Bristol-Myers Company

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IN THE MATTER OF BRISTOL-MYERS COMPANY, ET AL.

DISMISSAL ORDER, OPINION, ETC., IN REGARD TO ALLEGED VIOLATION OF THE FEDERAL TRADE COMMISSION ACT Dockel RR97. Conrplaint, Sept. , 1972 - Decision, Apr. , 1975 Order setting aside the initial decision of the administrative law judge and dismissing the complaint against a New York City seller and distributor of aerosol spray (,!-R FEDERAL TRADE COMMISSION DECISIONS Decision and Order R5 F.

It is further ordered That respondents deliver a copy of this order to cease and desist to each operating division and to all present and future personnel of respondents engaged in the consummation of any extension of consumer credit or in any aspect of preparation, creation or placing of advertising, and that respondents secure a signed statement acknowledging; receipt of said order from each such person. It is further ordered That respondents notify the Commission at least thirty (30) days prior to any proposed change in the corporate respondents 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 corporations which may affect compliance obligations arising out of the order. It is further ordered That the individual respondent named herein promptly notify the Commission of the discontinuance of his present business or employment and of his affilation with a new business or employment. Such notice shall include respondent' s current business address and a statement as to the nature of the business or employment in which he is engaged as well as a description of his duties and responsibilties.

provision of this order shall be It is further ordered That no construed in any way to annul, invalidate, repeal, terminate, modify or exempt respondents from complying with agreements, orders directives of any kind obtained by any other agency or act as a defense to actions instituted by municipal or State regulatory agencies. No provisions of this order shall be construed to imply that any past or future conduct of respondents complies with the rules and regulations , or the statutes administered by the Federal Trade Commission. It is further ordered That the respondents herein shall within sixty (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. IN THE MATTER OF BRISTOL-MYERS COMPANY , f T AL.

DISMISSAL ORDER, OPINION, ETC., IN REGARD TO ALLEGED VIOLATION OF THE FEDERAL TRADE COMMISSION ACT Dockel 8897. Complaint, Sept. , 1972 - Decision, Apr. , 1975 Order setting aside the initial decision of the administrative law judge and dismissing the complaint against a New York City seller and distributor of aerosol spray BRISTOL-MYERS CO.. ET AL. 6H9 6RR Complaint anti-perspirants and its advertising agency for alleged false television demonstrations.

Appearances For the Commission: Lynne C. McCoy, William S. Busker and Charles E. Ludlam.

For the respondents: Gilbert H. Weil and Jay Sands Davis, Weil, Lee & Bergin New York City, for Bristol-Myers Company. Leonard Orkin and Patricia Hatry, Davis, Gilbert, Levine Schwariz New York City, for Ogilvy & Mather, Inc.

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 the Bristol-Myers Company, a corporation, and Ogilvy & Mather, 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 public interest, hereby issues its complaint stating its charges in that respect as follows: PARAGRAPH 1. Respondent Bristol-Myers Company 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 345 Park Ave., in the city of New York, State of New York. Respondent Ogilvy & Mather, Inc., is a corporation organized existing and doing business under and by virtue ofthe laws of the State of New York with its principal office and place of business located at 2 E. 48th St., in the city of New York, Stateof New York. PAR. 2. Respondent Bristol-Myers Company now and for some time last past, has been engaged in the sale and distribution of Dry Ban spray anti-perspirants, which when sold, are shipped to purchasers located in various states of the United States. Thus respondent Bristol- Myers maintains, and atall times mentioned herein has maintained, a substantial course of trade in said spray anti-perspirants in commerce as "commerce" is defined in the Federal Trade Commission Act. Respondent Ogilvy and Mather, Inc., now and for some time last past, has been the advertising agency for Bristol-Myers Company and now, and for some time last past, has prepared and placed for publication advertising material, including but not limited to the advertising referred to herein, to promote the sale of Bristol-Myers Dry Ban spray anti-perspirant.

PAR. 3. Respondent Bristol-Myers Company at all times mentioned herein has been, and now is, in substantial competition in commerce , , , 690 FEDERAL TRADE COMMISSION Dr:CISIONS Complaint 8S F .

with individuals, firms and corporations engaged in the sale and distribution of spray anti-perspirants of the same general kind and nature as those sold by respondent Bristol-Myers Company. PAR. 4. In the course and conduct of its business and for the purpose of inducing the sale of the said Dry Ban spray anti-perspirant respondents have advertised Dry Ban by means of demonstrations, and various statements used in connection therewith, in television broad- . casts 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. Said demonstrations and the statements used in connection therewith are contained in the following commercials, entitled Rusty Rev Show- Up, Dry Manhattan Spotty Performance " and "Glasses. In the first four commercials, the same demonstration is used whereby the "leading spray" and Dry Ban both are sprayed on a dark surface. The other spray appears white and thick; whereas, the Dry Ban appears completely clear and dry. At the conclusion of the demonstration, the voice-over asks Which do you prefer?" In the commercial entitled "Glasses " two girls in an elevator spray Dry Ban and "a leading anti-perspirant spray" on separate eyeglass lenses. The "leading anti-perspirant spray" appears white and thick; whereas, the Dry Ban spray appears completely clear and dry. At this point, Girl # 1 states I see the difference." The voice-over later announces Clear Dry Ban helps keep you feeling clean and dry. PAR. 5. Through the use of the aforesaid demonstrations and the statements and representations used in connection therewith, respondents represent, directly or by implication, that said demonstrations are evidence which actually proves that Dry Ban is superior to competing anti-perspirant sprays because it isa dry spray that is not wet when applied to the body and because it leaves no visible residue when applied to the body.

PAR. 6. I n truth and in fact:

1. Dry Ban is not a dry spray and it is wet when applied to the body, and 2. After application to the body, Dry Ban dries out leaving a visihle residue.

The aforesaid demonstrations, including the statements and representations used in connection therewith, are not evidence which actually proves that Dry Ban is superior to competing anti-perspirant sprays. Therefore, the advertisements containing said demonstrations are false, misleading and deceptive.

PAR. 7. The use by the respondents of the aforesaid false, misleading and deceptive advertising and representations used in connection , , IHU I'Ulr lvi Y t.H. t;U. t.T AL. fj!Jl G88 Initial Deci"ion therewith has had, and now has, the tendency and capacity to mislead and deceive a substantial portion of the purchasing public into the erroneous and mistaken belief that said advertising and representations were and are true, and into the purchase of a substantial quantity of respondent Bristol-Myers' spray anti-perspirant because of such erroneous and mistaken. belief.

PAR. 8. The aforesaid acts and practices of respondents, as herein alleged, were and are, all to the prejudice and injury of the public and of respondent Bristol-Myers' competitors, and constituted, and now constitute, unfair and deceptive acts and practices and unfair methods of competition in commerce, in violation of Section 5 of the Federal Trade Commission Act.

INITIAL DECISION BY DANIEL H. HANSCOM ADMINISTRA Tive LAW JUDGE NOVEMBER 28, 1973 ALLEGATIONS OF COMPLAINT In a complaint served on Sept. 20, 1972, the Commission charged Bristol-Myers Company (hereinafter "Bristol-Myers ) and its advertising agency, Ogilvy & Mather, Inc. (hereinafter "Ogilvy & Mather ) with utilizing false, misleading, and deceptive practices in the advertising and sale of Bristol-Myers' Dry Ban spray anti- perspirant in violation of Section 5 of the Federal Trade Commission Act. The complaint alleged that respondents promoted Dry Ban through a series of television commercials "Rusty Rev Show-Up, Dry Manhattan Spotty Performance " and "Glasses " each of which compared Dry Ban with a "leading" competitive spray by means of a demonstration. In the first four commercials, the "leading spray" and Dry Ban were both sprayed on a surface. According to the complaint the "leading spray" appeared white and thick, whereas Dry Ban appeared completely clear and dry. A voice asked Which do you prefer?" In uGlasses " two girls in an elevator sprayed Dry Ban and " leading anti-perspirant spray" on separate eyeglass lenses. The leading anti-perspirant spray" appeared white and thick, whereas Dry Ban appeared completely clear and dry. One of the girls then said see the difference." According to the complaint, the demonstration in each of the commercials represented to the consuming public that it was evidence actmilly proving that Dry Ban was superior to competing anti-perspirant sprays because it was a dry spray that was not wet when applied to the hody, and because it left no visible residue. The complaint charged, however, that Dry Ban was not in truth a dry Initial Decision H5 F :r. spray, that it was wet when applied to the body, that after application it left a visible residue, and that the demonstration in each commercial was not evidence actually proving the contrary. Accordingly, the commercials and the demonstrations in each were challenged as being false, misleading and deceptive.

Bristol-Myers and Ogilvy & Mather denied these allegations in answers fied Oct. 10, 1972, and Oct. 18, 1972, respectively. After pretrial proceedings, including discovery by each side and the disposition of a number of motions and other matters, hearings on the merits were completed and the record was closed on July 5, 1973. As a result of certain contentions relating to the product coverage of the notice order advanced by complaint counsel for the first time in their proposed findings, proceedings were reopened by the undersigned on Aug. : , 1973, on motion of respondent Bristol-Myers to permit the offer of evidence limited to the product coverage of the order proposed by complaint counsel A hearing was held on Oct. 9, 1973, and the record was again closed on Oct. 10, 1973.

This matter is now before the undersigned for initial decision based on the allegations of the complaint, answers, evidence, and the proposed findings of fact, conclusions, and briefs filed by counsel for respondents and complaint counsel. All proposed findings of fact, conclusions and arguments not specifically found or accepted herein are rejected. The undersigned, having considered the entire record, makes the following findings and conclusions and issues the ordcr set out at the end hereof: FINDINGS OF FACT Respondents 1. Respondent Bristol-Myers 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 at 345 Park Avenue, New York, N. Y. Bristol-Myers markets a wide variety of overthe-counter pharmaceuticals, cosmetics, and household products, including such well-known items as Bufferin, Excedrin, Bromo Quinine, Sal Hepatica, Vital is, Clairol, and many others (CX 84; BMRX 2; Edmondson, Tr. 1627).' Respondent Bristol- Myers has since 1968 been engaged in the sale and distribution of Dry Ban spray anti-perspirant (CX 86(1)). Annual sales volume of all products by Bristol-Myers is over $1 000 000 000, and total advertising expenditures are approximately $225 000 000 (Edmondson, Tr. ) 630). 2. Respondent Ogilvy & Mather is a corporation organized, existing and doing business under and by virtue of the laws of the State of New I "CX" - Complaint Cuun el"s Exhibit; " BMRX" - Bristol- Myers' Exhibit; "OMRX" - Ogilvy & Mather ;xhibit. rr. Transcript Pag"

688 Initial Decision York, with its principal office and place of business at 2 E. 48th St. , N.Y. Ogilvy & Mather is one of the nation s largest advertising agencies with bilings in the United States alone of $200 000 000 annually, and has handled the promotion of consumer products for many of the nation s major corporations including respondent Bristol- Myers.

3. Bristol-Myers for a considerable period has sold and shipped Dry Ban to purchasers located throughout the United States, and has maintained a substantial course of trade and commerce in Dry Ban as commerce" is defined in the Federal Trade Commission Act. At all times mentioned in the complaint, Bristol-Myers has been, and now is in substantial competition in commerce with individuals, firms and corporations engaged in the sale and distribution of spray antiperspirants of the same general kind and nature as sold by respondent Bristol-Myers.

4. Ogilvy & Mather for a substantial period prepared and placed for dissemination advertising materials to promote the sale of Bristol- Myers' Dry Ban, and was the advertising agency which prepared and disseminated the commercials challenged in the complaint (CX 12, 14 18). Ogilvy & Mather, at all times mentioned in the complaint, has been and now is, in substantial competition in commerce with other individuals, firms and corporations engaged in the advertising business. 5. Respondents Bristol-Myers and Ogilvy & Mather have advertised Dry Ban by means of demonstrations and various statements used in connection therewith, as set out later herein, in television broadcasts transmitted by 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. Dry Ban 6. When Dry Ban was introduced by Bristol-Myers late in 1968, it was promoted as a superior aerosol deodorant competing with such brands as Arrid, Right Guard, Secret, A van, Mum, Mennen, and others (CX 86, 47 (18)). Spray anti-perspirant products are heavily utilized by the consuming public, and constitute the most important of all aerosol product categories (CX 85). Production of aerosol spray anti-perspirants and deodorants in 1970 amounted to 482 000 000 units obviously involving enormous consumer expenditures (CX 85(13)). Sales of Dry Ban in 1969 amounted to $7 385 000, and grew to $7 891 000 in 1970 (CX 83).

7. Dry Ban aerosol spray anti-perspirant was formulated with an alcohol base (CX 12) which looked clear when sprayed on a surface whereas major competing brands of aerosol spray anti-perspirants then on the market were formulated with an oil base which, when sprayed , G94 FEDERAL TRADE COMMISSION DECISIONS Initial Decision 85 F.

on a surface, produced an oily, opaque and whitish or creamy appearance (Mayers, Tr. 1151-1154; CX 86(6)(13); CX 75(2)). The Challenged Commercials 8. Shortly after the introduction of Dry Ban it was determined by respondent Bristol-Myers and its advertising agency, Ogilvy & Mather to exploit the difference between the "clear, clean" and "quick drying formula" of Dry Ban and the "oily, opaque" formula of competing brands (CX 86 (2-6); Mayers, Tr. 1150). A number of commercials were prepared for broadcast over television containing comparative demonstrations utiizing the foregoing strategy (CX 14, 17, 23-24). The five commercials listed earlier herein were ultimately selected for broadcast and were disseminated over network or spot television during the approximately 14-month period between July 28, 1969, and September , 1970 , at a cost of $5 800 000 (CX 81). "Rusty" was broadcast over network television Show Up, Glasses " and "Dry Manhattan" were broadcast over both network and on "spot" television, and "Spotty Performance" was utilized only for "spot" broadcast (CX 82). Each contained a comparative demonstration dramatizing the difference between Dry Ban s "clear, clean" appearance and the "oily, opaque appearance of the "leading" competing spray anti-perspirant (CX 1- 10).

9. "Rusty, Show-Up, Dry Manhattan " and "Spotty Perfor mance" all contain the same demonstration. The demonstration in Glasses" is somewhat different, although employing essentially the same concept. A film of these five commercials is contained in the record (CX 1-5), and may be viewed with a suitable projector. The commercials on CX 1-5 are identical to those disseminated respondents for actual broadcast purposes. The "storyboards" for these commercials are also in the record (CX 6-10). "Storyboards" are utilzed in the advertising industry for conveying the basic idea and theme for commercials in use or under consideration, but are not fully representative of the actual commercial broadcast (CX 12). The storyboards for Rusty" (CX 6) and "Glasses" (CX 10) are reproduced herein. The significance of these commercials cannot be fully appreciated, however without viewing the entire commercial as broadcast over television (CX 5).

10. "Rusty; Show-Up, Dry Manhattan " and "Spotty Performance" all contain the following sequence: After a preliminary timing of two persons in a scene meant to be humorous, the camera shows a close-up of two cans of spray anti-perspirants, the "leading" brand which is not identified and a can of Dry Ban, and the announcer states Compare Dry Ban to the leading anti-perspirant spray." A sequence is then shown in which the "leading" brand is sprayed on a surface over , , , , , , 6RR Initial Dccision the words "OTHER SPRAY" and the announcer states the leading spray goes on like this." The camera shows a whitish, creamy, and thick deposit where the "leading" brand has been sprayed. Dry Ban is sprayed on an adjacent surface over the words "DRY BAN" and the announcer states Dry Ban goes on like this." An apparently clear and dry area is shown where Dry Ban has been sprayed. A finger is pictured running through the deposit of the "leading" brand demon strating it to be thick and wet. A finger is then run through the area where Dry Ban has been sprayed with no apparent effect, or one so slight as to probably escape notice. The announcer states Which do you prefer?" A close-up of a can of Dry Ban is then shown and the label Dry Ban" virtually fils the television screen. Each commercial concludes with a scene of the characters shown initially singing or stating, "How dry I am" (CX 1 , 6-9).

11. The commercial identified as "Glasses" commences with a sccne of two girls and a man in an elevator. The first girl states she has a leading anti-perspirant spray" and the second rejoins Me too." The second girl then adds But mine s Dry Ban." The first girl replies Mine helps you keep dry" and the second girl says So does my Dry Ban." The second girl then reaches up and takes off the man s glasses to his surprise, and sprays the first , , : ,; ../: ,,. ; ,.: ,,,y&:!.:;,:,(. :. ; ::. .,... , \., . \/.,... \ ), , ... :(: ./ . +; ,...,. (:, ,.;;,! . \. 696 FEmmAL TRADE COMMISSION DECISIONS Initial Decision H5 F.T.

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girl's anti- perspirant on one of the lenses saying, " Yours goes on like this." A whitish, creamy, and thick deposit is shown covering most of the lens where the "leading anti-perspirant" has been sprayed. The second girl then sprays Dry Ban on the other lens saying, "My Dry Ban goes on like this." The camera shows a close up of the lens where Dry Ban has been sprayed revealing it to be clear and apparently dry, without a visible deposit. The first girl then says Uhh * * * hmm * * * I see the difference (CX 5, 10).

Representations Inherent in Challenged Commercials 12. "Rusty, Show-Up, Dry Manhattan Spotty Performance and "Glasses" had the capacity to convey to members of the viewing public the net impression (1) that Dry Ban was a dry spray that was not wet when applied to the body; (2) that it left no discernible or visible residue after application to the body; (3) that viewers were seeing a comparative demonstration proving that Dry Ban in fact possessed those physical characteristics; and (4) that Dry Ban was superior to competing anti-perspirantsprays because of them. 1a. The spraying of the "leading" spray in "Rusty, Show-Up, Dry Manhattan " and "Spotty Performance" onto a surface labeled in the center "OTHER SPRAY " the thick and whitish spray deposited thereon, the spraying of Dry Ban on an adjacent surface labeled conspicuously in the center "DRY BAN " the clear and transparent look resulting, the absence of apparent wetness where Dry Ban was sprayed, the name of the product "Dry" Ban, the presentation of the can itself conspicuously on the television screen in a close emphasizing the label "Dry Ban/' the repeated use of the word " dry" in both audio and visual portions of the commercials, the running of a finger through the deposit left by the "leading" spray proving its thick wet, and creamy quality, the running of a finger across the surface where Dry Ban had been sprayed showing virtually no visible result, all collectively had the tendency and capacity to represent to the viewing public that Dry Ban was dry, went on dry and left no discernible or visible residue on application, and that a real demonstration was taking place actually proving those characteristics, and the superiority of Dry Ban because of them. "Glasses" likewise had the foregoing tendency and capacity. In "Glasses " the "leading" spray was shown to be thick wet, and creamy, with a heavy residue. In contrast, Dry Ban was seen to be clear arid transparent, in fact, practically invisible with little or no sign at all of wetness or of any deposit on the glasses' lens. As in the foregoing four commercials, the word "dry" was repeated many times in the voice accompaniment, and the can showing "Dry" Ban was held up prominently at the end. Holding the pair of glasses up after spraying them revealed to the television audience that it was impossible to see ..

, -- ___H 688 Initial Decision through the glasses' lens which had been sprayed with the " leading spray, although the lens which had been sprayed with Dry Ban was clear and without a deposit.

The fact that the statements and representations in the commercials may also have had the ahiJity to communicate the message that Dry Ban was "clear" or "non-greasy," or helped 'jkeep you dry, " did not in any way negate the fact that the representations were communicated that Dry Ran was superior to competing products because it was itself dry and went on dry, and left no visible residue on application to the body. It is possible for a commercial to be subject to several different interpretations by the public. The conclusion that the challenged commercials had the tendency and the capacity to convey the foregoing representations, and that viewers were being shown demonstrations actually proving those representations, is made on the basis of the contents of the commercials themselves, and the,cviewing thereof by the administrative law judge. There is, however, an abundance of confirming evidence in the record. Concept of Demonstration in Challenged Commercials Exploiting Differences in Formula of Dry Ban and Competing Anti-perspirants 14. The basic alcohol formula for Dry Ban, as stated, differed from competing anti-perspirant deodorants at the time of the introduction of Dry Ban, and during the period when the commercials challenged in the complaint were broadcast over network and spot television, or otherwise disseminated. A contemporary memorandum from Ogilvy & Mather to an official of Bristol-Myers stated: * * * the basic formula of DRY BAN differs from other leading anti-perspirant sprays, (Secret excepted) the DRY BAN spray appears quite different when applied to a clean surface (CX 23).

