Stewart, Richard I

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IN THE MATTER OF RICHARD I. STE,VART, TRADING AS AVOCADO SOAP PRODUCTS COMPANY <:COMPLAINT, FINDINGS, AND ORDER IN REGARD TO THE ALLEGED VIOLATION OF SEC. II OF AN ACT OF CONGRESS APPROVED SEPT. 26, 1914 Docket 3183. Complaint, JuZ11 22, 1931-Dccision, Sept. 11, 1931 Where an indiv-idual engaged in manufacture, sale, and distribution of soap to purchasers thereof in the States of the United States and in the District of Columbia, in substantial competition with those similarly engaged- {a) Represented, through use of the word "Avocado," together with depictions of said fruit, and through such statements as "Contains the Oil of Sun Ripe Avocados," etc., and "AVOCADO TISSUE SOAP Nature's Aid to Beauty," in advertisements, price lists and labels and otherwise, that his said soap contained a substantial amount of oil of avocado; and (b)· Made such statements as "• • • Highly recommended by beauty specialists. • • • Not just a soap but a distinct beauty aid"; ll'acts being amount of said oil contained In soap in question, thus described, was infinitesimal compared to total of other ingredients used in manufac· ture thereof, and was not sufficient to warrant claim that such soap was made from avocado oil, and soap in question was not a natural aid to beauty nor recommended by beauty specialists, and bad no beneficial effect different from any other soap;

'\With tendency and capacity to lead distributors and purchasing public into belief that said statements and representations were true, and with effect of inducing members of the public to purchase his said product on account of such erroneous beliefs, and with result of thereby unfairly diverting trade to him from competitors who do not make similar misleading rep· resentations concerning the ingredients or value of their respective prod· nets; to the substantial injury of competition in commerce : llela, That such acts and practices were to the prejudice of the public and competitors and constituted unfair methods of competition. 11/r. 8. Brogdyne Teu //for the Commission. Complaint Pursuant to the provisions of an Act of Congress, approved Sep· te~ber 26, 1914, entitled "An Act to create a Federal Trade Comnnssion, to define its powers and duties, and for other purposes," the Federal Trade Commission, having reason to believe that Richard r. Stewart, an individual doing business under the trade name of Avocado Soap Products Company, hereinafter referred to as respondent, has been and is using unfair methods of competition in ~commerce, as "commerce" is defined in said act of Congress, and lt appearing to said Commission that a proceeding by it in respect 1~812Im--39----69 Complaint 25 F. T.C. thereof would be in the public interest, hereby issues its complaint f;tating its charges in that respect as follows: PARAGRAPH 1. Respondent, Richard I. Stewart, is an individual doing business under the trade name of Avocado Soap Products Company, and has his principal office and place of business in the city of Anaheim, State of California. He is now, and for more than one year last past has been, engaged in the manufacture, sale, and rlistribution of soap. He causes said soap, when sold, to be transported from his principal place of business in the State of California to purchasers thereof in other States of the United States and in the District of Columbia.

There is now, and has been for more than one year last past, n. constant current of trade and commerce in said soap so prepared, distributed, and sold by the respondent between and among the various States of the United States and in the District of Columbia· PAR. 2. In the course and conduct of his business respondent is now aiid has been in substantial competition with other individuals, partnerships, firms, and corporations likewise engaged in the business of manufacturing, distributing, and selling soap or other prodnets designed, intended, and sold for the same purposes for which respondent's products are sold in commerce among and between the ''arious States of the United States and in the Pistrict of Columbia. PAR. 3. In the course of the conduct of said business, and for the purpose of inducing the purchase of said soap, respondent has printed and circulated through the United States mails, and otherwise, to customers and prospective customers in the several States of the United States, descriptions of his said product. The following statements are representative of those made by respondent in describing the said products:

1. AVOCADO (pictorial representation of an Avocado) TISSUE SOAP REG. U. S.PAT. OFFICE Contains the oil of Sun Ripe Avocados A California Fruit 2. AVOCADO TISSUE SOAP Nature's Aid to Beauty Made in California. Contains the oil of sun-ripe California Avocados (Alligator Pears). AVOCADO TISSUE SOAP Is made of the purest Ingredients obtainable. Highly recommended by beauty. specialists. AVOCADO SOAP PRODUCTS COMPANY 1057 Complaint Contains no animal fats. Leaves skin soft, smooth and vell"ety. Not just a soap but a distinct beauty aid A PRODUCT OF AVOCADO SOAP PRODUCTS-ANAHEIM, CALIF.

Avocado Beauty Guild Hollywood, Calif.

