Federal Trade Commission v. Colgate-Palmolive Co. et al.
380 U.S. 374 (1965)
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Rule of Law:
The undisclosed use of a prop or mock-up in a television commercial is a deceptive trade practice under § 5 of the Federal Trade Commission Act if it is presented as a genuine test, experiment, or demonstration that provides visual proof of a product claim, regardless of whether the underlying product claim is itself true.
Facts:
- Colgate-Palmolive Company (Colgate), with its advertising agency Ted Bates & Company (Bates), created television commercials for its 'Rapid Shave' product.
- The commercials featured a 'sandpaper test' intended to demonstrate Rapid Shave's ability to soften tough surfaces for shaving.
- In the commercials, an announcer stated that Rapid Shave was being applied to 'tough, dry sandpaper,' which was then shown being shaved clean in a single stroke.
- The substance used in the commercial was not sandpaper, but a mock-up made of plexiglass covered with sand.
- While Rapid Shave could soften and shave actual sandpaper, it required a soaking period of approximately 80 minutes, not the immediate application depicted in the commercials.
- The plexiglass mock-up was used because real sandpaper, due to the technical limitations of television transmission, would not have appeared as sandpaper to viewers but rather as plain colored paper.
Procedural Posture:
- The Federal Trade Commission (FTC) issued a complaint against Colgate-Palmolive Co. and Ted Bates & Co. for false and deceptive advertising.
- An FTC hearing examiner initially dismissed the complaint, finding the misrepresentations were not material.
- The full Commission reversed the examiner, found the commercials deceptive, and issued a broad cease-and-desist order.
- The respondents appealed to the U.S. Court of Appeals for the First Circuit.
- The Court of Appeals upheld the FTC's finding on the time-related misrepresentation but set aside the order's broad prohibition on undisclosed simulations, remanding the case to the FTC.
- The FTC issued a new, narrower order specifically prohibiting the use of undisclosed mock-ups in tests represented as actual proof of a product claim.
- The respondents again appealed to the First Circuit, which again found the order unsatisfactory and refused to enforce it.
- The FTC then petitioned the U.S. Supreme Court for a writ of certiorari, which was granted.
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Issue:
Does the undisclosed use of a mock-up in a television commercial constitute a deceptive trade practice prohibited by § 5 of the Federal Trade Commission Act when the commercial purports to be a genuine test, experiment, or demonstration providing visual proof of a product claim?
Opinions:
Majority - Chief Justice Warren
Yes. The undisclosed use of a mock-up in a televised demonstration that purports to be actual proof of a product claim is a material deceptive practice. The Federal Trade Commission Act is concerned with preventing deception that materially induces a purchase, and this deception extends beyond the substantive qualities of the product to the manner in which claims are proven to the public. Falsely representing that a viewer is seeing objective proof with their own eyes is a material misrepresentation, separate from the truth of the underlying product claim itself. The public is entitled to not be deceived about the proof offered for a product's qualities, just as it is entitled to not be deceived about a product's origin or its regular price. Advertisers cannot compensate for a medium's technical limitations by engaging in material misrepresentations.
Dissenting - Justice Harlan
No. The use of mock-ups in television advertising is not, of itself, a deceptive trade practice. The proper legal test should focus not on what occurs in the studio, but on whether the image seen by the viewer is an accurate representation of the advertised product and the claims made for it. If a mock-up is necessary to compensate for television's technical distortions and accurately convey a truthful product claim, its use is not deceptive in any legally significant sense. In this case, since the mock-up showed an accurate image of the product's true capabilities, there was no material misrepresentation.
Analysis:
This decision significantly broadened the scope of 'deceptive practices' under the FTC Act, establishing that the method of advertising can be deceptive, not just the substantive claims about the product. The Court affirmed that consumers are not only entitled to a product that performs as advertised, but also to truthful representations about the evidence supporting those performance claims. This precedent forces advertisers to be transparent about their demonstrations, either by conducting them genuinely or by disclosing the use of simulations. The ruling has had a lasting impact on advertising standards, particularly for commercials that feature product tests or demonstrations.
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