Dry Ban appeared to be "clear, clean" while the others appeared "oily, opaque" and "creamy" (CX 15, 17, 74, 75 86 (6-14); BMRX-6; Mayers Tr, II50-54). The "clear, clean" appearance of Dry Ban in contrast to the "oily, opaque" and "creamy" appearance of competing spray antiperspirants formulated with an oil base held true whether the surface on which such deodorants were sprayed was plastic, skin, or something else (CX 17).

15. The difference in appearance between Dry Ban and competing spray anti-perspirants formulated with an oil base was uniquely subject to a comparative dcmonstration on film which had the capacity to convey a false, misleading, and deceptive impression of the true physical characteristics of Dry Ban. A live comparative demonstration in which Dry Ban and an oil base competing spray anti-perspirant are sprayed in juxtaposition results in the perception of Dry Ban as watery, wet, and runny (CX 76; Tr. 845-849). 16. Respondent Bristol-Myers and its advertising agency, Ogilvy & Initial Decision 85 F .T. Mather, concluded that television commercials incorporating a demonstration of the "clear, clean" charactcristic of Dry Ban due to its alcohol base in contrast to the "oily, opaque" and "creamy" appearance of a competitive brand might prove an effective advertising device to persuade members of the public to purchase Dry Ban (Mayers, Tr. 1150-56; CX 86(2)). It was determined by respondents to replace the prior advertising strategy by a filmed demonstration of the difference between Dry Ban s "clear, clean" appearance and the "oily, opaque" and creamy" appearance of a leading competitive brand (CX 56, 57, 86(7)). The president of Bristol-Myers Products Division testified: The idea of the demonstration was my concept. I had final approval of the commercials before they were put on the air (Mayers, Tr. 1150). 17. Although the basic concept and the representations made in Rusty, Show-Up, Dry Manhattan Spotty Performance " and Glasses" exploiting Dry Ban s appearance versus that of a leading competitive brand of spray anti-perspirant was developed by respondent Bristol-Myers, the senior vice-president of Ogilvy & Mather wrote that his organization:

* * * took the concept from its earliest stages to the finished production in an effort to dramatize the Bristol-Myers supplied product difference (CX 18). Preliminary Testing by Respondents of Demonstration Exploiting Clear, Clean" Formula of Dry Ban Versus "Oily, Opaque" And Creamy" Formula of Competing Anti-perspirants and Results Disclosed 18. The concept of a television commercial utilzing a demonstration exploiting the "clear, clean" appearance of Dry Ban and contrasting it to the "oily, opaque" and "creamy" appearance of a leading competitive brand was initially tested with members of the consuming public. In a letter from a member of the Ogilvy & Mather organization to the Dry Ban "Product Manager" of respondent Bristol Myers, it was reported that on Apr, 9 and 10, 1969, forty persons had been interviewed in a mobile van placed in a shopping center in Manhasset, N.Y. (CX 23 75(3), 105). These consumers had been individually shown a videotape demonstrating the effect of spraying unidentified Dry Ban and another unidentified spray anti-perspirant on a flat piece of glass. The videotape demonstration (CX 75(23-24)), similar in essential respects to the demonstration contained in the challenged commercials, was reported by Ogilvy & Mather to Bristol-Myers in a research report entitled "A Communication Test Of The Dry Ban 'Greasy' Demonstration" to constitute in advertising an effective "reason why" consumers should purchase Dry Ban (CX 75(2)). A significant proportion of viewers preferred Dry Ban because it was perceived from the demonstration to be "Cleaner/Clearer/Invisible" and "Leaves No FilmlResidue" (CX 75(9)).

H"'c.',-.u- U" .uau 688 Initial Decision 19. On May 15 and 16 , 1969, another test, this time by Schrader Hesearch and Rating Service (Schrader, Tr. 217- , 2:30), was conducted of a videotape demonstration of the clear formula of Dry Ban, labeled for the purpose of the test "Clear and Dry" and the competitive crcamy " or "greasy" formula. The test was conducted in a mobile van parked in a shopping center in the vicinity of New Brunswick, N.J. (CX 74(:3-4)). The van was staffed by interviewers recruited by the Schrader organization for the purpose (Tr. 257). A questionnaire, previously prepared by the research department of Ogilvy & Mather (Tr. 230-31), was provided these intervicwers who were briefed on the project. Women shoppers at the center were individually invited into the van to view the videotape and, immediately after seeing; the film, were asked the questions contained in the questionnaire and their answers were recorded. A second and related test utilzing a pictured demonstration in a printed advertisement was conducted on May 22 and 23, 1969. The printed advertisement was shown to each woman volunteer and she was permitted to examine it for as long as she wished. It was then removed from sight, the woman volunteer was asked the questions in the questionnaire and her answers were recorded. Approximately 100 women were included in the test utilizing the videotape, and approximately 100 were shown the printed advertisement (CX 74(3-5)). U pan the conclusion of the test utilizing the videotape and the test with the printed advertisement, the responses of the two hundred women were noted, and the results were transmitted to Ogilvy & Mather (Tr. 26:3-64).

20, On receipt of the results from the Schrader organization, the Research Department of Ogilvy & Mather in June 1969 prepared a report for Bristol-Myers (CX 74; Tr. 425- , 518) advising that, after seeing the videotape demonstration, the biggest advantages of "Clear and Dry" (Dry Ban) named by the women were that "it is clear and it is dry" (CX 74(8)). Table 3 of this report shows that a significant number of the women who viewed the videotape demonstration liked "Clear and Dry" (Dry Ban) because, among other things, they perceived the representation conveyed by the demonstration to be "It' s dry " (CX 74(14)). Ogilvy & Mather likewise reported to respondent Bristol- Myers that a significant number of the women who were shown the printed advertisement picturing the demonstration also perceived the message conveyed about "Clear and Dry" (Dry Ban) to be "It' s dry (CX 74(14)), 21. Thereafter, stil another van test was conducted on .July 2, 1969 in a Philadelphia shopping center. It was reported in the letter mentioned earlier, reviewing "DRY BAN Copy Research" from Ogilvy & Mather to Bristol-Myers that interviews had been conducted with 50 702 FEDERAL TRADE COMM18SfON DECISIONS Initial. Decision 85 F. women who had been shown the "clear, clean" versus "oily, opaque videotape demonstration, which had been inserted into a Dry Ban commercial known as "Laplanders." The objective of this consumer test was to determine whether the demonstration could effectively communicate Dry Ban s superiority over competition in the area of dryness " and "being better for clothes." Ogilvy & Mather reported to the Bristol-Myers Dry Ban "Product Manager Two-thirds of the women said the biggest diffp.rence between the competitive product and BAN is the dryness. Almost one-half of the women conveyed "BAN is dry " as the main idea of the commercial (eX 23(3)).

22. Preliminary testing of a demonstration hasically like the demonstration ultimately used in "Rusty, Show-Up, Dry Manhattan Spotty Performance " and "Glasses" thus disclosed that a significant and substantial proportion of viewers, among other communications, derived the message that Dry Ban was a dry spray, went on dry (like a powder), and left no film or visible residue on the body.

Testing by Respondents of Finished Commercials Utilzing "Clear Clean" Versus " Oily, Opaque" Demonstration and Results Disclosed 23. A demonstration similar in esscntials to that tested preliminarily, as set out in the prior findings, exploiting the difference in a film of the appearance of Dry Ban when sprayed on a surface and the appearance in the film of the "leading" spray anti-perspirant, was incorporated into "Rusty, Show-Up, Dry Manhattan Spotty Performance " and "Glasses." These commercials were of short duration lasting 30 seconds, and were prepared for broadcast in the course of network television programs or as "spot" commercials. The foregoing four were completed and approved during .July 1969 (CX 1- 9), and "Glasses" was completed in Aug. 1969 (CX 5 10). 24. These commercials, and certain others employing either the identical demonstration or one essentially similar, see Your Move" (CX 60(29)), "Spokeswoman" (CX 65(19)), and "Showcase" (CX 71(21)), were evaluated by Ogilvy & Mather, utilizing the Schrader organization, already mentioned, and two other advertising and market research firms, H. D. Ostberg Associates, Inc., and N. T. Fouriezos & Associates, Inc, (see Schrader, Tr. 246; Ostberg, Tr. 15; Rosen, Tr. 320). Each of these organizations submitted the results of their consumer tests to Ogilvy & Mather. In the case of the Schrader organization, such results consisted primarily of completed consumer interviews (Schrader, Tr. 263), whereas the Ostberg and f' ouriezos organizations submitted full research reports (Sapirstein, Tr. 497-499, 509-11; CX 45 70). On receipt of the results of the testing performed by the Schrader, Ostberg and ouriezos organizations, respondent Ogilvy & Mather prepared reports for Bristol-Myers on the commer- , , thu 'jour IV1 r l"K CU., 1';1 AL. 11),:1 688 J nitial Decision cials or demonstrations being evaluated, and incorporated therein the results and information supplied hy those firms (CX 23, 56- , 59- , 65 69 and 71).

25. The Schrader organization tested "Glasses" (CX 5, 10) in a shopping center in New Jersey pursuant to working arrangements with respondent Ogilvy & Mather (CX 61; Tr. 2B2- , 246, 266-69), A mobile van was parked in a center, and 50 to 60 women shoppers (CX 61 , 61(7)) found there were invited to view "Glasses." The commercial was shown to each of these women individuany (Schrader, Tr. 250-53) and immediately upon completion of the viewing, an interviewer asked the questions contained in a questionnaire previously prepared jointly with Ogilvy & Mather (CX 61(11-14)) concerning the messages communicated (Tr. 250-54). Among thc questions were inquiries such as: "What do you think was thc main idea of the commercial' In your own words w hat do you think the manufacturer was trying to ten you in order to get you to try Ban?" (CX 61(12); Tr. 232-33). The answers to the questionnaires were written down and also were tape recorded (Tr. 256-58). The completed questionnaires and an tapes were transmitted to respondent Ogilvy & Mather (Tr. 272-73), The results were then tabulated (Sapirstein, Tr. 443) in a series of handwritten pages and were submitted to respondent Rristol Mycrs with a covering letter of Sept. 26, 1969 (CX 61).

26. The Schrader test results transmitted by respondent Ogilvy & Mather to respondent Bristol-Myers by letter of Sept. 26, 1969 reported that mm,t women who viewed "Glasses" saw that commercial as communicating the message "Ban is Dry," and that this quality was seen as an "advantage" and "meaningful." According to the handwritten report submitted by Ogilvy & Mather Glasses got the point across" that "Ban is dry." After seeing "Glasses " the women viewers among; other characterizations most frequently described" Ban as Dry/not wet" and "Not messy (filmy)" (CX 61(5)). A large majority of the women viewing "Glasses" translated "Ban s dryness into personal terms " half doing so "spontaneously" (CX 61(6)). The "leading" spray anti-perspirant competing with Dry Ban was seen wet/watery/runny" (CX 61(5)). The Ogilvy & Mather representative advised Bristol-Myers that "Based upon this morning s meeting, it was decided to go national with 'Glasses :BO until we have the results of the on-air and R.E.A. P. tests" (CX 61). Various officials and representatives of respondent Bristol-Myers and respondent Ogilvy & Mather were sent copies (Sapirstein, Tr. 426, 449). 27. In the fall of 1969, pursuant to arrangements with Ogilvy & Mather, H. D- Ostberg Associates, Inc. conducted consumer surveys on Glasses Rusty," and "Your Move." The latter had the same g Initial Decision R5 F.

demonstration as "Rusty, Show-Up, Dry Manhattan, and "Spotty Performance " but was never commercially used over television. These tests were quite similar to the van tests conducted by the Schrader organization except that the viewers who were shown the commcrcials were questioned approximately twenty-four hours later, rather than immediately after seeing the commercial in the van (CX 47, 50, and 68; Tr. 38-40). Such tests are known in the industry as "R.E.A. " tests. In these tests, vans were located in shopping centers in the metropolitan areas of Philadelphia, Chicago, and Los Angeles. Members of the public predominantly women who used spray anti-perspirants, were surveyed. Ladies were invited into the mobile van, and were individually shown three commercials, one of which was the Dry Ban commercial. Thereafter, within twenty-four hours, they were recontacted by telephone and questioned about what they had seen. The answers to the questions asked (see CX 47(25), (83), (38-41)) were recorded by the telephone interviewer. When aU the telephone interviews had been completed, the Ostberg organization analyzed the responses, grouped them within a number of categories ("codes ) (Examples: CX 47(8), CX 50(9)), and transmitted research reports to respondent Ogilvy & Mather. The reports set out the results of the tests in a series of tables with such headings as "Persuasion Copy Recall Reaction to Claims Brand Usage Main Difference Between Deodorants Way In Which Commercial Showed Ban To Be A Better Product " etc. 28. The research report evaluating "Rusty" submitted by the Ostberg organization to respondent Ogilvy & Mather in Sept, 1969 advised that 16 percent of the members of the public who were shown Rusty," and who were interviewed by telephone within twenty-four hours, believed that the message communicated by this commercial was that the main difference between the two anti-perspirants shown in the demonstration in the commercial was that "Ban sprayed on dry (like a powder); starts dry, dries immediately" (CX 47(22)), 29, The research report evaluating "Glasses" submitted by the Ostberg organization to respondent Ogilvy & Mather in Nov. 1969 stated under "Correct Copy Point RecaU" that 15 percent of those seeing this commercial thought that it conveyed the message that Dry Ban "Leaves no film; is clear, clean " and 14 percent thought conveyed the message that Dry Ban "Sprays on dry" (CX 50(9)). According to this Ostberg report, 14 percent of those viewing "Glasses had a "Correct Visual RecaU (net)" of the "Glasses" commercial as communicating "Ban spraying on dry, going on dry" (CX 50(10)). The message perceived by 15 percent of the viewers contacted twenty-four hours later by telephone was that "Glasses" showed the main difference between the two deodorants to be that Dry Ban "Sprays on , DI\.I.:IUt.-1Vllr.I\..: '-V., r.l fit.. I lid 6HR Initial Decision dry, goes on dry," and 9 percent saw the message of "Glasses" to be Ban is clean, leaves no film, is clean" (CX 50(14)). 30. A similar research report was submitted by the Ostberg organization to respondent Ogilvy & Mathcr on "Your Move" in Nov. 1969. "Your Move" was prepared for commercial broadcast over television by respondents, as noted, but was never so utilzed. twas offered by complaint counsel and was received on the issue of the intent" of respondents. The storyboard for "Your Move" is in the record (CX 60(29)). As stated Your Move" utilized the identical demonstration found in the first four commercials listed in the complaint. As in the case of the surveys conducted on "Rusty" and Glasses Your Move" was evaluated by the Ostberg organization through a survey of consumers in shopping centers in Philadelphia Chicago, and Los Angeles, The Ostberg organization reported to respondent Ogilvy & Mather that 18 percent of those who saw "Your Move" received the message that Dry Ban "Sprays on dry," and 9 percent perceived "Your Move" as conveying the message that Dry Ban "Leaves no film; is clear, clean" (CX 68(9)), 31. On Sept. 15, 1969, the Research Department of Ogilvy & Mather transmitted a report to respondent Bristol-Myers evaluating the commercial "Rusty," and incorporated in this report the results obtained by the Ostberg organization from the consumer surveys conducted in the Philadelphia, Chicago, and Los Angeles shopping centers. The report noted that approximately 200 women had been interviewed in Aug. 1969 in those three locations after having been shown "Rusty." Under "Communication of Ideas " respondent Ogilvy & Mather advised Bristol-Myers that "The idea that BAN is in itself dry, from the 'demonstration' section of the commercial, was recalled by one-quarter of the women, mostly in the general sense of either 'BAN is dry' or simply labeled ' Dry BAN' (16 percent)" (emphasis in original; CX 57(4)), The report also advised Bristol-Myers that when directly asked the point of the demonstration, that is, what was the main difference between the two anti-perspirants in the commercial, onethird of those recal1ing a difference (16 percent of total) said "BAN sprays on dry" (CX 57(6-7)). In the tables accompanying this report Bristol-Myers was informed by Ogilvy & Mather that 16 percent of those who were intervicwed by telephone 24 hours after viewing Rusty" thought the main difference between the two anti-perspirants was that "BAN sprays on dry (like a powder/dries immediately)" (CX 57(15)), 32. On Dec. 5, 1969, the Research Department of respondent Ogilvy & Mather forwarded to respondent Bristol-Myers a report on the Ostberg organization s copy test of "Glasses" and "Your Move" (CX 60), 70f; FEDERAL TRADE COMMISSION DBCISIONS Initial Decision H5 F.

Ogilvy & Mather reminded respondent Bristol-Myers that "Glasses and "Your Move" were two new demonstrations for Dry Ban, and had been "created with the primary objective of communicating that 'BAN is dry' and goes on clean and clear " (CX 60(3)). Bristol-Myers was advised that "Glasses" was "more successful" than "Rusty" in communicating the "primary copy point" that "Ban is dry." Before setting out specific data in a series of tables, Ogilvy & Mather advised Bristol-Myers (CX 60(9)):

In conclusion, therefore, we feel that "Glasses" is the most effective commercial compared to " Rusty" and "Your Move." Not only is "Glasses" a powerful execution in terms of persuasion but it also best communicates the new BAN strat.egy BAN is dry. Ogilvy & Mather reported that 34 percent of those who viewed Glasses" and "Your Move" r;pecifically mentioned that "Ban is dry, whereas for "Rusty" the comparable level was 24 percent (CX 60(6)). Additionally, Bristol-Myers was informed that the major difference perceived by viewers between the two anti-perspirants shown in Glasses" was that "Ban is dry," and that the "most common visual mention for 'Glasses' consisted of ' BAN spraying on clearly, not filmy (CX 60(7)).

33. The Ostberg organization transmitted to respondent Ogilvy & Mather completed questionnaires obtained by telephone intcrvicws within 24 hours with those who had been shown the Dry Ban commercials in the shopping centers in Philadelphia, Chicago, and Los Angeles, together with typed "verbatim" responses of those inter viewed CSapirstein, Tr. 499). These "verbatim" responses were incorporated by Ogilvy & Mather into some of their research reports to respondent Bristol-Myers (see CX 60(48-56)), and bear directly on the allegations of the complaint.

34. The following are some of the verbatim responses transmitted by respondent Ogilvy & Mather to respondent Bristol-Myers of members of the public who were interviewed by the Ostberg organization within 24 hours after being shown "Glasses." These reveal unmistakably that many of those interviewed received the communication from "Glasses" that Dry Ban was dry and not wet when applied to the body, and after application left no visible residue (CX 60(48-56); emphasis added):

It keeps you ,dry all day. It's new and improved and has some chemical to do so. Stay dry all day long" and yet have no odor:;. This lady showed it sprayed on something, and how yml wmddn f e1Jensee it. It sort of dissolved before it even hit the object. * * * Ban sprayed on dry nul wet. * * * Gan wasn t messy or runny Sprays on dry, but you have to use it sometimes twice a day. Put on man s glasses to ,how how dry it was. Gues on dry stays dry. Sprayed on glasses on man in elevator. Dry and dear. Used man s glasses tu .huw difference afdry and wef Try it to stay dry. flas no film when you put it on. A lady spraying man s glasses. It gues un dry. .

D1'-101 Ul..rlU 1 rd\.0 \,\1. r,l 1-,. 68R Initial Oecir;ion Dry not wet. Glasses - one 'wet, one dry. Keeps you dryer. One was foggy and one was clear Banis clear. Brand X is pasty and sticky. It dries faster. Woman spraying it on a man s glasses in elevat.or. One is clear.

Dry Ban keeps you dry. Sprays glasses on man to show the difference. Goe. on dry. That it.' s the ncw Dry Ban. It qoes on dry and keeps you dry longer. A woman grabbing man s glasses. Ban stresses the dry aspect. The girls put Ban and another deodorant on eyeglasses. The other deodorant was wet and sticky, but Ran wa. dry They used a pair of men s eyeglasses. Ban didn t leave afam, whereas!J1. ot.her brand did. It doesn t leave afilm on rny skin where other brands do. Women in the elevator with a man wearing glasses. The glasses are removed and each lens is sprayed with a different deodorant. Ban leaves the lens clear and the other one rnakes the lens filrny.

It doesn t ruh off and it sprays on clear. They sprayed it on a glass t.o show it was clear. That it didn t leave a residue on your clothes. It keeps you dry. The gals were taking off a guy s glasses and spraying their deodorant on them. One was wet and I.he other was dry. Ban was Ihe on" !JUtl was dry. The other deodorant was drippy. Banis dry not drippy.