The name "AVOCADO" which appears on Avocado Tissue Soap is protected by Trade Mark Registered in the U. S. Pat. Office. Infringers will be prosecuted PAR. 4. In the aforesaid ways and by the aforesaid means respondent. makes, and has made, to the general public false and misleading statements with reference to the commodities offered for sale by him. The articles and·items of merchandise described in the said advertisements, price lists, and on labels appearing on the merchandise, and otherwise, above referred to are so described as to lead purchasers and prospective purchasers into the mistaken and erroneous belief that the said soap contains a large amount of oils of the Sun Ripe Avocados, and further that respondent's soap is a natural aid to beauty and highly recommended by beauty specialists. PAR. 5. The use by the respondent of the phrase "Contains the Oil of Sun Ripe Avocados" serves to lead purchasers and prospective Purchasers into the erroneous and mistaken belief that the above referred to oil is a major ingredient used in the manufacture of the soap so made and sold by respondent.

PAn. 6. In truth and in fact, in each and every instance wherein the above set out words and phrases are used, the amount of Avocado oil appearing in respondent's said soap is infinitesimal when compared to the amount of other ingredients. used in the manufacture of said soap, and is not sufficient to warrant the claim that said soap is made from Avocado oil.

Further, in truth and in fact, respondent's product is not a nat- Ural aid to beauty, nor is respondent's product recommended by beauty specialists.

PAR. 7. There are among the competitors of the respondent in <'commerce as described in paragraph 1 above, manufacturers and distributors of like and similar products who truthfully advertise and represent the nature, merit, and value of their respective products, and who refrain from advertising or representing, through their advertisements, price lists, or other advertising media, and brand lnarks on their products, that the merchandise offered for sale by them has a merit and value that it does not have, or that it co~tains ingredients in substantial portions other than actually contamed in said merchandise.

}058 FEDERAL TRADE COMMISSION DECISIONS Findings 25 F.T.O. PAR. 8. The effect of the foregoing false and misleading repre· sentations and acts of respondent in selling and offering for sale such items of merchandise as hereinbefore referred to is to mislead a substantial portion of the purchasing and consuming public by inducing them to believe:

1. That the soap manufactured, sold, and distributed by respondent contains a substantial amount of Avocado oil; 2. That the soap manufactured, sold, and distributed by respondent is ''Nature's Aid to Beauty";

3. That respondent's product is highly recommended by beauty ~o;pecialists.

PAR. 9. The foregoing false and misleading stateinents and repre· ~:;entations on the part of respondent have induced and still induce a substantial number of consumer purchasers of said commodities to buy the products offered for sale, sold, and distributed by re· spondent on account of the aforesaid mistaken and erroneous beliefs. As a result thereof trade has been diverted from those competitors of respondent engaged in similar businesses referred to in para· graph 7 above. As a cone"equence thereof substantial injury has been and is being done by respondent to competition in commerce between and among the various States of the United States. PAR. 10. The aforementioned methods, acts, and practices of re· spondents are all to the prejudice of the public and respondent's competitors as hereinabove alleged. Said methods, acts, and prac· tices constitute unfair methods of competition in commerce within the intent and meaning of Section 5 of an Act of Congress, entitled "An Act to create a Federal Trade Commission, to define its powers and duties, and for other purposes," approved September 26, 1914· REPORT, FINDINGS AS TO THE Facts, AND OnnEn Pursuant to the provisions of an Act of Congress approved Sep· tember 26, 1914, entitled "An Act to create a Federal Trade Com· mission, to define its powers and duties, and for other purposes," the Federal Trade Commission, on July 22, 1937, issued and served its complaint in this proceeding upon respondent, Richard I. Stewart, trading as Avocado Soap Products Company, charging him with the use of unfair methods of competition in commerce in violation of the provisions of said act. The respondent filed his answer in which he admits all the material allegations of the complaint to be true, and states that he waives hearing on the charges set forth in said -complaint, and that without further evidence or intervening proce· dure the Commission may issue and serve upon him findings as to AVOCADO SOAP PRODUCTS CO::IfPANY 1059 1055 Findings the facts and conclusion and an order to cease and desist from the \'violation of law charged in the complaint. Thereafter, this proceeding regularly came on for final hearing before the Commission on the said complaint and answer thereto; and the Commission having duly considered the same and being now fully advised in the premises, finds that this proceeding is in the interest of the public and makes this its findings as to the facts and its conclusion drawn therefrom: FINDINGS AS TO THE FACTS PARAGRAPH 1. The respondent, Richard I. Stewart, trading as Avocado Soap Products Company, is an individual doing business Under the laws of the State of California. PAR. 2. The respondent has been for more than one year last Past engaged in the manufacture, sale, and distribution of soap. PAR. 3. In the sale of said product, respondent has transported or caused same to be transported from his principal place of business in the State of California to purchasers thereof located in States of the United States other than the State from which the shipment originated, and in the District of Columbia. There is now, and has been for more than one year last past, a constant current of trade and commerce in said soap so prepared, distributed, and sold by the respondent between and among the Various States of the United States and in the District of Columbia. The respondent is engaged in substantial competition with individuals, partnerships, firms, and corporations engaged in the manufacture, sale, and distribution of like and similar products, and in the sale thereof in commerce between and among the various States of the United States and in the District of Columbia. PAn, 4. Respondent, in soliciting the sale, and in the selling, of his commodity, and for the purpose of creating a demand upon the Part of the consuming public for said commodity, has printed and circulated through the United States mails and otherwise, to customers and prospective customers in the several States of the United States, descriptions of his said commodity. The following statel11ents are representative of those made by respondent in describing the said commodity:

