Aer in shat ‘Boe Rerwade Fore Wand reac Satie, wae .

CROWN Sta IONS Ane wea TED Wi 12 STATES FROM EAS5 1 23 3 1 12 1423 2301 67 11 3.748848 TUNE5 1 23 3 1 13 1466 2292 11 29 3.748848 W5 1 23 3 1 14 1486 2300 68 11 0.000000 ENOEAMD2 1 24 0 0 0 707 2319 1108 37 -1 3 1 24 1 0 0 707 2319 1108 37 -1 4 1 24 1 1 0 707 2319 1108 37 -1 5 1 24 1 1 1 707 2329 46 10 0.000000 CROW5 1 24 1 1 2 758 2328 55 17 0.000000 CLNTEAL5 1 24 1 1 3 814 2319 77 37 0.000000 primes5 1 24 1 1 4 897 2328 86 10 76.721466 CORPORATIONS 1 24 1 1 5 988 2330 6 7 90.380539 ¢5 1 24 1 1 6 1000 2327 73 11 77.562439 PRODUCERS5 1 24 1 1 7 1080 2329 3 7 71.161217 65 1 24 1 1 8 1090 2326 58 11 0.000000 RLFIAEAS5 1 24 1 1 9 1153 2329 5 6 70.404953 65 1 24 1 1 10 1165 2325 71 10 10.835938 WARRCTIRS5 1 24 1 1 11 1243 2326 12 9 88.917320 OF5 1 24 1 1 12 1264 2325 70 10 46.094856 PLTROLLUM5 1 24 1 1 13 1342 2325 63 10 35.480721 PROOUETS5 1 24 1 1 14 1412 2325 8 10 52.268353 &5 1 24 1 1 15 1426 2325 107 9 0.000000 PEIMICHEMICALS5 1 24 1 1 16 1540 2328 4 5 0.000000 #5 1 24 1 1 17 1550 2325 54 9 5.996918 ENTRAC5 1 24 1 1 18 1611 2314 48 21 59.652897 OFFICES5 1 24 1 1 19 1670 2325 21 19 14.447083 Rac5 1 24 1 1 20 1696 2315 42 33 0.000000 riiegat5 1 24 1 1 21 1750 2326 65 9 0.000000 seein2 1 25 0 0 0 1620 2189 203 126 -1 3 1 25 1 0 0 1620 2189 203 126 -1 4 1 25 1 1 0 1620 2189 203 126 -1 5 1 25 1 1 1 1620 2189 203 126 95.000000 2 1 26 0 0 0 1855 413 77 30 -1 3 1 26 1 0 0 1855 413 77 30 -1 4 1 26 1 1 0 1855 413 77 30 -1 5 1 26 1 1 1 1855 413 77 30 96.606277 1533 Opinion of the Commission 84 F.T.C.

subsidiaries, or any other change in the corporation which affect compliance obligations arising out of the order.

It is further ordered, That other allegations of the complaint as to practices not covered by this order be, and they hereby are, dismissed. OPINION OF THE COMMISSION By ENGMAN, Commissioner:

This matter is before the Commission pursuant to cross appeals by respondent Crown Central Petroleum Corporation (Crown) and complaint counsel from the administrative law judge’s (ALJ) initial decision of May 25, 1973. The initial decision concluded respondent had violated Section 5 of the Federal Trade Commission Act by deceptively advertising an engine cleaning additive used in Crown gasolines called CA-101. Respondent’s appeal takes issue with all but a few of the substantive conclusions of the initial decision, and complaint counsel’s appeal urges a holding that respondent falsely represented it had test evidence to back up the challenged advertising claims and had no adequate factual or technical support for claims of increased gasoline mileage and reductions of certain harmful exhaust emissions. After reviewing the record compiled during the adjudication of this ease and receiving briefs and hearing oral arguments on the appeals now before us, we conclude that the challenged advertisements are deceptive and misleading in violation of Section 5 because of the great disparity between the representations contained in the advertisements and the evidence of the advertised product’s actual effectiveness. The evidence shows that CA-101 has some effectiveness in cleaning engines and reducing undesirable emissions, but respondent’s advertising claims greatly exceed even the most favorable interpretation of such evidence. The development of a product with some desirable characteristics does not justify exaggeration of its capabilities. Except as otherwise set forth in this opinion and in the accompanying final order, we agree with the analysis and conclusions of the initial decision. I. CROWN’S CA-101 ADDITIVE As explained in detail in the initial decision, the CA-101 additive used by Crown at the time of the disputed advertisements was developed by 1D, Section V, contains a more complete di ion of the develop and capabilities of CA-101 (DMA-101). The following abbreviations will be used in this opinion: LD. - Initial Decision CX - Complaint Counsel’s exhibit RX - Respondent's exhibit HC - Hydrocarbons CO - Carbon Monoxide NO, - Oxides of Nitrogen 1493 ; Opinion of the Commission E. I. du Pont de Nemours Company (du Pont) of Wilmington, Del. under the name of DMA-101. Du Pont began manufacturing and selling detergent additives for gasoline in 1958. The company’s first such product was RP-2 which had rust prevention and anti-icing capabilities. RP-2 was altered in the early 1960s to become the DMA-4 and DMA-4A additives designed to provide anti-rust protection, carburetor icing protection and carburetor detergency. After extensive additional work which began in 1967, DMA-101 was introduced in November 1969 as a combination of DMA-4 and a hydrocarbon polymer designed to clean up existing deposits and prevent deposit build-up in and around carburetors and intake valves.

