Benton & Bowles, Inc

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

IN THE MATTER OF BENTON & BOWLES, INC.

CONSENT ORDER, ETC., IN REGARD TO ALLEGED VIOLATION OF SECS. 5 AND 12 OF THE FEDERAL TRADE COMMISSION ACT Docket C-2826. Complaint, July 6, 1976—Decision, July 6, 1976 Consent order requiring a New York City advertising agency for General Foods Corporation, among other things to cease misrepresenting that a plant, or any part thereof, is suitable for human consumption in its raw state, where the plant is depicted growing in its natural, uncultivated environment. Further, respondent is prohibited from representing, through depictions, descriptions, etc., anything commonly recognized as food or a lawful food additive which tends to influence behavior creating imminent risk or physical harm to viewers. Appearances For the Commission: Steven D. Newburg-Rinn. For the respondent: Bruce L. Bozeman, White Plains, N.Y. John Kovin, Clifford, Warnke, Glass, McIlwain & Finney, Washington, D.C. 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 Benton & Bowles, Inc., 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. For the purposes of this complaint, the following definitions apply:

1. The term “commerce” means commerce as defined by the Federal Trade Commission Act, as amended. 2. The term “false advertisement” means false advertisement as defined by the Federal Trade Commission Act, as amended. Par. 2. Respondent Benton & Bowles, Inc. is a corporation organized, existing and doing business under and by virtue of the laws of the State of New York, with its office and principal place of business located at 909 Third Ave., New York, New York.

Par. 3. Respondent Benton & Bowles, Inc., is now, and for some time Complaint 88 F.T.C.

last past has been, the advertising agency of General Foods Corporation, and now, and for some time last past, has prepared and placed for publication, and has caused the dissemination of advertising material, including but not limited to the advertising referred to herein, to promote the sale of a variety of food products, including but not limited to “Post Grape Nuts,” a ready-to-eat breakfast cereal (hereinafter referred to as Post Grape Nuts). Said product is a “food” as defined in the Federal Trade Commission Act.

Par. 4. In the course and conduct of its aforesaid business, respondent Benton & Bowles, Inc. causes various advertisements for Post Grape Nuts to be transported from its place of business to radio and TV stations located in various other States of the United States and in the District of Columbia. Respondent Benton & Bowles, Inc. maintains and at all times mentioned herein has maintained, a substantial course of trade in said advertising business in or affecting commerce. The volume of business in or affecting commerce has been and is substantial.

Par. 5. In the course and conduct of its aforesaid business, respondent Benton & Bowles, Inc. has disseminated, and caused the dissemination of, certain advertisements concerning the said products by the United States mail and by various means in or affecting commerce, including but not limited to, by means of television broadcasts transmitted by television stations located in various States of the United States, and in the District of Columbia, having sufficient power to carry such broadcasts across State lines, for the purpose of inducing and which were likely to induce, directly or indirectly, the purchase of said product, and have disseminated, and caused the dissemination of, advertisements concerning said product by various means, including but not limited to the aforesaid media, for the purpose of inducing and which were likely to induce, directly or indirectly, the purchase of said product in or affecting commerce. Par. 6. Among the advertisements disseminated by means of television, but not all inclusive thereof, are the following: BENTON & BOWLES, INC.

1 Complaint BENTON & BOWLES Client GENERAL FOODS CORP. 909 THIRD AVENUE Product GRAPE-NUTS NEWYORK NY Length 30 SECONDS — (GFGN-1502) (242) 758-6200 Title “EVELL GIBBONS”

Un (SEX) 2 EVELL GIBBONS: I'm 3, Many consider mean expert 4 like cat-talls. Yas, they'n Euell si>bons. un natural foods... edible! 6. That's why Grape Nuts $. | book for natural ingred- 7. Tnisisswh lesome cereal... & Thoso natural ingrediants jents in my food. part of my brezkfast. made from wheat snd barley. ore baked into crunchy nuggets ified with enght 10, 18's naturally sweet It, EVELL GIBBONS: (VO. essential vitamins. reminds me of wild nw' + 1 catl Grape-Nuts my backmats. Lo-nature cereal.

9. and fo ed Client: GENERAL FOODS Product: POST GRAPE~-NUTS Program:

130 CO:

Complaint oe ye oo woe UV UR I Behvond Bowles, inc. 069 Td Avanve, caw bes, MY D028/ oy Jif le RACTAL #GFGN-3252 (S0ELL PICTURE GIBBONS IN FOREST SUPER: \ AUTHOR OF GOOD LIFE."

OPEN ON EUELL OF TALL PINES.

EUELL GIBBONS ‘TALKING THE GIBBONS PULLS A BRANCH FROM PINE TREE.

AND HOLDS UP BRANCH.

GIBBONS SITS AT TABLE IN THE FOREST WITH BREAKFAST ITEMS.