The other product was sticky and Ban was clear. Two women in an elevator spraying eyeglasses to show the difference. It wouldn t show under your arm. * * * It goes on in a dry spray and stays that way. One is dry and the other a liquid. Ban is the dry one and the other one ' wet nnd messy. A lady sprayed the two onto a pair of glasses and the Ran went on and slayed dry while the other one was all runny. That it is new and improved. That it' s a new Dry Ban that goes on dry and remains dry. It' s an anti-perspirant type of a product. Ban goes on dry.

Ban sprays on clear and doesn t len"/e a fii.m.. In an elevator, they sprayed Ban on a man s glasses to show it left no film.

The girls took a pair of glasses off a man and they sprayed one lens with Ban and the other with another deodorant. Dry Ban was clear and didn t cloud. The other deodorant clouded the lens. It compared Ban with another product. Ban didn t leave a residue. It didn t go on sticky. It went on dry. Three people in an elevator. Women were talking about underarm deodorant. They each had a bottle with them. They demonstrated on eyeglasses. It doesn t go on wet. It goes on dry. Two women sprayed deodorant on some glasses. Both were extra dry deodorants. Ban went on dry. The other went on foamy. A poor guy s glasses were sprayed with the Ban and another deodorant. Ban went on dry.

One woman tells another that she bought the wrong kind of deodorant. Two women on an elevator. They put Ban on a person ;; glasses. One one side 'i went on dry. You couldn see it on the gla.'. That was Ban. The other side was foamy. You would stnt dry if the deodoranl. went on dry in the first place.

A man s glasses. They tested the two deodorants. One side was filmy. Ban didn t leave a film.

Ban was extra-dry. In elevator. They took glasses and sprayed them with two deodorants. One was messy, one was dry. It keeps you fresher and drier longer. Not sticky. Two girls and a man in an elevator. They sprayed some on his glasses and there wasn t any film. It' s effective. A lady said she used Ban and another lady said she used another brand. They sprayed two eyeglasses with Ban and a nameless product. Ban left no trace al. all. The other left a trace on the Jens. It is the best on the market. It goes on dry. They sprayed it on glasses to show the difference. , ' "-L'"-u.n"- u.n.l"- --'nu" U.O L',, --H HVH'- Initial Decision 85 F.

It' s new Dry Ban. They have added something to it that rnakes il go on dry and remain dry aU day long.

Clear and dry. A man s glasses being sprayed to show the clearness. Ban went on clearer.

It' s new Dry Ban that keeps you dry and free from perspiration, wetness and odor for a longer period of time. This lady used it on glasses. She sprayed it on and the Ban you didn t even see, lJ"ut the other one ran all down the lens. It was messy compared to Dry Ban. It' s dry and not at all messy feeling. It's supposed to go on dry and keep you dry from then on. They sprayed it on and it was dry. Another brand was wet. That wa. the difference. That it keeps you dry after it goes on.

Dry powder going on to keep you drier. Spraying it on a man s glasses. Other deodorant was wet and Ban was dry. They sprayed it on glasses to show the difference. It keeps you dry longer.

Ban was drier than other deodorant. Using a man s glasses in an elevator. Goe, on dry. Extra dry. It sprays on dry.

It' s new, Dry Ban. It' s in a new form with a new ingredient. They sprayed glasses and the Ban showed nothing, but the other brand was runny. It's not a messy, runny spray. It' s new and dry when you put it on.

It' s an extra dry deodorant. When you apply it it goes on dry and remains that. way. It doesn t run and leave any film that can be rnessy or itchy until it dries, or even after, for that matter. It's dry, if you like dry deodorants. 85. In Jan, 1970 and Mar. 1970, respondent Ogilvy & Mather submitted reports to respondent Bristol-Myers providing the results on two additional commercials: "Spokeswoman" and "Showcase." The storyboard for the former is in the record as CX 67(22), and for the latter, as stated, is CX 71(21), The demonstrations utilized in both of these commercials were quite similar to the demonstrations contained in the commercials identified in the complaint (CX 1-5; CX 6-10), These two reports (CX 67, 71) were offered by complaint counsel and received on the issue of the Hintent" of respondents to communicate to members of the public that Dry Ban was a dry spray that was not wet when applied to the body, and that it left no visible residue when applied to the body.

36. In the report on "Showcase" (CX 71), Ogilvy & Mather advised Bristol-Myers that a significantly greater proportion of respondents viewing that commercial were able to "play back the major copy message, i.e" that 'BAN is dry' " (CX 71(4)). Ogilvy & Mather noted that this difference "may be influenced by the fact that at the time Showcase' was tested the ' Demonstration' strategy had been on-air for several months in a similar executional format (i.e. Glasses ), whereas no 'Demonstration' commercial had been aired prior to testing Glasses' " (CX 71(4)), In the same report Ogilvy & Mather advised Bristol-Myers that 60 percent of viewers were able to "playhack at least one visual feature" of "Showcase" and that(CX 71(6)): BAN spraying on dry/going on dry" (20%) and "BAN spraying on clearly/not fimy (20%) were the most frequently mentioned visuals. 68R I nitial Decision 37, In Apr. 1970 Ogilvy & Mather reported to Bristol-Myers on a new commercial "What Are We Doing" advising that the major copy point was that Dry Ban keeps you dry whereas (CX 69(3)): Glass major point is to communicate that BAN IS Dry. 38, In the report on the commercial "Spokeswoman" (CX 67(22)), Ogilvy & Mather informed Bristol-Myers that this commercial was particularly successful in communication of the major copy message Ban is dry (CX 67(5)). Ogilvy & Mather stated (CX 67(5)): Spokeswoman" was particularly successful in communication of the major copy messag-e "Ban is dry." Playback of this message in "Spokeswoman" was almost twice as high (62%) as in "Glasses" (34%) and "Your Move" (34%) indicating that the Spokeswoman" demonstration is a very clear and understandable one. 39, In addition to the consumer surveys conducted by the Schrader and Ostberg organizations, respondent Ogilvy & Mather utilized N. T. Fouriezos & Associates, Inc., already mentioned, for "on-air" testing (Rosen, Tr. 310), This type of survey utilized the technique of " splicing the commercial to be tested into a specific program broadcast over television in a specific city, Thereafter, within 24 hours telephone interviews were conducted with people who viewed the program containing the test commercial (Rosen, Tr, 321), In the work done for Ogilvy & Mather, the commercial URusty" was incorporated into the Doris Day" show (CX 45(18); CX 56(15)), and broadcast in the metropolitan areas of Denver, Kansas City, and Hartford (CX 45(2)). Thereafter, names were selected on a random basis from the telephone directory and the persons were called to see if they had seen the "Doris Day" show into which the test commercial had been "spliced." If so, the person was questioned as to the messages, if any, perceived from the commercial "Rusty" (Rosen, Tr. 319-327). In this manner 108 housewives (CX 56(15)) in the foregoing three cities, Kansas City (37), Denver (18), and Hartford (53), were telephonically interviewed. The replies of the housewives were recorded on a questionnaire (CX 56(37-40)), and the completed questionnaires were tabulated and submitted to respondent Ogilvy & Mather (Rosen, Tr, 316- , 320-335; CX 56). The latter prepared a report which it submitted to respondent Bristol- Myers, evaluating "Rusty" from a number of standpoints. Attached to the report were the verbatim responses obtained by interviewers from the housewives telephoned (CX 56(30-33)). Each represented a verbatim comment reflecting a communication received from "Rusty (CX 56(29)), 40. The following are verbatim responses transmitted by respondent Ogilvy & Mather to respondent Bristol-Myers of some of those who were interviewed by the Fouriezos organization within 24 hours after seeing "Rusty" on the "Doris Day" show (CX 56(15)(30-33). The Initial Decision 5 F.TC. verbatim responses represented recall of communications which definitely" came from "Rusty" (CX 56(30); emphasis added): One kind not Ran was sprayed on and there was a line. Then Ran was sprayed and with Ban there wasn t a line. I said I saw a line down the center of the screen. They said that Ban spra.ys on dry.

They sprayed it on something and then sprayed on another kind. Then they Tan their ringer, through it to show Ban was d?y and the other wa.' wet. The usual stuff about deodorant. That it was a spray. The message I got was that this was different from their usual deodorant by emphasis:dng that it was dry. That it was dry. It is a dry . pray like a powder.

Other deodorant sprayed on wet and Ban ,'1J1uyed O'I dry. They had two metal discs. They sprayed one with Ban and one with another deodorant, then marked both with an X and the Han was dry and the other was wet and nwssy. Cartoon figure and knight and lady at party. It keeps you dry. One was dry and the other was wet. It was more effective and dry. It was dry and Uke a powder. Spray Ban - showed Ban was dry and other left you wet. Ban sprays on one article and other deodorant on another article. Leaves you dry. Kept you dry. Han always leaves you dry.

* * * It' s cool and dry. Just that it' s dry and comfortable to use. It is dry! * * *It has an extra dry quality. Ban is the dry deodorant. 41. In addition to the survey of the commercial "Rusty," N. T. Fouriezos & Associates, Inc. conducted a survey among members of the public on "Your Move" and "Glasses" (CX 58). The cities in which this survey was made were Salt Lake City, Kansas City, and Hartford, Glasses" was spliced into the telecast of "That Girl" show (CX 59(9)). Approximately 100 housewives who had seen this show were reached by telephone a day after the broadcast. Respondent Ogilvy & Mather submitted a research report to respondent Bristol-Myers on the results of this "on-air" test by the Fouriezos organization (CX 59). In the introduction to this report, Ogilvy & Mather noted that "Rusty" was the "first commercial produced to communicate that BAN dries clear while other deodorants dry leaving a greasy fim" (CX 59(3)). Ogilvy & Mather also noted that the "Rusty" commercial had "presented the non-greasy demonstration within the context of the questions format but that " E.A.P. rOstberg tests J and (m-air recall testing (Fouriezos tests J had indicated that the approach utilized was neither persuasive nor did it communicate the BAN is dry strategy" (CX 59(3); emphasis in original). Ogilvy & Mather again noted that "Glasses" and "Your Move" had been "created with the primary objective of communicating that BAN is dry and goes on clear whereas other anti-per spirant deodorants go on wet and leave a greasy film " (CX 59(:m. Ogilvy & Mather reported to Bristol-Myers that 15 percent of the housewives interviewed who remembered seeing "Glasses" perceived the message that" ' Ban is Dry: Ban is Dry (drier), Ban goes on dry" (CX 59(6)), and that 14 percent of the houscwivcs perceived the message "Ban is Dry as the major difference between the two anti-perspirants (CX 59(7)). , ....

H...., 'UH'- '-'-"

fies Initial Decision 42. The research report of Ogilvy & Mather transmitted to Bristol- Myers a substantial number of verbatim comments of housewives who had seen "Glasses" (CX 59(18- , 20)). The following are some of the verbatim comments transmitted to Bristol-Myers (emphasis added): Two girls were in an elevator and one sprayed BAN on a man s glasses. . It goes rJn dry and outsells other deodorants It goes on dry. It showed a man with glasses. One deodorant was sprayed on one side, another deodorant was sprayed on the other. One left a Jilm the other didn t. Oue was wet thc other was dry. Ban wa,q dry. It' s drier, it wasn t moist. Ban wil not stick to clothes. It', dry so the clothes will stay dry.

They sprayed deodorant on glasscs. It's the leading anti-perspirant. It' s better than others. It goe.q on dry and lasts longer. Two girls were spraying a man s glasses with two different deodorants. Ban didn smear but the ot.her one did smear. It was dry. It says it' s dry. Two girls and a man were in an elevator. The girl sprayed t.he deodorant on the man s glasses. It was dry. No wetness. Ban wa.q dry, rw wetne.qs. Someone sprayed someone s glasses. Bo,n went on dry. It didn t leave you .tJicky. s a new idea that it. fells isic J dry when it goes on. The deodorant shown, left a residue that was sticky. You could not see through it, it wasn t clean. 43. Although "Your Move" was only tested but not used commercially, the verbatim comments of housewives seeing it, as reported to respondent Bristol-Myers by Ogilvy & Mather (CX 59(21-22)), are nevertheless material because the demonstration in "Your Move is the same as that in "Rusty, Show Up, Dry Manhattan " and "Spotty Performance." (The headings on CX 59(21) are contradictory; however the undersigned interprets the verbatims on this document to apply to Your Move. ) The following were reported to Bristol-Myers: AU r remember is the new dry brand. They put it on a blotter or paper and pulled their fingp.r through it. It goes on dry. It' s suppose lsic J to keep you dry. Ban wa.q dry and the outer was not.

Ran was better. It was suppose (sic) to be drier. The fact it was drip.r. Ban was dry and the other wns wet.

The regular deodorant goes on wet and Dry BAN goe,q on dry. The regular deodorant makes a streak hecause it' s wet. It goes on dry and wouldn t you rather have one that goe. on dry than one that goes on wet. It goes on dry and keeps you dry. It starts oul dry and stay.q dry.

It sprays on like a powder and your hody isn t wet like lhe ot.her kind. This dry and won t make you wet. They sprayed two spots. One was wet Jrout the other deodorant, one was dry from the kind they were selling, t.he anti-perspirant. It goes on dry and yOIl don get wet.. It' s dry and not a wet deodorant and it keeps you drier. You don t get wet as I said before. That you don t have to wait and let the deodorant dry under you.r anns goes on dry and keeps you dry. It keep (sic) your clothes dry. You don t get wet u. inl this and it goes on you dry.

Therf' are two kinds, spray and powder. The spray was wet the powder was dry. One kept you dry and the other wet. There ,is no wetness. (Ogilvy & Mather notf'd t.hat this verbatim could have come from previous Ban commercials. 44. Wiliam D. Wells, Professor of Psychology and Marketing, Graduate School of' Business, University of Chicago, testified as an expert witness in this proceeding (Tr. 852 et seq. CX 80). Dr. Webs Initial Decision 85 F.

examined the research reports in the record prepared by the Schrader Ostberg, and Fouriczos organizations, and the verbatim responses of members of the publi who were interviewed which were included with them. Dr. Wells collected these verbatim responses and then grouped them under certain categories (CX 99, 100; see also, Tr. 900, 916- , 930 946- 950- 964, 1402, 1433- , 1462- 1476). Dr. Wells found that a substantial number of the members of the public interviewed after seeing "Rusty, Your Move " or "Glasses" reported receiving the communication that Dry Ban was a dry spray not wet on application to the body. Dr. Wells' chart was received in evidence, as follows (CX 99): Mentioned Or Indicated Ban Sprays On Dry Rusty On-Air (CX 56) 38% Your Move 57% On-Air (CX 59) 4/7 Your Move 8/21 28% R.E.A.P. (CX 60)38/137 Glasses On- Air (CX 59) 32% Glasses R.E.A.P. (CX 60) O/116 28% 6119After analysis of all the verbatim responses received from viewers seeing the foregoing commercials, Dr. Wells concluded that between 25 percent and 33 percent reported a perception that Dry Ban is dry and not wet when applied to the body (Wells, Tr. 947, 964). As the foregoing table reveals, out of 116 verbatim responses obtained by the Ostberg organization from consumers viewing "Glasses " Dr. Wells found that 30 or 28 percent indicated that the commercials conveyed the message that "Ban sprays on dry." With respect to "Your Move " Dr. Wells found that 28 percent of 137 verbatim responses obtained by the Ostberg organization mentioned or indicated receiving the message Ban sprays on dry" (CX 99). Dr, Wells also found that between 5 percent and 20 percent of the verbatim responses from copy tests by the Fouriezos and Ostberg organizations indicated consumers receiving the message that Dry Ban sprays on clear (CX 100), which many perceived as meaning without a residue.

Respondents' objection to the calculations of Dr. Wells on the ground that the verbatim responses available were used as the denominator in figuring the percentages listed by him, rather than the total consumers interviewed (see Wells, Tr. 1432- , 1521-22), is not valid, in the opinion of the undersigned.

Persons coritacted in copy research for various reasons do not always provide the interviewer with comments which can be rccorded (Wells Tr. 917; see generally Tr. 908-918). Use of the total number of persons contacted as the denominator in calculating the percentages of those who perceived the commercials as representing that Dry Ban went on dry, and was clear (without a residue), involves an assumption that none of the remaining consumers for whom no vcrbatims exist received BHISTOL-MYRRS CO., ET AL. 713 688 Initial Decision those communications from the commercials. Such an assumption is completely unfounded in view of the evidence and the verbatims available, 45, The record establishes that a substantial portion of the viewing public equated "clear" and "clean" with a representation that Dry Ban left no visihle residue after application (CX 60 (48 to 64)). Examples: Ban leaves the lens clear and the other one makes the lens filmy" (CX 60 (50)); "They sprayed it on a glass to show it was clear. That it didn't leave a residue on your clothes" (CX 60 (50)); "Ban sprays on clear and doesn t leave a film. In an elevator, they sprayed Ban on a man glasses to show it left no film" (CX 60 (52)). The research reports of Ogilvy & Mather also reported that members of the public often equated "clear" with "leaves no visible residue." Thus, in coding responses from those viewing "Glasses" and 'jYour Move " Ogilvy & Mather reported to Bristol-Myers that nine percent recalled the latter commercial as having "Showed Ban spraying on clearly, not filmy" (CX 60 (20)), and that nine percent of those seeing "Glasses" thought the main difference between the two anti-perspirants shown in the comnrercial was that Dry Ban "is clean, leaves no film, is clear" (CX 60 (21)), In fact, Ogilvy & Mather advised Bristol-Myers (CX 60 (7)): The most common visual mention for "Glasses" consisted of BAN spraying on clearly, not filmy (15%).

In the report on "Spokeswoman" Ogilvy & Mather advised Bristol- Myers that 31 percent of the viewers mentioned receiving the communication from the visual portion of the commercial "Ban spraying on clearly, not filmy" (CX 67(5)). In a similar report on Showcase" (CX 71 (21)), Ogilvy & Mather advised that 20 percent of the viewers were able to "playback" the visual feature of the commercial "BAN spraying on clearly/not filmy" (CX 71 (6)), Both Respondents Played an Active Role in The Development and Testing of the Challenged Commercials and Both Were Fully Informed and Knowledgeable with Respect to the Results Thereof 46. As prior findings demonstrate, Bristol-Myers and Ogilvy & Mather were responsible for the conception, creation, and development of the challenged commercials. Both respondents played a vital role and were active participants throughout. In a letter to the Commission mentioned earlier, the senior vice president of Ogilvy & Mather acknowledged that his agency took the basic concept and the representations in the foregoing commercials from respondent Bristol- Myers in the "earliest stages" and developed the finished commercials in an effort to dramatize the Bristol-Myers supplied product difference" (CX 18).

714 FIODERAL TRADIO COMMISSION DIOCISIONS Initial Decision 85 F.

The many research reports, communications with Bristol-Myers, and other documentation in evidence confirm the foregoing statement and show the complete involvement of Ogilvy & Mather, as wen as Bristol- Myers, in the creation of the commercials, in the determination of their content, and in the broadcasting thereof over network and local television. The senior vice president of Ogilvy & Mather testified that the advertising strategy incorporated in "Rusty, Show-Up, Dry Manhattan Spotty Performance/' and "Glasses" was implemented by Ogilvy & Mather after analysis of the competitive situation, consumers perceptions, and differences between Dry Ban s formula and that of competing anti-perspirant sprays (Sowers, Tr. 1715-33). Ogilvy & Mather, as described earlier, tested the comparative demonstration (CX 23, 74, 75) ultimately utilized in the commercials, recommended its use after such tests, and produced the commercials incorporating it (Sowers, Tr. 1722-2:1, 1728, 1732- , 1773- , 1782; Mayers, 'fr. 1232- 33). The extensive research conducted by Ogilvy & Mather in conjunction with respondent Bristol-Myers (Mayers, Tr. 1202; Sapirstein, Tr. 426 469- , 499, 536) utilzing the Schrader, Ostberg and Fouriezos organizations has been set out. Ogilvy & Mather planned and actively supervised such research (Schrader, Tr. 214- , 238, 245, 263; Rosen, Tr. 321- , 326; Ostberg, 20 , 22, 28, 36-37). Through it Ogilvy & Mather thoroughly evaluated and analyzed the strategy of the comparative demonstration, the reaction of members of the public viewing the demonstration and the finished commercials utilzing it, the messages and representations communicated to such viewers by the finished commercials, and reported on all these aspects in complete detail to respondent Bristol-Myers as shown in prior findings (see CX 23- , 27 56- 59- 74-76).