One of the intended results of such cleaning action is the achievement of a proper ratio of air and fuel in the automotive combustion system. When deposits build up on throttle plates and other parts of the carburetor or on and around intake valves, the air/fuel mixture tends to become too rich in fuel, resulting in incomplete combustion. Among the products of such incomplete combustion are excess automotive exhaust emissions of carbon monoxide (CO) and unburned hydrocarbons (HC). HC and CO along with oxides of nitrogen (NO,) are the most prevalent automotive pollutants.

Although by weight HC, CO and NO, are by far the most substantial pollutants resulting from auto fuels and combustion, other pollutants such as sulfur oxides and particulates, including lead compounds, are also present in small quantities in automotive exhaust. Some of these less substantial pollutants are potentially more hazardous to health than equivalent quantities of either HC or CO, but the much higher quantitative levels of HC and CO emissions prior to 1970 led government regulators to concentrate all early automotive air pollution control efforts on HC and CO.2 DMA-101 doesn’t affect any pollutants other than HC and CO.

Another hoped for result of optimum air/fuel ratio operation is the reduction of wasted fuel from incomplete combustion and a resulting improvement in gasoline mileage.

The record contains reports of numerous laboratory and road tests conducted by dupont to evaluate the effectiveness of DMA-101 and other closely related additives. Except as otherwise noted in the order accompanying this opinion, we have adopted Section VI of the initial decision which enumerates and discusses the tests and their relationship to the general car population and normal driving habits of gasoline consumers.

2 See LD., Sections H, II and IV for a more complete discussion of air pollution, automotive air pollution and health effects associated with automotive air pollutants based on the record in this case. Opinion of the Commission 84 F.T.C.

The ALJ concluded that, as seen in the light most favorable to respondent, the test results in evidence provide substantiation for a potential HC and CO reduction in the 1970 general car population of no more than 10 percent.3 Respondent does not dispute the 10 percent finding, and we have no reason to disagree with the finding. We point ~ out, nevertheless, that even if we assume CA-101 will achieve the maximum 66 percent HC and 41 percent CO reductions for some cars noted in some of the challenged advertisements, the advertisements are still misleading. We discuss below our determination that the phrase “Clean-Air Gasoline” has the potential of being interpreted by consumers as a claim for pollution-free motor vehicle exhaust. Even 66 percent HC and 41 percent CO reductions are not sufficiently close to pollution free levels to justify the words used in the advertisements. Il. THE CHALLENGED ADVERTISEMENTS The advertising materials challenged in the complaint include newspaper ads, direct mail advertising and handouts, radio commercials and point-of-sale materials. One of the newspaper ads preceding the complaint4 was a full page ad published in three Baltimore newspapers on July 18, 1970.5 Following is a copy of the advertisement: 31LD., Findings 26 and 75.

4 In September 1971, after the complaint was issued, Crown ran a newspaper advertisement in the Atlanta, Georgia area stating that, “Crown gasolines contain Formula CA-101 from Dupont for cleaner air. You can’t buy better gasoline.” CX 1800; Tr. 2016.

5 CX 108.

CROWN CENTRAL PETROLEUM CORP. 1537 1493 Opinion of the Commission What's behind the new Crown sign’? 9 NOW: New Clean: Air Gasoline WITH FORMULA CA-IO1 Dramaicaly reduces exhaust emissions: Express- -lane service at the pump isiand Xo itr ba ne seat 26 Ok we do you Prose, ine Fats C101 8 ware et Seaphetety “Nea gan 4 mal 918 ot tne Gabon. ieee tli par de Crown guarantees its gasoline quality Yo «ade Dey ttt eas AND You STILL SAVE UP TO 5c A GALLON Save Every % % Bind tee vie RO tom, Neos tow ay v at Us Nes Wher as “a Ere: Banta ct St peer) one emt hee a tte Opinion of the Commission 84 F.T.C.

A newspaper advertisement also appeared in Richmond, Va., on August 14, 1970. This ad has a box in the lower right corner containing the following:

NOW: NEW CLEAN-AIR GASOLINE WITH FORMULA CA-101 New Crown with Formula CA-101 dramatically reduces exhaust emissions from your engine. Reduces unburned hydrocarbons by as much as 66%*, deadly carbon monoxide 41%*. Burns cleaner, more completely. You use less gasoline. New Formula CA-101 is now available in both grades of Crown gasoline. Costs no more. Every car on the road should be using it.