GIPBONS POURS GRAPE NUTS INTO BOWL.

CONTINUE ACTION AS HE ADDS Se TO CEREAL.

CONTINUE ACTION.

GIBBONS MIXES CEREAL AND THEN BEGINS TO EAT IT.

GO TO PRODUCT SHOT.

SUPER: “BACK-TO-NATURE CEREAL.

BONS Pike TREE") Data: AS FILMED OCTOBER 1972 Station:

Droit: . 1-11-1-72 gs/ SOUND EVELL GIBBONS:

I'm Euell Gibbons.

I've spent years learning about natural foods.

Ever eat a pine tree? Many parts are edible.

Natural ingredients are important to me.

That's why Post Grape Nuts 4s part of my breakfast.

This wholesome cereal 1s made from wheat and barley.

These natural ingredients @ paked into crunchy nuggets fortif_ed with vitanmias.

Its' naturally sweet taste reminds me of wild hickory I call Grape-Nuts my back-t nature cereal.

BENTON & BOWLES, INC. 5 1 Complaint ye at .

A te wo 1 . ‘ AY 7 y .

ar rr or VOR Ay Hareon treks PICTURE scuxD »IEPOR OF ROUS - THE GOOD LIFE", I'm Euell Gibbons. I'm gatherin:

part of my Dreakfast.

3ERRIES OFF OF A Shes2 ara high bush cranberrics. TO 0 CU OF HUSLL'S KANDS HOLDING Delicious with Grape-Nuts. ClLAnSERATES AND GRAPE-NUTS BOX, NEVSAL EUVESLL TN CABIN. As an author of five books on natural ?oods, XT can recommend Post Grape-Nuts.

i my Fe CU OF GRAPS-nuts BD Tig BOWL FOURED Talis crunchy cereal is mace from naturel ingredients - wholesoue wheat and barley.

ST OF HOT WEIK BEING POURED And it's fortified with Vitamins. OVER GRACE-HUTS.

i STIRS CEREAL AND UeCEN EATS ste roenind:

TO 9 COMPLETE GRAPE-NUTS BREAK- BACK-TO-NATURS5 1 36 1 1 2 946 2293 132 28 30.308823 CEPGAL, I call Grapa-Nuts. my back-tonature cereal.

Complaint 88 F.T.C.

ane. ae iE fs Wey WI NY. ane = Taenewa Gitomts GENERAL FOODS CORP. Date: AS FILMED APRIL 1974 Product: GRAPE-NUTS Staton Program: Draft: 1-4~-24-7H sf/iz 130 COMMERCIAL #GFGN-N022 T'GTBBON CACTUS REV. 11") PICTURE SOUND OPE WITH WIDE SHOT OF EUELL GIBBONS:

LUELL GIBEONS IN THE DESERT.

suy I'm Evell Gibbons.

WALT, GIRBORS, AUTHOR OF STMLKING THE GOOD LIFE."

CONTINUE ACTION. I'm gathering part of my breakfast GIBBONS PICKS FRUIT OFF The fruit of this prickly pear OF & CACTUS. HE HOLDS UP FRUIT. cactus will go well with Grape-Nut TIGHT SHOT OF GIBBONS Having spent years studying natura HOLDING GRAPE-NUTS BOX.

foods, I can recommend Post Grapenuts.

POURING SHOT.’ It's a natural wheat and barley cereal fortified with vitamins.

No artificial flavoring or preservatives added.

GIBBONS EATING GRAPE-NUTS Its naturally sweet taste reminds FROM BOWL. me me of wild hickory nuts.

PRODUCT SHOT. I call Grape-Nuts my back-to- SUPER:

MBACK-TO-NATURE CEREAL.“ nature cereal.

BENTON & BOWLES, INC. 7 1 Decision and Order Par. 7. The aforesaid advertisements have the tendency or capacity to influence children to eat plants or parts thereof which they find growing or in natural surroundings. Some plants or parts thereof are harmful if eaten. A substantial number of children do not have sufficient knowledge or experience to distinguish between those plants or parts thereof which are and those which are not harmful if eaten. Therefore the aforesaid advertisements have the tendency or capacity to influence children to engage in behavior which is harmful or involves the risk of harm, and were and are unfair or deceptive acts or practices. Par. 8. It is a commonly recognized safety principle that children should not eat any plants or parts thereof which they find growing or in natural surroundings, except under adult supervision. The aforesaid advertisements have the tendency or capacity to influence children, when not under adult supervision, to eat plants or parts thereof which they find growing or in natural surroundings, which behavior is inconsistent with said safety principle. Therefore, the aforesaid advertisements were and are unfair or deceptive acts or practices. Par. 9. The aforesaid advertisements have the tendency or capacity to represent, directly or by implication, to children that they can eat plants or parts thereof which they find growing or in natural surroundings without harm or the risk of harm. In truth and in fact, children cannot eat plants or parts thereof which they find growing or in natural surroundings without harm or the risk of harm. Therefore, the aforesaid advertisements were and are unfair and deceptive acts or practices and false advertisements.

