Sears, Roebuck and Co

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IN THE ATTER SEARS, ROEBUCK AND CO., ET AL.

FINAL ORDER, OPINION , ETC., IN REGARD TO ALLEGED VIOLATION OF SEe. 5 OF THE FEDERAL TRADE COMMISSION ACT Docket 9104. Complaint . Nov. 4, 1977 - Final Orr, Aprl 1980 This order requires, among other things, a Chicago, Il. department store chain to cease, in connection with the advertising and sale of dishwashers, repre.'\nting that its dishwashers will completely clean dishes, pots and pans without prior rinsing and scraping; and claiming without substantiation that items plac in the top rack of the dishwashers will get as clean as those on the bottom rak. The company is prohibite from making claims regarding the performance of any major home appliance unless those claims are supportd by reliable and competentpurp, contenttests.or Respondentconclusions ofis tests,furtherstudies,barredreportfromor surveys,misrepresentingand reuiredthe to maintain specified recrds for a period of three years. Appearances For the Commission: Robert Barton, Mitchell Paul, Ronald Bogard Laurence Kahn and Louise Kotoshirodo. For the respondents: Arthur Medm Chicago, Ill. Mark Schattner Wald, Harkrader Ross Washington, D. Burtn Y. Weitzenseld and Frank C. McAleer, Arnstein, Gluck, Weitzenseld Mirw Chicago, Il. for respondent Sears, Roebuck and Co. Howard Alrahms New York City for respondent J. Walter Thompson Co. INITIAL DECISION BY DANIEL H. HANSCOM, ADMINISTRATIVE LAW JUDGE SEPTEMBER 28, 1979 PRELIMINARY STATEMENT On November 20, 1977, the Commission served its complaint in this proceeding on Sears, Roebuck and Co. ("Sears ) and J. Walter Thompson Company charging them with disseminating deceptive and unfair advertisements in the course of an advertising campaign for Sears' disbwashing machines, in violation of Section 5 of the Federal Trade Commission Act, as amended, 15 U. C. 45. More specifically, the complaint charged that respondents represented in national magazines . Complaint previously published at 94 F. C. 331. 406 Initial Decision and newspapers and over radio and television, without baving a reasonable basis therefor, that: (2) 1. the Lady Kenmore dishwasher would completcly remove, without prior rinsing or scraping, all residue and film from disbes, pots and pans used in cooking and baking according to normal consumer recipes and under other circumstances normally and expectably encountered by consumers;

2. dishes in the top rack of tbe Lady Kenmore disbwasbers would get as clean as those in the bottom rack without prior rinsing or scrapmg;

3. the Lady Kenmore "San i-Wash" cycle, by giving disbes an extra-hot 155" final rinse " destroyed all harmful and other bacteria and microorganisms on the dishes and pots and pans. In addition to tbe charge that Sears and its advertising agency, J. Walter Tbompson, made the foregoing representations without a reasonable basis, tbe complaint further charged that the advertising was false because Sears' Lady Kenmore dishwasher would not completely remove, without prior rinsing or scraping, all residue and film from all dishes including pots and pans, and because the "Saniwash" cycle did not destroy all harmful and other bacteria and microorganisms on dishes, pots and pans.

The complaint also charged that respondents' advertisements were false in representing to the public that the demonstrations shown in the advertisements proved that Sears' Lady Kenmore dishwashers would completely remove, without prior rinsing or scraping, aU residue and fim remaining on disbes, pots and pans after cooking and baking according to normal consumer recipes and under other circumstances normally and expectably encountered by consumers, when the contrary was the truth. Finally, the complaint charged that although respondents represented that pre-rinsing and pre-scraping were not necessary prior to washing eating and cooking dishes in the Lady Kenmore dishwasher, the Sears' Owners Manual, provided to purchasers instructed them to pre-soak or pre-scour firmly cooked-on or baked-on foods. The complaint charged that these instructions in the Owners Manual were material "in light of tbe representations made in the advertising," that the advertising did not reveal the instructions, and was therefore deceptive and unfair.

Sears filed its answer to the complaint on January 19, 1978, denying most of the substantive allegations and raising four affirmative defenses. The affirmative defenses were: (1) that the cballenged practices were abandoned by Sears; (2) that the challenged practices were industry-wide; (3) that tbe cballenged advertising was insignifi- Initial Decision 95 F.

cant and de minimis in scope; and (4) that the challenged advertising claims did not require prior substantiation because they (3Jcaused no material adverse effect upon the health or safety of consumers who after using the product, were able to verify the claims for themselves and, if dissatisfied, could obtain a full refund. Procedural History Tbe proceeding involved extensive pretrial activity including much controversy over discovery and motions of various kinds. Pretrial conferences were held on January 25, March 6, March 14, July 14 and September 26, 1978. On Marcb 30 the undersigned denied motions of Sears and J. Walter Tbompson seeking broad-scale discovery from third parties. On August 4, after oral argument held July 14, the undersigned granted complaint counsel's motion for partial summary decision with respect to Paragraphs 10, 13, 15, 18, and 20 of the complaint, ruling that tbe advertising conveyed the representations alleged.

In the meantime, J. Walter Thompson negotiated a consent settement and on June 13 filed a motion to witbdraw tbe complaint as to it from adjudication. On July 14 complaint counsel joined in this motion. The undersigned certified the motion to tbe Commission, and on July 19 the matter as to J. Walter Thompson was withdrawn from adjudication.

Hearings on the merits originally scheduled for September 6 were postponed to October 16 on which date tbe case-in-chief commenced. The presentation of complaint counsel's case took place in Washingtn , and concluded on November 20, 1978. Respondent Sears presented its defense in Chicago, Ilinois, beginning on December 11, 1978, and concluding on January 26, 1979. Rebuttal hearings were held in Washington, D. , on February 13- , 1979. On Marcb 16, the undersigned excluded certain statistical evidence relative to Sears' advertising which had been received subject to cbeck for accuracy by Sears, and ruled that tbe evidentiary phase of tbe case bad been completed. In all, there were 28 actual hearing days. The record consists of 6 313 pages of transcript and several hundred exhibits, including a number of multipaged technical studies. As an addendum to their proposed findings, complaint counsel moved that sanctions under Section 3.38 of the Rules of Practice should be imposed upon Sears, and disciplinary action should be taken against Sears' counsel for conduct relatcd to discovery. Specifically, complaint counsel alleged that counsel for Sears did not comply in good faith with the orders of the undersigned to produce certain material. Sears filed ,. ,\,,p.;,,,,;\,\,,\p,/).,,,,,,\,,,\,\(,p,,\\,p ,,,,,,,, \, ;\\;\ ;\,\, ,,),,,, ,, ,,,,,,)!. \,, .$. :(,,\\./).,,,;,,,,,\) \ :\,,,,,,,,. , .:\ ..,.:,,,\,,,,\:,,,\\\\. ,,, .\ ,,,\,,,,,,(, \,,,,,,:,,,,, ,,, .:,,,,,.,,\ ( \\ , ,,,,,\,,,,,. :p\\ \ ;) ,, : ,,,,: ,\ \p,,,\,\,,/.\, \ ,,,\ \. \ , \,pe ,,1\"

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Initial Decision 95 F.

and is in substantial competition in commerce with individuals, firms and corporations engaged in the sale and distribution of dishwashers (Complaint 5 and Answer, p. 2).

4. For the purpose of inducing the sale of its disbwashers and other consumer products, Sears has disseminated and caused the dissemination of advertising in national magazines, newspapers and other print media distributed across state lines, and in radio and television broadcasts transmitted by broadcasting stations located in various States of the United States and the District of Columbia (5)having sufficient power to carry sucb advertising across state Jines. In addition, Sears had disseminated advertising in catalogs distributed by mail, and by other means, and through various outlets including point of sale (Complaint 8 and Answer, p. 3). 5. Respondent Sears, as stated, is thc largest marketer of housebold dish washing macbines in the United States. In general, Sears' dishwashers are marketed under the "Kenmorc" and " Lady Kenmore brand names (Clifford, Tr. 4794), and this proceeding involves an advertising campaign for "Kenmore" and "Lady Kcnmore" dishwashers (Tr. 478) which commenced in 1971 and continued through 1975 when the Commission began its investigation. 6. Dishwashers sold by Sears, including those sold during the period 1971 to 1975, were manufactured by Design and Manufacturing Corporation ("D&M"), located in ConnorsviJle, Indiana (Cannon, Tr. 242-3; Clifford, Tr. 4792; CX 83C, 187). Thc line of Sears' Kenmore dishwashers marketed from 1971 through 1975 was referred to as tbe 7200 line" (Clifford, Tr. 4993 94). They were available in both portable and undercounter models (CX 99A, 100A). Sears' 1971- 1972 dishwashers ranged in price from $99.00 to $284.95 (CX 277C). Sears 1973 1974 dishwashers ranged in price from $169.95 to $309.95 (CX 277Z007). The Lady Kcnmore was the top model as well as the most expensivc Sears' dishwasher sold from 1971 through 1975 (Cannon, Tr. 2496). Sears top-of-the-Jine dishwasher model is now called the "Sears Best" Kenmore dishwasher (Clifford, Tr. 4981). 7. Sears' dishwashers are equipped with a " macerator" blade with stainless steel teetb in the drain of the disbwasher (CX 83E, 338). Tbe blade cuts up food so that it can wash down tbe drain and out of the dishwasher (CX 83E, 338). This blade and system, however, do not amount to a Ugarbage disposal" unit and Sears' dishwashers cannot be used as such. Sears' 7200 line disbwashers have two internal racks to bold dishes and other utensils. Tbe upper rack is ca1Jed the Roto-Rack. It is circular and is serviced by an upper spray tube which causes tbe rack to revolve during water agitation cycles. Tbe lower rack is square """".L""

406 Initial Decision and is serviced by a lower spray arm (Fraser, Tr. 5240; CX 99B, 100B; 277Z008 - Zale).

8. The "7200 line" Lady Kenmore featured a "power wash" cycle in addition to "normal wash" cycle (CX 78B, 99G, 100G). Sears 7200 line" Kenmore models lower in price than the Lady Kenmore featured only the "normal wash" (compare CX 277Z04O-44, 04&-49 with CX 277Z050). Sears stated that the "normal cycle" consisted of two wash cycles (phases) and four rinse cycles (phases) (CX 83Z002). In response to a question as to the phases of the "power wasb" Sears advised the Commission on November 28, 1975, that the "normal cycle" on the Kenmore was substantially the same as the Ilpower wash cycle" on the Lady Kenmore (CX 85A-C). (6) II. Tbe Challeng-ed Advertisements Made the Representations Alleged in tbe Complaint 9. The record contains 54 advertisements for Sears' dishwashers (CX 345, pp. 1-3). Tbe advertisements may be grouped into six categories: print advertisements in magazines of national circulation such as Time, Reader s Digest, Fam.ily Circle, Spots fllustrated and Better Homes and Gardens (CX 1-3, 72-74); advertisements broadcast over national and local television (CX 4-10); advertisements in Sears catalogs (CX 1l 26); radio advertisements (CX 27-35); point of sale materials (CX 3&-38); and newspaper advertisements (CX 39-54). The films and videotapes of the television commercials (CX 55-61, 265-6) are also in the record (CX 345, pp. 3-4, 20). Tbe films of the various TV commercials are identified as follows: " Birthday Cake" (CX 55); Weekend Clean Up" (CX 56); "Family-Revised" (CX 58); "Vicious Circle" (CX 59); "Freedom Maker" (CX 60); and "Pennypincher" (CX 61). These advertisements, including films and videotapes, were aU considered by the undersigned in granting partial summary decision finding that the representations made in Sears' advertisements were as alleged in tbe complaint. Examples of the advertisement in issue are reprinted berein: CX 1 and CX 2 are print ads which appeared in magazines of national circulation; CX 4 and CX 5 are storyboards of TV ads broadcast over national television.

10. The dissemination schedules of Sears' advertisements are in the record (CX 62-77). Sears admitted the dissemination of CX 1 and CX 4 (Answer, p. 3). At trial, it was stipulated that CX 1-26 and CX 36-8 were disseminated (Tr. 49&-97). The undersigned found that the other advertisements were disseminated in receiving CX 1 through CX 61 in evidence (Tr. 512-18). The schedules of publication for the national magazine advertisements (CX 1-3) from 1971 through 1974 were initial Decision 95 F.

introduced, respectively, as CX 71 througb CX 74. The dissemination schedules for the various television commercials were as follows: CX 64A-F is the schedule for the "Birthday Cake" commercial (CX 4, 55); ex 65 is tbe schedule for "Weekend Clean Up" (CX 5, 56); CX 66 is the schedule for "Family" (CX 6, 57); CX 67 is the network television schedule and CX 68 is the spot television schedule for "Family- Revised" (CX 7, 58, 265, 266); CX 70 is the schedule for "Vicious Circle (CX 8, 59); CX 77 is the schedule for "Freedom Maker" (CX 9, 60); and CX 69 is thc schedule for "Pennypincher" (CX 10, 61; Tr. 485). These TV commercials were broadcast in the period between 1972 and 1975. Tbe "Birthday Cake" commercial alone was disseminated for two and one-half years, from October 1972 through April 1975 (CX 64 A-F). The dissemination schedules for the catalog ads (CX lla-26A) are set forth on each exhibit and are verified in CX 76 (Tr. 485). The dissemination schedule for the radio ads (CX 27--5) is shown as well as verified in CX 75 (Tr. 485). The initial dissemination for the point of sale brochures is shown on the face of the brochures (CX 36A--8A), and is verified in CX 63 (Tr. 485-86). Tbe dissemination schedules for tbe newspaper ads (CX 39-54) are set forth on each exhibit and are verified in CX 62 (Tr. 486).