*Source: “A Study on the effects ... of Exhaust Emissions’— Dupont Chemical Co. (CX 108A) The initial decision contains quoted excerpts from radio commercials broadcast over Baltimore and Richmond radio stations between July 18, 1970 and Sept. 11, 1970.6 The two direct mail handouts used in the ad campaign were flyers very similar to the Baltimore and Richmond newspaper ads, and the point of sale materials included pole signs stating “New Clean-Air GASOLINE with Formula CA-101” (CX 108C) and “Clean-Air GASOLINE Good for All Cars Costs No More” (CX 108D); buttons for station attendants which read “BREATHE A LIT- TLE EASIER WITH FORMULA CA-101” (CX 108B), and pump signs reading “New CLEAN-AIR FORMULA CA-101” with a smaller print text stating:

Reduces Exhaust Emissions * * * Unburned Hydrocarbons to 66%, Carbon Monoxide to 41% Cleans Engines Gives Better Mileage (CX 108E). Ili. THE INITIAL DECISION The initial decision upheld the allegations of the complaint that the challenged advertisements falsely represented Crown’s CA-101 additive would produce pollution free motor vehicle exhaust, significantly reduce air pollution, significantly reduce emissions of CO and HC from every motor vehicle in which it is used, and clean or keep clean all engines and all engine components. The ALJ also found that prior to the distribution of the ads, Crown lacked the substantiation necessary to form a reasonable basis for claims about pollution free exhaust and a significant reduction of air pollution. He was unwilling, however, to find a similar lack of pre-advertisement substantiation for claims that CA- 101 results in significant HC and CO reductions in every car in which itis used or that Crown gasolines with CA-101 produce substantially 1.D., Findings 68 and 69.

CROWN CENTRAL PETROLEUM CORP. 1539 1493 Opinion of the Commission better mileage than can be obtained with competitive gasolines. His rationale was that because Crown lacked “inhouse” expertise to evaluate thoroughly information given by du Pont on those two subjects, its reliance on du Pont’s representations about the available data was not unreasonable. ;

The order written by the ALJ would require Crown to cease and desist from making the misrepresentations found to be present in the ads and would further require specific affirmative disclosures in future ads where claims are made about the effectiveness of CA-101. The disclosure requirements are related to pollutants not affected by CA- 101, types and percentages of vehicles expected to achieve specifically stated emission reductions, engine components which will not be cleaned by CA-101 and the existence of pollution creating mechanical factors not affected by CA-101. The order also prohibits future claims about reductions of automotive exhaust emissions or beneficial effects on air pollution without the substantiation of “adequate scientific or technical data.”

IV. CROWN’S APPEAL Crown’s first assignment of error charges the ALJ with improperly construing the advertisements without regard to the evidence and the record as a whole. It is alleged by Crown that the ALJ attempted a novel extension of the use of expertise in interpreting advertising claims by ignoring the preponderance of evidence in the record. We do not find that the ALJ ignored the evidence of record in interpreting the advertisements. On the subject of interpretation of the CA-101 advertising claims, respondent offered the testimony of two psychologists who had worked extensively in the field of marketing and advertising research and analysis. The ALJ stated in his discussion of their testimony:? In evaluating the challenged advertising and promotional materials, consideration has been given to the testimony of respondent’s experts who testified as to the meaning thereof. The testimony of the two psychologists, however, does not have sufficient weight to overcome the inferences to be drawn directly from the challenged advertising. He further noted the following:* Respondent’s expert (psychologist) who gave the most detailed findings had performed prior studies for oil companies, but had not concerned himself with air pollution advertising on the part of such firms. Nor was his testimony based on actual research conducted with respect to the challenged advertisements (Tr. 1765). Respondent’s other expert 71.D., Section VIII, Paragraph 5.

8D, Fn. 31.

Opinion of the Commission 84 F.T.C.

(psychologist) testified that his firm had recently completed a study concerning what consumers think about air pollution and its causes (Tr. 1727-30). There is, however, insufficient information in this record to facilitate a determination as to whether such experience provides an adequate foundation for the testimony in support of Crown’s position.

In reaching his conclusions about the challenged advertising representations, the ALJ obviously did not ignore this testimony or the other evidence offered on the subject of proper interpretations. His discussion of the evidence indicated that he considered this testimony, weighed it in light of the advertisements themselves, and decided it should be given little, if any, weight. This is not the exercise of expertise in a vacuum as suggested by respondent’s arguments, but the proper consideration of evidence proffered by a party to this dispute in addition to the exercise of the expertise required in deliberations by the Commission or its administrative law judges.

The ALJ’s action in this instance was a proper application of the principle reiterated in the matter of Firestone, 81 F.T.C. 398 (1972), where evidence was offered to aid the Commission in interpreting challenged advertising claims:

It is incumbent upon us, therefore, to consider this evidence and determine the weight, if any, which should be attributed to it in adding to the expertise which we must bring to bear upon the issue of whether this advertisement constituted an unfair or deceptive practice. Id. at 454 (emphasis added).