During the course of the development, testing and evaluation of Rusty, Show-Up, Dry Manhattan Spotty Performance " and Glasses " and the demonstrations in them, representatives and officials of respondent Bristol-Myers and respondent Ogilvy & Mather played active roles and were in continuous communication and consultation. Thus, John C. Horvitz, Product Manager for the Bristol- :\ 1969 Myers Products Division, as previously described, on .July wrote to Tony Manlove, an account executive of Ogilvy & Mather (CX , 105), summarizing areas in which "our interest is high " and suggesting that Manlove interpret the summary as a "project list. Among the projects were the Dry Ban "test research" results, and Ban goes on anything else we can do" to emphasize the story that " clean and dry" (CX 90). On Sept. 26, 1969, an Ogilvy & Mather project director (Tr. 444) transmitted the initial "communications test" results obtained by the Schrader organization on "Glasses" and "Your Move ('irr Initial Decision to Guy Parker of the Bristol-Myers Research Department (Tr. 426). This letter which has already been referenced stated (CX 61): This morning I presented the results of our quick van test for Dry Ban to Jack Morgan and John Horvitz. Enclosed is a copy of the tabular data as it was given to them and a copy of the revised questionnaire that we used. Based upon this morning s meeting, it was decided to go national with "Glasses: :30 until we have the results of the on-air and P. tests.

Both "Glasses" and "Your Move" will be on-air tested next Thursday, October 2nd (interviewing October ani) and R.E.A.P. tested - "Your Move" on October :kd; "Glasses the following week.

Phylls or I will be sending you further information on the research as it progresses. Phylls" was Phylls Sapirstein, a research group head of Ogilvy & Mather (Tr. 408). ,Jack Morgan was the Bristol-Myers Product Division vice-president (CX 105), and John Horvitz, as stated, was the Bristol- Myers Product Manager. Copies of the foregoing letter were sent to Dr. Edwin Berdy, the research director (marketing area) of Bristol- Myers (Tr. 449), Froni Biggard of the Bristol-Myers Research Department (Tr. 426), the Ogilvy & Mather Research Director (Tr. 449), and other agency personnel.

On Oct. 22, 1969, an official of Ogilvy & Mather wrote to Mr. R. Raskopf, Bristol-Myers Product Manager, giving a complete review of the status and results of "DRY BAN Copy Research" as of that date including research on "Rusty," and informing him of additional copy research projects currently in progress which involved "on-air" testing of "Glasses" and "Your Move" and R. P. testing of these commercials (CX 28). Copies of this letter were sent to the Bristol-Myers Group Product Manager" (CX 105), and various Ogilvy & Mather officials. On Oct. aI , 1969, an account executive of Ogilvy & Mather prepared a Conference Report of a meeting on Oct. 27, 1969, with Mr. Raskopf to discuss "BAN Copy Strategies and Future Creative Work." Among the "Agreements" reported were:

The copy strategies for both DRY BAN and BAN Roll-On were felt to reflect accurately the creative direction which is most meaningful for the brands to take at this time (CX 24).

Agreement was also reported on Dry Ban "Current Strategy" and Creative Development" including the "on-air" and " " copy testing of "Glasses" and "Your Move" (CX 24). Copies of this report were also sent to top Ogilvy & Mather officials, including Robert S. Sowers, the management supervisor and later vice-president (Tr. 1715). Again, on Nov. 7, 1969, the same Ogilvy & Mather account executive wrote Bristol-Myers' Mr. Raskopf relating to " topJine REAP test results for 'Glasses " with copies to Mr. Sowers, and others of Ogilvy & Mather, and J. Weiner, Bristol-Myers Group Product Manager (CX 25). On Dec. 23 , 1969, another Conference Report by J. Deb 'Aquila of Ogilvy & Mather was sent to Mr. Raskopf reporting a meeting on that , , 716 FEDERAL TRADle COMMISSION DECISIONS Initial Decision S5 F, date between top officials of Bristol-Myers and Ogilvy & Mather (CX 27). Present for Bristol-Myers were "Mr. F. Mayer, Mr. J. Morgan, Mr, J. Weiner, Mr. R. Raskopf." (The President of Bristol-Myers Products was Frank Mayers, (Tr, 1I46-47; CX 105), the vice-president, as noted was Jack Morgan (CX 105)). Objectives of this conference were: To present topline data from the R.E-A.P. and On-Air tests of the DRY BAN Spokeswoman" commercial In light of the research scores, to present the agency s recommendation for the posture of future DRY RAN advertising.

To present four executions for approval.

Agreements were reached, as follows:

II. AGREEMENTS Despite the high (25%) persuasion score of "Spokeswoman " it was greed not to run this commercial on the air. The rationale behind this decision was: a. The low recall of major copy points. (R% for "Spokeswoman" vs. 15% for "Glasses b. The relatively low brand recall score (27% for "Spokeswoman" vs. 34% for Glasses We wil continue to run "Glasses " at least for the early part of 1970. We have also undertaken a R.E.A.P. test to determine the persuasion score of the commercial after three months on the air.

We wil produce, and put on the air "Jewelry Store" as a pool out to "Glasses." The two wil run in even rotation.

The agency wil undertake the assignment of coming up with an execution capturing the "warmth Sincerety" (sic) and persuasiveness of "Spokeswoman " but adding to it the extra dimension of arousing interest.

We wil not produce "Motorcycle Board Meeting" or "Birdwah:hers" at this time (CX 27).

On Feb. 5, 1970, Froni Biggard, previously mentioned as a member of the Research Department of Bristol-Myers, forwarded an internal memorandum to the Bristol-Myers Product Manager with copies to Bristol-Myers officials " M, Berdy, J,S, Morgan, G.S. Parker and J, Weiner" advising of the results of copy testing on "Spokeswoman" (CX 28). The memorandum reported:

Attached are the agency s reports on the Dry Ban "Spokeswoman: an on-air and trailer commercial tests.

To summarize the agency s conclusion Spokeswoman " is a better vehicle than Glasses " or "Your Move" for communicating the demonstration message ("Ban is dry as evidenced by the trailer test (forced exposure) results. However Spokeswoman lacks the attention-getting power of the previously tested commercials in a "normal" viewing situation(on-air test) leading to a recommendation for revising the commercial to correct that deficiency.

Our view of these test results minimizes the on-air scores for two reasons: 1. Testing was conducted only two weeks prior to Christmas when the respondents attention to a.ny commercial we might have tested would be at a low point. Thus, the lower recall scores for "Spokeswoman" than "Glasses" or "Your Move" is more a function of when the tests were conducted than of the actual pulling-power of the executions. 2. In addition, the tests are based on about 100 respondents making large differences in the scores (R- lO points) necessary to consider them statistically different. This IHU lul- 'l 1'C: L.U. , .11' i\L. 688 Initial Decision magnitude of difference between "Spoke;;woman" and "Glasses" is for the most part lacking.

Therefore, we would conclude that "Spokeswoman" is not as deficient as the agency analysis indicates.

If you feel that a meeting with agency to discuss these findings would be warranted please let me know and I wil set it up.

Copies of the actual Ogilvy & Mather research reports were provided to Messrs. Raskopf, Morgan and Weiner. On AprilS, 1970, Mr. Costello an Ogilvy & Mather account executive, transmitted to Mr. Raskopf additional "DRY BAN Test Scores" (CX 30).

In sum, Bristol-Myers and Ogilvy & Mather worked closely together and conferred and communicated regularly and frequently concerning the challenged commercials and the testing thereof. The reports and communications described earlier herein, and others, discussing and analyzing the results of such consumer research (copy tests) were regularly prepared by Ogilvy & Mather for Bristol-Myers and were plainly transmitted to that firm as a matter of routine practice. The undersigned finds that respondent Bristol-Myers was an active participant in, and was fully knowledgeable, aware, and informed of, all testing and evaluation of the challenged commercials and the demonstrations incorporated in them, of similar commercials never actually broadcast commercially, and of the reports of consumer reactions to all the foregoing. Contentions to the contrary are rejected. The Consumer Research of Respondents Constitutes Reliable, Prohative and Substantial Evidence of the Representations Communicated to the Public by the Challenged Commercials 47, The consumer research conducted by respondent Ogilvy & Mather in conjunction and consultation with respondent Bristol-Myers and utilzing the Schrader, Ostberg and Fouriezos organizations constitutes reliable, probative and substantial evidence of the messages and representations conveyed, directly and by implication, by the commercials "Rusty, Show-Up, Dry Manhattan Spotty Perfor mance " and "Glasses " to members of the public viewing them. The Schrader organization has been evaluating television commercials and print advertising for over 20 years, and such evaluation involving the designing of surveys, the preparation of questionnaires, the conducting of consumer interviews, and the construction of reports constituted the Tr. 211-16). Ogilvy & Mather has bulk of that firm s work (Schrader, and other been a client since the Schrader organization was founded, clients over the years have included major U.S. corporations (Schrader the Schrader Tr. 213). Through Ogilvy & Mather and other agencies, organization in the past has done substantial work on various Bristol- Myers products. Like the Schrader organization, H.D. Ostberg & 718 FEDERAL TRAm COMMISSION DECISIONS Initial Decision R5 F.

Associates is well-known in the advertising industry, and for a number of years has performed advertising research for many agencies and corporate clients including respondents Bristol-Myers and Ogilvy & Mather (Ostberg, Tr. 10-14). N.T. Fouriezos & Associates, as well as its parent organizations, has likewise been doing consumer surveys and market research for many years (Rosen, Tr. 309-12). Respondent Bristol-Myers has been a continuous client, as has Ogilvy & Mather (Rosen, Tr, 813). The consumer surveys and tests conducted by the Schrader, Ostberg and Fouriezos organizations, sometimes referred to in the advertising industry as "copy tests " were not different from the type routinely utilized in the advertising industry, and by respondents to obtain information and data on which to base advertising and marketing decisions. Indeed, such was the very purpose here. N one of the research was conducted with litigation in view or for any other purpose which might interject a bias. All appear to have been objective and were conducted simply to evaluate the efficacy of the commercials long prior to any question of challenge to them, or to the demonstrations in them of "clean, clear" Dry Ban versus the "oily, opaque" and creamy" competitive brand.

In conducting copy research for respondents, as earlier described the Schrader, Ostberg and Fouriezos organizations each utilzed somewhat different techniques. The Schrader firm exhibited the Dry Ban commercials or the Dry Ban demonstrations in mobile vans parked in shopping centers to volunteers obtained there, and questioned such persons about their perceptions immediately after the viewing (CX 61; Tr. 251). The Ostberg research (REAP tests) used the same mobile van system, but contacted the viewers about their perceptions by telephone the next day (CX 47, 50, and 68; Tr. 36-41; the analysis of this work by respondent Ogilvy & Mather may be found in CX 57 and 60). The F ouriezos organization inserted the commercial to be tested into an actual television broadcast in selected metropolitan areas, and then telephoncd persons the next day on a random basis to determine their perceptions (CX 45, 58; Tr. 821-22; the Ogilvy & Mather analysis may be found in CX 56 and 59). The Fouriezos technique is known as "onair" testing. Since questioning occurred immediately, the Schrader procedure did not measure the degree to which the commercial and its messages ld be remembered by viewers after a time lapse although it may have been somewhat more efficient than the Ostberg and Fouriezos techniques in picking up communications transmitted. On the other hand, the latter procedures had a greater ability to determine how well the commercials being tested and their messages were recalled, and the Fouriezos tests additionally provided some measure of the effectiveness of the commercial to command attention 6RR Initial Dccision in the context of normal television viewing, and the distractions of the home or place where vicwing took place. See generally with respect to these different techniques, Schrader, Tr. 253, Wells, Tr, HH5-901. All three systems, however, wcrc relatively effective in determining the messages and representations communicated to viewers by the commercials being tested, although there is evidence, as indicated, that the Schrader procedure with immediate questioning is superior in this respect (Wells, Tr, 901).

The tests herein conducted by the Schrader organization were personally supervised by the president, Donald P. Schrader, and the interviews were tape recorded utilizing; questions familiar to and long used by Ogilvy & Mather (Schrader, Tr. 217- , 230- , 242-4:3, 245-263). The responses of the persons interviewed were compared with the tape recorded answers. The answers and tapes were transmitted to respondent Ogilvy & Mather (Schrader, Tr. 258-263, 273). and, as described, were included in reports furnished to respondent Bristol- Myers. Validation checks, later discussed, were not always considered necessary in view of the person-to-person aspect of these interviews and the use of tape recording, although in some instances telephone validation was accomplished (Schrader, Tr. 257-58). The questions propounded were considered carefully to eliminate bias (Schrader, Tr. 260-61).

The Ostberg organization was also a veteran in the advertising industry. The questionnaire format utilized for the van tests conducted by the Ostberg organization in shopping centers in the metropolitan centers of Philadelphia, Chicago, and Los Angeles was developed by representatives of various major advertising agencies including respondent Ogilvy & Mather, and the research department of respondent Bristol-Myers (Ostberg, Tr. 20-22). Dr. Ostberg did not believe the questions used for the interviews contained any undue bias (Ostberg, Tr. 23-26). The mobile van technique and the consumer sampling method used in the Ostberg surveys were specifically desired by representatives of respondent Bristol-Myers (Ostberg, Tr. 144; see also Tr. 28, and Sapirstein, Tr. 653) who, with personnel of respondent Ogilvy & Mather, were considered by Dr. Ostberg to be highly knowledgeable in the area of consumer testing (Ostberg, Tr. 189-91). Representatives of both respondent Bristol-Myers and respondent Ogilvy & Mather participated in planning the surveys (Ostberg, Tr. 190-91), and representatives of the latter went out "in the field" periodically to check on the work (Ostberg, Tr. 184). Interviewers who conducted the telephone contacts with members of the public were carefully selected and trained, and were required to sign a certificate that thc information they recorded from the persons contacted was Initial Decision R5 F.

accurate and that they would so testify under oath (Ostberg, Tr, 184-86; for the interviewer certificate see OMRX 3(48)). "Validation" checks were conducted by Dr. Ostberg s organization as a matter of standard procedure on a substantial percentage of the members of the public interviewed in copy tests similar to those employed on the Dry Ban commercials (Ostberg, Tr, :)4, 197), This involved recontacting the persons questioned by the interviewers over the telephone and verifying the answers previously given (Ostberg, Tr. 97-99). Although Dr, Ostberg could not recall specifically whether the standard procedure of "validation" was performed with respect to the tests his organization conducted on the Dry Ban commercials here involved there is nothing in this record to indicate that his firm s standard procedure of validation was not followed. Indeed, Dr. Ostberg testified I would say that if there was no validation, I would be aware of it" (Ostberg, Tr. 189). Ogilvy & Mather, furthermore, insisted that firms doing consumer research for it conduct validation checks (Sapirstein Tr. 618). When the questionnaires were received from the interviewers in the field, personnel in the offices of the Ostberg organization in New York checked and coded the responses (Ostberg, Tr. 36- , 200). Coding" involves grouping the responses of the members of the public interviewed under certain headings expressing a common theme and the objectives of the study (Ostberg, Tr. 168; Rosen, Tr. 344, 375-76). The codes utilized for the Dry Ban surveys conducted by the Ostberg organization were approved by Ogilvy & Mather (Ostberg, Tr. 37, 186). All responses of the members of the public interviewed were grouped under appropriate codes, tabulated and transmitted to Ogilvy & Mather and Bristol-Myers (Ostberg, Tr. 37, 45, and 54). The Fouriezos organization, like both the Schrader and Ostberg organizations, was highly experienced in performing consumer and market research. In conducting the "on-air:' surveys (CX 45 , 58), the procedures set out by Ogilvy & Mather were followed (Rosen, Tr, 320), The selection of those interviewed, as noted, was on a random basis and the questionnaire used was prepared by Ogilvy & Mather whose involvement in the work, according to an official of Fouriezos, was unusually high (Rosen, Tr. 321-26). The interviewers were told to record the answers given by those who had seen the Dry Ban commercials in the words actually used, and validation was performed on a substantial number of those interviewed (Rosen, Tr. 327, 300), As in the case of the Ostberg tests, the answers of the persons interviewed were grouped in codes approved by Ogilvy & Mather (Rosen, Tr. 322 326 332; Sapirstein, Tr. 661), and an effort was made to make the codes used as representative of the actual or verbatim responses as possible (Rosen, Tr. 343-44). The verbatim responses of the persons interviewed lHU TUL-1V1'i L;U. AL. (Z1 6R8 Initial Decision were submitted to Ogilvy & Mather and transmitted by that firm to respondent Bristol-Myers with only grammatical editing (Sapirstein Tr, 510-11).

The cost of the surveys by the Schrader, Ostberg and Fouriezos organizations was substantial (see Ostberg, Tr. 192-94; Rosen, Tr. 366). In sum, the consumer surveys and tests by the Schrader, Ostberg and Fouriezos organizations were performed in accordance with the standards prevailing in the advertising industry. The results are valid evidence of the messages, communications, and impressions conveyed by the challenged commercials. Although the methodology utilized was not of the type permitting projection to the entire population viewing the Dry Ban commercials, the results are clearly projectable to a substantial proportion of that population, The Consumer Research of Respondents Established that the Challenged Commercials Communicated to a Substantial Portion of Viewers the Representations that Dry Ban Was Dry and Not Wet when Applied to the Body and Left No Visible Residue 48. The demonstrations in "Rusty" and "Your Move" are the same as described earlier, and identical to the demonstrations in Show Up, Dry Manhattan " and USpotty Performance." The demonstration in Glasses" is essentially similar. The consumer research and surveys conducted by respondents utilizing the Schrader, Ostberg, and Fouriezos organizations, set out in prior findings, establish that a substantial portion of the public viewing "Rusty, Show-Up, Dry Manhattan Spotty Performance " and "Glasses " understood those commercials to convey the representations that Dry Ban was a dry spray that was not wet when applied to the body, that it left no visihle residue when applied to the body, and that, because of those physical characteristics, Dry Ban was superior to competing anti-perspirant sprays.

Respondents Knew or Should Have Known from Their Consumer Research that the Challenged Commercials Had the Capacity to Convey and Conveyed the Foregoing Representations 49. Bristol-Myers and Ogilvy & Mather knew or should have known from the nature and content of "Rusty, Show-Up, Dry Manhattan Spotty Performance " and "Glasses " that those commercials had the tendency and capacity to convey to members of the public viewing them the representations that Dry Ban was dry and not wet when applied to the body, and left no visible residue on application to the body. Aside from the nature and content of the commercials them- 722 F'i'DERAL TRADE COMMISSION Di'CISIONS Initial Decision H5 F.

selves, the consumer research conducted by respondent Ogilvy & Mather in conjunction and consultation with respondent Bristol-Myers and utilizing the Schrader, Ostberg and Fouriezos organizations, set out in detail and discussed hitherto, provided both respondents with information that the Dry Ban commcrcials, and the demonstrations contained in them, had the tendency and capacity to communicate, and communicated, the foregoing representations to mcmbcrs of the public viewing them.

When Respondents Broadcast the Challenged Commercials, They Knew or Should Have Known the Representations Those Commercials Had the Capacity to Convey and Conveyed 50. Respondents Bristol-Myers and Ogilvy & Mather broadcast one or another of "Rusty, Show-Up, Dry Manhattan Spotty Performance " and "Glasses" over network and spot television to the nation public from July 1969 through Sept. 1970 even though they had reliable and substantial evidence in their possession, and knew, or should have known, that the foregoing commercials had the tendency and capacity to represent, and represented to a substantial portion of the viewing public, that Dry Ban was a dry spray and not wet when applied to the body, that it left no visible residue, and that it was superior to competing spray anti-perspirants because of those characteristics. Dry Ban in Fact Is not a Dry Spray but Is Wet when Applied to the Body and after Application Dries Leaving a Visible Residue 51. Dry Ban is a liquid and is wet when sprayed on the body. The formula for Dry Ban consists of 37 percent "Alcohol, SD40- Anhydrous" 55 percent liquid propellent, and certain other ingredients (CX 12). Dry Ban in the can is a liquid (Tr. 1077-78). When Dry Ban is sprayed from the can the substance emitted is a liquid spray and is wet. As Bristol-Myers senior research engineer testified (Weinstein, Tr. 1077-78):

Q. * * * you are stating, then, that Dry Ban is a liquid when it is in the ('an? A. That's correct.

Q. And it is wet? A. Well, it s a liquid; ye Q. Okay. And then when it comes in contact with the vapor coming out of the spray nozzle, it may become drier but it' s stil wet; isn t that correct. A. Well, you- have liquid particles which tend to be broken Up, create a mist. Q. But they are still liquid particles? A. Yes.

Q. And they are stiH wet? A. Well, they are liquid; yes.

A can of Dry Ban is in the record as Commission Physical Exhibit 6. In a.,-.,-._ U11 LoaoJ U". 1-1 n.'-..

