Griffin Bacal, Inc

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IN THE MATTER OF GRIFFIN BACAL, INC.

CONSENT ORDER, ETC., INREGARD TO ALLEGED VIOLATION OF SEC. 5 OF THE FEDERAL TRADE COMMISSION ACT Docket C-3446. Complaint, July 2, 1993--Decision, July 2, 1993 This consent order prohibits, among other things, a New York advertising agency from misrepresenting any performance characteristic of any toy it promotes. In addition, in any demonstrations or tests used in the advertising for the toys, the respondent is prohibited from knowingly misrepresenting that the demonstration or test proves or confirms any material feature of the toy. Appearances For the Commission: Rosemary Rosso and Toby M. Levin. For the respondent: Peter Kadzik, Dickstein, Shapiro & Morin, Washington, D.C.

COMPLAINT The Federal Trade Commission, having reason to believe that Griffin Bacal, Inc. (“respondent”) has violated the provisions of the Federal Trade Commission Act, and it appearing to the Commission that a proceeding by it in respect thereof would be in the public interest, alleges:

PARAGRAPH 1. Respondent is a New York corporation, with its principal office and place of business at 130 Fifth Avenue, New York, New York.

PAR. 2. Respondent, at all times relevant to this complaint, was an advertising agency of Hasbro, Inc., and prepared and disseminated advertisements to promote the sale of Battle Copter toy aircraft vehicles.

Complaint 116 F.T.C.

PAR. 3. The acts and practices of respondent alleged in this complaint have been in or affecting commerce, as “commerce” is defined in the Federal Trade Commission Act. PAR. 4. Respondent has disseminated or has caused to be disseminated advertisements for the Battle Copter aircraft vehicle, including but not necessarily limited to the attached Exhibit A. These advertisements contain the following statements and depictions:

A. Exhibit A, a television advertisement, contains depictions of children launching and playing with toy Battle Copters and scenes of Battles Copters hovering and flying in the air, including the following scenes:

1. One sequence depicts two Battle Copters hovering together, approaching the viewer. The ad cuts to a scene showing a boy launching a Battle Copter vertically up and out of view. The final scene in this sequence shows what appears to be the just-launched Battle Copter traveling toward the viewer. In this scene, the audio portion of the ad states that Battle Copters “really fly high.” 2. A second sequence depicts a boy launching a Battle Copter up and out of view. The sequence then cuts to a scene depicting two Battle Copters entering the screen from opposite sides of the frame and flying across the screen to the center where they collide. 3. A third sequence shows a boy launching a Battle Copter into the air. The segment then cuts to a fantasy scene showing two actors engaged in battle while they hover in life-sized helicopters, until one helicopter is hit and explodes. The sequence then returns to a non-fantasy scene showing two Battle Copters approaching each other and colliding in mid-air in the center of the screen. PAR. 5. Through the use of the statements and depictions contained in the advertisements referred to in paragraph four, including but not necessarily limited to the advertisement attached as Exhibit A, respondent has represented, directly or by implication, that the demonstrations in the television advertisements of the Battle Copter GRIFFIN BACAL, INC. 651 649 Complaint toys hovering and flying in the air were unaltered and that the results shown accurately represent the performance of actual, unaltered Battle Copter toys under the depicted conditions. PAR. 6. In truth and in fact, the demonstrations in the television advertisements of the Battle Copter toys hovering and flying in the air were not unaltered and the results shown did not accurately represent the performance of actual, unaltered Battle Copter toys under the depicted conditions. Among other things, the Battle Copter toys depicted in the advertisements were suspended from monofilament wire attached to poles, which were moved by humans to create the hovering and flying effect, and battery-operated motors were installed to make their rotors spin around while they were being held in place or moved along on the monofilament wire attached to poles. Therefore, the representations set forth in paragraph five were, and are, false and misleading. PAR. 7. Through the use of the statements and depictions contained in the advertisements referred to in paragraph four, including but not necessarily limited to the advertisement attached as Exhibit A, respondent has represented, directly or by implication, that the Battle Copter toys can hover and can fly in a sustained and directed manner.

PAR. 8. In truth and in fact, Battle Copter toys cannot hover and are not able to fly in a sustained and directed manner. Therefore, the representation set forth in paragraph seven was, and is, false and misleading.

PAR. 9. The acts and practices of the respondent as alleged in this complaint constitute unfair or deceptive acts or practices in or affecting commerce in violation of Section 5(a) of the Federal Trade Commission Act.

Complaint 116 F.T.C.