When evidence is offered to assist the Commission in interpreting advertising representations, it supplements rather than supplants the Commission’s expertise. Such evidence must be weighed in terms of its probative value the same as all other evidence offered during adjudicative proceedings. If its probative value is low, the Commission would fail in the performance of its proper adjudicatory function if it gave undue weight to the evidence in resolving the issues related to the offer. We have also carefully considered the testimony of the two psycholo- gists and we do not believe their opinions about the proper interpretations of these advertisements are worthy of sufficient weight to overcome what we consider to be the obvious representations of the advertisements standing by themselves. The psychologists’ testimony made clear that although their firm had conducted research regarding several types of gasoline advertisements,’ neither the firm nor either witness had ever conducted research in the geographic area covered by the CA- 101 advertisements or any other geographic area regarding Crown’s or 9The gasoline advertising studies conducted by the witnesses have included the subjects of consumer brand line station ications preference, the image of gasoline companies, consumer response to station design, g gasoline signature programs, appraisal of certain gasoline advertisements (no further helpful details were supplied as to subject matter) and consumer reaction to self-service stations. Smith, Tr. 1713-14, 1726; Payne, Tr. 1757-58. CROWN. CENTRAL PETROLEUM CORP. 1541 1493 Opinion of the Commission anyone else’s advertising about pollution control gasoline additives. Neither witness had other than general knowledge about air pollution problems and neither had conducted research concerning consumer awareness of the incidence, effects or control of the various polluting components of motor vehicle exhaust or total air pollution.1¢ Under the circumstances, we believe the testimony of the two witnesses in question was properly evaluated by the ALJ in his efforts to correctly interpret Crown’s advertisements.

The “Pollution Free” Issue The complaint alleges that the CA-101 advertisements claim the product will produce pollution free motor vehicle exhaust. Respondent asserts that the ALJ had to interpolate language into the advertise-. ments which was not actually there in order to find such a representation. The dispute on this point basically centers on the question of whether the phrase “Clean-Air,” as used in the advertisements taken as a whole, constitutes a claim for pollution free performance. Respondent argues that the word “clean” has many meanings, depending on the language or circumstances surrounding it and that “clean” cannot be read to mean “not dirty” in the context of the challenged ads. Some examples of various meanings of the word clean offered by respondent include the suggestions from one of respondent’s psychologist witnesses who said: “To the robber on the street, to be clean means he has no weapon on him. To the small boy who is showing his hands to his mother, it means something quite different.”1" Respondent then contends that because of the use of the phrase “Clean Air” in the name of the federal legislation aimed at controlling air pollution (the Clean Air Act) and the use of the same or related phrases by Crown’s competitors, automotive manufacturers and other businesses in describing products related to air pollution reduction, a special meaning has attached to the word “clean” when related to air pollution which is not the equivalent of “not dirty” or “pollution free.” Respondent specifically asserts that “* * * the term Clean-Air in 1970 had come to be associated with steps to reduce emissions, not eliminate all pollutants.” 10 With regard to some partially related research, Dr. Smith did testify as follows: Q Have you done any research into what people think the main ingredient of automobile [exhaust] is? A We have in the course of some research had occasion to ask people, if not that question that precisely, questions which permitted them to reveal their views about what pollutants are associated with automobiles as well as what pollutants are associated with other pollution sources. It is my impression, though I do not have the data before me, that by and large consumers were almost as ignorant as I about the components of automotive pollution, of that (sic) their respective importance in contributing to a variety of the conditions you describe. (Tr. 1729-30.) 1] Payne, Tr. 1785.

Opinion of the Commission 84 F.T.C.

Despite these arguments, we are not prepared to attribute to gasoline consumers the special knowledge about the phrase “Clean-Air” suggested by respondent. Nothing in the advertisements themselves specifically links them to the Clean Air Act or “Clean Air” products of other companies. Even though some consumers may have become aware that according to some interpretations “Clean-Air” had come to mean only partially clean air, we believe that many if not most consumers reading or hearing the phrase “Clean-Air” would interpret it to mean air which is not dirty, or, in the context of representations about air pollution, air which is free of pollutants. Likewise, the designation of a product as a “Clean-Air Gasoline” implies the ability of the gasoline to create automotive exhaust (which becomes part of the ambient air) which is free of pollutants. Some consumers may be sophisticated and informed enough to know that no such product exists, but because the advertisements have the capacity to convey the “pollution free” message, we consider them materially deceptive.