11. The undersigned granted complaint counsel's pretrial motion for partial summary decision and found, based on an examination of the advertisements in issue, including a viewing of the tapes of the (7) television advertisements, that the advertisements made the representations alleged in the complaint (Ordcr Granting Complaint Counsel's Motion For Partial Summary Decision With Respect to Paragraphs Ten, Tbirteen, Fifteen, Eighteen and Twenty Of The Complaint, issued August 4, 1978). Sears' advertisements unequivocally represented to the public that:

1. the Sears Lady Kenmore dishwashcr will completely remove without prior rinsing or scraping, all residue and film from dishes and from pots and pans used in cooking and baking according to normal consumer recipes and under other circumstances normally and expectably encountered by consumers;

2. disbes in tbe top rack of the dishwasber wil get as clean as those on the bottom rack after one complete set of washing and rinsing cycles, without prior rinsing or scraping;

3. the "Sani-Wash" cycle destroys all harmful and other bacteria and microorganisms on dishes, pots and pans; 4. tbe demonstrations depicted and referred to in ex 1 and CX 4 and other advertisements prove that Sears' Lady Kenmore disbwashers wil completely remove, without prior rinsing or scraping, an , , SEARS, ROEBUCK AND CO., ET AL.

406 Initial Decision residue and film remaining on all disbes, pots and pans after cooking and baking according to normal consumer recipes and under other circumstances normally and expectably encountered by consumers. 12. In granting partial summary decision as to the representations in the advertisements, the undersigned also found that the Sears Owners Manual (CX 99, 100), whicb is provided to purchasers of a Sears' dishwasher, instructed users to pre-soak or scour firmly cooked or baked-on foods.

13. The following findings are included in this decision to show the basis upon which the undersigned granted complaint counsel's pretrial motion for summary decision and found that the advertising of respondent Sears made the representations alleged in the complaint. No Pre-rinsing or Pre-scraping 14. CX 1, the "do-it-itself" disbwasher, reprinted herein, was published over a two year period (CX 73, 74). It shows a dirty load of dishes being wasbed in the dishwasher, under which illustration appears in bold typ the words Sears Lady Kenmore. The do-it- (8Jitself dishwasher." The ad states categorically, "No scraping. No pre-rinsing," and assures the reader that "Lady Kenmore has 6 powerful hot water jets for the bottom rack, surging hot water with enough force to scrub every disb, pot and pan really clean. Even bakedon food comes off." Tbe advertisement tells the reader that "Sears Lady Kenmore does just about everything, itself. So you really do have freedom from scraping and pre-rinsing. That's why we call it The Freedom Maker." This advertisement also stated across the top that the demonstration pictured was "Certified by the Nationwide Consumer Testing Institute.

15. CX 2, also reprinted, was likewise published nationally. It contains a beadline in bold print What Dishwasher Would Dare Load These Messy Dishes Without Scraping or Pre-Rinsing?" The ad assures the reader that the Lady Kenmore dishwasher gives " freedom from scraping and pre-rinsing" and states "Dishes, pots, pans, glasses silverware a11 get hygienica11y clean. . . without any help from you. The photograph shows soiled cooking and baking dishes. This ad also contains under a picture of a loaded dishwasher the statement Demonstration certified by Nationwide Consumer Testing Institute. 16. CX 4, a TV commercial called "Birthday Cake," the storyboard of which is included herein, features a fimed demonstration showing the inside of the Sears' Lady Kenmore dishwasher washing eating and cooking dishes while the announcer tells the viewer that the Lady Kenmore disbwasher wil give "freedom from scraping and freedom . .. . , : . ,,, ...., ,,,,,, .,,, ,,,. ,,,. . . ., ,,,,,., .,.. .... . .,,;,::,, ,,, , ; ; .;. ..,,,. ;,,. .,:. ,,,,, ,,,,...,, ,.,.. ,:.. , . .,....,,,\ ;: .,,,:;,,,,. ...,,, ,.. .....,. ,,,,,..: ....,;, , .,.,,.,,,,,;:;:. .,. , ... ..,,., ,......, .,. .\.).,, ,.,,;..,;,,...,.,, ,....,.):,.. .. ;;:: . . ..,., , ,.;;........ ,. . ,;.,,..,,,,.,._..;;, ,.:,...,,,,..,, ., _.,. . ).,,,.,,,,,,.,,,, . . . ,, , \:, : . . . ., ., ,,, ,, . 9" 1'.

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406 I nitial Decision Dishes in Top Rack Get As Clean As Dishes on Bottom Rack 23. CX 1 states And the dishes on top gct as clean as those on the bottom." CX 2 states The exclusive revolving Roto-Rack gets dishes on top as clean as tbose on the bottom." Tbe Roto-Rack is Sears' term for the revolving circular upper rack in its "7200" line of dishwashers. CX 2 shows pots and pans, as wen as dishes used for eating, loaded in the "Roto-Rack." The television commercial Birthday Cake" (CX 55), also shows pots and pans loaded in the "Roto-Rack" of the Sears dishwasher. (10) : j.. __. . , \ :;:, ,. ., ;,. .: ... ... , ) ;. , :, :.:?!::;(::,::,/ . \/ ,.::;:,. \ , .:..,!.,,:\! , . \ \\. !;\. . .)j. . !. : :,,:,,\ ! () \,;:\ .,. .. ., .. ,:/(!\! ., . : : . .. , ; ,, , \ .. .;:. ! :: ;: .. Initial Decision 95 F.

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The do-it itself dishwasher.

NQ Knpi"l. No prc-rinamg frt: h nnd clean-the wnteI rho! rlnos "v"IJ"b!c at Stnu, Roebuck and lo,dy K"nmore h,H 6 vo,,'aful hui your di ht: ham, wuhed them. Co, .store. Qnd through Ihcu!lIlog, h:f 't:I. i"r thc honor" r, 'Uflt- Af1dour8d,/f'Ttnrcyc!e,include j"y hof ,.2ler wun "')U " (OHc, . 52ni.wan, which !(ive your 10 .ctub vcrv ,Ii, , pO! and pol" . di,he, nn eXlla.hot J 55 tin r.."I1)demo. Eve" b" I."" t (j'-:,'tty fin.e. So evcrything i, Jcni. comd "If . ';l. llv clean, d ,hc d..he. on fOp ger What . more, Scan La tle na, rho.. on Ihe both"\\, Kcnmore I built m P" (orm, B.-.au""evaycup ond I"" 'J , But I( you evct do have a li"'OU.., w&ld(' Jnduulby, , p.oblem canrelyon a field or ellth! UPPC' I"f.' 1 s"ou erv!Ct. T!-c" .hcc . bdy Ken- . - Seats lndy Kenmore doe m..." . J)loc,.:t",1 pulvc".u ' .J ' a bolLt cvcl)th!"g, a.c lr, So fur Id"'vel . !t ind ot a " --o" rcally UQ hliv.. inc.10m (,ommini-gnnd., with I! ",,,into, 'led .nnplng nd pre-dn,inlf. That . wICcd, Ina'ilrind .o ft bud, Into Iiny e call i! The rccdom ""ole., The ;a'lIde. thu whh lI ht d"wn rh" Freedom Maker, both han. (Of COI/"" , Wii'''' j, I",.y, ears bu!1t-inlindportBb1e. , : ;::. : .. , .: _..,.. ,: ; :,;j,, ....,\..,(:.: ,,,.....,:. .. .. ,,,,j,,\. ,,,, ,,,,. , .....;\: ,,../,...,,:;:. ..;// ,),; !. , ,,, \.:;..,,,/\;:..;:., /, , ./ . ... .. . ; j SEARS, ROEBUCK AND CO., ET AL. 417 406 Initial Decision C)(-'1.

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SEARS, ROEBUCK AND CO., ET AL. 419 406 Initial Decision .I ..'-. .V, r; I\". 1t J. \\. 1 ;"\Ul Ill" ,... II i:'1.r. :.J';.:'\,' N. m :-.'101 CX- Tite". 15:0:'', CO:\, M c: c:;.:.

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KATOI tltSS 1' !.\'t FUTC SP'S , ATEI u )'0'" dhh 1""1'1'1. J...n p"ru W',CRI:tC Ti:!: U.'II."t CITB.5 .\, IIIn; TII.'IJ1."" oA..;lLJInSr."'. nss B.'I' "".sb\llt-d U8 _8a1.n... n.t TU'a1 St. 'I lDlO DlS!iRDI LUCK TACI ., p, , ,, ; .. . , ; . . ... ,:& ;: . .,\, ,..,\\. ,, . :. . ;,,... .,g ,. .&,,.. : ; .. ,,. :. ...,:,.. p ,......, ;.;:.,,,.!,..g, .,;. ,.,,,:.,., ,,,,;.,,. , ,,,,,,. ,..,. :;: ,., :;,,,,,,,, ., ..,.,,,,,;.,,,, ...,,,. ,....,.,,,,,.;;;.,,, , g;:.,,..,;,,,. ...,,..,,\.,,,,,.., ,:,&,.,... , ;,..\ ,., \ ,,.,. ,.,,,, ..,,,,,, ,,,,.. . .,;,,,. .. ... ,.. ,;g,. ; ,,,.,.,. ,..\ .,. , ,,...,,, g ,. ,,. . .,,..,. \... ,.. , . ,,, :,. .. ,,,,, . .. . .. ,\C. 101'S 9" F. . 1'C1S "-"c S10" , D her, ot ,\\1'"D1'Co"' Deals. ,0" '0". fU\ a t th fiar)" \$e t t\ F1' tro'fS 1)es Dots".11'a e\e 5t" "th s, ' , the 10"01\ 1\ . '1 "S nse. \1\ p" h'f \ r\. , lC 01\ "d" ",t.' C .''''0' \5.. the \ sh a "1' ;."? .e1\CC,", f': .w .. ..n 1\\ ct "'''s' no . ,n '" ,icy "w' "' . i#, ,,,"", ,",,, 0' "i", to.\," ,N'" ,tn, :. ",0". t, i, ,.,. , C' C' . to' to.;'"''1..,to "'",,,,M ";,, "w'''' ''' "n. ",n to" "" w ."a 0 " tC " pott\.c' .., ,i$ "nt .,, n "" b . ."00' ,,"C '0 00. to' -fn' n "' an" . . i",M " .0 ",D, " ;'" : t ".W "", ,,, ,,,g 0"'" ." n ;,""0;, "' "",,, . ,,, . .. .,,, "n '" w n' "' &t" ,W. o. ,hi' '" on'" ,.", at"'. ",,0\h"" ,r,& ,,0'& m - " . h?' , "". ,i' .. W ", ",'W "," _oct :, .h h ;:::"." h' . "'n' to' m" ,.. n'"""',. ',",,n"rep ":,, ,;,. ,'''"uo.. ,'"'to' , to 1\ecc uch h ".h "", n" ". :,n $ co1\" ",,,en ,t' ." th h\ch \l\1\g -h\1\g ar a"er to" "h' n. 1\"e': ts a W .s.' :, the .\t'f t W - . '-eS, aec\S th\5 rese 'r'. " V'. .V' "", N.' 0" .i., "' h"'"",',.,i" ...,0"" '" r"''' "5,"' n'. ' ,h' .' '0 n." n' . 6" S"" . ",r '" ,.," ,to. "' ' ."t" ",. .n"nn )"01\st 1're-r\ \,re t"U.1"01\. a. eaten ,,. '" " ,oj n "''' 'V" ,cr -that . e1\t\'f "fe"t\o1\ 0 1'ro"e ert\f\C. e)" e1\t CO "sher a"ert\s, pro e)"o)",n e :R' . 1\etr ,"\$h h 'z ",\h\s"Re1\a )"ort\\'te). \Pea, ",aa': . 1\g 11\5 e5CSe"rs ,\est\ u)"er Co1\S . . , , , , ,, , .., SEARS, ROEBUCK AND CO., ET AL.

406 Initial Decision representing the interior of the dishwasher during the washing cycle the dishwasher with a clean load of dishes, and a woman holding a clean plate.

28. At the top of CX 2 there was a picture of what appeared to be heavily soiled pots and pans which would be difficult to clean. (15)In the center of the lower half of the ad there was a picture of an open dishwasher with visibly clean disbes, pots and pans in it. Under that picture was the statement "Demonstration Certified by Nationwide Consumer Testing Institute.

29. CX 4 Birthday Cake " showed what apparently were heavily soiled and difficult to clean baking and cooking dishes being loaded into the Sears' dishwasher. Tbe interior of the dishwasher was then shown during the washing cycle while tbe TV scrcen displayed the words Demonstration Certified by Nationwide Consumer Testing Institute.

30. In CX 8 Vicious Circle " tbe video portrayed a housewife surrounded by a circular counter covered with dirty breakfast, lunch and dinner dishes. The dishwasber is shown being loaded. An interior picture of the dishwasher is then shown during the washing cycle while the words Demonstration Certified by the Nationwide Consumer Testing Institute," are superimposed on the television screen. 31. The law judge concluded in granting partial summary decision (Order of August 4, 1978) based on the preceding advertisements that: The pictured demonstrations were in conjunction with the representations "No scraping No pre-rinsing you ll never have to scrape or rinse again No nee to scrape or pre-rinse, even 12 hours after eating, etc. Such advertisements unquestionably made the representation that demonstrations were being shown which proved the allegation that "Sears Lady Kcnmore dishwashers wil completely remove, without prior rinsing or scraping, an residue and film rcmaining on all dishes, pots and pans after coking and baking according to normal consumer recipes and under other circumstances normally and expectably encountered by consumers, The contention that the demonstrations pictured in the advertisements represent that the dishwasher will completely remove, without prior rinsing or scraping onry the specific foods shown in the demonstrations, spaghetti and cake residue, borders on the frivolous.