EXHIBIT A PRCT Ol. ce RADIO DECGRAM HE5 1 8 1 1 4 1513 869 60 15 0.000000 LETSONS5 1 8 1 1 5 1633 850 153 30 28.967751 «LB?5 1 8 1 1 6 1817 812 3 2 27.194839 |5 1 8 1 1 7 1843 845 68 36 31.132896 een2 1 9 0 0 0 769 933 420 16 -1 3 1 9 1 0 0 769 933 420 16 -1 4 1 9 1 1 0 769 933 420 16 -1 5 1 9 1 1 1 769 937 13 9 65.304916 415 1 9 1 1 2 790 933 30 16 64.112778 East5 1 9 1 1 3 827 934 36 15 0.000000 42g5 1 9 1 1 4 870 933 40 14 0.000000 Srreet5 1 9 1 1 5 916 935 34 12 93.619568 News 1 9 1 1 6 958 935 33 12 35.398224 Yorn,5 1 9 1 1 7 998 934 20 11 81.964798 NY5 1 9 1 1 8 1027 933 40 14 76.058479 100175 1 9 1 1 9 1075 933 36 16 10.757812 212)5 1 9 1 1 10 1118 933 32 15 39.078819 309.5 1 9 1 1 11 1162 934 27 14 0.000000 4oC2 1 10 0 0 0 730 966 1226 278 -1 3 1 10 1 0 0 730 966 1226 278 -1 4 1 10 1 1 0 730 966 1226 278 -1 5 1 10 1 1 1 730 966 1226 278 95.000000 2 1 11 0 0 0 1252 1253 3 10 -1 3 1 11 1 0 0 1252 1253 3 10 -1 4 1 11 1 1 0 1252 1253 3 10 -1 5 1 11 1 1 1 1252 1253 3 10 95.000000 2 1 12 0 0 0 736 1248 1058 18 -1 3 1 12 1 0 0 736 1248 1058 18 -1 4 1 12 1 1 0 736 1248 1058 18 -1 5 1 12 1 1 1 736 1250 2 11 58.125340 15 1 12 1 1 2 766 1251 68 14 73.869438 CHORUS:5 1 12 1 1 3 849 1250 37 15 14.337555 €.1.5 1 12 1 1 4 902 1255 35 10 80.079681 soe.5 1 12 1 1 5 1177 1251 6 14 27.702820 25 1 12 1 1 6 1218 1251 58 15 38.743408 MUSIC)5 1 12 1 1 7 1292 1251 37 13 86.886620 MAN:5 1 12 1 1 8 1345 1252 39 12 76.801765 Neeo5 1 12 1 1 9 1398 1254 7 10 57.384411 a5 1 12 1 1 10 1421 1250 37 15 61.767815 life5 1 12 1 1 11 1633 1250 6 15 41.335636 35 1 12 1 1 12 1662 1248 48 15 73.475693 DUKE:5 1 12 1 1 13 1727 1248 67 16 88.009949 Thanks.2 1 13 0 0 0 1207 1268 48 14 -1 3 1 13 1 0 0 1207 1268 48 14 -1 4 1 13 1 1 0 1207 1268 48 14 -1 5 1 13 1 1 1 1207 1268 48 14 0.000000 Quxe?2 1 14 0 0 0 720 1340 1226 270 -1 3 1 14 1 0 0 720 1340 1226 270 -1 4 1 14 1 1 0 720 1340 1226 270 -1 5 1 14 1 1 1 720 1340 1226 270 95.000000 2 1 15 0 0 0 719 1621 1216 71 -1 3 1 15 1 0 0 719 1621 1216 71 -1 4 1 15 1 1 0 719 1621 1205 23 -1 5 1 15 1 1 1 719 1624 5 9 73.494354 45 1 15 1 1 2 756 1623 48 15 73.494354 Look,5 1 15 1 1 3 819 1621 70 15 85.547012 Coora's5 1 15 1 1 4 903 1624 28 15 94.751183 got5 1 15 1 1 5 945 1625 28 11 66.678345 tne5 1 15 1 1 6 1166 1623 6 15 49.105759 55 1 15 1 1 7 1198 1623 59 14 41.716019 ANNCR:5 1 15 1 1 8 1273 1623 27 14 96.545784 But5 1 15 1 1 9 1315 1625 40 12 94.961983 here5 1 15 1 1 10 1369 1626 48 11 96.359650 comes5 1 15 1 1 11 1620 1624 12 14 83.235336 6.5 1 15 1 1 12 1654 1624 47 15 83.235336 OUKE:5 1 15 1 1 13 1717 1625 72 15 95.682617 Perfect5 1 15 1 1 14 1803 1626 28 14 95.982170 for5 1 15 1 1 15 1844 1626 80 18 96.100281 dropping4 1 15 1 2 0 755 1639 1180 19 -1 5 1 15 1 2 1 755 1639 101 14 10.340004 alasmatoa!5 1 15 1 2 2 1198 1639 37 14 39.075073 C.1.5 1 15 1 2 3 1251 1641 29 13 92.595161 Joe5 1 15 1 2 4 1293 1639 154 16 73.877197 Bartle-Copters.5 1 15 1 2 5 1656 1642 16 14 79.437035 in5 1 15 1 2 6 1685 1644 112 14 72.924088 unexpected.5 1 15 1 2 7 1813 1643 57 14 90.140533 ANNCR:5 1 15 1 2 8 1897 1647 38 10 66.804573 Watcn4 1 15 1 3 0 1200 1656 543 18 -1 5 1 15 1 3 1 1200 1656 69 15 0.000000 Tioerip5 1 15 1 3 2 1283 1660 71 12 89.386536 copters5 1 15 1 3 3 1369 1659 38 12 96.423264 that5 1 15 1 3 4 1422 1657 58 17 96.798180 really5 1 15 1 3 5 1653 1662 29 12 67.470398 outs 1 15 1 3 6 1695 1659 48 15 30.401329 Duke!4 1 15 1 4 0 1201 1674 87 18 -1 5 1 15 1 4 1 1201 1674 26 17 28.115570 yy nigh.