Respondent further argues that the text? of the advertisements sufficiently qualifies the Clean-Air Gasoline headline and theme” to eliminate the possibility of anyone finding a “pollution free” representation in the ads. The ALJ concluded that the Clean- Air Gasoline headline so dominates the ads that the representations made in the accompanying text are inadequate to tone down the central “pollution free” representation. The text does contain phrases such as “a step toward cleaner air,” “dramatically reduces exhaust emissions” and “reduces unburned hydrocarbons by as much as 66%, deadly carbon monoxide 41%” rather than more absolute phrases such as “the final step toward clean air,” “eliminates harmful exhaust emissions” or “eliminates unburned hydrocarbons by 100% and carbon monoxide by 100%.” (Emphasis added.) Although such phrases may qualify the “Clean-Air” claim for some readers, for others they would go unnoticed or merely create the potential of double meanings and confusion. We, therefore, agree with the ALJ that the text is inadequate to sufficiently qualify the absolute representation embodied in the “Clean-Air Gasoline” headline. The headline in the newspaper ads and the direct mail handouts is in print so much larger and bolder than the rest of the language of the advertisements that even a casual glance at the advertisements will 2 The point of purchase materials have little or no text, so the “Clean-Air Gasoline” theme even more clearly dominates them than it does the newspaper and direct mail materials. 13 The radio advertisements do not have a headline, as such, but the “pollution free” claim represented by the phrase “Clean-Air Gasoline” is featured in the radio advertisements and the capacity for outright deception or, at a minimum, confusing double meanings is present in the radio scripts. 1493 Opinion of the Commission probably focus on that headline in lieu of or before anything else. In the few seconds during which many consumers would consider an advertisement of this kind," one of the impressions they will most likely gain is of the “pollution free” claim represented by the headline “Clean- Air Gasoline.”

The issue of how to resolve problems of interpreting advertisements with contradictory double meanings has been faced by the Commission before. In the matter of Colgate-Palmolive Company, 58 F.T.C. 422 (1961), the Commission was faced with an argument that certain language in the verbal portion of a television advertisement was sufficient to qualify a representation of “total” tooth decay prevention in the visual portion of the ad. In response, the Commission stated: In our opinion, the words “fights” and “reductions” in the context in which they are used in respondent’s advertisements, do not negate a claim of complete protection from tooth decay. Viewed in the light, most favorable to respondent, these words only serve to make the advertisements capable of two meanings. It is well settled that where one of two meanings conveyed by an advertisement is false, the advertisement is misleading. (58 F.T.C. at 481.) Respondent also raises the argument that it is unfair and inconsistent to hold, on the one hand, that the text is in print too small to qualify the bold headline, and, on the other hand, that the same text is large enough to form the basis of a violation separate from the one found in the headline (see below). Although we base our finding of a violation on factors in addition to the contrast in type size, the difference in type size does make the headline more forceful and strong in its communication to the consumer, and makes it more difficult for the smaller print text to adequately water down the headline’s claim. Aside from the truth of that obvious headline-text relationship, however, it would be folly for the Commission to countenance misrepresentations in the small print just because the small print is over-shadowed by bold headlines. Those who carefully read the smaller print are entitled to at least the same protection from deception as those who gain their impressions mostly or exclusively from the headline.

The Issue of the “Significance”

of the Emission Reductions Claim 14 Respondent’s witness, Dr. Payne, verified that the headline (and accompanying picture) of an advertisement with this format would be the focal point of the first glance. Tr. 1794-95. 8 The following exchange took place at Tr, 1794: Judge von Brand: How much time would the consumer spend on one of these ads, Dr. Payne? The Witness [Dr. Payne]: Typically a few seconds at most. 575-956 O-LT - 76 - 98 Opinion of the Commission 84 F.T.C.

The complaint alleges that the Crown ads also falsely represent to some viewers that CA-101 will “significantly” reduce emissions of CO and HC from every motor vehicle in which it is used, and “significantly” reduce the total amount of air pollution. Crown’s appeal does not dispute the presence of the representations in the advertisements. Instead, it assails the ALJ’s conclusion that, assuming the greatest HC and CO emission reduction possible if all cars used CA-101 would be 10 percent,!6 such a 10 percent HC and CO reduction would be insignificant. The record contains lengthy and contradictory statements of a number of experts as to whether a 10 percent HC and CO reduction would be significant. Many very knotty problems of air pollution control policies and priorities form the backdrop for this debate among the experts. Numerous highly subjective elements enter into the arguments on both sides. We do not find it to be advisable or helpful to try to draw a non-disputable conclusion from the disparate views before us, and we thus reject Findings 75 and 32 (Paragraph 1 only) of the initial decision wherein the ALJ concluded that a 10 percent HC and CO reduction would not be significant.

Nevertheless, even if most people would consider as “significant” emission reductions at the level of 10 percent, the fact remains that those reductions would not be even close to pollution free—t.e., would not result in “Clean-Air” as claimed in the challenged advertisements. The substantial disparity between the effectiveness claimed for CA-101 and its actual capabilities thus gives rise to a finding of a violation of Section 5 regardless of how the “significance” issue is resolved. The Issue of Whether “Every” Car Will Enjoy Emission Reductions Due to CA-101 Respondent admits the advertisements “represented the additive would benefit every car in terms of emission reduction and other improvements.”!”

Although Crown’s admission is non-committal as to the degree of improvement promised for every car, we do not need to pursue this question further. We have already determined that the ads claim CA- 101 will cause pollution free exhaust, a level of improvement which no car will achieve. It is sufficient that order provisions based on our findings regarding the “pollution free” issue require disclosure of the limitations on numbers or groups of vehicles included in future pollution reduction claims.