1. AVOCADO (pictorial representation of an Avocado) TISSUE SOAP REG. U, S. PAT. OFFICE Contains the Oil of Sun Ripe Avocados A California Fruit Findings 25F.T.C.

2. AVOCADO TISSUE SOAP Nature's Aid to Beauty Made in California. Contains the oil of sun-ripe California Avocados (Alligator Pears). AVOCADO TISSUE SOAP is made of the purest ingredients obtainable. Highly recommended by beauty specialists. Contains no animal fats. Leaves skin soft, smooth and velvety. Not just a soap but a distinct beauty aid A PRODUCT OF AVOCADO SOAP PRODUCTS-ANAHEIM, CALIF.

Avocado Beauty Guild Hollywood, Calif.

PAR. 5. The respondent, by the aforesaid ways and means, has made and still makes to the general public false and misleading statements with reference to the commodity offered for sale by him. The articles of merchandise described in the said advertisements, price lists, and labels appearing on the merchandise, and otherwise, are so described as to lead purchasers and prospective purchasers into the belief that the said soap contains a large amount of oils of the Sun-Ripe Avocado, and further that respondent's soap is a natural aid to beauty and highly recommended by beauty specialists. In fact, in each and every instance wherein the above set out words and phrases are used the amount of Avocado Oil appearing in re· spondent's soap is infinitesimal when compared to the total amount of other ingredients used in the manufacture of the said. soap, and .is not sufficient to warrant the claim that said. soap is made frolll Avocado oil.

In fact, the respondent's product is not a natural aid to beauty, nor is respondent's product recommended. by beauty specialists. Said soap does not have any beneficial effect different from any other soap. PAR. 6. The use of each and all of the foregoing false and misleading statements and representations by the respondent as herein set out has had, and now has, a tendency and capacity to lead distributors and the purchasing public into the belief that said statements and representations are true, and has induced and now induces members of the public to purchase the product of said respondent on account of such erroneous beliefs.

Said representations have thereby unfairly diverted trade to said respondent from competitors who do not make similar misleading representations respecting the ingredients or value of their respective products, and substantial injury has been done by respondent to competition in commerce among and between the various States of the United States and in the District of Columbia. AVOCADO SOAP PRODUCTS COl\IPANY 1061 10513 Order CONCLUSION The aforesaid acts and practices of the respondent, Richard I. Stewart, trading as Avocado Soap Products Company, are to the prejudice of the public and ·of respondent's competitors, and constitute unfair methods of competition in commerce, within the intent and meaning of Section 5 of an Act of Congress, approved September 26, 1914, entitled "An Act to create a Federal Trade Commission, to define its powers and duties, and for other purposes." ORDER TO CEASE AND DESIST This proceeding having been heard by the Feueral Trade Commission upon the complaint of the Commission, and the answer of respondent, in which answer respondent admits all the material allegations of the complaint to be true, and states that he waives hearing on the charges set forth in said complaint, and that without further evidence or other intervening procedure the Commission may issue and serve upon him its findings as to the facts and conclusion and an order to cease and desist from the violation of law ~charged in the complaint, and the Commission having made its find- Ings as to the facts and its conclusion that said respondent has violated. the provisions of an Act of Congress approved September 26, 1914, entitled "An Act to create a Federal Trade Commission, to define its powers and duties, and for other purposes." It u ordered, That the respondent, Richard I. Stewart, an individual, trading as Avocado Soap Products Company, or trading ~nder any other name, his agents, representatives, and employees, In connection with the offering for sale, sale, and distribution of soap in interstate commerce or in the District of Columbia, do forth- "With cease and desist from:

Representing, through the use of the word "Avocado," or any other word of similar import and meaning, as descriptive .of said Products, that his soap contains a substantial amount of oil o:f avocados;

Uepresenting that Avocado Tissue Soap is nature's aid to beauty or has any beneficial effect different from any other soap; Representing that his soap is highly recommended by beauty specialists; and Representing that his soap is a distinct aid to beauty. It u further ordered, That the respondent shall, within GO days after service upon him of this order, file with the Commission a re- Port in writing, setting forth in detail the manner and form in "·which he has complied with this order.

Syllabus 25F. T.O.