Sears Owners Manual 32. In granting partial summary decision as to the representations in the advertisements, the undersigned also found (16)that the Sears Owners Manual which is provided to purchasers of a Sears' dishwasher instructed users to pre-soak or scour firmly cooked or baked-on foods (CX 99, 100). This instruction is stated in the directions to users for preparing dishes, pots and pans for loading (CX 99D, 100D). ,, .. .. ,p .,:;: :. .. , . .., :;, .,,, . . ,, ,., :,,, ; ;, ,,,,, ,.. ; , ,.. .. ,,,:;, ..,.. ,,,,.. ,.p ,, .,,,,., .. ....; .. ,. , , . ..,,,,,,.. ,,,,,,,\,\\.,. ,,,,,,,,:;., .., , . ...,..,, .,,,,.. .,, ..,, ..,,,,..,, ,,,\:,.,.,,,$ ,,,,,,,,.,.,,,,,,.. ,;,,,,,,, .; .\\),,,;, ,,,,,, ,,,,,, ,,,, .,.,,,,,:.,,, ,,,,. ,.,,,.., ,,,.,,,,,.. . .,.,,,,, .,..,,,\.,,,..; ,...,,, ..,,,,,,,,,,,, ,,...,,,...,..., , . ,,,;,,.,,,, ,,, ,,.. .,,, \...,,,. , ,,,,,,,.,..,,......,,,, ..,. . ....,.., ,,,,.,,,,. ,,.,..,... ,,,,,;,, ,,,.,.,,,.. ,, .,,,,,..,,,,.,..,,,,, , ,.,..,\.,,.,;;,,,...., ,, ,. .,, , , ,,,, , . , ,. . i01. i1i 11\\tia\J)e i.o 1i"nce C\"

c\e"ning "e \1\. -r\le .1"" c\e,,1\\1\g o'" \,,\n, . se f \1\S"'b . t \lo",e"e i\ed -r\le coli\, " 0'"ing, 1\0 ': d \,,,1\" 0 , 0 sc t t\le or '""". """O"' e ,, e" " '' \11\ e" '" "'\le '" to 1\0' t n 1"n"'''b ,0'" .. ';. l'; .. ". ",'" '" n' , " " W'. ,,,, S, d \n eq-\1i ' d 50\" . ,J'.."'''" """"","" ." "",0 f foo coo ,,"X\et': 0 " t,:\,e" It\1\\ng i1\i.i1\ite M. ""'0, n. ,",\",os , " 00 .,.., :, ""o,, ,,,, 0 o",en'" \1\ "",,,..,-i'00.. . WO. d SO\\S, O"'\C",on \'''".. ' cr' d ,,)foo ': \1\ . ,od 0': se"' ,"" ,"'b" oO\11\d"' """e",\1\"' e, ,0, So' ,,,,,.'"." ,,,,,S,,,."d ' rf io ,,, ,o' ,'" 5"" \'" nO, d- ""d d''' , ::,,. ". ,0' ,,,.,, :; ", ""d ,,,,,. ,0''' s\JC ,.\ ,00" ,0'" -",,,c- ",, , "0' '0 "' d, b"'"",",,, 0' oW"'" w". ,"",'o"" ,,.,0' &db.e " ,,,0'.'.' '-Oj'1-;). . "toOtb.s \o1""- s01\.'fr . te"f C.1 , ..."o'"t)'ori'ltb.& . 0' !JJ\\1.\eS ng. . "B\'\led..\Jto\\i.n \o\l\f\gof SEARS, ROEBUCK AND CO., ET AL.

406 Initial Decision unreasonable procedures, the representations in Sears' advertising encompassed the universe of cooking methods, soils, foods, utensils and dishes such as occurs in the kitchens of the nation s households. 36. A dish, pot or pan is clean when it is free of residue and film and is not clean if it has soil on it following washing in a dishwasher. Food particles remaining on a dish or a utensil are not acceptable to most consumers whether the particles can be removed or not (Sullivan Tr. 1640-1; Ferguson, Tr. 1690-91 1747; Annis, Tr. 2281H6, 2312-13). This was also the view of Sears, which submitted as part of its substantiation for the cleaning performance claim a test conducted by Ms. Barbara Fraser, who testified for respondent, wherein it was stated: "any soil remaining at all on dishes is unacceptable" (CX 94C). B. Sears Did Not Have a Reasonable Basis for the Cleaning Performance Claim The Applicable Standards 37. Sears was required to possess a "reasonable basis" for the affjrmative no scraping, no pre-rinsing product claim disseminated to the public. In view of the blanket and unlimited claim of no scraping, no pre-rinsing used by Sears to persuade the public to buy its dishwashers, such "reasonable basis" had to truly reflect the universe of food soils encountered in the nation s households, excluding only kitcben disasters and unreasonable cooking procedures. 38. Sears submitted prior to the issuance of the complaint in this case certain documentation in response to an order of the Commission under Section 6(b) of the Act ("6(b) Order ). This material is discussed in the next section of this decision. Some of the material can loosely be described as "tests." Although, as later described, the undersigned has concluded that Sears, under the circumstances of this case, was not required to have had as substantiation I4scientific" tests, to the extent Sears relied on tests they were required to be competent and reliable. To be competent and reliable, the substantiating tests relied upon by Sears bad to truly reflect the universe of food soils encompassed by its unqualified representation.

Competent and reliable tests further had to demonstrate that consideration bad been given, in substantiating the claim, to tbe many variables which affect tbe cleaning performance of Sears' dishwashers. Among these factors are the following; detergent used and amount voltage, mecbanical function of dishwasber, number of washes and rinses and their precise duration, water temperature, (18)water hardness, type and number of cooking and eating dishes washed .. & ,, ... . . . . . . , ..,,,,.,,,,, ,. , : .,.. . ,) , , :.:.,,, .. .). ,,,. \ ::, ,, . ,, ..., ,& ;; ,,,,, .,.:., , .. :., ).. , ,;;;:.;), , ,,. ,, ,.,,,,. ., ,,,,,,.,,,,,,, ,,, &,. : ,,&,.,, ,,,,,/::,,.,..,,,.. ,,,,,., .,,,,. , ,,,,,,,,..,,,, & ..,,,,,,,,.,..,, :,..; ...,..,,,,,,,, ,,,,.,., .. ...,,. . ,,,;., ,,,,... ., ,,,,,,,,,,,;,,, ,\$,,,,,, ., , ,.., ..:,. .,,,.:::,., . ..,.:,,,.,.,.,, ,,,,,,, . .. .:,;,, :,. .),..&,., , , , ,. . . . . ,.. ,,, .., , , ,,\'C1S\O 1SS\O ,\1'",,,,, ;r tio .a. 1,,\t\"\ "eC\.\on o. of foOo. prep" pro,,\o.e \\ \15eo.

o. 50\ 5 . ' t1etet1per"t\ires. to 5ner;,,.i""foo "",0 on " i'' . 'O"" ' 00-'''''':\ Se"'"" uJ5""

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w''' ' on '" '511-21, , Mo. "g,,\1\, I\). he re,\\1\ret1e1\1$ for, .. : Clb, P. 1'399; ,, 2211 ot U\eet \" "b\e tests. 1'3\\1-91\, o.Wt ,,1\0.1\ " 11 221'3', "te51$", re \ ' d"ter1" o. to 22" , ,.. f\1r1\\5ne '39. se..r5ere 1\Qt,oU\pete1\C 'b' or"er t\'r . tnet1"ter\"1\t\"t\01\ "'''e seet\01\ '" '/ for \1$ 1\0 ,\\1el" "r5J0.\0.",d1\ot Nte \1\ \1\tr""\1ce t\0 \o. 1\e 1\t5 5\1"'"

:g repre5e1\t o.\here..

tne COt1t1\55\01\1\0 pre-P A"' "1. ,,,, "" .1'.' ." " o. ' oo ;t\ on '" ,M' " O""'cl:;., "" .on,.o).o! W"" ..on' .,3 on ,."'o, ".W"" '0 "," ,.on ."" on O"' "' ,0 "".,,,,, . "0:';';

, on" ",. .'" . hI'" ,.,on 00' . ,," " on' . .. ,M '0\1'.''' \V\1$e . .1"r pril\t, " 1" 5 of ,,\U\\ ' "e 5\1b5t"1\U"U01\1\g1\t1ore,'f\\e 0' o.o-. . cO' "Fe U\\55\01\ . Cw, ,. ;'".0" ,""..".".","00 " "'. o. o.er re,\\1\re .a- ,0' " ".."ppe"re",'fne olb) or " 0o.e\5, ",\\\c\\ 911\",,\t1lCY.tn"t, . . .

SEARS, ROEBUCK AND CO., ET AL.

406 Initial Decision The Lady Kenmorc dishwasher wil, after one complete dishwashing cycle and when loaded according to instrctions, remove (19)every visible particle of every typ of cooked-on foo from any pot or pan washed in the dishwasher, without prior scrubbing, scraping or rinsing of the pot or pan, and without regard to: 1. the typ of, condition of, or surface of the pot or pan; 2. the length of time which the food was coked; 3. the temperature at which the foo was cooked; 4. the amount of food remaining and adhering to the pot or pan; 5. whether the foo which remains in and adheres to the pot or pan has been burned and/or is crusty;

6. the length of time the foo remains in the pot or pan before rinsing or washing in the dishwasher; and 7. the brand of dish washing detergent used. 41. The 6(b) Order required that if Sears maintained that the claim was substantiated by materials in its possession, copies of all such materials were to be submitted, including expert opinion which was to be reduced to writing with the basis therefor (CX 79E, F). The 6(b) Order further required that if Sears possessed only part of the information demanded in any question, then such information as was available was to be provided along with an explanation of why the answer was incomplete. Sources from whom Sears knew further information could be obtained were to be identified. If Sears neither possessed the information demanded nor knew wbere it could be obtained, or believed that the claim was not capable of objective measurement, then the company was to state such facts (CX 79D). 42. By letter dated August 15, 1975, Sears submitted its response (CX 80). Mr. V.J. Graham, Vice President of Merchandising Administration for Sears, stated in a sworn affidavit accompanying the response that the response had been prepared with due care and was to the best of his knowledge and belief, accurate, complete and responsive to the Order (CX 81).

43. Sears' response to tbe 6(b) Order consisted of a Special Report Summary (CX 82), the Special Report (CX 83), and 22 exhibits (see, CX 78A-C). All of these exhibits were offered in evidence by complaint counsel and were received by the undersigned. 44. Sears stated in its response: "The basis for substantiating the claim made in the advertisement, which is the subject of this Order either as interpreted by the Commission. . . or as interpreted by Sears this CCX 83Z015-Z020J, exists in the documents attached to Report. Most of the documents attached are reports C20Jof tests performed in 1972 and 1973 by the manufacturer of Sears' dishwashers, Design and Manufacturing Corporation, Connorsville, Indiana (hereinafter referred to as D&M)" (CX 83C). 45. In determining whether Sears' submission in response to the . .,; . ; ,), :: : ;::,, ; , (\ . ;: ,( . g, . .,,,,, ., ;, ,,:.,,:::,, ,,. ,., .., .,, :;,,, . , g, ,. ,,,,...,), ,::.,. ,, . .., , ,\(.,, , , ). , ,,.;;,;;.,,. ,.....,., ?,. ,,,,.:: .,.;,,,,,,,,,\,,,,,,,,,,,,,.,., ,,,,,,,.,,,,,,,,. ..,,,,,..,...,, ,, ... .,..,. ,,,. ...,,.,,.,.., :,,,,. ,,,,(. ..(:;,;,,, ;:,::;:;,, ,.:...,,,.,,,. ,.,;; ,,.,., ... ,,. ,,. ,,,,.,,, ( ....,..., , .,,..,,,.,:,:,.,,,. . ... ,p . ,,,,. , ). ,, .. . ,::; ;: , _ ,. 1)\"1510 15510 e""on- tne "lC1)lC" (\ cons\C\tuteesent"t\on,. l,,\t\"\ 1).0\.\0" \)st"nti"t\On "n .; V"

,".j .0' ..J" ". ,- on d' ' ,." '" ":0"'" ..' "ve01' ""o ,,,i. .ct"" ,M ".,..""."'b"1 ". , ,,,0 ,,, "", ""h f ''' ,u"" "N" i).

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\,,1"' .w' to "W'" to tne ,,\)sence r (\isnes"n"(\ue f (\iSnes. on e""'u"f"ces 0 tne su e1t,,\i\ 1tignt tn"t SEARS, ROEBUCK AND CO., ET AL.

406 Initial Decision rinsing (CX 89D). Since CX 89 is merely a test procedure to follow in a dishwasber performance test and does not entail any actual testing, it cannot provide a reasonable basis, by itself, for the cleaning performance claim. The test procedure followed in CX 88 was the procedure established in CX 89 (CX 88F).