16 LD, Finding 26.

17 R Brief, p. 27.

CROWN CENTRAL PETROLEUM CORP. 1545 1493 Opinion of the Commission Related to the “every” car issue is the question of whether the ALJ erred in finding the ads claimed CA-101 would clean “all engine components.”'8 We conclude the ads do not speak with sufficient specificity as to effects on particular engine parts to sustain such a finding, and we, therefore, disagree with the portions of the ALJ’s Finding 77 related to representations about “all engine components.” The Question of the Omission of Material Facts from the Advertisements The ALJ found three categories of material facts were omitted from the CA-101 advertisements, and would require by his order that the disclosure of such facts accompany any future representations concerning the subjects to which they pertain. Respondent argues none of the alleged omissions are material and the required disclosures would not be helpful to consumers. The disputed findings state the following:'9 The representation of emission reductions of carbon monoxide and unburned hydrocarbons of the magnitude claimed are misleading because they fail to inform the public that only cars with very dirty carburetors, approximately 5 to 15% of the general car population could expect to realize reductions on that scale* * *. The failure to disclose that the additive will not remedy mechanical conditions which may result in substantial emissions of carbon monoxide and hydrocarbons is misleading* * *, The failure to disclose that automobile exhaust contains harmful pollutants other than carbon monoxide and unburned hydrocarbons * * * is misleading in the context of the clean air theme and the claimed “dramatic reductions” of unburned hydrocarbons and carbon monoxide. These representations imply that the additive will reduce all harmful emissions from automobile exhaust.

One way to help remedy the problem of communicating to consumers what groups of cars would benefit from CA-101 use would be to disclose specific percentages of vehicles which could be expected to obtain the levels of reduction claimed. Other ways could also be devised, however, and the Final Order accompanying this opinion takes a somewhat different approach to this problem than the one taken by the ALJ. By using the language “UNLESS and only to the extent that each and every such representation is true* * *.” (emphasis added) to limit the claims permitted by the order, the kind of deception found in the challenged Crown ads should be remedied in a way which permits somewhat greater flexibility on the part of the advertiser than the requirement proposed by the ALJ.

181D, Finding 77.

191.D,, Finding 80.

Opinion of the Commission 84 F.T.C.

In the case of the suggested disclosure that the additive will not remedy mechanical conditions resulting in CO and HC emissions, the language of the final order also limits emission reduction claims for “all or any number or group of motor vehicles * * * UNLESS and only to the extent” such claims are true. The disclosure of the existence of unaffected mechanical factors would be one way to help clear up the problem in the existing ads. Another would be to state realistic and substantiated expected emission reduction levels and sufficiently qualify them so no misunderstandings will result about the limitations of the effectiveness of the additive. (See Paragraph 3 of our final order.) Again, we prefer to - leave the exact form of the claims and disclosures in this instance to the advertiser operating within the limitations established by the final order.

The third problem area noted by the ALJ is more troublesome because his related requirement of a disclosure of all unaffected pollutants may create only increased misunderstanding for consumers. The list of unaffected pollutants is long, even though many of them are not present in very large quantities, and literal compliance with the ALJ’s order would compel listing of them all in every future ad where pollution reductions are specifically mentioned. We are not disposed to order such disclosure, which may pit a long list of relatively incomprehensible chemical compounds against a short list of truly affected harmful substances that are present in substantially larger and, in some cases, more harmful quantities than most of the others. We have, therefore, modified the disclosure requirement so it now calls for, at a minimum, a clear indication that not all of the harmful pollutants in automotive exhaust are affected by Crown’s additives.

An additional disclosure requirement contained in the ALJ’s order relates to information about engine components not affected by Crown’s additives. In accordance with our determination that the advertisements do not make representations about the cleaning of all engine components, we have not included this requirement in the final order. Miscellaneous Additional Issues Raised by Respondent Respondent’s appeal also raises questions about several other matters not discussed in this section. We have carefully considered each of those matters and we find them to be either without merit or adequately resolved by our disposition of the issues already discussed. 1493 Opinion of the Commission V. COMPLAINT COUNSEL’S APPEAL The complaint alleges respondent falsely represented that: Respondent had tests, or had conducted tests, or had had others conduct tests which proved or substantiated representations made for CA-101 additive in its advertisements before publication or dissemination of such advertisements; these representations inelude, but are not limited to, the following:

(a) CA-101 additive produces pollution-free motor vehicle exhaust; (b) CA-101 additive will significantly reduce air pollution; and will significantly reduce emissions of carbon monoxide and unburned hydrocarbons from every motor vehicle in which it is used; (c) Every purchaser of Crown gasoline containing CA-101 additive will obtain substantially better mileage by or through the use of such gasolines than can be obtained by or through the use of any other commercially available gasoline.

The ALJ was unwilling to find the CA-101 ads made representations specifically about substantiating “tests.” He considered the question of whether “test” results substantiated the CA-101 claims, to the exclusion of other types of data or information, to be a more stringent standard than the one required by existing law. Nevertheless, he was willing to apply a standard requiring an “adequate, factual or technical basis for making claims.”2» He determined, after the oral argument at the conclusion of the trial, that the issue had been adequately tried under the lesser standard.