6RR Initial Decision a demonstration during the hearings in this case, the foregoing can of Dry Ban was used to spray on a piece of flat glass, and on the forearm of a person. The transcript reflects not only the fact that Dry Ban was obviously wet and runny, but looked wet and runny, in fact, like water (Tr. 845-46). Although the manner of holding the can horizontal or vertical or some variation of either, and the position of the '/dip tube within the can, may affect to some extent the composition of the spray emitted (Weinstein, Tr. 1057-1074; BMRX 11 (I) (2)), in any case the spray is wet. The answer of Bristol-Myers, by admitting that Dry Ban dries out" after application to the body in effect concedes that on application it is wet. See also OMRX 2, and Sowers, Tr. 1861 and 1736 52. A videotape showing the spraying of Dry Ban on flat glass and the forearm of a person, and the results thereafter continuously over a five (5) minute period (Tr. 790-96), was introduced into the record by complaint counsel (CX (Physical Exhibit) 8), Contrary to the demonstrations in HRusty, Show-Up, Dry Manhattan Spotty Perforand continuous portrayal clearlymance " and "Glasses " this uncut reveals to the viewer the wet, runny, liquid, and watery nature of Dry Ban when sprayed on the body or on a surface, as well as the plain and obvious residue deposited on the body or on a surface by such spraying. solid ingredientsThe residue left after spraying consists of the suspended in the liquid in the can (Sandland, Tr. 1678, 1701-09). In sum Dry Ban is wet and watery when applied to the body and remains wet for several minutes before drying, and upon drying leaves a substantial and visible residue.

Ogilvy & Mather Knew or Should Have Known that Dry Ban Was Wet w hen Applied to the Body and on Drying Left a Visible Residue 53. Ogilvy & Mather knew or should have known that Dry Ban was not a dry spray but was wet when applied to the body, and left a visible residue after application, As a matter of agency procedure, Ogilvy & Mather fully informed itself about the characteristics of products being handled and did so with Dry Ban (Sowers, Tr. 1720). Simple examination and spraying of Dry Ban reveals it to be a wet and watery spray which leaves a visible and obvious residue after spraying (see Sowers, Tr. I736, 1774- , 1861 , 1863). The Representations Were Characteristics Material To Promotion And Sale of Dry Ban 54. The representations of dryness of application and lack of rcsidue were important, desirable and material in the marketing and sale of Dry Ban. The many consumer surveys and copy tests, most of which have been discussed in one particular or another earlier herein 724 FEDERAL TRADle COMMISSION DECISIONS Initial Decision 85 F.

attest to the materiality of these characteristics to members of the consuming public, as do the verbatim responses attached to the reports of these tests. See also "A Consumer Survey on Deodorants and Anti- Perspirants" (CX 85).

DISCUSSION viewing of "Rusty, Show-Up, Dry Manhattan Spotty Performance " and "Glasses " is convincing that they possessed the tendency and capacity to represent, and represented, directly and by what was implied, that Dry Ban was dry, went on dry (like a powder), and left no discernible or visible residue on the body, The undersigned has specifically so found based on the viewing of the commercials themselves.

The authority of the Commission to draw its own inferences from challenged advertisements has been sanctioned repeatedly over the years. Federal Trade Commission v, Colgate-Palmolive Co. 380 U, 374 391-92 (1965); Carter Products, Inc. v. Federal Trade Comm.ission 323 F.2d 523 , 528 (5th Cir, 1963); Merck Co. v. Federal Trade Commission 392 F.2d 921 , 925 (6th Cir, 1968); Kalwajtys v. Federal Trade Commission 237 F,2d 654 , 656 (7th Cir, 1956), cert, denied, 352 S. 1025; Exposition Press, Inc. v. Pederal Trade Commission, 295 2d 869, 872 (2d Cir. 1961), cert. denied 370 U.S. 917 (1962); F, Drew & Co. v. Federal Trade Commission 235 F.2d 735 , 741 (2d Cir, 1956), cert, denied 352 U ,So 969.

The principle was reiterated recently in Firestone order of Sept. 22 1972 (81 F. C. 398, 454), CCH Trade Reg, Rep., 1970-73 Transfer Binder, \120 II2. The Commission there stated: "'The law is clear that the Commission s expertise is sufficient and that it need not resort to survey evidence or consumer testimony as to how an advertisement may be perceived by the public or whether they relied upon the ad to their dertriment.* Respondents do not contest this principle, but argue that the Commission cannot draw unreasonable or "outlandish" inferences citing Kirchner 63 F, C. 1282, 1290 (1963). There a swimming-aid device was represented, among other things, as being "invisible." The Commission dismissed this allegation commenting that a representation did not become false and misleading because it might be unreasonably.. misunderstood" by an "insignificant and unrepresentative" segment of the class of persons to whom it was addressed. In the opinion of the undersigned, there is no parallel whatever between the hyperbole involved in callng waterwings "invisible " and the conclusion that significant segments of the public would or might seriously perceive respondents' commercials to represent that Dry Ban was dry, went on dry and left no visible residue on the body, There is nothing .un uu- u..,- '-V.

(irr Initial Decision far-fetched, outlandish or unreasonable in deriving those impressions from "Rusty/' "Show-Up, Dry Manhattan Spotty Performance and "Glasses " as respondents' own empirical evidence verified. Respondents' argument that the advertisements only communicated that Dry Ban was a clear, clean product" and an alternative to the opaque and oily" competitive product (memorandum of Bristol-Myers pp. 8-37) is rejected. True, this communication may have been in the commercial but the commercials had the capacity to convey several representations to the public. Such is often the case as the Commission recognized in Firestone. Advertisements which are capable of two or more meanings, one of which is deceptive, are false and misleading. Rhodes Pharmacal Co. v. Federal Trade Commission 208 F.2d 382 :J87 (7th Cir. 953), modified by reinstating Commission s order, 348 U, 940; Giant Food, Inc. v. Federal Trade Commission 322 F.2d 977, 981 (D. C, Cir. 1963), ceri. dismissed 376 U.S. 967 (1964), Such advertisements are construed against the advertiser. Murray Space Shoe Corporation v. Federal Trade Commission 304 F.2d 270 (2d Cir, 1962); United States v. 95 Barrels of Vinegar 265 U.S. 438, 44:J (1924), There is no question whatever, based on the commercials themselves, that they had the tendency and capacity to convey, and conveyed, the representations alleged in the complaint. A tendency and capacity to deceive, of' course, are all that is necessary for a violation. Charles of the Ritz Dist. Corp. v, Federal Trade Commission 143 F.2d 676, 680 (2d Cir, 1944); S, Retail Credit Ass n. v. Federal Trade Commission, 300 2d 212, 221 (4th Cir. 1962). The representations are so plainly in the commercials that there is little need to invoke an additional principle applicable to their interpretation, i, , that in deciding whether advertisements are or may be deceptive the Commission must look to the gullible and credulous rather than to the cautious and knowledgeable. Charles of the Ritz Disi. Corp. v. Federal Trade Commission supra; Exposition Press, Inc. v. Federal Trade Commission, supra. As the findings set out hitherto disclose, however, it is not necessary to rest upon an examination of the commercials themselves. Contemporaneous consumer surveys and research conducted at the instance of respondents themselves, already reviewed in detail, reveal that Rusty, Show-Up, Dry Manhattan Spotty Performance " and Glasses" in fact communicated the representations alleged. Respondents, however, object to consideration of these research reports in deciding this proceeding (memorandum of Bristol-Myers, pp. 48-72; of Ogilvy & Mather, pp. 6- 10). Bristol-Myers contends that the reports do not establish the "meaning alleged " that the persons interviewed and the design of the studies made them non-representative, that the reports lacked any foundation proving trustworthiness, and that they , jj , 726 FI'DERAL TRADE COMMISSION DECISIONS Initial Decision RS F.

do not meet the established legal standard for probative evidence. Ogilvy & Mather contends that the surveys "fall far short of the legal requirements for their admission as to the truth of their contents." In the opinion of the undersigned these contentions lack substance. The research reports are respondents' own contemporaneous records. Respondents prepared "Husty, Show-Up, Dry Manhattan Spotty Performance " and "Glasses" and evaluated them by determining consumer reaction on seeing; them. As set out in prior findings reputablc, long established research organizations well-known in the advertising industry were engaged to conduct the surveys. They were supervised closely by Ogilvy & Mather, and the results were analyzed and organized by that firm s research department. As extensive earlier discussion reveals, there was constant communication arid consultation relating to the research between Ogilvy & Mather and Bristol-Myers during the conduct thereof which extended over a substantial period of time. The research was of a type routinely utilized in the advertising industry to evaluate advertising contemplated or in use. Respondent Bristol-Myers not only was completely familiar with the techniques employed, but took an active role in planning and supervising the entire project.

Respondents themselves plainly regarded the consumer surveys as the so-accurate and reliable for charting business courses. Indeed, called REAP (Ostberg) tests were developed by respondent Ogilvy & Mather (Sapirstein, Tr. 65:3), and Bristol-Myers "felt very strongly that the "forced exposure" mobile van technique should be used (Ostberg, Tr. 144). See also Schrader, Tr. 231, 249. And respondents relied on the research as the record discloses. The letter earlier quoted (see prior proposed finding 46) from Ogilvy & Mather to Bristol-Myers and "Your(CX 61) reporting on the Schrader "van" tests of Glasses" Move" stated that based on Uthis morning s mecting," which discussed :30 until the foreg;doing tests it was decided to go national with 'Glasscs In the research we have the results of the (m-air and RE.A.P. tests." report of Dec. 5, 1969, Ogilvy & Mather advised Bristol-Myers of the results of REAP testing of "Glasses" and uYour Movc Glasses " is the most effective commercial compared to " Rusty" and "Your Move." Not only is "Glasses" a powerful execution in terms of persuasion but it also communicates the new BAN strategy - "Ban is dry" (CX 60(9)). Broadcasting of "Rusty" was terminated on December 24, 1969 Your Move" was never utilized (CX 81 , 82), and "Glasses" was broadcast for nine months thereafter until Sept. 11 , 1970. The fact that the surveys were not conducted with the precision of a scientific expcriment, and are not properly projectable to the entire population of the nation does not render them inadmissible and unusable. Examination of the research reports and the testimony 688 Initial Decision surrounding them confirms their reliabilty. Hundreds of consumers were interviewed in a variety of shopping centers and over the telephone in divcrse geographic areas. In only five research reports evaluating "Rusty, Glasses " and "Your Move " over 700 persons were interviewed (CX 56-61). These are not insignificant numbers. Although the persons interviewed were possibly not completely representative of the total television audience, they were clearly representative of very large segments of that audience. Certainly the results are not limited to the persons interviewed, and canbc projected to a suhstantial portion of the viewing public. That is all that is necessary for purposes of this proceeding. The fact that none of the members of the public who were interviewed, and none of the intcrviewers were called as witnesses, does not disqualify the research reports from consideration or connote a failure to establish trustworthiness (memorandum of Bristol-Myers, pp, 68-64). Again, these were respondents' own studies and nothing indicates un reliabilty. Indeed the circumstantial guarantees of trustworthiness are of a high order contrary to respondents' contentions. The very magnitude of the research, performed in the absence of any factors tending to tilt the results one way or another, is in itself convincing of the reliability of the surveys, aside from other considerations mentioned herein. . Hundreds of "verbatims" are involved eliminating the significance of conceivable inaccuracies in reporting individual "verbatim" comments. The research reports are not unreliable because the techniques used particularly in the so-called "forced exposure" (mobile van tests), did not reflect true television viewing in the home or elsewhere. In making this argument respondents suggest that, the communications rcccived from van tests are not necessarily those obtained from the challenged commercials under "real life" conditions. The fact that the mobile van forced exposure" technique is artificial in many respects does not invalidate the results insofar as the communication of ideas is concerned. Indeed, there is expert testimony that the "forced exposure" technique with immediate questioning, as in ex 61, is the best procedure to determine the ideas communicated by a commercial (Wells, Tr, 918). If the demonstrations in "Rusty, Show-Up, Dry Manhattan Spotty Performance " or "Glasses " upon being shown in a mobile van, communicated to a substantial portion of viewers that Dry Ban was dry and not wet, and left no visible residue on the body, those commercials had the tendency and capacity to communicate those representations when broadcast over commercial television. There may, of course, be fewer distractions in the mobile van, and the commercial is not imbedded in a continuous broadcast of programs and other advertising. But these factors would only bear on the attention g Initial Decision 85 F.

viewers might give respondents' commercials, not on the ability of the commercials to communicate ideas in one setting but not in another. In short, if a commercial can communicate an idea in a mobile van showing, it can communicate that idea over network television. The results obtained in the mobile van tests, moreover, were confirmed by so-called on-air" tests (see prior finding 39) where one of the challenged commercials, or a commercial containing the same demonstration, was incorporated into a program actually being broadcast (see CX 59), In sum, the research reports are trustworthy and constitute reliable probative, and substantial evidence as hitherto found. Complaint counsel seek a finding that respondents "specifically intended" to convey the representations to the public that Dry Ban was a dry spray, was not wet when applied to the body, and on application left no visible residue. Intent, of course, is not necessary for a violation. Federal Trade Commission v, Alguma Lumber Co. 291 V,S, 67, 79- (1934); Gimbel Bros., Inc, v. Federal Trade Commission 116 F.2d 578 (2d Cir. 1941); Montgomery Ward Cu. , Inc. v. Federal Trade Commission 379 F.2d 666 (7th Cir. 1967). A specific intent to convey the representations, however, would be material in at least two respects. First, it would bear on the interpretations to be placed on the commercials themselves and, second, such an intent might be a factor as to the "fencing in" required in any cease and desist order issued. Contemporary documentation relating to intent is subject to conflicting interpretations. Although, as already described, there are items which speak of communicating the "Ban is dry" strategy, there are other items indicating a purpose to communicate the "clear, clean representation in contrast to the "oily, opaque" competitive product. Ogilvy & Mather s "Ban Deodorant 1970 Marketing Plan" states (CX 86(2)):

The DRY BAN creative strategy will assume a competitive stance against other leading anti-perspirant sprays. Persuasive, new "reason why" copy wil be used to convince potential customers that DRY BAN is a superior aerosol anti-perspirant (continuing to exploit the characteristics of the clear, quick drying formula). This Marketing Plan further noted, in reviewing 1969 marketing efforts, that the original advertising strategy adopted for Dry Ban which "positioned the Brand competitively against deodorant aerosols had been subject to a "major change" which had been "implemented in mid-year" (CX 86(5-6)). The new strategy was incorporated in "Rusty, Show- Up, Dry Manhattan Spotty Performance " and "Glasses and involved (CX 86(6)):

the visual demonstration of the difference between Dry Ban s "clear, clean application appearance and the competition s "oily, opaque" appearance. In carrying out the new strategy, it was planned that Dry Ban television copy would focus on the "non-oily demonstration " (CX ::, 6RR Initial Decision 86(11)). A Nov. 1969 letter from Ogilvy & Mather to Bristol-Myers relating to "Top Line R.E.A.P. Test Results for Glasses" noted that the commercial was extremely successful in "persuading customers that the clear, clean story is meaningful" (CX 25). A number of statements in the research studies are similar. In Aug;. 1969, Ogilvy & Mather in submitting the results of a R,E.A,P, test to Bristol Myers on "Rusty" reviewed the concept behind the commercial in an "Introduction" to the study. Ogilvy & Mather stated (CX 56 (3)): Rusty :30 is the first commercial produced for BAN which is unique in utilizing a combination dernonstration and "questions" format approach to additionally communicate that BAN goes on clear while other deodorants go on "greasy." This new strategy was created with the realization (resulting from previous research) that consumers have a definite preference for a deodorant which is non-oily. A day-after-recall test of this new :30 commercial was conducted in order to ascertain primarily whether viewers did in fact notice the visual demonstration aspect of the commercial showing the added non oily benefit when using Dry BAN deodorant. The test was conducted on the July 22nd telecast of the Dori.'! Day Show in Kansas City, Denver and Hartford (emphasis in original).

Under "Conclusions" Ogilvy & Mather remarked to Bristol-Myers that Rusty" did poorly in "its primary objective, namely the communication of the visual 'greasy' demonstration" (CX 56 (5)). In Sept. 1969 Ogilvy & Mather reported to Bristol-Myers on another R.E.A,P, test of Rusty" in which it was stated that the initial advertising strategy for Dry Ban, after it was introduced in 1968, was to "communicate Dry BAN' s ability to stop perspiration wetness as well as odor " and that Rusty" was the first commercial designed (CX 57 (2)): * * * to communicate that BAN goes on clear while other anti-perspirants go on greasy.

Ogilvy & Mather noted that:

This new strategy was created with the realization (based on previous research) that consumers have a definite preference for an anti-perspirant that is non-greasy and that this "demonstration" is effective in communicating BAN's superiority in this area. In Mar, 1970 Ogilvy & Mather again noted (CX 71 (3)): Glasses" :30 Your Move" :30 and "Spokeswoman" :30 were the first three DRY BAN "Demonstration " commercials which did not employ the "Questions" format. The primary objective of these executions was to communicate that BAN goes on clean and clear, while other anti-perspirant deodorants go on with an oily/opaque appearance. After E.A.P. and On Air testing the commercials, it was decided to run "Glasses. Showcase () is a pool out of the "Glasses" execution for DRY BAN. In this commercial a young couple in a jewelry store compare DRY BAN to another antiperspirant on the glass counter, i1ustrating that DRY BAN goes on clean and clear while the other anti perspirant deodorant has an oily/opaque appearance when applied. Pilot studies as early as Apr. 1969, andwell prior to the preparation and broadcasting of any of the challenged commercials (CX 82), also contained statements indicating the purpose of the commercials was to communicate to the consumer in a graphic way the clear appearance of Dry Ban in contrast to the "white and creamy" look of the competitive 5R9- 9 0 76 - 47 Initial Decision 85 F.T.C. brand (CX 75). A demonstration very similar to the one incorporated in the challenged commercials was utilized (CX 75 (24)). There are no statements indicating that the purpose of the demonstration was to represent that Dry Ban went on dry (like powder) and left no discernible or visible residue, or an attempt to find out if that message was in truth communicated. Ogilvy & Mather reported to Bristol-Myers the conclusion that (CX 7G (4)):

The demonstration communicates a product plus for Ban Anti-perspirant over Arrirl Extra Dry in terms of Ban being perceived as clearer and less greasy, which is t.ranslated by consumers into important benefits (non staining, not sticky, etc.). The demonstration should prove effective in advertising.

The questionnaire utilized in this "Communication Test of the Dry Ran Greasy' Demonstration" (CX 75 (17-22)) fails to indicate any interest in ascertaining whether the demonstration conveyed the message that Dry Ban went on dry, and left no residue (see particularly CX 75 (21)). If respondents intended to convey these representations, one would have thought that they would have been looking to see whether the demonstration in fact communicated them.

A pilot study in June 1969 "A Test of the 'Greasy' Demonstration- Dry Ban and Clear and Dry" reported that a demonstration of Dry Ban s "clear formula" versus the "creamy formula" of the leading competitive brand was highly effective in creating a "preference for the clear formula" (CX 74 (2)). Bristol-Myers was advised that the results showed that housewives "overwhelmingly selected the clear formula over the greasy formula in the demonstration." About a year later in June 1970 Ogilvy & Mather reported to Bristol-Myers (O&MRX 3 (3)):

Recent advertising for DRY RAN has emphasized the fact that the product sprays on clear. The currcntly aired commercial exccution of this strategy, "Glasses" :30, features a demonstration of DRY BAN spraying on clear while another deodorant goes on with an oily/opaque appearance.

A new st.rategy developcd for DRY BAN shifts the emphasis to the product' s quick drying property. One commercial execution of this strategy is a 60-second commercial entitled "Slow Burn." The commercial features a man eating breakfast with his arms extended because his deodorant would not dry. The demonstration segment of the commercial shows BAN and another anti-perspirant being sprayed on the back of a man hand. Time lapse photography shows how BAN is dry in three minutes while the other anti-perspirant is stil wet onc half-hour later. In contrast to the foregoing, however, complaint counsel point to documentation' examples of which have been quoted earlier, where respondents have made reference to an advertising strategy to communicate "Ban is dry" (see CX 59(3), 60(3), 65(3), 67(:i), 69(:3), 90(1)), Complaint counsel also point to the fact that, as found herein respondents' research studies clearly revealed that a substantial segment of consumers who viewed the challenged commercials derived DI\.I.:l\JlrHll l" oJ '-",.

