Tasty Bud Biscuit Co., Inc

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IN THE :MATTER OF BURRY BISCUIT CORPORATION AND TASTY BUD BISCUIT COMPANY, INC.

COMPLAINT, FINDINGS, AND ORDER IN REGARD TO THE ALLEGED VIOLATION ,OF SEC. 5 OF AN AC'r OF CONGRESS APPROVED SEPT. 26, 1914 Docket 4374. Complaint, Nov. 9, 19-fO-Dec-iaion, June 11, 1941 Where two corporations ·engaged in manufacture of bakery products, including crackers, and in interstate sale and distribution thereof to purchasers, including retail stores- (a) Caused certain of their cracker products, called "Bisc-0-Bits," to be packaged, offered for sale and sold in cardboard containers bearing in conspicuous type, visible to shoppers, the statement "Average 90 Crackers," when in fact said packages did not contain or average 00 crackers, but contained substantially less; and ' ( ll) llade use of practice of slack filling, in that aforesaid containers were substantially larger than reasonably required to package the 10 ounces ot crackers actually placed therein, and, when offered and sold to purchasing public, were not filled to capacity, but, as aforesaid, contained substantially less;

With effect of misleading and deceiving a substantial portion of the buying public into the false belief that aforesaid packages contained 00 crackers, ot more, and that they were filled to capacity, and Into purchase of such crackers in reliance upon such erroneous belief, and with further;' effect of placing in the hands of retail 13ellers the means of deceiving members- of the buying public; , Held, That such acts and practices were all to the injury and prejudice of the public, and constituted unfair and deceptive acts a~d practices in 'commerce. Mr, Jary L. Jaqkson for the Commission.

I 1 COMPLAINT Pursuant to the provisions of the Federal Trade Commission Act, and by virtue of the authority vested in it by said acti the Federal Trade Commission, having reason to believe that' Burry Biscuit Co.; 1 The Commission on April 30, 1941 granted request p( respondents to subatltut~ partil'fl lind ll.mend complaint and granted leave to file aubstltute answer by the following order: l This mattt'r coming on to be heard upon the request of Burry Biscuit Corporation and Tasty Dud Biscuit Co., Inc., that they be1aubstltuted aa parties respondent In lieu and Instead ot Burry Biscuit Co., Inc., and Tastybnd Bh•cult Co., Inc., respectively, and that the complaint be considered and taken as amended by the substitution ot the names of said Jlettttonera In lieu of the names appearing In said complaint, and requesting llave to wlth- <lraw their answer filed herein on November 27, 1940, and to substitute In lieu thel'('of their answer dated January 22, 1941, and annexed to said requl'st; and It appearing to the Commission that said petltlonera Burry Biscuit Corporation and Tasty Dud Biscuit Co., Inc., corporations, have heretofore been duly served In this proceeding, thrt they are propf:'l' llarttee respondent, having been erroneously named In the complaint as Burry Biscuit Co., Inc., and 'l'nstybud Biscuit Co., Inc., resp('('tlvely, and the Commission having dull' considered the matter and being now tully advlsf:'d In the premlsf:'s. Complaint 33F. T.C.

Inc., a corporation, and Tastybud Biscuit Co., Inc., a corporation, hereinafter referred to as respondents, have violated the provisions of said act, and it appearing to the Commission that a proceeding by it in respect thereof would be in the puhlic interest, hereby issues its complaint, stating its charges in that respect as follows: PARAGRAPH 1. Respondent Burry Biscuit Co., Inc., is a corporation organized, existing and doing business un~er and by virtue of the laws of the State of Delaware, with its principal office and place of business located at 925 Newark Avenue, in the city of Elizabeth, State of New Jersey. Said respondent also maintains a branch office and plant in the city of Chicago, State of Illinois. Respondent Tastybud Biscuit Co., Inc., is a corporation organized, existing and doing business under and by virtue of the laws of the State of Delaware, with its principal office and place of business located at 925 Newark Avenue, in the city of Elizabeth, State of New Jersey. Said respondent is a wholly owned and controlled subsidiary of respondent Burry Biscuit Co., Inc. ·· PAR. 2. Respondents are now, and for several years last past have been, engageu in the business of manufacturing bakery products including crackers, and in the sale thereof in commerce among and between the various States of the United States and in the District of Columbia. Said respondents cause ~aid prouucts, when sold, to be transported from their places of business in the States of New Jersey and Illinois to purchasers thereof located in various States of the United States other than the States of New Jersey and Illinois, and to purchasers located in the District of Columbia. Respondents maintain, and at all times mentioned herein have maintained, a course of trade in said products in commerce between and among the various States of the United States and in the District of Columbia, in the course of which commerce respondents sell and have sold their said products to retail stores and other resale outlets. PAR. 3. In the course and conduct of their business as aforesaid, respondents have offered and offer for sale, and have sold and sell, crackers under the brand name "Disc-O-Bits Crackers," packaged in a cardboard container which is sealed and wrapped in wax paper. Imprinted and labeled on the visible surface of said containers and wrappers, among other printed statements, in conspicuous type and It is ordered, That snld request be granted and that Burry BIHcult Corporation and Tasty Bud Biscuit Co., Inc., corporations, be, and thry hereby are, substituted as pnrtleS re~pondent In this proceP<Hng In lieu and Instead of Burry Biscuit Co., Inc., and Tastybud Biscuit Co., Inc., respectively, and that the complaint herein be considered us If so amended;