Par. 10. In the course and conduct of its aforesaid business, and at all times mentioned herein, respondent Benton & Bowles, Inc., has been, and is now, in substantial competition, in or affecting commerce, with other corporations and individuals in the advertising business. Par. 11. The aforesaid unfair or deceptive acts or practices of respondent, as herein alleged, including the dissemination of false advertisements, as aforesaid, 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 or affecting commerce and unfair or deceptive acts or deceptive acts or practices in or affecting commerce, in violation of Sections 12 and 5 of the Federal Trade Commission Act.

DECISION AND ORDER The Federal Trade Commission having initiated an investigation of certain acts and practices of the respondent named in the caption hereof, and the respondent having been furnished thereafter with a copy of a draft of complaint which the Bureau proposed to present to Decision and Order 88 F.T.C.

the Commission for its consideration and which, if issued by the Commission, would charge respondent with violation of the Federal Trade Commission Act; and The respondent and counsel for the Commission having thereafter executed an agreement containing a consent order, an admission by the respondent of all the jurisdictional facts set forth in the aforesaid draft of complaint, a statement that the signing of said agreement is for settlement purposes only and does not constitute an admission by respondent that the law has been violated as alleged in such complaint, and waivers and other provisions as required by the Commission’s Rules; and The Commission having thereafter considered that matter and having determined that it has reason to believe that the respondent has violated the said Act, and that complaint should issue stating its charges in that respect, and having thereupon accepted the executed consent agreement and placed such agreement on the public record for a period of sixty (60) days, now in further conformity with the procedure prescribed in Section 2.34 of its Rules, the Commission hereby issues its complaint, makes the following jurisdictional findings, and enters the following order:

1. Respondent Benton & Bowles, Inc. is a corporation organized, existing and doing business under and by virtue of the laws of the State of New York, with its office and principal place of business located at 909 Third Ave., New York, New York.

2. The Federal Trade Commission has jurisdiction of the subject matter of this proceeding and of the respondent, and the proceeding is in the public interest.

ORDER For the purposes of this order, the following definitions apply: 1. The term “commerce” means commerce es defined by the Federal Trade Commission Act, as amended. 2. The term “plant” means any whole plant or any constituent part thereof.

3. The term “suitable for human consumption” shall not apply to the sole depicting or sole act of picking a plant or any constituent part thereof in its raw state.

I It is crdered, That respondent Benton & Bowles, Inc., a corporation, chereinafter referred to as :*spond nt), its successors and assigns, and its officers, agents, rcpresentatives and e.aployees, directly or through BENTON & BOWLES, INC. 9 1 Decision and Order any corporation, subsidiary, division or other device, in connection with the advertising, offering for sale, sale or distribution in or affecting commerce of any product, forthwith cease and desist from, directly or indirectly:

A. Representing, through depictions, descriptions, or otherwise, that a plant is suitable for human consumption in its raw state in an advertisement containing a visual depiction of (1) the plant in its growing state or natural surroundings which depiction is not a clear portrayal of conditions of domestic cultivation for human consumption or (2) the consumption of a raw plant, described in the advertisement as wild.

B. Representing, through depictions, descriptions, or otherwise, that a plant is suitable for human consumption in its raw state in an advertisement containing a visual depiction of the plant in its growing state or natural surroundings where said plant is not the advertised product or an ingredient, or characterizing flavor, or source thereof, in the advertised product.

C. Representing, through depictions, descriptions, or otherwise, that any given thing or things, other than things that are commonly recognized as foods or lawful food additives, are suitable for human consumption as a food where it is reasonably foreseeable, through reasonable inquiry, that such representation has the tendency and capacity to influence members of the audience in reasonably good health to engage in behavior which creates an imminent risk of physical harm to those persons or to others.

D. Provided, however, that paragraph B shall not prohibit the representation, through depictions, descriptions, or otherwise, that a plant is suitable for human consumption in its raw state where the provisions of paragraphs A and C are met, and said plant: (1) is nontoxic in its raw state; and (2) does not have the tendency and capacity to be confused with a plant, which if consumed in its raw state, is toxic. II It is further ordered, That respondent shall forthwith distribute a copy of this order to each of its operating divisions. It is further ordered, That respondent notify the Commission at least thirty (80) days prior to any proposed change 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 223-239 O - 77 - 2 Decision and Order 88 F.T.C.

after service upon it of this order, file with the Commission a report in writing setting forth in detail the manner and form in which it has complied with this order.

RICHARD FOODS CORP., ET AL. 11 11 Complaint