7? Coora's got Battle-Copters 8 ANMCR: Cobre and C.), 9, MAN SINGS: A teal American rool . Joe Battie=Copters can hero. CHORUS: C.1. Joe. 10 ANNCR: C.1. Joe and Coora VW DUKE: 1 nate wnen this 12, CHORUS: Go Joel (MUSIC OUT Battie-cooter sole nappens! separately witn figure, we Exhibit A smasiont + DLDHCY COMOMSMOIED OF MF. buCT GRIFFIN BACAL, INC. 653 649 Decision and Order 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 of Consumer Protection proposed to present to 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, its attorney, and counsel for the Commission having thereafter executed an agreement containing a consent order, an admission by 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, or that the facts as alleged in the attached draft complaint, other than the jurisdictional facts, are true, and waivers and other provisions as required by the Commission’s Rules. The Commission having thereafter considered the matter and having determined that it had 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 Griffin Bacal, 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 130 Fifth Avenue, in the City of New York, State of 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.

Decision and Order 116 F.T.C.

ORDER It is ordered, That respondent Griffin Bacal Inc., a corporation, its successors and assigns, and its officers, agents, representatives and employees, directly or through any corporation, subsidiary, division or other device, in connection with the advertising, offering for sale, sale or distribution of any toy, in or affecting commerce, as “commerce” is defined in the Federal Trade Commission Act, do forthwith cease and desist from:

A. Inconnection with any advertisement depicting a demonstration, experiment or test, making any representation, directly or by implication, that the demonstration, picture, experiment or test depicted in the advertisement proves, demonstrates or confirms any material quality, feature or merit of any toy when such demonstration, picture, experiment or test does not prove, demonstrate or confirm the representation for any reason, including but not limited to: 1. The undisclosed use or substitution of a material mock-up or prop;

2. The undisclosed material alteration in a material characteristic of the advertised toy or any other material prop or device depicted in the advertisement; or 3. The undisclosed use of a visual perspective or camera, film, audio or video technique;

that, in the context of the advertisement as a whole, materially misrepresents a material characteristic of the advertised toy or any other material aspect of the demonstration or depiction. Provided, however, that notwithstanding the foregoing, nothing in this order shall be deemed to otherwise preclude the use of fantasy segments or prototypes which use otherwise is not deceptive. Provided further, however, that it shall be a defense hereunder that the respondent neither knew nor had reason to know that the GRIFFIN BACAL, INC. 655 649 Decision and Order demonstration, experiment or test did not prove, demonstrate or confirm the representation.

B. Misrepresenting, directly or by implication, any performance characteristic of any Battle Copter toy or any other toy. II.

It is further ordered, That respondent Griffin Bacal, Inc. shall distribute a copy of this order to each of its operating divisions and to each officer, agent and personnel responsible for the preparation, review or placement of advertising, or other materials covered by this order and shall secure from each such person a signed statement acknowledging receipt of this order.

Hl.

It is further ordered, That for three (3) years after the date of the last dissemination of any representation covered by this order, respondent, its successors and assigns, shall maintain and upon request make available to the Federal Trade Commission for inspection and copying the following records:

A. Any and all videotapes, in complete and unedited form, and any and all still photographs taken during the production of any advertisement depicting a demonstration, experiment, or test; and B. Any and all affidavits or certifications submitted by an employee, agent or representative of respondent to a television network or to any other individual or entity, other than counsel for respondent, which affidavit or certification affirms the accuracy or integrity of a demonstration or demonstration techniques contained in an advertisement.

In addition, respondent, its successors and assigns, for three (3) years after the date of service of this order, shall maintain and, within thirty (30) days of any written request, make available to the Decision and Order 116 F.T.C.

Federal Trade Commission for inspection and copying all signed statements obtained pursuant to section II, above. IV.

It is further ordered, That respondent shall notify the Commission at least thirty (30) days prior to the effective date of any proposed change in the corporation which may affect compliance obligations arising out of this order, including but not limited to any change in corporate name or address, dissolution, assignment or sale resulting in the emergence of a successor corporation, and the creation or dissolution of subsidiaries.

V.

It is further ordered, That respondent shall, within sixty (60) days after service of this order, and at such other time as the Commission may require, file with the Commission a report, in writing, setting forth in detail the manner and form in which it has complied with this order.

HASBRO, INC. 657 657 Complaint