6RR Initial Decision the message that Dry Ban went on dry, and left no residue, yet respondents continued to broadcast one or more of the commercials. In resolving what appear to be conflicting indications from contemporaneous documents, several considerations are germane. If respondents had a specific intent to misrepresent Dry Ban as dry and nonwet, it seems probable that the leading spray would have been shown to be wetter and runnier than it was. Furthermore, the questions used to elicit reactions of members of the public to the commercials were open-ended " that is, they were general, allowing members of the public to extemporize their understanding of the commercial (Ostberg, Tr. 105; Wells, Tr. 922-25). Example: What ideas about BAN were brought out in the commercial? The questions plainly did not indicate a search to discover whether the person interviewed received the message that Dry Ban went on dry, left no residue, etc. (see CX 4. (17-18), CX 47(38-39), CX 56(29), CX 58(21), CX 59(25), CX 60(37- 46), CX 61(12-14)). Again, if there had been a specific intention to communicate the foregoing representations, one would have thought that respondents would have specifically sought to determine the effectiveness of the commercials in that respect. Statements in contemporaneous documentation that the advertising purpose of "Rusty, Show-Up, Dry Manhattan Spotty Performance " and "Glasses " was to "communicate the BAN is dry strategy (e. CX 59(3)), in the opinion of the undersigned, reveal negligence carelessness, and lack of judgment in use of the word "dry" rather than a specific and calculated intent to mislead. For example, the "codes (see Ostberg, Tr. 105-140) used to organize the interviews of consumers who saw one or another of the challenged commercials in mobile vans or "on-air " and to group the messages and communications they received from such commercials, incorporated a number of different and sometimes incompatible ideas under the concept "dry" (CX 59 (13 16), CX 60(18 21)). Thus, under "Ban is Dry (Net)" in Tahle 3 of the report to Bristol-Myers on the consumer testing of "Glasses" and "Your Move" appear, among other communications, UProtects Clothes" and Doesn t smear/isn t sticky, messy" (CX 59(13)). Similarly, in an evaluation of "Spokeswoman " the Ostberg organization under " Ban is Drier (Net)" grouped the communications "Ban is clean, leaves no film is clean Ban is not sticky, messy, Ban does not run, is not watery, Ban dries faster " as well as "Sprays on dry, goes on dry" and "Ban is drier (general), dry Ban" (CX 66(12)).

I nasmuch as "codes" are developed in conducting surveys of consumers to determine the effectiveness of advertisements and are based on the objectives of the advertising (Ostberg, Tr. 106- , 168-69), a specific and calculated intention on the part of respondents to convey 7:J2 FEDERAL TRADE COMMISSION DECISIONS Initial Decision H5 F.T.

to the public that Dry Ban went on dry and left no residue is not clearly apparent. Accordingly, the undersigned, in weighting these various indications and items of evidence, concludes that respondents in disseminating "Rusty, Show-Up, Dry Manhattan Spotty Performance " and "Glasses " did not possess a specific intent to represent that "Dry Ban is superior to competing anti-perspirant sprays because it is a dry spray that is not wet when applied to the body and because it leaves no visible residue when applied to the body. As previously found, however, there is no question that the commercials in fact had the tendency and capacity to make, and made those representations.

Moreover, from the consumer research conducted by them, as found respondents knew, or should have known, that a substantial portion of the viewing public interpreted the challenged commercials as conveying those representations. The many "verbatim" responses quoted earlier herein, and the great number in the record are very clear in this respect. The comment of Dr. Wells on this aspect is telling: If I saw this kind of result coming up in a copy test, I would be immediately alerted to the possibility that the consumer was getting a message which I did not intend to project if indeed I did not intend to project the message that the product sprays on dry (Tr. 1404). If respondents did not know from the consumer research studies that the challenged advertisements were conveying the questioned representations to the public, they should have known that fact. The research reports not only summarized the ideas communicated by the commercials to the members of the public who received them, and who were interviewed, but contained the "verbatim" comments of members of the public surveyed (CX 59(18-22), CX 60(48-67), CX 67(23-35)), Complaint counsel, as noted, point out that respondents continued the dissemination of the commercials even though the consumer research demonstrated th t they were communicating false, misleading and deceptive representations as to the physical characteristics and product features of Dry Ban. Complaint counsel contend that this circumstance establishes a specific intent to mislead. Although this is an argument of some cogency, the undersigned is not prepared to go that far, but rests on this issue with the finding that respondents knew or should have known that the challenged commercials had the tendency and capacity to mislead and deceive, and misled and deceived a substantial portion of the viewing public. Negligence, carelessness, or lack of judgment, or even culpable Jack of concern in the use of words and in the interpretation of the research, however reprehensible, is not the equivalent of a calculated, specific intent to mislead. Ogilvy & Mather argue that the advertising has been terminated and no order is required (Answer and Memorandum, p. 4). Cessation of the practices, of course, does not mean that no order is necessary, because BRISTOL-MYERS CO., ET AI.. 733 688 Initial Decision the Commission is responsible not only for ending unlawful activities but for ensuring that they wil not he resumed in other forms or with respect to other products. Federal Trade Commission v. Ru,beroid, 343 S. 470 (1952); Spencer Gifts, Inc. v. Federal Trade Commission, 302 2d 267 (3rd Cir. 1962); Guz1:ak v. Federal Trade Commission, 361 2d 700 (8th Cir. 1966), cert. dem:ed 885 U.S. 1007 (1967). The complaint did not specifically allege that Ogilvy & Mather was in substantial competition in commerce with individuals, firms and corporations engaged in the promotion and sale of spray anti-perspirants of the same general kind as Dry Ban." This is a technical defect of no substance. The allegation was implicit in the complaint as a whole and, was, in any event, tried in this proceeding; there is no question that Ogilvy & Mather understood the issues and had full opportunity to defend. Golden Grain Macaroni Co. v. Federal Trade Commission 472 2d 882 (9th Cir. 1972), cert. denied May 29 1973 412 U,S. 918. CONCLUSIONS (1) The Dry Ban commercials "Rusty, Show-Up, Dry Manhattan Spotty Performance " and "Glasses " had the tendency and capacity to convey, and conveyed, materially false, misleading and deceptive representations concerning the physical characteristics and product features of Dry Ban spray anti-perspirant, and were therefore false misleading, and deceptive, (2) Respondents knew or should have known when they disseminated the Dry Ban commercials "Rusty, Show-Up, Dry Manhattan Spotty Performance " and "Glasses " that those commercials had the tendency and capacity to convey, and conveyed, materially false misleading, and deceptive representations concerning the physical characteristics and product features of Dry Ban spray anti perspirant and were therefore false, misleading and deceptive. (3) The dissemination by respondents Bristol-Myers and Ogilvy & Mather in commerce of the false, misleading, and deceptive commercials "Rusty, Show-Up, Dry Manhattan/' USpotty Performance and "Glasses " had the tendency and capacity to mislead and deceive a substantial portion of the purchasing public into the erroneous and mistaken belief that the representations in them were true, and into the purchase of substantial quantities of Bristol-Myers' Dry Ban spray anti-perspirant because of such erroneous and mistaken belief. (4) The acts and practices of respondents Bristol-Myers and Ogilvy & Mather, as alleged in the complaint and as found herein, were to the prejudice and injury of the public and of their competitors, and constituted unfair and deceptive acts and practices, and unfair methods Initial Decision B:') F.T.C. of competition in commerce, in violation of Section 5 of the Federal Trade Commission Act.

Relief Part I of the order issued herein prohibits each of respondents from advertising "Dry Ban spray anti-perspirant or any other product" in commerce "by presenting evidence, including tests, experiments or demonstrations or parts thereof" as actual proof of any fact or product feature that is material to inducing the sale of such product, or of such product' s superiority over brands in competition therewith, which evidence does not actually prove "such fact, product feature or product superiority." This order is the same as to respondent Bristol-Myers as the notice order.

With respect to Ogilvy & Mather, however, the notice order would have applied to Dry Ban spray anti-perspirant or any other "antiperspirant or deodorant " whereas part I of the order issued herein applies the same coverage to Ogilvy & Mather as applied to Bristol- Myers viz. Dry Ban spray anti-perspirant "or any other product" in commerce. In other words, part I of the order represents sibTJificantly broader product coverage as to Ogilvy & Mather than contained in the notice order. Although, of course, respondents do not agree to the entry of any order in this proceeding, they object, if any order is to be entered, to broad product coverage.

Bristol-Myers argues that its divisions and subsidiaries manufacture over 283 different items and that corporate management "exercised no control over the advertising decisions with respect to at least the products of the Products Division" (memorandum of Bristol-Myers in Reply, p. 34). Further, Bristol-Myers contends that an order applicable to all its products would be "punitive " would subject Bristol-Myers to restraint "more rigorous than any which has been imposed upon an advertiser in any litigated case," and would impose on it the burden of making compliance reports for all of its advertisements for all 283 products. Bristol-Myers further contends that the order is vague, and that it wil be impossible in the future to determine what conduct would constitute a violation.

The circumstance that Bristol-Myers is a very large company with a products number of (livisions and subsidiaries, and hundreds of provides little reason for limited product coverage. Corporate manage ment at the "top" has an obligation and a responsibilty to police the company s promotional and advertising practices. Indeed, the size and importance of Bristol-Myers, and the fact that it engages in advertising of great magnitude to the extent of approximately $225 000 000 annually, using local, regional, and national media, would seem in view I:HU::TUL-lV y t' K:: l K1' At..

6HR Initial Decision of thc present record to point to the urgency of careful "fencing in rather than the reverse. What is involved in this proceeding is not simply a question of misrcprcsentation of the physical characteristics of Dry Ban, but an issue of responsibility and integrity in advertising. Respondents disseminated the challenged commercials over a 14-month period from July 1969 to Sept. 1970 (CX 82) at a cost of $5 800 000 (CX 81) notwithstanding information coming to them prior to and during such dissemination that substantial segments of the public were being seriously misled and deceived by the demonstrations in them. The demonstration technique used in "Rusty, Show-Up, Dry Manhattan Spotty Performance " and "Glasses" is readily adaptable to a lari(e proportion of Bristol-Myers' products, over forty (40) of which are advertised over television (CX 84), and 90 percent are advertised in some medium (Edmondson, Tr. 1629). It is unreasonable to require the public to undertake the high costs of investii(ation and adjudication repeatedly against a respondent. If the order herein is limited to Dry Ban spray anti-perspirant and other anti-perspirants and deodorants future Commission proceedings may have to be undertaken to end violations similar to the one here in issue. Respondent has no right to insist that the public bear this risk. There is no necessary assumption in this viewpoint that respondent is likely to violate the law in the future only that the public is entitled to take the most effective action available to close the door to such a possibility. The Commission has a responsibility to ensure that future violations similar to those involved herein do not occur, as noted under "Discussion " and has wide discretion in fashioning a remedy to achieve that objective. Federal Trade Commission v. Ruber01:d Co. supra 343 U. S. at 473; Federal Trade Commission v. National Lead Co. 352 U.S. 419, 428-430 (1957). The authority of the Commission to issue an order applicable to all products of a respondent is clear. Nires/c Industries, Inc. v. Pederal Trade Commission 278 F.2d 337 , 342-:J43 (7th Cir. 1960), rehearing denied June 8, 1960 cert. denied 364 U. S. 88:J; Benrus Walch Company v. Federal Trade Cmnmission 352 F.2d 313 , 324 (8th Cir. 1965), cert. denied 384 U. S. 939 (1966); Western Radio Corp. v. Federal Trade Commission :J39 F.2d 937, 940 (7th Cir. 1964), cert. denied 381 U. 938; Carler Products, Inc. v. Federal Trade Commission 32:J F.2d 523 5:J2-:J3 (5th Cir. 196:J); Consumer Sales Corp. v. Federal Trade Commission 198 F.2d 404 (2nd Cir. 1952); Firestone Tire Rubber Company, (affd 481 F.2d 246 (6th Cir. 1973) (cert. denied 414 U. I1I2, (I97:J)), CCfI 1973 Trade Cases, Vol 5, \194 581. In the latter case the Court of Appeals affirmed the order of the Commission prohibiting the misrepresentation of quality control or inspection procedures in the marketing of tires "or any other product." Although there are decisions , 7:6 FEDERAL TRADE COMMISSION DECISIONS Initial Decision 85 F.T. which have limited broad product coverage, they have done so on the conclusion that the broad coverage bore no reasonable relation to the violation found. , A1'nerican Home Product,,; Corp. v. Federal Trade Commission 402 F.2d 232 (6th Cir. 1968).

Part I of the order herein, in the judgment of the undersigned, is necessary, appropriate and reasonably related to the violation. Indeed the case most nearly like this one involved a broad product order which was sustained by the Supreme Court. Federal Trade Cornrm:ssion Colgate-Palmolive Co. 62 F. C. 1269 (1963). In that case the Commission remarked, in refusing to issue an order with narrow limited product coverage (62 F. C, at 1276): We consider, finally, the questions of (1) the applicability of the "demonstration" part of the order to all products advertised by Colgate. * * * The Court of Appeals recognized, without deciding, that if a certain type of advertising demonstration is unlawful it might be appropriate * "' * to enter a broad order forbidding aU such demonstrations en masse." We think that the entry here of such a broad order is not only appropriate but, in the circumstances presented, our duty to the public and honest competitors under the Federal Trade Commission Act. It would be less that! adequate protection of consumers and competitors to enjoin the use of this unfair method of competition (i. sham "demonstrations" that actually demonstrate or prove nothing) only insofar as it could be used in advertising one product, but not others. Respondents having been found to have engaged in that unlawful practice, the Commission was obliged to order them to stop it once and for all. If the function and purpose of a cease and desist order here are to halt respondents' unfair method of advertising, it would make no sense for the order to forbid them to stage spurious television demonstrations in advertising shaving cream, but to allow them to continue the practice in advertising toothpaste or soap. The Supreme Court affirmed the Commission order noting that "the courts wil not interfere except where the remedy selected has no reasonable relation to the unlawful practices found to exist." Federal Trade Commission v. Colgate-Palmolive 380 U.S. 374, 394 (1965), The argument that the terminology of Part I is vague, and fails to delineate clearly what advertising may constitute a violation of the order, is rejected. In Colgate the Supreme Court considered a similar claim, and rejected it noting (380 U.S, at 393): The crucial terms of the present order- test, experiment or demonstration represented* * * as actual proof of a claim are as specific as the circumstances wil permit. If respondents in their subsequent commercials attempt to come as close to the line of misrepresentation as the Commission s order permits, they may without specifically intending to do so cross into the area proscribed by this order. However, it does'not seem " unfair to require that one who deliberately goes perilously close to an area of proscribed conduct shall take the risk that he may cross the line. The phrase in Part I "that is material to inducing the sale of such product" was included in the notice order, and has not been omitted here despite the urging of complaint counsel. It is true that the Commission may infer materiality of a representation. Pederal Trade Commission v, Raladam 316 U.S. 149 (1942). Nevertheless, the 688 Initial Decision foregoing language in the order is not mere "surplusage." As counsel for respondent Bristol-Myers states, a "representation that is not material is not an ilegal one." Also, the word "experiments" found in the notice order has been retained. Complaint cO\lnsel would substitute studies." The thmst of Part I of the order, which was derived from the allegations of the complaint, is to prohibit the presentation of evidence which "invites the viewer to rely on his own perception for demonstrative proof of the claim" as the Co\lrt observed in Colgate, supra, 380 S. at 393. "Experiments" is tailored to that concept, as the notice order recognized, whereas "studies" would extend the order far beyond that concept. "Demonstration" and "experiment " are not precisely synonymous, in the opinion of the undersigned, so there is no redundancy, What has already been said applies in essentials to Ogilvy & Mather. It is true, as counsel for that firm emphasize, that Ogilvy & Mather has no history of law violations, As has been found, Ogilvy & Mather was an active participant in the preparation of the commercials, and knew or should have known that the commercials had the tendency and capacity to communicate false, misleading, and deceptive representav. Federal Trade tions, Doherty, Clifford, Steers Shenfietd, Inc" Commission 392 F.2d 921 (1968); 11'1' Continental Baking Company, Inc" Docket 8860, Order and Opinion of Oct. 19, 1973 (83 F. C. 865). Ogilvy & Mather, moreover, was in a unique position to terminate the false, misleading and deceptive commercials utilzed in this proceeding. Prior findings make this circumstance very clear. When the results of the consumer surveys were under analysis, and reports were being prepared for respondent Bristol-Myers, Ogilvy & Mather knew or should have known that substantial numbers of the persons tested received a false, misleading, and deceptive message. Ogilvy & Mather nevertheless, failed to take any action whatever to discontinue dissemination of the advertising. The technique of a demonstration utilzed in the challenged commercials, moreover, plainly is not unique to Dry Ban, but may be employed in the promotion of many different products. Under the circumstances there is nothing inappropriate in the application of a broad order to respondent Ogilvy & Mather, as was done in Colgate with respect to the advertising firm there involved. As made abundantly clear herein, the challenged commercials misrepresented the physical characteristics and attributes of Dry Ban, An order provision prohibiting such misrepresentations in the future is therefore necessary in the public interest. The complaint in this proceeding is very similar to that issued in Colgate 59 F. C. 1452 (1961), and there an order provision enjoining future misrepresentations was issued. 62 F, C. 1269 (1963), 7:H FF;DERAL TRADE COMMISSION DECISIONS Initial Decision 85 F.

The more limited product coverage in Part II applicable to Bristol- Myers, that is, Dry Ban spray anti-perspirant or any other product applied to the body," and applicahle to Ogilvy & Mather, Dry Ban spray anti-perspirant "or any other anti-perspirant or deodorant" is tailored to the misrepresentations in both instances. Although the language of any order may be susceptible to difficulty in interpretation the terminology "applied to the body" is as precise as circumstances permit, In C algate the Commission regretted issuing originally a very narrow order relating to misrepresentation remarking (62 F. C. 1277): In respect to the prohibition against misrepresentation of the quality or merits of products, our previolls order was narrowly limited to Rapid Shave and other shaving creams. In view of our findings as to respondents' misrepresentations in that regard, as well as the fact that respondents are already subject to a number of out.standing orders and stipulations containing similar prohibitions with respect to other products, the Commission would be amply justified in extending the prohibition against such misrepresentations to all products similarly advertised by respondents. However, since our earlier order, though perhaps overly generous to respondents, has in this regard been reviewed and sustained by the Court of Appeals, we wil not disturb the limitation to Rapid Shave or other shaving creams.

The order herein avoids the extreme narrowness of the original Colgate order, yet as to misrepresentation would not encompass every Bristol- Myers product. It is even more narrow with respect to Ogilvy & Mather. Admittedly, a degree of discretion and judgment is involved. There are differences in presenting a demonstration, or the like, as actual proof of something it does not in fact prove, and misrepresenting the physical characteristics or other features of a product. In the opinion of the undersigned the product coverage of Part II of the order is also appropriate, necessary, and reasonably related to the violation found.