It i8 further ordered, That the respondf'nts' re<1uest for leave to withdraw their answer filed herein on November 27, 1940, and to tile In li~>u thereof their answer dated January 22- 1941, and annexed to ~aid request, be, and the same hereby Is, granted. BURRY BISCUIT CORP. ET AL. 91 89 Findings visible to the eye of shoppers and members of the purchasing public, appears the following statement:

Average 90 Crackers. · The foregoing statement and representation, as caused by respondents to appear on the containers and wrappers of its Disc-O-Bits Crackers, packaged as aforesaid, is false and misleading in that the said packages did not, and do not, contain 90 crackers, nor do they average 90 crackers to a box. In truth and in fact, the said packages contain substantially less than 90 crackers to a box. The aforesaid cardboard containers measure 6% by 3 by 8% inches and are of a capacity and size in excess of that reasonably required to package 10 ounces of said crackers, the quantity of crackers actually placed therein by respondents. Said containers, when offered for sale and sold to the purchasing public, are not filled to capacity, and the quantity of crackers contained therein is substantially less than the capacity of said containers. The practice of using oversize containers is known in the trade and generally as "slack filling" and has the force and effect of misleading or decei"ving members of the purchasing public with 'respect to the quantity of product contained in such packages.

PAR. 4. The aforesaid acts and practices of the respondents have had, and have, the tendency and capacity to, and do, mislead and deceive a substantial portion of purchasers and prospective purchasers, members of the buying public, into the false and erroneous belief that the aforesaid packages contain 90 crackers, or more, and that said containers are filled to capacity and contain the quantity of crackers indicated" by the capacity of said containers, and into the purchase of said crackers in reliance upon such erroneous belief. The said practice further places in the hands of retail sellers the means Whereby to mislead and deceive members·of the buying public. PAR. 5. The aforesaid acts and practices of respondents, as herein alleged, are all to the prejudice and injury of the public and constitute unfair and deceptive acts and practices in commerce within the intent and meaning of the Federal Trade Commission Act. REPORT, FINDINGS AS TO ".tiie FACTS, AND ORDER Pursuant to the provisions of the Federal Trade Commission Act, the Federal Trade Commission, on November 9, 1940, issued, and on :November 12, 1940, served its complaint in this proceeding upon respondents, Burry Biscuit Corporation and Tasty llud Biscuit Co., Inc., charging them with the use of unfair and deceptive acts and lltactices in commerce in violation of the nrovisions of said act. Findings 33F. T. 0.

After the issuance ot said complaint and the 'filing of respondents' answer, the Commission, by an order herein, granted respondents' motion for permission to wjthdraw said answer and to substitute therefor an answer admitting all the ;materjal allegations. of fact set forth jn said co~plairit an<~ waiving all intervening procedur~ and further hearing as to said facts, :which substitute answer was;dul:y filed in the office of the Commission. Thereafter, .this proceeding regul~rly cam~ on for fi~al hearing before the Commission oti sai4 complaint and said substitute answer, and the Commissi,on )having duly considered the matter and b~ing now, fully ,advised in the premises, finds that this proceeding is ?n the interest 1 of the public and makes t.his its findings as to the facts anq its ~onclusion .dr,awl)therefrom. 1 1 1 .I 1 1 f • FIN:DINGS AS TO T1D1 FACTS l, 'I I • I I • J I ' I ' I I I ' ' ~~GRAP~ 1. Responden,_t Burr~ Biscu~t ,Corporation is ~· ~orp?ratio~ orgamzed, existi~g, :Rld doing busme~s ~nder an?i by ;virtue of the laws of the State o,f Delaware~ with its principal, office Jtnd, place .~f busine~s ,located at 925 N,ewark Avenue, jn· the c~ty of Elizabeth, State of 'New Jersey. Said res~on,dent al~o ,m~into:in~ ~ ~ranc~ office and plant in the ?ity of. C~lc,ago,. S~at~; of Illmois.' 1 Respondent Tasty Bud Biscuit Co? Inc., 1s a corporation organize~, e~ist~ni; anfiAoilig h~,s1~ess und~.r,Ja~d by 1vi:iiue of theJa~s o~ tJ:l.~ Stat~ of D,elawq.re, Wlth ,it~ princ~pat office and, pla9e of busme~s located at 925 Newark Ayenu~,,il). the city o~ Elizabe~h, St,ate of N~'" 'J er~ey, ·Said respon~ent Ta~ty ,Bud Biscuit. Co., Inc., is a subsidiary of~ arid ~~oily o;Wned an~ controlled~ ?Y, res,Po~~nt, Burry B~scui~ Corporation. 1 , 1 , 1 . J PAR.~· Resp~ndents now nrei and f~r the.pa~t ~several ;Years l,lave ?een, .~ngaged 1~\ the b?sines~ of ,manufa~turipg pakery 1prod,ucts, fmcludmgI crackerst and 1 m the sale,I and distribution•.• J \ ther~o~.' in I coj1l·.. mer~ among and between the various States o~ the United States, and' in the District. of Col~mb~a, and have ~~intained .and maintain a con~tant course of JtradeJ·n said prodvct'~ in said ~?mme~ce, ( Respondents have caused an cause said products, when sold, to be transported from their aforesaiq places. of busine$$ in the States of New Jersey and Illinois to purchasers thereof, inclusive of retail stores, located in States of the United States other than the States of New Jersey and Illinois, and to such purchasers in the District of Columbia.