49. The purpose of the test reported in CX 88 was "to compare the ability of two dishwashers, Sears Model 587.71460 and Whirlpool model STP-90E, in their abilities in both aspects: removal of soil from dishes and removal of soil from the disbwasher" (CX SSE). As described later herein, tbe Sears' disbwasher did not get the cooking and eating disbes used in this test clean. Sears' argues, citing Mr. Eberwein, an expert called by complaint counsel, that this result should not be considered in judging CX 88 from tbe standpoint of substantiation of tbe Sears claim because comparison tests are designed so that neither machine wi1 get all of the dishes clean all of the time, thereby allowing some soil to remain for comparison purposes (Eberwein, Tr. 117 0). There is no proof, however, that the food soils used in CX 88 and set out in CX 89 were so designed. In fact, the foods, soiling procedures and loading procedures utilized in this test (CX 89H-J, M-N) resulted in the types of food soils and dish washing loads that fall witbin tbe ambit of Sears unqualified claim as specified in the complaint. Foods sucb as french fried potatoes, canned cream corn, milk and corn flakes, coffee and pot roast were prepared much as tbe consumer would at home and the soils that resulted were not difficult to remove in a dishwasher (Sullivan Tr. 1440-42). Respondent's contention that neither the soils nor tbe loading procedure were proper for tests of the Sears' dishwasber is rejected (see, RPF, p. 14; Fraser, Tr. 5198; Tr. 5206). 50. Tbe utensils in wbicb the food soils were prepared were not included in the test loads (CX 88E-G, 0, P, R, S, 89D-E). Thus, test conditions were narrower in scope than a consumer would experience in home disbwashing conditions and were more limited than tbe advertising claim whicb stated that dishes, pots and pans used in cooking and baking would be completely cleaned without any prior treatment (Eberwein, Tr. 1041; Sullivan, Tr. 1440-42). 51. Above all, CX 88 does not substantiate tbe claim that the Sears dishwasher wi1 completely clean all disbes of all food soils without scraping or pre-rinsing because the report itself shows, as stated, that tbe Sears' dishwasher did not get the dishes clean. Tbe washing results are clearly displayed on bar graphs (CX 881, 88L) and show that the Sears' disbwasher tested did not clean the dishes by obtaining, at any time, a score of clean (Eberwein, Tr. 1041; Sullivan, Tr. 1446). (22) 52. In addition to the bar graphs, visual examination scores of the washing results are detailed at CX 88Z nd CX 88Z001. These scores . .,,, . , ., ,,, ; ,.,. ,, , . ,,,.., .,,, ,., ..,, ..,,. ..,, ;,,,,..:;.. ,,.;.,,..;. ....,.., .,:..., q.,,,.,,p&.:;;.,...., ,;.::,:::,..,,,,, .:; ,, .,.,,,, ., ..,,) ..,,,,,, ,.. ,.,;,. ,,,,,, ..,.,. #.. ,,,;,,,,,., , ,,,,....,,.:: ,.. .,,,...,. ,,,.;,.,,,..,,; :; ..,,,,,,,,.,,,,,,,;.,.. ;: ,,\;: . .,,,,,.. . 510 901'.'r. DBC 1551O ",D1' CO 'f t'o"t toe (\0 1\ot S" "1'\1\\1 l'1'D1'lt"'1- 'rlt 1""'''\ Dec"'o" fo~e, (\ toe "o: """" o' . "'o. ;' A"" ,.. """1:: "" ;'" ?1' ';e :i;;IO ,,, 'o tile l"se" 1\S'1\\1. \1\ 't1X c\l ,,1\" " 1'"'''1-:\ p,'r10,,1\ r ,,'o,'o,t C s'oo'f\1\\1 (C1' toe \11'l" dls1\'f,,s:'e se" 'r 'r1'5'r5 "'15\1",1- (\\1ote Ile 'f"s'o\1\\1 '"

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406 Initial Decision were especially prepared to adhere to the cooking surface while, on the other hand, wbere the utensil was completely cleaned in the dishwash- , tbe food preparation procedure was normal (RPf' 23- , 31-36). Respondent relies on its witness Ms. Barbara Fraser, wbo testified that the CX 90 tests did not reflect normal consumer conditions because standard cooking procedures and recipes were usually manipulated or altered so as to produce atypical food soils which were more difficult to remove than typical food soils (Fraser, Tr. 5089, 5094-95, 5108-09). However, this testimony is .neither persuasive nor credible. Furthermore, it is somewbat strange for Sears to make this objection to CX 90 because Sears did not advertise its dishwasber as a machine which had trouble removing difficult food soils from cooking and eating disbes. On the contrary, Sears' no scraping, no pre-rinsing representation was designed to convince the public that its dishwasher would remove the most difficult food soils from dishes including pots and pans Lady Kenmore has 6 powerful hot water jets for the bottom rack surging hot water with enough force to scrub every dish, pot and pan really clean. Even baked-on food comes off" (CX 1). But tbe food soils in CX 90 were not even unusually difficult to remove, as described in tbe next finding.

56. Many of the foods and soiling procedures used in CX 90 did not result in soils that were unusually difficult to remove in a household dishwasher. For example, packaged macaroni and cbeese, packaged cake mix, beans and egg soils, as well as other foods, prepared according to reasonably typical procedures or as per package directions, do not present particularly difficult conditions for a household dishwasher (Sullivan, Tr. 1470- , 1475-76, 1478-79, 148485, 152223 1531- 1550; Ferguson, Tr. 1694-97, 1701- , 1708- , 1722, 1732-3; Annis, Tr. 2288-90). The ex 90 tests did not include tbe tenacious types of food soils that would result from high temperature cooking in the 450 500 range, such as for fryng, roasting or broiling poultry, fisb or meats (Sullvan, Tr. 1476; Ferguson, Tr. 1729-31; Annis, Tr. 2289). In fact, the cooking temperatures used in the testing were all in the low to moderate oven-temperature range, rarely going over 4000 (Sullivan 'fro 1476; Ferguson, Tr. 1729-31). Thus, the food soils tested by D&M and reported in CX 90 are food soils of the type which would frequently occur in tbe nation s households. Despite the relative ease of removal of some of the food soils, tbe tests resulted in cooking and eating dishes that were not clean in many instances (Sullivan, Tr. 1529-1638; Ferguson, Tr. 1722-24; ex 90e, D, E, H, J, L, M, N, 0, P, Q, , V, W, Z, Z003, Z005, Z012, ZOI5, Z034).

57. There are several methods used in conducting the CX 90 tests moreover, that optimized the performance of tbe dishwasher. For ,,,. ,, ,,, . , .. .;, . ,. ,,., , . ., , ,,, , ,,\). ,.. , . ,: , ,,., &.,,,, (,,, ,,$; ,,,,,.,. :.... ,..:,,, ..,.,.. ,.., , ,:,,,, ,. ,,,.; ..,,..,, .,;:;.. :, ;, ,,... ,., ,,,,:;:,,, ,,,, ;. ;,,,.,. .... ,.;:.. ,..,,....;,,,,,,. ..,,,.. ,. :,.,,. .,,,... ,,,,,.,,,,, ,,,,,.......,,,,p;.,..,. ,:::.,,.;,,,. ,;,,,.,.,; .,,,,...,;,.,., .,).,., ,,,,(.. ,,, ...,.. :,,, j., ,,,,.,., ..&;;..,,,.,,,.....,,,#,,,,,,,,,..,,.,,,: ,.,.,,..,;,:..,...,. ; ,,,,,,,.,., .,,.;;, ,,.; ,,,,;.,,,., ,;,,;,; , \,,,,,,.;,.,...,.,;,,,;;;,,,,,.,,...,. .,,,.,.,. ,.,,,, ,,,.,..,,.,. ,,,, ;,,;,, ,.,, ; , .,.,,,..,.,, ..,.,,,..,,,,. ,,,,...,,,::,.,_. .. . , , ., \ ...,,,...,,,,. ,,. .. , ,.. _. . . , . , .,.. .. .. \ . S10 1),"C 1\i1\g ","1)," t'J)c\e e:,u ""eig'otS,'W "",,to '00 " ,u-''' b'" "''I .., .,. . ..,.,,," ,"" 'U"

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, SEARS, ROEBUCK AND CO., ET AL. 431 406 Initial Decision shows that the dishes, pots and pans washed in the Sears' dishwasher stil were not clean in many instances after washing. (25) 61. As part of its response to the 6(b) Order, Sears submitted charts whicb summarize the CX 90 tests (CX 83Z007 ZOI2). The charts have been included herein in Appendix A. The test results reported in these charts show that dishes and utensils, with considerable frequency, emerged from the Sears dishwasher not clean. In fact, out of a total of 211 instances reported in the chart summary of CX 90 tests, only 26 or 12.3% show results of clean, 100% clean or no retained soil. In tbose 26 experiments, furthermore, some cycles were extended beyond the time of tbe normal wash cycle available to consumers on production models. For example, seven of the eight tests run on August 4, 9 and September 26, 1973 show disbes " 100%" clean, but tbe washing was all on an extended wash cycle not available to consumers purchasing tbe Lady Kenmore dishwasher (CX 83Z01O). There are other examples in the Sears' submission which report extended wasb cycles, rendering results showing clean dishes. These are of no relevance because the extended cycles used were not available to the purcbasing public (CX 83Z008 - ZOl1). Excluding the CX 90 data for extended wash cycles from consideration, only 14 instances, or 6.6% of the 211 involved in the tests, resulted in completely clean dishes (Appendix A provides data supporting these figures). The tests recorded in CX 90 demonstrate a regular and consistent pattern of soil retention following washing in the Sears' dishwasher. Dirty dishes clearly do not provide substantiation or a reasonable basis for a claim of complete cleaning without prescraping or pre-rinsing (Eberwein, Tr. 1083-84; Sullivan, Tr. 1475 1539-40; Ferguson, Tr. I719- , 1737--8; Annis, Tr. 2305-). 62. Exbibit F (CX 91) is a letter with enclosures from Wiliam H. Yake, Staff Engineer at D&M, to Mr. Dave Raymond, of Sears' Law Department, dated August 1, 1975. The letter attempts to explain some terms and references in CX 90, and states that the dishwasher used in CX 90 had the same wash system as the Lady Kenmore of the "do-ititself disbwasher" ad, CX 1. Exhibit F (CX 91) had also attached a copy of tbe D&M report, dated September 5, 1973, on tests conducted during September and October 1972. This report is also contained in Exhibit G and was introduced into the record as CX 92, discussed in the next finding (CX 83H). CX 91 does not provide a reasonable basis for the cleaning performance claim.

63. CX 92 Extended Wash Time Tests (Baked on Soil Tests)," dated September 5, 1973, was offered by Sears as Exhibit G to substantiate tbe claim in CX 1 (83H). CX 92 was a test conducted by D&M with tbe purpose of devising an adhered or "baked-on" soil for cooking ware and a proper test load pattern, determining an optimum 432 FEDERA TRADE COMMISSION DECISIONS lriiti lDecisi()11 time for an extended wash period in the 95 F. using the devised D&M D&M(Sears)(Sear)dishwashermachine using such wash periodsoil load, and to compare the 64. CX 92 , with tbe G. E. POwer scrub cycle (CX does not substantiate the claim that the Sear er wiJ completely clean aU types 92A). dishes without pre-scraping or pre-rinsingof food residue(Sullvanfrom aU (26JtyPs' dishwash-of Ferguson, Tr. 1742; Annis of the fact that the dishes emerged, Tr. 2310-11).from the dishwasher, Tr. 1557, 1559-6; This again, because reiterated, a claim that the Sears is true, pans without pre-scraping or pre-rinsing' dishwashercan notcleansbe substantiateddisbesnot clean. byAs tests showing that dishes were stil dirty, pots and Sears ' machine. after being washed in the 65. Most of the was available to thetestspublicreportedin ontbat theyin were run Using extended wash CX 92 also deviated from what cycles that were dishwasher (CX unavailable to consumers purchasing a Sears 92A- and 85B). Washing times, did not result Even thes promised in in completely clean dishes (CX tests, with greater claim. CX 92 also Lady Kenmore Sears' reported three tests of 92A-B) using the regular cycle (CX consumers who buy the machine with the Sears 85A-B) available to fonowing results (CX 92B):

4; Also tests using regular cycle; W R R w R R (WITH TIMER) % RETAINED SOf TEST # QATMEA MACAROll 30% QMELP. 20% 50% 35% 60% The term " retained food soil was soil" means precisely What one in the dishwasher.let onAveragingthe dishestheandthrethey Were nqt clean would afterassume e., 19% of the dishes which oatmeal was cooked had retainedtests for each food soilwashingtested the dishes which the macaroni Was cooked had retained the dishes in which eake had been made had retained soil 46% of dishes in which omelets bad be soil 33% of soil and 9%basisQf forthestatistics obviously do not substantiatecookedor hadshowaretainedreasonable soiLSe"rs ' unqualified claim (SI1J1ivan Such 4.nnis, T 2310-11). , Tr. 1559-60; 66. . Beyond the Ferguson, Tr factthat CX 92 shows that the 42;:ears ' dishwasher emerged dishes Washedubstantiate a no scraping, no stilpre'rinsinglargelyclaill,dirty,the andtest methodologyin the hence canl10t ;ARS, ROEBUCK AND CO.. ET AL.

406 Initial Decision in CX 92 reveals inadequate test procedures. There are no indications of how any of the foods were prepared, how the food soils were applied how the dishes were scored following washing, what model dishwasber was tested and what water temperature was used (Ferguson, Tr. 1738- 1741 1746; Annis, Tr. 2307-08). The only four food soils tested were cake, macaroni and cbeese, oatmeal and egg omelets (CX 92A). The soils do not cover the range of soils (27)encountered in the nation households (Ferguson, Tr. 1738, 1743; Annis, Tr. 2307). The dishwasher was not loaded to produce a representative and fair test. The soiled cooking dishes were all placed in a horizontal position on the bottom rack so that, as stated in the report, they would receive "maximum water action" (CX 92A). This loading procedure is not typical of consumer use since the placement of dishes solely on the lower rack could cut off water to the top rack and would maximize the cleaning performance of the dishwasher (Sullivan, Tr. 1557-58; Ferguson, Tr. 1741--2; Annis, Tr. 2309-10). The only items loaded into the dishwasher in the tests were the four utensils containing the four types of food soils tested, also atypical of normal consumer procedures (Fraser, Tr. 5199.-5200; CX 92D-G).