Using the “adequate, factual or technical basis” standard, the ALJ found that respondent lacked such a basis for the claims that CA-101 additive produces pollution free motor vehicle exhaust and significantly reduces air pollution. He declined to find, however, a lack of substantiation for the claims of a significant reduction of HC and CO in every car or substantially better mileage through the use of CA-101. He concluded that Crown lacked the inhouse expertise on the subject of additive testing to go behind the representations of du Pont on the two latter claims, so he found in favor of respondent as to those alleged violations. Complaint counsel now argue that the two claims discarded by the ALJ’s ruling about inhouse expertise should be found to violate the “adequate, factual or technical basis” standard; and all four of the claims mentioned in the above-quoted portion of the complaint should also be found to be unsubstantiated by acceptable pre-advertisement “test” evidence.

20 1.D., Finding 78.

Opinion of the Commission 84 F.T.C.

There is some dispute between the parties concerning the proper legal standard for measuring the acceptability of pre-advertisement substantiation in this case: The complaint speaks of “tests,” the ALJ called for an “adequate, factual or technical basis,” and previous Commission decisions require a “reasonable basis.” , The phrase “adequate, factual or technical basis” employed by the ALJ in the initial decision in this case has not been used in previous cases. We do not, however, consider it to be a new standard which is meaningfully distinguishable from the requirement of a “reasonable basis” established by previous Commission decisions. In Pfizer, 81 F.T.C. 23 (1972), a case dealing with the issue of unfairness in advertising, the Commission said:

* * * the Commission is of the view that it is an unfair practice in violation of the Federal Trade Commission Act to make an affirmative product claim without a reasonable basis for making that claim. (/d. at 62.) Then in National Dynamics, 82 F.T.C. 488, 550 (1973), the Commission determined that it was also deceptive to make performance claims implying the existence of substantiation when no reasonable basis in fact existed.?! In the Pfizer opinion, the Commission made it clear that the type of substantiation required to satisfy the reasonable basis standard would depend on the facts of each case. In some instances, it was recognized that only competent test evidence would suffice. In other cases, a combination of tests and other factual evidence or other factual evidence alone may be enough. In the case of the air pollution reduction claims in the challenged Crown advertisements, we conclude that competent test evidence is necessary to provide the required reasonable basis. Other factual evidence, such as research on relevant automotive engineering principles or automotive performance characteristics, may be added to evidence of tests on the advertised product to complete the substantiation picture, but the performance claims made for the CA-101 additive could not be reasonably made without competent test data. Although the complaint speaks in terms of tests rather than “scientifie” tests, our definition of a scientific test set forth in Firestone, 81 21 g2 FLTC. 488, 550 at n. 10 (1973). The Commission stated: This (National Dynamics) application of the “reasonable basis” test, based on deception, is to be distinguished from the Commission's review of the question of advertising substantiation in the context of our recent decision in Pfizer, Inc., Docket No. 8819 (July Lt, 1972). There we considered the impact of unsubstantiated, affirmative product claims as a matter of marketplace fairness; and our decision was grounded exclusively on the unfairness jurisdiction conferred upon the Commission by Section 5 of the FTC Act. Whether an advertisement is analyzed from the standpoint of unfairness or deception, however, the standard for evaluating the substantiating material and test which is applied is the same—does the substantiation provide a reasonable basis to support the claim. Essentially, this is a factual issue to be formulated in the context of circumstances present in each case. Pfizer, Inte. 1493 Opinion of the Commission F.T.C. 398, 468 (1972), is broad enough to cover the kind of tests which would be necessary in this instance:

In our view a scientific test is one in which persons with skill and expertise in the field conduct the test and evaluate its results in a disinterested manner using testing procedures generally accepted in the profession which best insure accurate results. This is not to say that respondent always must conduct laboratory tests. The appropriate test depends on the nature of the claim made. Thus a road or user test may be an adequate scientific test to substantiate one performance claim, whereas a laboratory test may be the proper test to substantiate another claim. Respondent’s obligation is to assure that any claim it makes is adequately substantiated by the results of whatever constitutes a scientific test in those circumstances.”

We find that the challenged Crown advertisements do represent that tests had been conducted prior to the publication of the ads which provided substantiation for the pollution reduction and better mileage claims enumerated in the complaint. A specific study is cited in support of the 66 percent HC and 41 percent CO reductions whenever they are mentioned in the ads. When a test is cited for one performance claim or part of a performance claim, and no indication is given that equally technical representations in the same ad have no substantiation, or perhaps less adequate substantiation, the implication is clearly present that substantiation exists for all performance claims. This conclusion is consistent with the testimony of one of Crown’s psychologist witnesses who said that where the Crown ads “* * * assert certain factual support, that carries with it the assumption, the implicit suggestion, that where there is support for some there is support for all.” Furthermore, the designation of the advertised product as Formula CA-101 and the obviously technical nature of air pollution-related performance claims for a gasoline or a gasoline additive contribute to the clear suggestion that the product has properties and characteristics which could not be fully verified other than through adequate testing. We find no test evidence in existence prior to the time of the advertisements that CA-101 produces pollution free exhaust, and we do not agree with the ALJ that Crown’s lack of inhouse expertise as to additive testing excused their representations about significant HC and CO reductions. Clearly, it took no expertise to know that none of du Pont’s tests supported a claim of pollution-free performance. Crown now has sufficient know-how in this area to concede that no test results from 2 Respondent has expressed concern that in order to satisfy a requirement of full and complete substantiation including tests, it would have to expend disproportionately large amounts of resources to conduct perfect or near perfect tests. The standard announced here does not require such perfection, but it does prohibit product claims which go beyond realistic interpretations of imperfect or limited tests or other data. 2 Payne, Tr. 1779.