The order issued herein is fully justified on the ba"is of the facts brought out in this proceeding. Additional support for it with respect to Bristol-Myers, however, may be found in the past record of that , Bristol-Myers is norespondcnt. As complaint counsel emphasize stranger to Federal Trade Commission proceedings. Bristol-Myers has been the recipient of three (a) prior litigated cease and desist orders involving false and deceptive advertising, has entered into six (6) prior stipulations and one (1) consent settement relating to the advertising of seven different products, and was the subject of a relatively recent decision by the Commission that a finding of false and misleading on the record advertising of an analgesic drug was "supportable" although no order was entered. Orders: 36 F. C. 707 (1943), order prohibiting misrepresentation of the therapeutic effect of a laxative; 46 C. 162 (1949), order prohibiting misrepresentation of the results of a survey of dentists regarding the use and recommendations for Ipana toothpaste and claims of therapeutic value of that toothpaste; 71 F. 6RR Initial Decision 822 (1967), offd in part, 418 F.2d 489 (5th Cir. 1969), prohibiting misrepresentation of the therapeutic effect of hemorrhoid preparations; Stiputations: 24 F. C. 1546 (1937), relating to health claims for Vitalis;" 24 F. C. 1554 (1937), relating to claims for Ipana toothpaste as an effective treatment for gum diseases; 24 F. C. 1558 (1937), relating to claims for "Sa1 Hepatica " a laxative, as a purge of poisonous wastes from the body, and as effective in the treatment of various maladies; 25 F. C. 1626 (1937), claims for "Minit-Rub" cold remedy; 27 F , C. 1602 (1938), relating to skin claims for "Ingram s Milkweed Cream; and 27 F. C. 1609 (1988), claims of health benefits from Ingram s Shaving Cream." In 47 F. C. 1441 (1950), a consent agrecment and order were entered requiring discontinuance of claims that j'Resistab " a cold preparation, would cure, prevent, or shorten thc duration of a common cold. In 74 F. C. 780 (1968), as stated, the Commission found a violation of Section 5 for false and deceptive advertising of an analgesic drug usupportable" on the record, but terminated the proceedings without an order. Bristol-Myers objects to consideration of past orders and stipulations based on consent rather than "full evidentiary adjudication " and notes that settlements are often entered into for extraneous reasons, to avoid expense, publicity, etc. Bristol-Myers further argues that, even if considered, past orders and stipulations entered against it or involving it are relatively insignificant when viewed against its background of selling 283 different products through seven separate divisions with advertising expenditures of $225 millon annually, and extensive marketing and advertising activities extending over many years since the 1930' These objections, however, are not well taken. The foregoing record of Bristol-Myers is not de rninirnis or one of "ridiculous insignificance , p. 3).(Supplemental Memorandum of Bristol-Myers of Oct. 29, 1973 The past record of a respondent is relevant to consideration of the order to be entered. Consent orders have consistently been considered by the Commission in weighing the scope or propriety of orders to be issued in particular cases. 11'1' Continental Baking Company, Docket 8860, Order and Opinion of Oct. 19, 1973 (supra); Cotgate-Palmolive supra 62 FTC at 1277. In the former case, in ruling on the objection of Ted Bates & Co. , Inc., to broad product coverage, the Commission remarked that jjBates is already subject to a series of cease and desist orders entered both after litigation and on consent based on challenges to advertising in which it participated as illegal under Section 5 of the F . C. Act." The Commission then cited four consent orders. In Colgnte the Commission in deciding the scope of product coverage noted that respondents are already subject to a number of outstanding orders Initial Decision R5 F.

and stipulations containing similar prohibitions with respect to other products." Two consent orders and two stipulations were then cited. It is well established that past violations have a bearing on the remedy to be invoked. In addition to the foregoing 11'1' Continental and Colgate cases, the Commission considered past orders in the recent Firestone proceeding. There the Commission specifically stated (CCH Trade Reg. Rep., 1970-73 Transfer Binder at pp, 22084-85 (supraj): Past conduct, in fact, must determine to some extent what the proper scope of relief should be.

As stated, Bristol-Myers has been the subject of three (3) past litigated orders and a fourth litigated matter where the Commission found an order "supportable" on the record, but did not issue it because to do so would give rise to certain questions relating to asserted geficiencies in the pleadings "which it would serve no further purpose to litigate " and on the hope that Bristol-Myers would "comply with the full requirements of the law and not again disseminate advertising of this character that may be misleading to the consuming public " 74 F. C. at 855, In view of this record the statement of the Court of Appeals in Carter Products, supra rejecting an objection that a broad order should not have been entered by the Commission is material (323 F. at 532):

Twice before this suit, Carter has litigated orders dealing with similar offenses. In Federal 1'radeCornmission v. Natiorwl Lead Co., supra 352 D.S, at 429, the Supreme Court in deciding the propriety of a Commission order, affirmed it as having a "reasonable relation the unlawful practices found to exist." Three reasons were cited including the fact that National Lead "had been previously adjudged a violator of the antitrust laws." The past record of respondent Bristol-Myers, therefore, may properly be considered in determining the order to be entered herein, and the undersigned has considered that record as additional justification for the order issued. ORDER It is ordered That respondent Bristol-Myers Company, a corporation and Ogilvy & Mather, Inc., a corporation, their successors and assigns and respondents ' officers, representatives, agents and employees directly or through any corporation, subsidiary, division or other device, in connection with the advertising, offering for sale, sale or distribution of Dry Ban spray anti-perspirant or any other product in commerce, as "commerce" is defined in the Federal Trade Commission Act, forthwith cease and desist from:

Advertising any such product by presenting evidence, including BRISTOL-MYERS CO., ET AL. 741 68R Opinion tests, experiments or demonstrations or parts thereof, that is presented as actual proof (a) of any fact or product feature that is material to inducing the sale of such product, or (b) of such product' superiority over brands in competition with such product, but which evidence does not actually prove such fact, product feature or product superiority.

It is ordered That respondent Bristol-Myers Company, a corporation its successors and assigns, and respondent's officers, representatives agents and employees, directly or through any corporation, subsidiary, division or other device, in connection with the advertising, off ring for sale, sale or distribution of Dry Ban spray anti-perspirant or any other product applied to the body, in commerce, as "commerce" is defined in the Federal Trade Commission Act, forthwith cease and desist from: Misrepresenting, directly or by implication, any physical characteristic or other feature or features of such product. It is ordered That respondent Ogilvy & Mather, Inc., a corporation its successors and assigns, and respondent's 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 Dry Ban spray anti-perspirant or any other anti-perspirant or deodorant in commerce, as "commerce" is defined in the Federal Trade Commission Act, forthwith cease and desist from: Misrepresenting, directly or by implication, any physical characteristic or other feature or features of such product. It is further ordered That respondents shall forthwith distribute a copy of this order to each of their operating divisions. It is further ordered That respondents shall notify the Commission at least thirty (30) days prior to any proposed change in the corporate respondent such as dissolution, merger, assignment or sale, resulting in the emergence of a successor corporation, the crcation or dissolution of subsidiaries or of any other changes in the corporation which may affect compliance obligations arising out of the order. OPINION OF Tile COMMISSION APRIL 22, 1975 BY HANFORD Commi sioner:

This case is before the Commission on appeal of respondents Bristol- , . . Opinion R5 F Myers and Ogilvy & Mather and the cross-appeal of complaint counsel from the initial decision issued on Nov. 28 1973 by Administrative Law Judge Daniel I.!, Hanscom. Judge Hanscom found that five television commercials which formed respondents' advertising campaign for " Dry Ran " anti-perspirant spray falsely represented that Dry Ban is a dry spray that is not wet when applied to the body, that it leaves no visible residue after application to the body, and that it is superior to competing sprays because of these characteristics. He ordered both respondents to cease advertising by presenting evidence which does not prove that which it purports to prove. He also ordered Bristol- Myers to cease misrepresenting physical attrihutes of products applied to the hody and Ogilvy & Mather to cease misrepresenting physical attributes of deodorants and anti-perspirants. Respondent Bristol-Myers, a maker of over-the-counter pharmaceuticals, cosmetics, and household products, and its advertising agency, respondent Ogilvy & Mather, developed the advertising campaign for Bristol-Myers Dry Ran " anti-perspirant which formed the basis for the complaint.' This campaign ran from, July 21 , 1969 until Sept. 11 1970.

Each of the commercials contains a humorous sequence and a demonstration in which Dry Ban is compared to a "leading spray. Judge Hanscom s findings that the commercials represented Dry Ban to be a non-wet spray leaving no residue when applied to the body were based both on the Judge s personal observation of the commercials and on his analysis of a series of test marketing reports prepared at the request of Ogilvy & Mather.

Judge Hanscom s finding that these representations were false is based primarily on an experiment which was performed by complaint counsel in his presence and replicated on videotape. In this experiment, Dry Ban was sprayed on glass and on a human forearm and was found both to be "wet, runny, liquid, and watery" and to leave an obvious residue." II Respondents, however, object to a finding of wetness based on this demonstrative evidence because of the fact that I FF' \2 411 ;'1 ,,2 1041;

, ex 111 , ex III four of the five comrnncials (" ty. Show- Up. Dry Manhattan,"' and " Spotty p"rrormanc" ). th.. mom'tratiun i id,'nticu1. Th'. demon tration in the fifth ses " io conceptually imil"r. hut differs in "xecution (FF9) Th"se ,Iemnnotrati"ns. as 1/i..,,..,j by the Al_ . tended l" how Dry Ban In b.. "clear" "",I "clean contrast.,'d with the "oily. opaque "reamy," and "whitish.. appearance of the competing!' prmluct. , 10, 14 F'12- I:J " UJ. 4!i 1 Tr. 7!JO-9(;. 114;' 4ti, ex (Phy ical Exhibit) H " FF,,2 . ,), , / ,,,). ,,, l,- Uu-'U Il.H.J VV.

6RR Opinion in the experiment the product was sprayed downward, contrary to ordinary usage.

After exhaustive review of this record, we find that it fails to establish a violation of Section 5. While it is within our purview to remand for further proceedings, we have dctcrmined instead to dismiss this complaint.

The Representation Like the administrative law judge, the Commission has viewed filmed versions of the challenged commercials." Unlike the law judge the Commission perceives them as representing only Dry Ban superior qualities of dryness as compared to a leading competitive spray, and not that respondents' product was dry by some absolute standard. Indeed, we noted that the commercials themselves show Dry Ban to be somewhat wet.lO Our viewing of the filmed versions of the commercials also fails to convince us that they contain the message that Dry Ban leaves visible residue after application to the body. Although no residue appeared in the demonstration portion of the commercials, this phase consumes but a matter of seconds. We are therefore unable to conclude from our viewing that the commercials represent that no residue or deposit wil remain when the product dries. I I Turning to the test marketing reports in thi.s record, we must dismiss any contention that the F. C. is bound to reject these consumer surveys as inadmissible hearsay.12 The Commission has on numerous occasions considered the question of the admissibilty of surveys which are obviously hearsay, and it is well settled that such surveys wil be . In delerminin the meanin of a" advertiseme"t, the Commission may rely upon its own i"hercnt expertise FTC v Colqo/" /'rJ/",,,I,,,r :'80 lJ. :n4, :J91-92 (191i:,): Firestone 'Iire & Robber Co. , HI F.'I. C. :\91', 4:,4 (1972), offrl 4101 F. 241; (with Cir. erl. dClIied 414 U.S. 1112 (197:1); Nir"..k lud'L,'r'e. , fill ". ftc, 27H F 2d :':n, :142 (7th Cir. cerl, de",er! :'li4 U. S. 1'8:, (191;0): KulwrJjly. FTC 2:17 F.2r! 6.')4, 6. 6 (7th Cir. 19:'1;), rerl. de'Hed :1:,2 U.S. 102" (191)7); it may suppl!'ment its expertise . if it so chnoses. by 'electing to adopt the results of e"nsumer surveys found to he mdhodologi"ally souml, ITT Continental Baking Co., Inc., D. RRliO (19n); irestoT\" Tire & Hubber Cn, H1 F.'I. C. ;J9H 454 (1972), offri 4HI F.2d 24(; (fth Cir. ccrl. de"ied 414 U.S, 1112 (197:\): Benrus Watch Co., Inc. 1i4 F.'I. C. IOIH, 1044 45 (191;4). affd :J!i2 1' 2d :-1:'1 (8th Cir. 19f;. ), cn/. d"lii"d :Jf\4 U.S. 9:!!j (1961;); Hhod"s Pharmacal Co.. Inc. !) F. C. 21i:J 28:'1 (19!i2), "rdrr "'"dified 20B F.2d :'182 (7th Cir, 19',:1), ",,,d'fiwli,,, "f"rdrr ,,' orr,. i"- ,,,I,'d in, :!4H U.S. 940 (19S:,): Arrow Mdal Products Corp., 5:J P. C. 721 . 727 "ffd perCllr;"", . 249 P.2d 1\1 rd Cir. 1%7). 10 See, e. thc comments ofCha;rman Engman. tra"script of oral a J;ment :'O-:J! We note. however, that the wetne, mil(ht or might not he as obvious on a t..revision screen as it was on film and that normal distraction ociated with television viewing in th.. horn.. might callse the viewer to miss the wet"". which was portrayed. It should also be noted that wv watched the comm"n.iaj,; knowing that the key issue was whether Dry Ran was representerl a being dry; lhu we were looking for wetoess. Additionally, our attention was directed to the arva of wetness by a puinter. In one "ommcn'ial Glassvs'. (CX r,), the wetness Was suffici"ntly inconspicious that a tantialnumher of consumers might reasonably be e pect"d not to notice it, The critical i s\Je here ;s not whether the Commission, under the Circumstance,;, Was misl,'d hy the cammerc\als, but wheth!' the ge"eral viewing puhlic including its credulous ;'nd gullible members, might he misled.FTC v. Slo"durd E.'d"""li"" S"cidy. :'102 U. S. 112. 111; (19:,7): Arm,h,',!! v. FTC 1:,2I' 2d wr, Hi7 (7th Cir. 1942) " We do not. how ever. reject th,' possibility that c"nsumrTS might infr from LJry Ban admitted clarity that it (\avs in f:ldtlry withnut residue "/J.,drwu/ler v. FTC 2:,5 f'2d :!44 (2nd Cir. 1951;):"IIPip' Vod,!" N,"/. C'''I'. FTC I:J!! j' 2d :\!:\ (2nd Cir. 194:J). ,. / , Opinion 85 F.

admitted for the truth of the matters asserted when it is demonstrated that they are reasonably reliable and probative." Upon thorough and independent examination of the record in this proceeding, we find that the surveys ih questioh readily meet these standards; 14 thus, they were properly admitted by the administrative law judge. Respondents contentions to the contrary are without merit. The administrative law judge examined the surveys in detail to determine whether consumers thought the challenged commercials conveyed the "dryness" and "no rcsidue" messages. He concluded that a substantial portion of lhe public" perceived lhe message that Dry Ban was dry upon application to the body.11 Our reading of the surveys differs from that of the law judge, While we agree that a substantial number of consumers surveyed (probably somewhere between 14 percent and 33 percent) understood Dry Ban to be "dry,"I' we do not agree that they meant "dry" in the sense of total non-liquidity. After a careful examination of the verbatim responses which formed the basis of the judge s findings 19 we conclude that the vast majority of these consumers intended by the word "dry" a looser, more colloquial meaning.20 We believe that most of these consumers understood the commercials' message to bc that Dry Ban was drier than the " Pilsbury Mills, Inc., 1)7 C- 1274 , \:J97 (1960); Crown ZeHeroa"h Corp., 51 F. C. \10" (19.%); 11'1' Continental Baking Co . Inc., D. IUi60 (Oct. 19, i97:J) S,' W'!I"lfJrc "" E"idc"cc 202-06 (:Ird Eel. 1940). Cf- Jill", Bwc& S'''H lllc. v. FTC 29!J F. 4fl8, 471 (2nd Cir, 1924).

,. In reaching this d...,js;un, we refergeneral1ylofindinlloffact47oflheinitialc!ccigionandgpecifical1y rely 011 the ronowingfactors;

I The thr..,- reilear..h organi?ati"ni! running the survey" were all experienced atuch takingurv, Tr. 10- 2!1- 264 :109- 13.

. 'fhe witn sses whu managed the thne research org 'nization8 , Dr. Henry O tbcrp:. Dr. !Junaid Schracler, and Mr. Chade" Rosen, were all highly "xverieneed. with "xeel1ent aead"mie eredentia! fur survey work, 'fr. 9- , 211. :101'- . Buth respondents dealt withthe e companies for year reganling this kind of work, 'fr. 14 21:\. 11), :II:\' 4. Thesurveyaapp aredtnhave been performed in the usual manner for "urveys of this type. Ii. Those comluet;ng the interviews were experienced and train, Tr. 219, 2,,7, :\27- . The sorveys employed controi. and validation procedure, 1'1'. 34 . 36, 2, , 270- , :\:10 7. While the samples were not scientifically drawn utilizinp: probahility samp!inR procedures, those interviewed prohahlyreasonahlyrepresentedthee1assofanti-perspirantusersor femaleanti-perspirant users (this differed from survey to survey), 1'r. 27-2I', 31' 247- :123-21; R. The re"eanh was condurted at the instance nf, for the benefit of, ami nfte" with the participation of both pundents, Tr. 21- . 45, 14: , 246, 314- . :121- , 326, 3:14, fish. 9. There waano incentive r"rthe research organizatinnsto be biased 10 The surveys are from independent sources and tend to rnnfirm One a another. Inadditiontothe hearsay argument, 8ri"tol- Myerseont ndsthatan insufficient foundation was laid and that the surveys were nut vrojectable to the relevant population Both of these contention go to weight rather than to admissibility and w treatthem accordinltly ' 2:\- :14, :\!J.4,'i " FF41' " The eommis"i"n expert witness, \Jr. We1\s, testified that one-quarter to one-third of consl1mers so pereeived the commerci"l.. Tr. 947. Fourteen percent "feonsumers surveyed stated that thl' mess"ge of the "Glasses" eommereial (CX .) was "Ban "prays on dry" (eX 60 (1R). " CX9!J.

," We n"te. in passing, that the word "dry," in Iteneral parlance. has more than one meaning. Thu"Web..ler s Third N"Il. clfnl;'''11/ Dirt;,"'",-y of Ih, E"flli..I, ''''!I''''!V fi91; (191;1) rll'fin s "dry"' as "' rree or relatively fre from wat.er or liquid "' :! I.HU::TUlr I:t'(:: , t'-,l f\L. 1'1;) Opini comparison product or that Dry Ban was relatively dryas compared to spray deodorants and anti-perspirants in general. The number of verbatims which we believe indicate a perception that Dry Ban was w holly lacking in liquidity in the sense litigated in this case is too few on which to base a finding that the commercials contained this message. The administrative law judge also found that "a substantial portion of the viewing public equated ' clear' and ' clean' with a representation that Dry Ban left no visible residue after application.H2' An examination of the verbatim responses shows, however, that the vast majority of those who perceived Dry Ban as "clear" or "clean" merely perceived it as clear on application, distinguishing it from the opaqueness of the competing brand. We do not believe we can infer from a consumer s use of the word "clear" in this context that he believed Dry Ban would leave no visible residue. While a few verbatims indicate a definite perception that no visible residue would be left, that figure is on the order of 2- , a percentage which we find patently insubstantial in this context. In a word, we reject the finding that the commercials promised no residue.

Proof of Falsity The theory on which this case was tried was that respondents falsely represented that Dry Ban was dry and clear and therefore superior to competing sprays when in fact the product was wet and left a visible residue after application - an absolute claim. The case was not tried on the additional theory that respondents misrepresented that Dry Ban was superior because it was drier or clearer than the leading spray depicted in the commercial - a relative claim. On the first day of the presentation of the case-in-chief, complaint counsel stated her case to be:

The charges in paragraph 5 of the complaint are that by means of a demonstration comparing Dry Ban with an unidentified spray respondents misrepresented that Dry Ban is a dry spray that is not wet when it is applied; In stating what she intended to prove, complaint counsel said that ( w Je wil then demonstrate that these representations are, in fact false in that Dry Ban is not dry at the moment it is applied, but is wet* * *"23 Believing, however, that the complaint alleged also that commercials misrepresented that Dry Ban was drier than the leading spray, counsel for Bristol-Myers requested discovery of the physical characteristics of competing sprays including the leading spray depicted in the commercials. The administrative law judge responded: (A Js I see it the issues raised by the complaint concern the quality and characteristics F 4;;.

" Tr.

, Tr.

580-7g9 0 - 76 - ';R Opinion H5 F.T.C.

of Dry Ban and whether or not the d.emonstrations described in paragraph 4 of the complaint were false and misleading or had the capacity to mislead or deceive the puhlic as to the qualities and characteristics of Dry Ban. Hence, the characteristics and qualities. . of competing spray anti-perspirants are not material to the issues raised in the complaint, and that is the position that I have formulated in my mind having given careful consideration to the depositions before we came in here today.

The law judge s perception that the case was based upon only one theory of liability remained the same throughout. (T Jhe focus of the entire proceeding is on the characteristics of Dry Ban, not the other spray I think this has come up several times previously in this proceeding. On each occasion I believe I have taken the position that the complaint relates to the charaderistics of Dry Ban and whatever was presented to the public by virtue of the Dry Ban advertising.2;' When respondents offered evidence of the physical characteristics of the leading spray depicted in the commercials (Arrid Extra Dry), complaint counsel objected. The Jaw judge again noted that: * * * the entire focus is on Dry Ban and whether it is dry or not dry or leaves a visible residue or not, nol in comparison with Arrid* * * lW Jhy obfuscate the issue or confuse the record if we re not really concerned with the charaderistics of* * * Arrid Extra Dry.2r.

Thereafter he emphasized that " I don t intend to base anything I may write on this case on the characteristics of Arrid. I do not see this as a comparativc between 'A' and ' E,' sec it as a complaint alleging that certain representations were made as to the product Dry Ban."27 As we have indicated, our view of the commercials suggests that relative rather than absolute claims were made. Evidence, however was accepted only on an absolute claim theory. Thus, to find a violation here a remand would be necessary. Such a remand would require a broad-scoped refocusing, perhaps including the additional discovery disallowed initially by the administrative law judge. In the instant case, thc public interest would be il served by such a remand. A number of factors, when taken together, lead us to this determination. Those persons affected do not constitute a particularly vulnerable group. There is no health or safety consideration which might legitimately demand further expenditurc of public funds; nor is there significant economic harm to a consumer who purchased the product and found it "less dry" than anticipated. !J The advertising in question was terminated over four years ago. There is no indication on this record .that competition was adversely affected by whatever " Preh",aringtn"'scciptatH " Tr- 1\0(;

" Tr. 1107- " Tr I\1-.