67. Exbibit H (CX 93) is the D&M test protocol, as revised in July 1974, entitled "D&M Disbwasher Performance Tests " whicb incorporated the procedure that was developed in 1972 to test for baked-on food removal (CX 83H). Sears stated in its response to the 6(b) Order that this procedure was used from 1972 to 1974 by D&M in its testing to develop a new model dishwasber, and that tests utilzing this procedure were run on dishwasbers modified from the 1973-1974 model depicted in the advertisement CX 1, subject of the 6(b) Order (CX 83H, 93D). Since CX 93 is merely a test procedure to follow in a dishwasher performance test and does not entail any actual testing, it cannot provide a reasonable basis, by itself, for thc cleaning performance claim.

68. Another of tbe documents provided by Sears to substantiate the no scraping, no pre-rinsing elaim was CX 94, Exhibit I of the Sears Special Report, entitled uI.E.C. Method For Testing Washing Performance of Pots and Pans " and dated October 31, 1974 (CX 83H-I). The letters I.E. C. stand for " International Electrotechnical Commission. Exhibit J (CX 95) is a proposed test protocol issued by the I.E. C. , dated September 1974, for measuring washing performance of pots and pans including types of soil and test procedures to be followed. This test protocol was followed in the test reported in CX 94. Since CX 95 is merely a test procedure to follow in a dishwasber performance test and does not entail any actual testing, it cannot provide a reasonable basis by itself, for the cleaning performance elaim. "EDERAL TRADE COMMISSION DECISIONS Initial Decision 69. CX 94 does 95 F. T. provide a reasonable basisnot substantiatefor those claims.SearsThe dishwasher tested was not even a Sears dishwasher; instead ' advertising claims or Gibso dishwasher has a square upper, it rackwas a "Gibson" (CX 94D). The rack of the Sears' Lady Kenmore (CX 94D , not the picture in round, rotating Sears' advertisements, 99D, 100D). See also the D&M aso manufactures the Gibson, fordishwasher example, CX 2. The fact that similar" operating specifications (CX 83G), does not qualify tests On, according to Sears to the Gibso as substantiation for claims regarding Sears more. Tbe substantial difference in ' other differences not shown by this recordconstructionand not mentionedmight weU Ladyby Sears.meanKen- (281 70. The food preparing Wheatenasoils and testedpreparingin CX 94 resulteda macaronifrom boi1ng and chees two stainless steel saucepans and two milk (CX 95B-C mixture; soiled 94B). The milk glass casserole dishes Were avowed to boil for 10 minutes andwasemptiedbrought to boiling temperature pan which was allowed to thin layer of Wheatena to acoolsaucepanat room temperature., leaving milkAfterresidueapplyingin thea oven at 200 (95 ) for 15 minutes and then allowed, the tosoiled pan was placed in an temperature. A thin applied to eacb casserolelayer dishofwhichthe wasmacaronithen bakedand cheesat 4000coolF. (200at room for 20 minutes and allowed to coo! at room temperature (CXmixture95C Was In preparing the Wheatena the directions given to the D&M technician C.) were not followed in that skim 94B). noted that "(tlhe baking time (15 milk minutesWas not usedat(CX2000 F. enough to have the 94B). The report ) was not nearly " (CX 94B). The caseinates are well-known adhesivessoil adhereand the found Wheatena milk low baking temperatureomission of skimwould makemilk much easierplus the fromthatin test the been a difficult(Sullvan,soil to removeTr. 1448-50,(SuUivan1452). The milk residue would 71. The test protocol caUed for the four soiled, Tr. 1453). have into the dishwasher along with the maximum number of unsoiled place settings that would fit (CX 94B utensils to be loaded along with the four utensils, 95B-D). Six ll-piece place settings, total of 70 pieces (CX 832001)., were loaded into the dishwasher for a evaluate the cleaning results onAthegridcasserolescoring system was used to estimate of the percentage of area cleaned to evaluate the saucepans. dishes and a visual The grid system involved a sheet of paper with 1832 squares drawn on , cut to the shape of the surface area of the casseroles. The removed by the dishwasher Was then equated into grd squares of and the percent clean determined (CX 94C soil not 72. Aside from the fact that CX 94 , 95D). soil tested a Gibso dishwasher and . . , , ,, , , SEARS, ROEBUCK AND CO., ET AL.

406 Initial Decision not a Sears, the results, even if given consideration, do not substantiate Sears' advertising claims. As in the case of previous substantiating documents furnished by Sears and received in evidence in this proceeding, the dishes in tbe test came out dirty (CX 94C). In comment on the cooking, according to the report, the baked macaroni and cbeese mixture was "burned black" (CX 94B). In reporting the results, Ms. Fraser, an employee of D&M, stated in the test document that The disbwasher was covered as wen as the disbes with burned particles of macaroni and cheese. I question whether the dishes should be evaluated also" (CX 94C). The casserole washed in tbe upper rack was evaluated and 93 squares were reported as soiled out of 1832 squares of area. How it could transpire that "the dishwasher was covered as wen as the dishes with burned particles of macaroni and cheese" and yet only 93 squares of area out of 1832 of the casserole remain soiled is not explained by CX 94. Ignoring that, however, 93 soiled squares out of 1832 stil mean tbe casserole was not clean. Furtbermore, the other three utensils did (29Jnot come out entirely clean either (CX 94C). In this report, Ms. Fraser states any soil remaining at all on dishes is unacceptable" (CX 94C). Since the utensils tested were stin dirty some degree after washing, CX 94 is rejected as substantiation for Sears' no scraping, no pre-rinsing claim (Ferguson, Tr. 1747--8; Annis Tr. 2.113- 14).

73. As already described, CX 4 told the viewing public: "Sears Lady Kenmore gives you freedom from scraping and freedom from prerinsing. . . . Because it has two hot water jets that scour dishes " This TV commercial Birthday Cake " superimposed the representation Demonstration Certified By Nationwide Consumer Testing Institute " onto the TV screen (CX 4). The same representation was also included in the two print ads, CX 1 and 2. Sears submitted in substantiation of the no scraping, no pre-rinsing claim, and to support this representation, Exhibit K, entitled Demonstration of Washing Ability of Sears Lady Kenmore Automatic Dishwasher " dated May 1972 (CX 96).

74. As substantiation or a reasonable basis for tbe representation in CX 4, tbe CX 96 report is unacceptable. The purpose of CX 96 was to support the advertised capability of the 1973-74 Sears' Lady Kenmore dishwasher to remove baked-on food without pre-scraping or prerinsing (CX 83I). To "test" the Lady Kenmore, Nationwide Consumer Testing Institute used a food soil resulting from baking two "Betty Crocker German Cbocolate Cakes" and preparing a " Betty Crocker Frosting Mix." The cbocolate cake was baked in Pyrex Corning cake dishes. The frosting mix was prepared in a Pyrex Corning bowl. Baking of the cakes was at 325 for 30 minutes (CX 96C, F). The two lilitial ,Uedsioo 95 F. Pyrex cake dishes and the bowl in which the frosting nux was prepared were washed in the Lady Kenmore using 100 grams, slightly over 3 ounces, of Cascade detergent (CX 96C). Pyrex glass utensils, such as were used in this demonstration, would be easier to clean than metal utensils (Sullivan, Tr. 1568-9). After the wash cycle, the report stated that the utensils were free of any traces of chocolate residue (CX 96C 83G).

75. Chocolate cake and frosting are not truly representative of the enormous variety of food soils "normally and expectably encountered" in the public s kitchens. Chocolate cake and frosting mix are food soils that are easy to remove; they melt away with hot water (Ebrwein, Tr. 1073-77; Sullvan, Tr. 1570-71; Ferguson, Tr. 1749 0; Annis, Tr. 2316). Even without any detergent in the dishwasher, these soils surely would have been removed (Eberwein, Tr. 1078). Only two "Pyrex Corning Cake Dishes" and a "large Pyrex Corning bowl" were washed in the Lady Kenmore according to CX 96; no other dishes were washed (CX 96C, 83Z00l). A dish washing load of three utensils would constitute a very light load which would be easier to clean than a full load (Eberwein, Tr. 1077; Ferguson, Tr. 1753; Annis, Tr. 1319-20). CX 96 does not make clear whether counteraging procedures were followed. If the utensils were washed when the soils were stil fresh, the dishwasher s cleaning performance would be enhanced (Eberwein, Tr. 1074; Sullvan, Tr. 1570; Ferguson, (30)Tr. 1750; Annis, Tr. 2315-16). Nationwide used 100 grams (3 ounces) of detergent, an excessive amount even for a full load (Eberwein, Tr. 1077-78; Sullvan, Tr. 1564 1567- , 1571-73; Ferguson, Tr. 1751- 1756 1759 1765; Annis, Tr. 2321- , 2324). Such an excessive amount of detergent would not usually be used in the household, might even damage delicate dishes far exceeds the amount recommended for a dishwasher load on the detergent package itself (2 to 2-1/2 tablespoons) and far exceeds the amount of detergent (28.4 grams) used in all tests at D&M or any other test involved in this proceeding (Sullivan, Tr. 1562, 1567-69, 1571, 1753; Ferguson, Tr. 1751, 1753, 1756, 1759; Annis, Tr. 2324, 2326; CX 83ZOO1 337 A-D). CX 96 does not constitute adequate substantiation for the no scraping, no pre-rinsing claim (Eberwein, Tr. 1067- , 1078; Sullvan Tr. 1567, 1569, 1571-72; Ferguson, Tr. 1759-62; Annis, Tr. 2326-28). 76. Aside from the factors in the preceding finding, there are other aspects of CX 96 which create substantial question as to the adequacy of that exhibit to substantiate or to provide a reasonable basis for the no scraping, no pre-rinsing claim of the TV commercial "Birthday Cake." CX 96 does not explain why so much detergent was placed in the dishwasber and doesn t describe the "rinse solution." The report fails to note tbe water temperature, voltage, water hardness or water , SEARS, ROEBUCK AND CO., ET AL. 4;' 406 Initial Decision pressure. The method of food preparation and the soiling procedure are not specified in detail. The method of scoring is not explained and any counteraging procedures which might have been followed were omitted (Eberwein, Tr. 106&-67; Sullivan, Tr. 1567, 1570; Ferguson, Tr. 1749, 1753; Annis, Tr. 231 , 2319, 2321, 2329; CX 83Z001). Tbe recordkceping- procedures are so inadequate that others cannot properly evaluate the demonstration and cannot draw conclusions about the performance of the dishwasher. There is insufficient disclosure of details to permit anyone to evaluate and reproduce tbe test procedures. CX 96 is not an acceptable report of a test (Eberwein, Tr. 1066; Sullivan, Tr. 1567, 1572; Ferguson, Tr. 1749; Annis, Tr. 2314-15) and does not constitute a 'Icompetent and reliable" test. 77. Another report of a demonstration certified by the Nationwide Consumer Testing Institute, Inc., was supplied by Sears in its Special Report as Exhibit B (CX 87) to substantiate the no scraping, no prerinsing claim made in CX 1, the "do-it-itself dishwasher" ad. This demonstration was also referred to in the "Vicious Circle" television commercial, CX 8 (CX 59 is the film of tbe commercial), disseminated in 1974 (CX 8, 59, 70). The CX 87 report is entitled Demonstration of Washing Ability of Sears Lady Kenmore Automatic Dishwasher," dated January 1973 (CX 87). The purpose of tbe demonstration was to recreate" the dishwasher s cleaning abi1jty for use in a print advertisement (CX 87B).

78. In general, the factors discussed in the preceding findings relating to CX 96 apply to CX 87. CX 87 does not substantiate or provide a reasonable basis for tbe claim that the Sears Lady Kenmore will completely clean all types of food residue from all types of (31) dishes without pre-scraping and pre-rinsing (Eberwein, Tr. 1061- 1064; Sullivan, Tr. 1578-79; Ferguson, Tr. 1765-66; Annis, Tr. 2342-). The food soils are far too limited and the test conditions are too easy to support tbe unqualified, blanket Sears claim. The soils tested in this demonstration were spaghetti with meat sauce, meat loaf with mushroom saucc, scalloped potatoes, spinach, molasses, and thousand island dressing (CX 87C). These food soils are generally not difficult soils to remove in a household disbwasher (Eberwein, Tr. 1050-51; Sullvan, Tr. 1576-77; Ferguson, Tr. 1763; Annis, Tr. 2334; Cannon, Tr. 2567-68). The food soils are not fully representative of the universe food soils "normally and expectably encountered" in the kitchens of the public (Eberwein, Tr. 1061-62; Ferguson, Tr. 1765-66; Annis, Tr. 2342--3). The report states that the dishes were allowed to counterag-e for two hours, after which they were placed in tbe dishwasher without any pre-treatment (CX 87B). Twenty-six dishes, eight glasses, two casserole dishes and one pan, for a total of 37 pieces, along with 29 ,,, , ,.. ,,.,,,.., , ,,,., $, ,, ., :: ., . .,,, .., .,., ,,, ,,,,,,;\\ ,.; ; ,, ,, , ; $, ,,,. .. .,.,,,.. , ,. ;; ,,, ,:%,..,. ,,..\,,. ., .,.; ,).:. ,.. ;.. ,..,., ,,.,.,,. ,,,,,..!.&,...,.\,,,,, ,.: ,...$. ... ,,,,,,,,.,,.,;),,. ,.,..,., .. ?,,,.,....., ,..,.,..,.,..,... \,;; ,\ ... &.,, .,,, . ,,,,,,,,.,.::::.:\,,,,.,.. ,,.,,,.,,. , ; ?.:,,: ,,... , . , .,;,,:,.\:;:::,: . .,,, ..,.,,,,. ..,, .,. ...._. . , .. .. ,, C\S\O \)5 i'.