PAR. 3. In· the course and conduct of their aforesaid business prior to August 1940, respondents caused certain of their cracker produc~g, called "Bisc-0-Dits," to be packaged, offered for sale and sold 111 BURRY BISCUIT CORP. ET AL. 93 ·sg Order cardboard containers wrapped and sealed in wax paper, and bearing on the surface thereof, in conspicuous type, visible to the eye of shoppers nnd members of the purchnsing public, the following statement:

A veruge DO Crackers.

The foregoing statement and representation, as caused by respond- (·nts to appear on the packages referred to, was in fact false and misleading for the reason that said packages did not contain 90 crackers and did not average 90 crackers each. In truth, said packages contained substantially less than 90 crackers. The aforesaid cardboard containers measure 6% by 3 by 8% inches and· are of a capacity and size in excess of that reasonably required to package 10 ounces of said crackers, the quantity of crackers actually placed therein by respondents. Said containers, ''hen offered for sale and sold to the purchasing public, are not filled to capacity, and the quantity of crackers contained therein is substantially less than the capacity of said containers. The practice of using onr-size containers is known in the trade and generally as "slack filling" and has the force and effect of misleading or deceiving members of the purchasing public with respect to the quafltity of product containell in such packages. PAR. 4. The aforesaid acts and practices of respondents have had, and have, the tendency and capacity to, and do, mislead and deceive a substantial portion of the buying public into th~ false and erroneous belief that the aforesaid containers or packages contain 90 crackers, ot· more, and that such packages are filled to capacity and contain the quantity of crackers indicated by the capacity or size thereof, and into the purchase of such crackers in reliance upon such erroneous belief. The said practice fmther places in the hands of retail sellers the means whereby to mislead and lleceive members of the buying Public.

CONCLUSION The aforesaid acts and practices of respondents, Burry Biscuit Corl)oration and Tasty Dud Biscuit Co., Inc., are all to the injury and })rejudice of the public and constitute unfair and deceptive acts and Practices in commerce within the intent and meaning of the Federal Trade Commission Act.

Olde.H TO CEASE AND DESIST This proceeding having been heard by the Federal Trade Commission upon the complaint of the Commission and the answer of re- ~Pondents, in which answer respondents admit all the material allega- 43:i;i:!G'" 42 vol. 33 j Order 33F. T. C.' tions of fact set forth in said complaint, and state that they waive all intervening procedure and further hearing as to said facts; and the Commission having made its findings as to the facts and conclusion that said respondents have violated the provisions of the Federal Trade Commission Act.

It i8 ordered, That respondents, Burry Biscuit Corporation and Tasty Bud Biscuit Co., Inc., corporations, their officers, representatives, agents and employees, directly or through any corporate or other device, in connection with the offering for sale, sale and distribution of their bakery products, inclusive of crackers, in commerce, as "commerce" is defined in the Federal Trade Commission Act, do forthwith cease and desist from:

1. Representing that the number or quantity of any of said products contained in any container or package in which the same is offered for sale or sold is greater than the number or quantity of such product actually contained or placed therein.

2. Offering for sale or selling any of said products in a container or package which is substantially larger in size or capacity than that required for packaging the quantity of product contained therein. It i<J further ordered, That respondents §hall, within 60 days after service· upon them of this order, file with the Commission a report in writing, setting forth in detail the manner and form in which they have complied with this order.

HELEN HARRISON CA.c'\DIES, INC. 95 Complaint