" Since", w'" do not view th", Cormn"rei b as claiming ahsolut." dryness, it. is unnce""""y ror u, to dct",rmin" the admissibil;ty or the d"lno"otration of Dry H , all", "d a1;"o lute ",,,t,,,,"" " A e n or Dry Ban retail"d ror ahaul:$1 Moreover. eVeo U",sc who hou!:hllhe prodlld for its dryn"ss would likely not find it wholly ",orthl,,", ,.

BIUSTOL-MYERS CO., ET AL. 747 688 Concurring Opinion deception might be proved on remand; nor are we dealing here with intentional wrongdoers.

In the past, when constrained by failure of proof to choose between remand and dismissal, we have not hesitated to terminate proceedings when the public intercst so required. This, we conclude, is the posture of the case before lis.

An appropriate order will be entered vacating the order issued by the administrative law judge and dismissing the complaint. Commissioner Nye not participating.

CONCURRING OPINION OF COMMISSIONER MAYO .J. THOMPSON APRIL 22, 1975 By THOMPSON Commifisioner:

If the American consumer has no more serious problem than the possibility of being deceived as to the relative "dryness" of his underarm deodorant, he is in much better shape than I had been led to suppose at the time I joined this agency.

Bristol-Myers, a manufacturer of various drug, cosmetic, and other products, introduced an underarm deodorant called 'J Dry Ban" in 1968. Competing for an overall anti-perspirant and deodorant market estimated at more than $300 million per year, respondent and its advertising agency naturally sought to develop an advertising theme or story" that would distinguish this new product from such competing deodorants as "Arrid Right Guard Secret " and others. Its principal mark of distinction, it seems--this record is silent as to whether it is better or worse than the others in doing what a deodorant is supposed to do is the fact that, because it is formulated with an alcohol rather than an oil base, it looks "clear" when sprayed on a surface rather than having the kind of "oily, opaque " or "creamy whitish") appearance that is supposed to be characteristic of those competing deodorants.' A total of five (5) commercials prepared by the company s advertising agency, Ogilvy & Mather, were broadcast on television during the 14-month period between July 21, 1969 and Sept. I I, 1970, at a total cost of $5.8 million.' The product' s sales amounted to some $7.4 million in 1969 and $7.9 million in 1970.' These advertisements, having failed to significantly increase respondent' s share of the '" I'fiz!' . Inc. HI F. C. 2:J. 7: (1972). S,' Mod"rn M"th"d . Im. 60 F. C, :jO!1 (1 !!;2). Cf. Dr. W. E. C"lfill" '1i I,,". FTC 111 F.2rl Hi'9 (7th Cir 1!J40); i'' .r/ll'"''''' I'n' "", v, C:!" 2!lii 2d I'l;!! (2nd Cir. 19!;1), r/'d fi"II;, :j71) U. !J17(J!!1;2) , Initial rlccision of the ,,,Iministrativc \3w judge (l\ov. , 197:'), l',lpp. lj92-!i!!:, hcr"in 1 '/d 'Ifi , p. , ljl";KAL l'1:AlJt. CU1VllVll::::lun Ur.l;l::JUNb Concurring Opinion R5 F.T. deodorant market-the product now has, we are told, some 1 percent of that market ' was withdrawn in Sept. 1970 and have not been used since. The Commission s complaint, issued on Sept. 12 , 1972, alleged that these 5 TV commercials falsely and deceptively represented to consumers that "Dry Ban" is (1) a "dry" spray, one that is "not wet" when applied to the body, and that it (2) leaves no "visible residue when applied to the body, "In truth and in fact " the complaint alleged: 1. Dry Ban is not a dry spray and it is wet when applied to the body, and 2, After application to the body, Dry Ban dries out leaving a visible residue. The evidence offered by complaint counsel in support of this alleged deception is in three parts, (a) the 5 advertisements themselves; (b) a series of test reports prepared by certain marketing research organizations at the request of respondent's advertising agency, Ogilvy & Mather; and (c) a demonstration of the product's actual use in the hearing room and as prerecorded on videotape. From the fifst we learn what the ads said (and showed); from the second we learn, according to complaint counsel, what the ads meant to the consuming public; and from the last we learn that the product is "wet runny, watery," and leaves an "obvious residue."6 There is, as discussed below, only a minor evidentiary dispute on the first point. The advertisements in question focus on a purported demonstration of the relative merits of "Dry Ban " on the one hand versus a "leading" brand (unidentified) of anti-perspirant spray, on the other. In one sequence, the two products are sprayed on adjacent surfaces to the accompaniment of an announcer s voice saying, "the leading spray goes on like this" and "Dry Ban goes on like this." The area sprayed with the "leading" brand appears in the fim as a "whitish creamy, and thick deposit " while the area sprayed with "Dry Ban " is shown as an "apparently clear and dry area.* * *"8 A finger is pictured running through the two areas, the former appearing "thick and wet" while the other shows "no apparent effect, or one so slight as to probably escape notice. The announcer states Which do you prefer?' A close-up of a can of Dry Ban is then shown and the label 'Dry Ban virtually fils the television screen. Each commercial concludes with a sccne of the characters shown initially singing or stating, 'How dry I am.' "9 The second sequence, one used in a commercial called "Glasses involves a scene with two girls and a man in an elevator. The two girls . Tran criptoforalargument(Apr. lfi4), , Complaint (Sept. 12 1911). parag;raph " and Ii :J (I'. 690 hereina. " Initial rleeioion ",'pra 4:j(p.723 herein J. 1 The films or them'" TV commercial are included in the Teconl ao ex 1- ;' ami wer" viewed . a n"te,l, by both the law judgea",1 theCommisoiun 'Initialdecision ""I''' C,lp. li94 h..n'i '/d. pC,lp. C,!M h"reinJ.

,pp.pp.j , (i88 Concurring Opinion are discussing their respective anti-perspirant sprays, both claiming theirs "helps keep you dry." One of the girls, to prove that hers is better rcaches up and takes off the man s glasses, to his surprise, and sprays the first gir s anti-perspirant on one of the lenses saying, jYours goes on * * * like this.' A whitish, creamy, andthick deposit is shown covering most of the lens where the 'leading anti-perspirant' has been sprayed. The second girl then sprays Dry Ban on the other lens saying, My Dry Ban goes on. . . like this.' The camera shows a close-up of the lens where Dry Ban has been sprayed revealing it to be clear and apparently dry, without a visible deposit. The first girl then says * * * hmm * * * I see the difference.' "10 The learned Jaw judge found from these commercials that they "all collectively had the tendency and capacity to represent to the viewing public that Dry Ban was dry, went on dry and left no discernihle or visible residue on application, and that a real demonstration was taking place actually proving those characteristics, and the superiority of Dry Ban because of them." 11 Considerable emphasis was placed here on a series of test marketing reports received in evidence and involving, to use one example, the technique of asking a group of shoppers in a shopping center to view the ads on videotape (a mobile "van" was taken to the shopping center and used as a studio) and then respond to a series of questions designed to find out what "message" those viewers got from the commercials. The message received, according to these test reports, was that "Dry Ban" was "clear and dry" while the competing products were "creamy" and Hgreasy." 12 Having learned from these marketing research reports "that a substantial portion of the viewing public interpreted the challenged commercials as conveying those (false J representations " and having nonetheless continued to run those ads, respondents should not be heard to argue, in the law judge s view, that they really meant something else. The judge s findings on the actual characteristics of the product involved here are persuasive enough i.e. live comparative demonstration in which Dry Ban and an oil base competing spray antiperspirant are sprayed in juxtaposition results in the perception of Dry Ban as watery, wet, and runny."" And his finding that these characteristics are equally apparent in uncut and continuous videotape presentations are, in our view, also adequately supported. IS His further finding that the commercials themselves fail to reveal these features of '"ld_ 9Ip. n98 hereina "Id.

"Jd 1241 Ipp. 700-721 hereinj.

"fd. 41-:,6Ipp. 722-7:!3, 1",reinJ, partieularlyp. !j!jlp. 7:!Z, hereinl "ld. l1IpC,9!J hereiTJI A videotape how;ng the "praying or Dry Ban on fiat gl,, s and the rorearm of a per,on, alll the results therearter c"ntinuous\y OVH " five (:,) minult. period (tr. 790- 9fi), was inlrodnred into the r"cord hyeomplaintcouns('! (r,,,'i,,, . ,, p_ , Cuncurring Opinion Hi) 1".'1. the product, however, rests on a much shakier foundation. In the film clips shown to thc Commisgion on oral argument, for example pools or puddles of liquid were readily visible and indeed appeared to have been rnphasized in those ads by the action of the moving finger as it pushed through thc areas spraycd with "Dry Ran." 16 Even if one assumes-as complaint counsel argue-that this liquid is considerably less apparent to the viewer on the hom, TV screen than on the larger projection equipment used in our hearing room,11 it is hard to believe that an advertiser who was really intent on convincing a TV audience of the non-liquid character of his product would be unable to make a better showing of "dryness" than this.

Indeed, the learned law judge had similar problems with the purpose of the ads before him. On the one hand, he thought respondents had used the TV medium precisely because of its capacity to make the wet appear dry.lM On the other hand, however, he declined to make a finding, as urged by complaint counsel, that respondents had shown a specific intent" to deceive the public. First, a series of internal documents on the "dryness" issue I! prepared by the advertising agency or its researchers suggested that the ads were designed to convince the viewer that the product was "clear" and "clean " only, that, unlike competing products, it was "non-oily" and "non-greasy," characteristics that the public associates with anti-perspirants that are "sticky" and that stain clothing.'" Secondly, the law judge thought it interesting that if respondents were indeed intent on deceiving consumers as to the (ex Phy jeal Exhihit H)" C"ntr"ry to tl", demun tration in re"po",lent !, commercials .. hibitcd "n t"lev;s;"n thi '"'',,'' and willi III"'''. ' p"rtraya l dearly reveals t" the vil'wcr the wct, runny, liquid, awl watery "alure "f Dry B"n when pr"yed on the body or on a ourface, a" well "" the plain and obvi"uo re idue depo it"d on the h"dy or on"urraLe by Hueh "prayin!:- The re id"e left "rt"r Hprayin!: "on isb or the sued inKn' ,lienb uHl'endcd in th" liquid in the "an (Sandland, tr. l1i7H, 1701-0!J). In ,urn, Dry Ban;H wpt and watery whe" applied to the b,,'\y and remai,,"r"r wetever"l ",inu\(" before drying. and upon dryinr, leave" a suh ta"t.a l and viHihl" r H;due" Initial de("iHion "I'm 1:J Ip_72:! h,'rpin I. (Empha,;, in nrigin"!.) Reh1Jon,lo,nt . aru",,,nt that all th; wdnes"" and "resid",," would have h,' en able id",1 if th,,"e h,d,lin!! the "pray',;"'" in the",' o1emon trati",, had "nly h..ld t.hem at the proper angle; , to say the l,'ast "mething less t.hanompelling_ 1r IJrY loan can in ract be prayed "" i" su"h a way a I." :lv"id cau"ing th,' Hprayed area to he,'"mp Wlt or, aft r drying, to di"play a pieuou residu,' , rCH!Jondpnt ("0\11,1 have ea ily in"trud",1 th,' law j"dr," in the pr"p"" technique. 'rriab before "drnini"trativ a!,enei,," arc inve ti!!ati"nal i"'luiric, not porting event" "t:l1\ed by ()pp,,"in! c()unsel t." test their litigat;ve kilk '" Tran,cript nforal ar!!ument ",'p"U , PI'. 17- I!I :JO-:J1 " /fI. :!1 The difrer,'n"" i,, appf'ar'''ee between Dry Han 01",1 competing Hpray anti-I'e pira"b f"rmulated with an "il ha",' wa uniqLHoly subject I." a ,.oml-"lrative de",onstrationfilm"" which hml the capacity to "onv,'y a raise. mi le3ding. ""d olec'-ptiv,- i"'pres ion or the lrue phy"'(' 3\ chara"teristic "r Dry Ban. A Iil' comparative d mo"strati"n in which IJry Ban and an oil hase c"mp"tinj pray anti-per pira()t arc sprayed ;n jllxtap" jti,,n r sults in the I",rception "r Dry Han as watery, w,'t . and ,."nny (CX 7();tr.l!1;,-K4!!):. p. 11. 11'- Ii!!!! hereinl (E"'pba in "rig'''''U "Id 1!1, II'. 72Hhercinl1' . ,,- While,-such an int""ti,,,f,.,,"rs(.n()tan""Henti,!linr,r die"t,,fthe()rf nsechar!!e'! here itca" be ao the law judge n"t.erl hil:hly ",levant in ;nt,-rprctingthe advcrtisemc"tH and in rraming-t.he ne"essary order ifa"y " I d 1'1' oj :J I PI'. 72H- 730 here in I, e.' pec ia 11 Y 1'- ,,2 11'- 72 9 here;" I / , , . , !:! _u----..- -.-- (jH8 Concurring Opinion dryness" of their product, they had neglected to include any questions along that line in their marketing test questionnaires. Finally, he thought it strange that respondents, if they were really zeroing in on how "dry" their product was, would let their competition off so lightly in these commercials: /'If respondents had a specific intent to misrepresent Dry Ban as dry and non-wet, it seems probable that the leading spray would have been shown wetter and runnier than it was."22 Having gotten to the water s edge, however, the learned law judge declined to drink. He decided that respondents were guilty of negligence, carelessness, and lack of judgment in use of the word 'dry rather than a specific and calculated intent to mislead. Whatever the shortcomings of advertising agencies of the size and experience of this one-and there are those who believe they are manynegligence, carelessness, and lack of judgment in the choice of words have not been widely suspected. If there is any group of people anywhere that is thought to have a special expertise in using words that wil convey precisely the message intended, it is the men who write advertisements for the country s major producers of highlypromoted consumer products. As counsel for Ogilvy & Mather argued before the Commission the intention (of these 5 adsJ was to ilustrate a readily observable product difference, that Dry Ban went on clear while the leading competition went on with an oily, opaque appearance."" This product, with a relatively fast-drying alcoholic base, would naturally look clear-and therefore non-greasy and non-staining, the prime characteristics apparently desired by users of underarm deodorants-in any visual comparison with an oil-based deodorant. The leading competitive product Arrid " had such an oil-based formula and was therefore ideally suited to play the role of a brand X "heavy" in the campaign respondents had in mind, one designed to capitalize on the public s presumed preference for "clear" anti-perspirants rather than oily" ones. The word "dry" was selected, in other words, to mean "nongreasy" (and thus non-staining) rather than anything so literal as "nonwet" or '/non-liquid."25 This is also the common sense of the matter. Even if one believes in the power of television to convince the consumer that wet is really dry the first time around and thus in its power to sell each potential customer one can of the product in question, it would presumably strain the credulity of even the most enthusiastic of TV supporters to believe "Id_ 1'- 5:J, II'. 7: O hereinl- If. puwlenlo intended tu convey theHc r prc cnbtiu,, . one w"uhl h v., t.huught that hf'Y wuuld have bcc" I""king to HI'" whl.thf'r the (!.mlJn tr"tiot\;1\ rad communicated th,'m "ld 1'_54. lp. 731herf'inl hi.

" 'fran eril't "foral argument 1'- I:; All the cont(' ml'"raneou" d""umertt, the re eauh reports. the marketing plan pre e"tcclt" the client tu g;,in its approv,,1 r"rt.hc"'pe"ditur!'" ll-'tated that th" objectiv" of the "amp"ign w,," "imply clarity". 'd_ Concurring Opinion 85 F.T.C. that repeat sales could be won-and market share thus maintainedthrough the instrument of any such self-evidently false claim. A "Dry Ban" customer standing in front of his TV set with a dripping armpit is not likely, one supposes, to go out and buy a second can of the stuff if, as complaint counsel seem to argue, it is a literally dry (non-liquid) antiperspirant that he wants. Put another way, even a confirmed knave does not lie to the customer if' (jij the lie is hound to be discovered and (b) one has to have repeat sales in order to survive. Both conditions being amply satisfied here Dry Ban" apparently foundered for a lack of new customers rather than a failure to keep old ones-the kind of misrepresentation challenged in this complaint would simply make no economic sense.

It is always possible, of course, that an advertiser or his agency wil be so obtuse as to try the impossible insist on trying to persuade the regular customer with a dripping armpit that it is really as dryas the Sahara. If so, however, the market itself is likely to administer a punishment that eminently fits the crime. Trying to keep repeat customers through the use of nonconcealable misrepresentations in regard to a product characteristic considered important by those customers is again not a sustainable practice and hence wil be voluntarily" abandoned without any assistance from the Federal Trade Commission. If these respondents have been quilty of this kind of economic folly, then, the most they could be reasonably charged with would be a brief and highly ineffective expcriment in consumer deception, one that, in my view, was doomed at the start. Since there is obviously no public interest in spending the taxpayer s money to stop something that the market itself can be expected to kil before we can get it into court, I agree that the complaint should be dismissed. I also believe, however, that this case was improvidently brought in the first place and that we ought to have the candor to say so publicly. Suppose, for example, that this record had fully supported complaint counsel's contention that these respondents had in fact entertained a specific intent" to deceive the TV viewing public into believing that Dry Ban" is dry in the literal sense of the word i.e. non-liquid. The fact would still remain, as noted above, that this industry lives on repeat business and hence that the commercials in question were inherently lacking in the capacity to mislead the consumer on this point beyond the point of the first purchase. This is not a case where a fly-bynight operator is attempting to gouge a thousand people out of a thousand dollars each (or a million people out of a dollar each) and then disappear into the economic woodwork. Had we given this industry even the most casual kind of economic diagnosis at the outset here, we would surely have spotted the basic unsoundness of this case. ) 1JHIUIVlrJ.IJ""I V'-'. , '-I .nJ..

688 Final Order But there is more. Having once issued this il-advised complaint, why did we pursue the matter so doggedly'! I recognize and fully support the sound principle of law that a "voluntary" abandonment of an unlawful practice after the Commission s hand is already on the offender s shouldcr is not a valid reason for dismissing a case. Rut the rationale underlying that rule-that the practice, if profitable, wil probably be resumcd as soon as the law s hand is removed- has no application where, as here, the practice in question has proven itself unprofitable. These challenged advertisements were broadcast, as noted, during a 14-month period between July 21, 1969 and Sept. II 1970. Since those commercials cost Bristol-Myers $5.8 milion and its sales of the product amounted to only $7.4 million and $7.9 milion in 1969 and 1970, respectively, the firm undoubtedly lost money on "Dry Ban" during at least those two years. Its market share, we are told, has dropped from 3 percent to 1 percent over the entire period. The F. staff, having apparently been engaged in continuous investigation or negotiation of the case since early 1970, presumably knew that (a) the ads in question had not been broadcast since Sept. 1970 and (b) had been unsuccessful in increasing or even maintaining the product' s share of the relevant economic market. We were nonetheless persuaded to issue a proposed complaint in, apparently, 1971. A year was then spent in an effort to get a "consent" order and, when that failed, we issued the instant complaint on Sept. 12, 1972, a full two years after the complained-of advertisements had been removed from the air. Now nearly two more years later, we are finally about to stop spending the public s money on an effort that has never promised, so far as I can determine, public benefits of any kind.

I have grown weary of the kind of literal-minded legalisms we are confronted with in this matter. I don t believe there was any actionable consumer deception here and, if there was, I think it was too trivial to be worth pursuing by this agency. Surely we can find more important work for our legal staff than litigating the question of whether somebody s underarm deodorant is "dry" in the "non-liquid" sense or in the "non-oily" sense. I would dismiss all such cases as having been improvidently brought and direct our lawyers to get on with the serious business of stopping practices that are artificially inflating the prices and/or debasing the quality of the goods and services bought by our 200 milion American consumers.

FINAL ORDER This matter having been heard by the Commission upon the appeal of respondents from the administrative law judge s initial decision, and upon briefs and oral argument in support thereof' and in opposition 754 FEDB:RAL TRADE COMMISSION DECISIONS Complaint 5 F. thereto, and the Commission, for the reasons stated in the accompanying opinion, having concluded that the administrative law judge s initial decision should be set aside and that the complaint should be dismissed: It is ordered That the Administrative Law Judge s initial decision be and it here by is, set aside.

It is further ordered That the complaint be, and it hereby is dismissed.

Commissioner N ye not participating.