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SEARS, ROEBUCK AND CO., ET AL. ,"0 406 Initial Dccision 84. This testimony was brought up for tbe first time during hearings in this proceeding. None of it was mentioned by Sears as substantiation in its Special Report filed August 20, 1975, even though the Commission specifically instructed Sears in its Order to include substantiation in tbe form of expert opinion together with the bases therefor to "be signed by tbe person whose opinion is relied upon" (CX 79E). In submitting its Special Report in 1975, Mr. V.J. Graham, Vice President of Mercbandising Administration for Sears, stated under oath (CX 81):

Attached is Sears Response to the Commission s Order to Sears, Robuck and Co. to file a Special Report concerning a magazine advertisement for Sears Lady Kenmore dishwashers TUn by the Company in the December 1974 issue of Reader s Digest. The attached Response was prepared by personnel under my supervision from the books and records of the Company, as well as from the direct knowledge of the personnel who prepared the responses.

The Response has been prepared with due cae and is, to the best of my knowledge and belief, accurate complete and responsive to the Order. Notwithstanding this sworn representation to the Commission in 1975 that the material submitted with its Special Report was "complete and responsive to the Order " Sears offered other and new evidence in this proceeding in the form of tbe testimony of Mr. Clifford and Ms. Fraser. (33) 85. Complaint counsel objected to receipt of the testimony of Mr. Clifford and Ms. Fraser, contending that " Sears is totally estopped from asserting evidence of a new form of alleged reasonable basis at this point in these proceedings " that the evidence is "directly inconsistent with (Sears) prior sworn statement to the Commission that its 1975 Special Report was "complete " and that "Sears is tbus allegedly liable under Section 10 of the FTC Act for making a false statement of fact in a required report" (CRB, p. 2). 86. Sears was served with the 6(b) Order and submitted its Special Report prior to the time Section 3.40 of the Commission s Rules was amended to prohibit the reception of evidence in an adjudicative proceeding to substantiate a claim when such evidence was not provided in a prior Special Report. In view of this fact, the Commission s decision in Ford Mot,or Company, 87 C. 756, 797-.98 (1976), and tbe decision in Peruock Buick 86 F. C. 1532, 1533 (1975), appear to require that consideration be given to the testimony of Mr. Clifford and Ms. Fraser, notwithstanding Sears' failure to make any reference to this testimony in its Special Report provided to the Commission in 1975.

87. James H. Clifford has been Sears' national buyer of dishwash- Initial Decision 95 F.

ers since April 1972 (Clifford, Tr. 4789). From 1972 througb 1974, his offices were located across the street from the Sears Home Economics laboratory which evaluated various appliances sold by Sears (Clifford Tr. 4818-19, 4821-24). Mr. Clifford frequently visited the laboratory, as often as two or three times per week (Clifford, Tr. 4820-21, 5058). This facility included a kitchen where various small kitchen appliances were tested (Clifford, Tr. 4822-24). The kitchen was equipped with a 1972 Lady Kenmore disbwasber for washing, cooking and eating utensils which had been used for various purposes (Clifford, Tr. 4822 482527). However, the kitchen did not conduct any testing as such of Sears dishwashers (Clifford, Tr. 4821- , 4825, 5013-14). Mr. Clifford had the practice of "dropping in" on this facility from time-to-time, often during his lunch hour or at "cookie time" when he would have a bite to eat and visit with the personnel (Clifford, Tr. 4820, 482&-28). During these informal and unplanned visits he occasionally observed the Lady Kenmore dishwasher in use (Clifford, Tr. 4826). Among the types of foods which Mr. Clifford recounted seeing prepared in the Home Economics kitchen were roasts, chicken, casseroles, spaghetti, cookies cakes, pies and sauces (Clifford, Tr. 4828). Mr. Clifford testified (Tr. 4826):

Q. Were you familiar with the - this is now during the period of 1972 through 1974 were you familiar with the dishwasher that was installed in the home ec kitchen? A. I was familar to the point in seeing (it) in action. AB I mentioned (34Jearlier, I believe in stopping over to the home ec into the laboratory, the home ec kitchen was about two doors down from the young lady that was doing our dishwashers all the time. And usually, being kind of nosey, I would go over there with her and/or she might even be in the other room working with the other girls for some reason, and I would at that time usually coming back from lunch or going to lunch occ..ionally we sort of arrange to stop when they were taking something out of the oven to enjoy a little bit of their coking, and then we would have a chance occaionally, if we were fortunate to be there right at the time they were loading the dishwasher or unloading the dishwasher, it gave us a Jittle opportunity to sort of see in-home use and how the machine was performing.

According to Mr. Clifford, the personnel of the Home Economics kitchen were instructed not to pre-scrape or pre-rinse any dishes prior to washing them in the dishwasher and followed this instruction (Clifford, Tr. 4829-30). Mr. Clifford testified that on many of the foregoing occasions he observed the personnel in the Home Economics dtcben load soiled cooking and eating dishes into the Sears dishwasher md was tbereafter present for the entire cycle of the dishwasher bserving the dishes as they were removed from the dishwasher lifford, Tr. 4830-1, 5059- , 5077). On those occasions when Mr. lifford bad observed dishes and utensils after they had been washed SEARS, ROEBUCK AND CO., ET AL. 441 406 Initial Decision in tbe Home Economics dishwasher, he examined the dishes and utensils and testified that he found them to be clean (Clifford, Tr. 483(w3, 5077-78). However, Mr. Clifford also conceded that he was only occasionally present during tbe entire period from tbe time the dishes were soiled and loaded into the dishwasher, until the disbwasher was emptied; sometimes he saw only a loading procedure, other times only an unloading procedure (Clifford, Tr. 4826 4830, 5014-16, 505&- 60). This undermines his prior testimony.

88. As the national buyer of dishwashers, Mr. Clifford reviewed and approved advertising claims for Sears' dishwashers. More specifically, he approved some of the advertising challenged by the complaint in this proceeding, including the no scraping, no pre-rinsing claim (Clifford, Tr. 4858-9, CX 1; Tr. 4869- , CX 20; Tr. 4871, CX 22; Tr. 4875-76, CX 51). He testified that his approval of this advertising included the approval of statements that no pre-scraping or pre-rinsing was necessary (Clifford, 'fro 4859 , 4867, CX 1; Tr. 4870, CX 20; Tr. 4871- , CX 22; Tr. 4876, CX 51). The (35Jbasis on which he approved these statements was bis observation of the use of the dishwasher in Sears' Home Economics kitcben (Clifford, Tr. 4859, 4868, 4870-70A, CX 20; Tr. 4872 4876, CX 51).

89. Mr. Clifford's testimony was unsupported by any records documents or other objective verification. Mr. Clifford' s testimony simply amounts to undocumented assertions that the Sears' Lady Kenmore wil perform as the Sears' advertisements represented. It is impossible to determine from Mr. Clifford's testimony significant details concerning tbe food soils left on the dishes, tbe conditions of washing, or other material aspects surrounding his view of the dishwasher in operation. He enumerated a number of foods prepared in the home economics laboratory but bis recital was general (Clifford Tr. 4828). It is impossible to evaluate the nature of tbe food soils on the cooking and eating dishes washed in the disbwasher. Based upon Mr. Clifford' s enumeration (Tr. 4828), however, it is evident that these food soils and cooking procedures were not representative of the universe of food soils and cooking procedures encountered "normally and expectably" by the nation s public in household cooking. This is of fundamental importance and, by itself, renders tbe testimony of Mr. Clifford of no probative value as support for tbe unlimited claim of Sears that disbes, pots and pans washed in the Lady Kenmore required no prescraping or pre-rinsing. Furtbermore, Mr. Clifford not only is a Sears employee but be was the Sears' offical responsible for procurement of dishwashers for Sears, including the Lady Kenmore, and approved the claim challenged in this proceeding. Taking into consideration all the , . . :\\ .,, ;; , ,, \\ j ,\$ . ;$\\\,,, \ , \ ; p& :;, ,,,,,;:, :,\\,\$: .,,,.: , $. \\\$. \ ;\!\,$. . . C1\\101o\\ 93 V.-r. 10 DB l'Dlt 111\\\\10de,,$'''- -rlJ e \111 . ",t\Ol1. c01l. \ Dec\$\o1\ . 011'j, 110t VltDlt 11\\t,a ,.o\1$tb eoll$," doe$ .1' te$t,1i \\H f $e .1"0110 ' "tb'j 0 , tC$t' $ ".1 .1 "h"'\- 11\'0\1 ",11.1t 'p\e C\iff ",,0\111d\l1\!\i",'p\e. "e\l1 ",11 \ete\'j ". ''' "e",011'"' $ $\1 e" b co1"P ' l1"e 1"$t",lice e""\l1\!' \1 e f\l1d$ t\"'"t se"'''" $" ,.OCd \1" ,. 01" $ \t 1"O"e \' ",11.1 f' d\l1\! to 'p\i \\'j ",11 \11 9\). llt\",te 0 $ \11 ,t$ . $\1'p$t 11t tb'" 0" $C""'V oo"\l1\! '" 1"$t",lice ellt",t\o: co1" ill$\l1\! \1$ed \11 1""",$e" "eV"e, \11 tb ",,\0 , "",11$ de"cbe" C\",,\1ot 13"''''p''':'' 011'j o eo- :1 \111 \'\t" ""OUt'.vot$ M$tl1" '969, a'(ur \ell\! 1- ce ' - - "lT OJ. ' l\e, . e$ ",11" \11"e,,$. $,11 ;,\)S\)). f,,01" e" "ec'V "e1"O"e: - - - 11.1 t\1"ol1:, to'p'j P ,.'" '1". tbe\" d 'p'j ,,011" tbe te$ "e\",tlll\! .1 d\$b coll$\11i 0\111tC"e ,.ll\! \1V o tbo$e e 110r1" e1"V\o'j:ee" \1"r e"" ",$ to \11\! t"''p\'j :cto"" 'pe"'re$pec e1Cpe '1b c\e$ be"$' 1"",11'j 1"r",$er b",$te" 011'pee f Se",r$",11 elll! d\$b\'"" 1""""e" 9\. , d\$b\'"' ",11.1 \'" $t\l1\! 0 t\tor$ . 1\\'a$"e "ff0".1. 1'$. ",re \11\! .1,$ tC 'co1""" .1 t, \$\011 tb $,1"11 C\,'p t hO\"'''o.,11 o de$'go \'ere "ev " $\1Ve"' foo J ",1"e$ " "o\"ed f \111 se",r$$tetO$ ",,, records "e1"O"e ce o c\e"'l'"dO\O\! h::S:' 'p",,,e te$t$, 'j\e$ o " s(YS';,,\\1go;' $t \912rep",r: r 3.'1r. tb",t . ",11o to e01"V"'1". ;,\)'i9\),",c"roll\ ,,11.1ellt \1",,":, $ foo 100)ect to Pe" te$t\l1 (1"r d\l1 Vr d\$b\'" te$tlf' \! o\1t :11.1 d\ff te" tb oo" " \111 $b\'"-befoods, ;:""e 1" $CO :"$ ",11 to \1Se ,11 llds o "",,\0\1$ c",,\!e '; ;,\\)\ 3 ;,\\;,). 'p'j .1\$ 'pr'" ",re t,,\l1e"" f '.G1p'" \)92-9, \\$ llt e\r ,,0 ",\\ d\ff ",11 " bo\1,,$\'ere 011 0 t\'o vreVd 'pe"l1$, e" '1". ;, .1 f,,01" tb "t\l1\! tCcbl1' por" "' "olle to d\$bes \1f"c- e\, (1"r"se r "",\!e c"l111e fO:d ,,11.1 o1"e tbe'j 1"O"edbere",11 "' "' e"t\l1:S\"e" \91"tb",t tb,$ d, "" to\'e:""e\ to co\111 oo,,\o\! e\!\!s coo o"e d\sb\' tb c $ 1(el11i llt\""\ to stifle \'e"e \\o\'ed so\\ed cell tC"\1'pse,\\1e$0 t\'j \1Se tb \)';..II). '1be\\l1e"Se""c"'V,,'p\\,t'j ide er tC \ oc"" ", -tbe- s. 1"r':e 1"o \'ere $ '1". \\ed 1" t fo" er, cootrO "1"'";' -'d\e-" c ""\"\!fis"""'6\_ 1(ell1" l1"elllC (1"""s .1 \11" 'pe d \'\t" ;,\)9&-'O , . 11C "sb t\w"''''"0co"\,,,,, \'e"e' $b\l1\!er 'p'j '1r. tb",l1 cjc\eS \'b'"'' ,\ceOrd\11\!to \'" \1"ed (1"""se"'d ""tbe\\cb tb ;,\6y62 J;, 1',,\0" d\$b\'"$\1 tb 1(ell1"ore \'"" \1se s 1'\1$1\'p\1ttoo$\)9S-99, b\l1e 'p'j \' b",d or so'" 011 t\"e \ellt to "".1 ""0 el11"0,,e . '1r. ;" r\ose \'",Sbe 1"e he as e,\\1:;'" ;,2;'\)). ..t o r" e" " ,-,,.1"0 s ".(1"r"$e,,t s""", .,",.s 1\es;,\040),\' ( tb \'b\\e t \'b\C"o1"ore p\1rvO$e\'ere 110 soiled d 1"""se'" $ ""1"e test\l1\! d\sbeS 0.). '1b d\sb ;,\s'). "-b ' d'j ,,e st",l1Ces 5\O;, "'r",ser, "' 5\ 1)1-;'\0 :he d\sb\' I"'r. 5 5\)911' ""t t '(1"""- er \" c'j t\lC\912 \e" t ,11 '1". .1 .1 . d tb, cjc\e 110,,1" \'"sb 011t\1\ 1""",se", colic\\1 e \e",l1' 1'0 \'er 1""",ser 1\er\,s c . , tb" . h\'"s t\h t sbe 92. Se30r5 , d'saser be s\l\t, , SEARS, ROEBUCK AND CO., ET AI, 406 Initial Decision made by D&M for Sears would remove baked-on food soil without prescraping or pre-rinsing (Tr. 5188).