Final Order 84 F.T.C.

before or after the advertisements would justify a representation that CA-101 will reduce HC and CO emissions by more than 10 percent in the general car population. We are convinced that even before the ads were run, Crown, a gasoline refiner and marketer having extensive experience with gasolines and gasoline additives, knew or should have known that the available test evidence showed the claims it was making materially exaggerated CA-101’s effectiveness.

With respect to the mileage claim we do not find a violation. The claims themselves are non-specific and the evidence in the record is unclear as to how far the pre- or post-advertisement mileage test results on Crown additives can be applied to the general car population. There was considerable expert testimony about the extrapolation of the emission reduction data to the general car population, but no such evidence is in the record regarding the mileage data. CONCLUSION For the reasons discussed in this opinion, we conclude that Crown’s CA-101 advertisements were false, misleading and deceptive in violation of Section 5. Accordingly, it is in the public interest that an Order should be entered against respondent.

FINAL ORDER This matter is before the Commission pursuant to cross appeals of respondent and complaint counsel after the filing of an initial decision finding respondent in violation of Section 5 of the Federal Trade Commission Act. The Commission has received written briefs from the parties, heard oral arguments on the appeals and considered the record developed during the adjudicative proceedings before the administrative law judge. For the reasons set forth in the opinion accompanying this order, we have determined that complaint counsel’s appeal should be granted in part and respondent’s appeal granted in part, and that, except to the extent it is inconsistent with the Commission’s opinion, the initial decision of the administrative law judge should be, and it hereby is, adopted along with the opinion accompanying this order as the final findings of fact and conclusions of law of the Commission in this matter. We have also determined, for the reasons stated in the opinion accompanying this order that the order of the administrative law judge should be modified and the provisions set forth herein adopted as the final order of the Commission in this case. Accordingly, %4 The only mileage tests in the record were run on DMA-4 and DMA-115. CROWN CENTRAL PETROLEUM CORP. 1551 1493 Final Order It is ordered, That the following cease-and-desist order shall be and it hereby is entered:

It is ordered, That respondent Crown Central Petroleum Corporation, a corporation, its successors and assigns, and its officers, representatives, agents, and employees, directly or through any corporate or other device in connection with the advertising, offering for sale, sale or distribution of Crown gasolines, or the additive CA-101, or any other product in commerce as “commerce” is defined in the Federal Trade Commission Act, do forthwith cease and desist from: 1. Representing directly or by implication that any such product: (a) Will produce or result in motor vehicle exhaust which is pollution free or generally pollution free; or (b) Will eliminate or reduce air pollution caused by motor vehicles; or (c) Will eliminate or reduce emissions from all or any number or group of motor vehicles in which it is used; or that:

(d) Any gasoline or gasoline additive product has any other quality, performance ability or other characteristic; or (e) Tests, demonstrations, research or experiments have been conducted which prove or substantiate any of said representations;

UNLESS and only to the extent that each and every such representation is true and has been fully and completely substantiated by competent scientific tests. The results of said tests, the original data collected in the course thereof and a detailed description of how said tests were performed shall be kept available in written form for at least three years following the final use of the representation.

2. Representing directly or by implication that any such product has any effectiveness in reducing air pollution or any air pollutant or air pollutants without at the same time, in the same advertisement or other form of communication, conspicuously disclosing that not all of the harmful pollutants in automotive exhaust are affected by said product.

3. Representing directly or by implication that any product will reduce any emissions of pollutants from automobile exhaust by any percentage or numerical quantity unless in connection therewith there is a clear, accurate and conspicuous disclosure of the type of vehicle which can expect to achieve reductions of such magnitude and the approximate percentage of such vehicles in the general car population.

Complaint 84 F.T.C.

It is further ordered, That the respondent corporation shall forthwith distribute a copy of this order to each of its operating divisions. It is further ordered, That respondent shall notify the Commission at least thirty (80) days prior to any proposed change in the corporate respondent such as dissolution, assignment, or sale resulting in the emergence of a successor corporation, the creation or dissolution of subsidiaries, or any other change in the corporation which may affect compliance obligations arising out of the order. It is further ordered, That respondent shall, within sixty (60) days after service of the order upon it, file with the Commission a written report, signed by the respondent, setting forth in detail the manner and form of its compliance with the order to cease and desist. Commissioners Hanford and Nye did not participate since oral argument was heard prior to their assumption of Office.