93. Following the August 1972 tests, Ms. Fraser testified that experimentation continued with different food soils to find a soil which would adhere well enough for use as a soil to test dishwasbers and to compare different dishwashers (Fraser, Tr. 5094, 510 ). This time a record was kept which is in evidence in this proceeding as CX 90 already discussed. According to Ms. Fraser, most of the food soils recorded in ex 90 were not prepared "the way that they would normally be prepared" (Tr. 5109). This has been discussed earlier in this decision. In connection with this testimony, it is necessary to state that Ms. Fraser is an engineer and not an expert on the manner in which the public prepares food "normally" if, indeed, there exists such an expert (see Tr. 5110-12). In testifying whether or not the food soils described in ex 90 were "normal" or "abnormal " the testimony of ~s. Fraser is simply that of (37Ja lay person who has done some cooking. As stated earlier, the public prepares food in myriad ways, all of which fall into the category of the complaint cooking and baking according to normal consumer recipes and under other circumstances normally and expectably encountered by consumers," excluding only kitchen disasters where, for example, cooking food is forgotten on the stove or in the oven.

94. According to Ms. Fraser, the tests reflected in CX 90 together with the unrecorded August 1972 tests caused her to have the opinion that "tbe Lady Kenmore 1972 disbwasher wil remove normally prepared baked-on soils, normal recipes without pre-scraping or prerinsing" (Fraser, Tr. 5188; see also, RPF 19- , 2425). 95. The foregoing testimony, limited by Ms. Fraser s mental reservation to what she considered IInormally prepared" soils and normal" recipes, does not literally support the unqualified Sears' no scraping, no pre-rinsing claim. Beyond that, as in the case of Mr. Clifford, Ms. Fraser s testimony recounting the August tests is unsupported by any records, documents or other objective verification (Fraser, Tr. 5304). No records were made of these tests because 1& During the examination of another Seam' witness, Ms. Shari Bryant, oounsl for Se attempted to elicittestimony that the foo so;)s rcpurt in ex 90 were not "nonnal." Inasmuch a.GSe counsel had not given notice to complaint eoull! that Ms. Bryant would be questioned on this important point, 8I reuire by Pftral ordcr" even 8.G late as the day before her testimony, and complaint counsel had goo ren to a."- ume, bW upon Ms. Bryant' pretrial deJ!ition taken much earlier, that "he hli no knowledge of ex 90 and had never son or reviewed ex 90, the law jud ustained comphiint counsel's objection and refuse t. allow Se' counsel t. question Ms. Bryant on the point (Tr. 429-4). The ruling was grunded by the law judg on his authority t. control the proding and to prevent prejudice as we\! a. unfair urprisc. Scam' counsel had mote thl!n ample opportunity prior to the appence of M . Bryant to give notice that the !\I! of her qU€:tioning would include whether the foo soilsreport in ex 90 were "normal" or "abnormal." Counsel did not do so. In the opinion of the law judge, M.s. Bryant s expertise, however did not in any event encompass expertise which would have qualified her to render opinion on the i8luc of whether or not the foo soils report in ex 90 were repre.ntative of the univers of foo wils "norm\Jy and expetably encount.re by corummern" in theirkitcbens, , TRADE COMMISSION DECISIONS Initial Decision according to tbe testimony of Ms. Fraser (iJn preliminary testing, or testing of casual nature, it is very common not to record proceedings that lead up into something else" (Fraser, Tr. 5092, 5095-96, 5100 5100A). Thus, the only record evidence of these "tests" is contained in EarlJar Fraser testi111ony... However a.t one- poi-nt in her testimony, when asked to recall certain specifics, sbe stated: "It' s very hard to remember when things are unrecorded just what you did do" (Fraser Tr. 5102). Her testimony considered most expansively, like Mr. Clifford' , is simply a series of unsupported assertions. The loading and washing conditions of the Sears' disbwasher are unknown, although there are indications that a full (38Jdishwasher load was not used, and possibly only the few disbes soiled in the cooking experiments were washed (Fraser, Tr. 5314). Nothing permits a judgment as to whether the food soils were representative to any degree of the universe of food soils encountered "normally and expectably" by the public in cooking. As in the case of Mr. Clifford's testimony, this deficiency by itself removes any probative value from Ms. Fraser s testimony as substantiation for Sears' unlimited claim or to show that Sears had a reasonable basis. for the claim at its dissemination, as charged in the complaint. 96. The experiments or tests reported in CX 90 have already been discussed extensively. Sears states in its proposed findings that: " several instances, food soils used in tbe tests reflected in the notebook (CX 90) were prepared according to normal consumer procedures. In these instances, al1 of the food soil was removed during 'the dishwashing process" (RPF 25). Sears claims that these results support Ms. Fraser s testimony that "the Lady Kenmore 1972 dishwasher wil remove normally prepared baked-on soils, normal recipes without prescraping or pre-rinsing." As discussed in detail in earlier findings, the law judge rejects the contention that the food soils reported in CX 90 were not within the category of food soils "according to normal consumer recipes and normally and expectably encountered by consumers" in household cooking. However, it is not necessary to ground the conclusion that ex 90 fails to support Ms. Fraser s testimony on this basis. Tbe food soils Sears claims were prepared according to normal" recipes and- procedures were few cake, scal10ped potatoes and beans (RPF 25), and there is no basis for believing that these food soils are representative of the universe of food soils encompassed by Sears' unqualified claim. The fact that CX 90 report that the Sears dishwasher wasbed a few soils clean from the dishes used in those tests "either supports Ms. Fraser s opinion nor substantiates Sears' claim lor provides a reasonable basis for it.

97. Taking into consideration all tbe circumstances surrounding 1s. Fraser s testimony, the undersigned finds it essentially self- , SEARS, ROEBUCK AND CO., ET AL. 44.0 406 Initial Decision serving and unreliable, as that of Mr. Clifford. In connection with her testimony, it should be noted further that the Sears' no scraping, no pre-rinsing representation was being disseminated in early 1972, weJJ prior to tbe August 1972 tests. See CX 2, and CX 72 which show dissemination of the advertisement What disbwasher would dare load these messy dishes without scraping or prerinsing," in the Spring-Summer" 1972 issue of "Better Homes and Gardens Building Ideas . Tbe August 1972 tests relied on by Ms. Fraser obviously cannot substantiate or provide a reasonable basis for claims made before the tests were conducted.

98. At tbe time Sears made the representation in its nationwide advertising that the Sears' dishwasher would " completely remove without prior rinsing or scraping, all residue and film from disbes and from pots and pans used in cooking and baking according to normal consumer recipes and under other circumstances normally and expectably encountered by consumers " Sears did not possess and rely (39)on a reasonable basis.

C. Sears' Representation That Its Dishwasber Wil Completely Remove, Without Prior Rinsing or Scraping, All Residue from Disbes Pots and Pans Normally and Expectably Encountered by Consumers Is Not True, and the Advertising Containing That Representation Was Unfair, False and Deceptive.

99. As the preceding findings demonstrate, neither the 6(b) materials submitted by Sears nor the testimony of Mr. Clifford or Ms. Fraser whether considered separately or overall, establish the truth of Sears representation that the Sears' dishwasber wil " completely remove without prior rinsing or scraping, all residue and film from all disbes and from pots and pans used in cooking and baking according to normal consumer recipes and under other circumstances normally and expectably encountered by consumers.

100. Indeed, the 6(b) materials submitted by Sears, and analyzed in tbe preceding findings, establish beyond question that food soils prepared "according to normal consumer recipes and under other circumstances normally and expectably encountered by consumers were not completely removed by the Sears' dishwasher. These 6(b) materials, submitted by Sears, in themselves establish that the no scraping, no pre-rinsing representation was false and untrue. There is however, additional evidence that the claim was false and untrue which is set out in the following findings. , .;. \ ,... \\ ,p. ). ;:.., . ., ,,,. ;.. ;. .. . ,.. ,. ... , ,,,. ...,,, ,.,$ ,.. , . .$, $,, .. ,,,.,., ..,, .; ... ;, ,,! , ., .,...,.., ....,,,,,, ..,. .,. :,,,,,,& ....,,,. .,.., , ..:,,,.,..\\,, ., .,,). ..#,, ...,....... ,.%,,,.,. ..:;;:;,,,...,.., ,;; ;:.,,.,...,,,... ..., ,....\.,,)). ,,,.,..,...,, ,.,,,,p,...;,......,,, ,,, ..::;.,,),. ...,..,..,. .,,,., ..,,.,,.. g.,,,,,.,.,,; ,;.....,,.,..,,,...., .. ,,,,:.... .. .... \.,.,.,.... .,(.. ,,.,,, ::. .. .,,\,,,,...... ....., ... ........ . ,. ....... .. . ,, . . ..., ,: . ,,, ,, , . . 9" ..:r.

",'pe ",ei11' ':\t\ 011 t\1e ese11\,,,\,i 1.. 1\11\,\1011'1e,, " -p11o.i)t e)t"e t, .i11S\11" o. ,,11 ..", cO' "" ",- 1 c" ,,11 s"eci,,\\st ., ""0; "" ""., 11 is f'C" . ",,,11CC o. "",,\i"11cC es" \:. s C\ ': . f'1 ",it\1 s of cO.., '" s "" \is o.eciS\011. ..'" r'''se" f Se" ,f' "," . .r ' , . 9,,0). " \,\lose o Se" ",ei11 t\o . testeo. 0. 1.912 0 "',b ",e'11, . cWo.\11"",e\11 . \,ec\1110\0g' \11"',b "' "0" \C, . si11ess \'" 0" :\",,,s\1es, t\1e -p ",\ect t\Ot\ ' \1o\o. \s $,,ge, i;\$t" ,,eo.-011 s" . t" 0':'' yA'" .. O. 'pe,,11S 01.). \:e to "",,ecoo ''1.1.,-,..oo. o.\11g t 1.09\y91).e$"ect '\ . s ",i\'\1 eggs, ,,ei11' \e,,11 1.02. i11C" ,,,,,e k se '1 ic"t\o11S , 0. SO\\S , o.iS\1",,,s\1e\1 1.9 " , 011\ f 0 c,, C ., cO.."o.e\$ ",,, ,, .oo,, .;g" ' "., cO' ,,, C ' ,, ,,,,,, cO., (". o.e "11eo. \11 , "",o f"\\ \\ o.i$\1"'''s\1 ce ",i\'\1 I\ \,\1e o.is . 0. ,\,\1'"if"'.,, ",'0 V 't .' "'.,.""V""cl cO' 0" ""v" .. ci'. o" ,..\' e"'o"" . f \1,$ oOOjo soil e \,\1 fic"lice o " f"c\'...' \'\\". W't ",\1 ;b' ..," se 0o. ros it i1100"" \1 o.is"ose 'p,,ge " ",ec\1"- t\1" e11 ei11 1.1. ). ,-ifieo. \," g" c\Ogge 0.'1 e ,,\"C\,;g '-eco'" ,,e'" tes " fo, ",,,e ",oe,",,,e c,,11 " "'r r \S""e t" ,,,,,, .r " ,,\s",1.1.31.,.r " p. "eC" t o'" ",,'11 '", ,..co,.. .. . M' ci .5'" .." (B"'''" . . f '" ''' i' ".""".. ..6' ,,:; ,,$ o.esc\' "".d. o.is\1",,,s\1e '''1:. ." tpe ",,,11'1 1.0 to tes\' t\1e of e, "0 ,.. ci" ". .. te",,,e 011 , e 11 e ,, \,\\e ",,,te e"" 5-S . t\1"t t\1e~suc st30tcU .c01"113.1\ce . . . , SEARS, ROEBUCK AND CO., ET AL. 447 406 Initial Decision food, manner of preparation, counteraging, etc. Even the size and shape of the pan to be washed can affect cleaning performance because size and shape affect whether the item can be placed in the dishwasher in a good cleaning position (Eberwein, Tr. 1019). In sum, based upon years of experience studying and testing household dishwashers and their cleaning ability, including specific tests of the Sears Lady Kenmore dishwasher of the type involved in this proceeding, Mr. Eberwein s expert opinion was that pre-treatment of dishes was frequently necessary to obtain optimum cleaning performance from tbe Sears' Lady Kcnmore and other Kenmore dishwashers (Eberwein Tr. 1132).

105. A former Sears' employee, Judith W. Cannon, who worked as a home economist for Sears from January 1970 through November 1974 and while in that position tested Sears' dishwashers, was subpoenaed by Commission attorneys (Cannon, Tr. 2412-13, 2417). Ms. Cannon was responsible from September 1972 through November 1974 for testing the cleaning performance of Sears' disbwashers and competitive machines (Cannon, Tr. 2412-17, 2430 , 243--4). Ms. Cannon has a Masters degree in Home Economics and ten years experience in the evaluation of household appliances, including dishwashing machines (CX 291A). Ms. Cannon s responsibilities at Sears included performance evaluation of home appliances and development and improvement of such appliances (CX 291A). During 1972-.1974, Ms. Cannon spent approximately seventy percent of her time testing dishwashers including testing the cleaning performance of the Lady Kenmore and other Sears' models (Cannon, Tr. 245-7).

106. Part of Ms. Cannon s duties at Sears included review of (41) Sears' TV advertisements for dishwashers prior to their filming and dissemination (Cannon, Tr. 2548-52; CX 132, 141F). Among the TV ads reviewed by Ms. Cannon while at Sears were two advertisements for dishwasbers entitled "Vicious Circle" (CX 8) and "Freedom Maker (CX 9, 141; Cannon, Tr. 2554). In a memorandum to superiors at Sears dated November 14, 1973, with respect to tbe claim in the commercial The Freedom Maker No need to scrape or rinse off stuck-on leftovers " later broadcast in major cities throughout the country (CX 9, 77), Ms. Cannon stated the contrary (CX 141A): Baked or burned-on soil (cooking utensils: caeroJes, pans, etc.) usually requires some additional effort for complete removal in a dishwasher. 107. While testifying, Ms. Cannon was shown CX 31, a 60-second Sears' radio commercial broadcast over local stations in August 1972 (CX 75) which made the representation:

, ,:; , . .:. .. , ; ,,. : ,:: ,, . .;.. \j,. . ,. .,, ,, ,, .. , .. .,. : .,$ ; , , ..,, . ..,,, ,... , .,.. ,,,.,. , ,,..,,,..., ..: ., ,,,,,.,, ,,,..,., . .,. ,;:., ,,,..,)),,,....,,..;,: ,,.. .;;, ..,. ,,..$)...,,. , ,;; ,. ..,,..,.....!,,,,,: :;. ,,,.,..q,,,,, . .,,,,,. . , ....;\.,\ ,...,.g.,..,. ;,,,,,.,..:,, .. ,..,:,.., .. .,. .. ...,,,,,,,,,,,, ,;,,,,..... ,,,,,,,,,.... ,,,:,,,,,,, ,,,,,.&...., ., ,.,,.,.;; , ,,,,,,,,,,... . ,,.,,..\,,, .. ,...# , , ,. ... . .. ,,,,,.. ...,., , . 951".'1 S\o1' pJ'C\S\o1'S ' 0 CO"I"I\S '1 l'p.PJ' ea:" . yJ'PJ'l'p.J. \t\lt\ . .""S ee's'o" 1\g ..",:\11'g 'o\"C-r\1J.iACO";'cS . teStl o ' ore o ,t ",a C"1'1'01' . dS ,:n,"gof ,b "'" ,.U'- ' i1' ;;e"te1t ':'" c' ,c.' s:\o"-1' st,,"'OI\S Co. \SO "er \OC" l' .."s,, '" i1' th ,,1'1'0 t O \011. . . "ro"dc"" de th ",..t,,,g "a" 1t1terc\ .,.,. '0'''' a,sbe' a"a h . " S t tio1' 01' t e ..- u\Y \91\h " this re"resel' " ",e,."s,,,g.." ""1) ", '" C..,.- ;,0',..'" .,.' W"

,,1' ,42' a ,, . ..,,""'0' resid f 00. \\ dishes, "ots ,, ,, (5'''' scr",,\1'g,""a",.,,, ,.. b' " -:b ",,,,. '0' ) ,."" 0, _;c" ,,,,co"" ", "". ,. ,M .,,o" ''' ":;"v mi, "', "",... .1'" " ."b D, ' ,,.O' ,- "7 . ."b'"''c-" O;. d""'"" ..,b .".."'"",,,,'0',,, "';J'r'"d, """ ", w i " "' 0'" """ D' " \,,6\-(2). ,5' o1' 1000.; sho,;\d;;\1\\\""1',P . uto1t" ,,1'u" f dish.."sh- 1.

tough P" e1' 1store \1\ ;;e"rs O..1'ers c.ish.."sher "1'\1"\ fo i1'structs vurch""ers ore "''' ,,, :D 0"' ,'" -. .v:.; a "" ..,,"a" .be' "

iS i1'str\1ctio1' .."s ,,1' \o"di1'g d\She c.s th" co1'te1' , SEARS, ROEBUCK AND CO., ET AL. 449 406 Initial Decision cleaning ability of the 1972 Lady Kenmore (HPF 193-197; HHB, pp. 4 49). This contention is based on the testimony of Sears' national purchaser for disbwasbers, Mr. Clifford, which has been found to be self-serving and unreliable. The contention is rejected. It is considered in subsequent findings and the discussion later in this decision. Sears Internal Documents 112. CX 186 is a letter from Sears' Consumer Services Manager to a purchaser of a Sears dishwasher who had apparently complained about its cleaning performance. The letter is dated April 29, 1975, and the dishwasher in question was a "7200 line" dishwasher, the model involved in this proceeding, according to Ms. Cannon, wbo based her identification on the features described in the letter (Cannon, Tr. 2513- 14). Sears' Consumer Services Manager included the following statement in his letter to the complaining purchaser "A light scouring may be necessary for satisfactory results" (CX 186). The argument that this statement of Sears' Consumer Services Manager should be disregarded because it may have been made to "placate the customer" by telling her "what she expected or wanted to hear" (RRB, p. 18) is frivolous and is rejected. Moreover, this statement is consistent with tbe Owner s Manual instructions provided to purcbasers of Sears' dishwashers.

113. In.J une 1973, Sears' Merchandising Research Department prepared a report based on a survey of Sears dishwasher purchasers entitled Sears' Dishwasher Purchasers - Satisfaction and Usage (43) Survey" (CX 125). The purpose of the Survey was to acquire information from recent purchasers of Lady Kenmore disbwashers about their usage and degree of satisfaction with tbe machine in order that Sears might better evaluate alternatives for the development of its 197&-1976 disbwasher line (CX 125C, 272A). Four-page questionnaires were mailed out March 1, 1973 to 800 recent purchasers of Lady Kenmore dishwasbers. Each questionnaire was accompanied by a 25cent piece as an incentive. Returns were obtained from 373 for a 47% rate of return (CX 125B- , Z071, Z084, 272A). 114. Dr. Harold J. Kassarjian, Professor of Marketing at the University of California at Los Angeles (CX 294A), was called by complaint counsel and testified as an expert in this proceeding to interpret and evaluate the Sears' survey of dishwasber purcbasers. Dr. Kassarjian s background is set out in Appendix B and his curriculum vitae is in the record as CX 294.

115. Dr. Kassarjian testified that the sample of 800 persons used in CX 125 was a good size and ensured a low probability of error (Dr. Initial D cisjon 95 F. Kassarjian, Tr. 1816-17). The survey sampled a good cross-section of American households; the geographical distribution of the questionnaires mailed out closely Sears' total dishwasher salespara1Jel(CX 125Cd the geographical distribution of The 47% rate of return Was very high since, 2061;a mailer. Kassarjiansurvey with a rate of return OVer 15% or 20% is a high return, Tr. 1815). The high rate of return was due (Dr. Kassarjian incentive mailed with the questionnaire, in Dr. Kassarjianand to the fact, Tr.that1815-16).those s opinion, to the 25 surveyed were recent purchasers of Sears who would likely ' Lady Kenmore want to talk about their new dishwashers Kassarjian, Tr. 1816). In Dr. Kassarjian acquisition (Dr. Sears' survey could be projected beyond thes actual sample used. If opinion, the findings of other surveys of Sears ' Lady expect approximately the sameKenmoreresultspurcbasers(Dr. Kassarjianwere done , he would In sum, Dr. Kassarjian believed the survey was we1J , Tr. 1845-6). Kassarjian, Tr. 184). 116. Survey respondents were asked a done (Dr. ing their satisfaction with their Sears disbwasher series of questions concern- Of the Sears' dishwasher owners responding to tbe(CXsurvey,12520842092).58% were completely (CX 1252049).satisfied"Howeverand 38% were mostly satisfied" with their units respondents were able to ,indicatein answeringtheir specificquestiondegree7 ofof satisfactionthe On a scale of One to seven survey, statement to, from completely agreing completely disagreeing (CX 1252088). Thewithstatementsa particularput to respondents in question 7 that are relevant to this proceeding were gets dishes as clean as I would like them prerinsing of dishes " and doesthoroughlynot require 1252088). The responses in "washesthe surveypotsto andthespans fo1Jows: f441 statements were" (CXas Gets Dishes. As Does Not Clean As I Washes Pots Require Wolild Like and Paris Thor- Pre-rinsing Agree Them oughly Completely 60% 49% 17% 27% 14% 13% 10% 16% 14% Disagree Completely '/0 \nswer 11% 13% lnalyzed . . . , , . . .. . SEARS, ROEBUCK AND CO., ET AL. 451 406 Initial Decision Respondents 373 373 373 100% 100% 100% (CX 125Z028-Z030).

Significantly, only 27% of the respondents agreed completely with tbe statement in question 7 that the dishwasher "washes pots and pans thoroughly" (CX 125D, Z030), and 13% disagreed completely with this statement (CX 125Z030). No other statement in question 7 evoked more disagreement (CX 125Z024). In fact, in its "Summary of Findings," the survey itself reported Only 27% agreed completely with the statement that tbe disbwasher 'washes pots and pans thoroughly " (CX 125D). Over half of recent purchasers refused to agree completely with the statement does not require prerinsing of disbes" (CX 125Z029). It is evident from this that a very substantial percentage of purchasers answering tbe survey found that the dishwasher did not always get pots and pans clean without scraping, pre-rinsing or other treatment. Obviously, if purchasers found that dishes were not always clean after washing in the Lady Kenmore, prescraping, pre-rinsing or other pre-treatment would be necessary for the dishes to emerge clean. The survey itself stated, under "Conclusions " that Hthere are indications of some dissatisfaction. with cleaning, particularly of pots and pans" (CX 125F). 117. The survey questionnaire included several open-ended questions which required respondents to write in a response. Typically, tbe response rate for open-ended questions is much lower than for closedended questions where the respondent need only cbeck off tbe response (Dr. Kassarjian, Tr. 1821 22). One of the open-ended questions asked if the purchaser had experienced problems with the new dishwasher (CX 125Z090). About 27%, or 100 indicated that they had experienced problems. Only these 100 customers were asked by the questionnaire to go on and specify the nature of the problem (45)(CX 125Z090). 118. Among the responses to the question eliciting customer problems were the following (CX 125Z062-67): 003 - It doesn t always clean dishes as thoroughly as I expeted it to.

0028 - Didn t wash dishes well, Left egg, spaghetti sauce on plates and silverware; and film on glases. 0069 Glasses on top rack do not come clean. 008 Glasses are milky. Dishes arc not clean sometimes. . . . . Soft fooparlicJes. Were left on top of under the impression no prcpal"tioii of glasses.dishesw()uldJ Was benecesSfLwith detergents saniwash -and had change 0262 - Leaving foo particles on dishes.

0267 Cottage eheese/tomato juicedoeriotwa.qh off others. . plus 0364 Some .foo sticks to glassware. silverware "spot, Glasware - and 0366 tgetdishesc1ean enough. . (461 In Dr. Kassarjian because the surveyed s opinion,person tbeshad toresponsesgo to theweretroublevery significant writing out the response (Dr. Kassarjian of actually 119. In Dr. Kassarjian, Tr. 1821-22).

evidence that a substantial sproportionopinion, theof Sears'purchaserssurveyof providedthe Sears strong Kenmore found the no scraping, no pre- ' Lady to be untrue (Dr. Kassarjian, Tr. 1831--3). As to rinsingthe conclusionrepresentationsto be drawn from the survey, overall, Dr. Kassarjian testified (Dr. Kassarjian 1842); , Tr.

. Well, let' s Summar!7'" it. What do consumers say, and What comes out of this that basically, you must preril1e and preserape at least some disbes. And tbe pails are not always thorough1:JJy cleaned. study is POts and 120. The Sears' survey of. Lady. Kenmore established that a substantial . dishwasher purchasers problems with tbe dishwasher number of purchasers had cleaning pans. The survey shows that such, especiallypurchasersas tohadwashingfound fromof potsactualand use in their kitchens that the Sears remove, without prior rinsing or' dishwasher would not completely normally and expectably encounteredscraping,by consumersall residue filmpot alld pans. . and Sears' cOljtention that the survey should" notfrombedishesgivenillY weight because " there was no way to determine whether the lishwasher owners responding to the survey had nachine" (RRB, p. 21) is w;thout merit. Although thisproperlyargumentusedmightthe SEARS, ROEBUCK AND CO., ET AL. 453 406 Initial Decision be true if only a few purcbasers had responded, the large number of tbose responding eliminates doubt that the survey was valid. The negative responses obtained by the Sears' survey from recent purchasers concerning the cleaning performance of new Lady Kenmore dishwashers are particularly significant, according to Dr. Kassarjian because of what he terms "cognitive dissonance" (Dr. Kassarjian, Tr. 1822-24). Dr. Kassarjian defined this as meaning that "when someone owns something new, it' s very, very difficult to see something negative about it" (Dr. Kassarjian, Tr. 1822). Tbus, the degree of negative responses that came through is impressive in light of the consumer propensity to see only the positive in the product purchased. 121. Sears publisbed many of its advertisements making the no scraping, no prerinsing representation subsequent to June 1973 (CX 1 and 73; CX 2 and 72; 73; ex 4 and 64A-C; CX 5 and 65), tbe date of the Sears internal report on its survey of Lady Kenmore disbwasher purchasers. The survey results are evidence from actual consumer usage that the Sears' no scraping, no prerinsing claim was not true. Furthermore, the survey establishes, furthermore, that, as of June 1973, Sears had reason to know that the broad no scraping, no (47) prerinsing claim it was disseminating nationwide for its Lady Kenmore dishwasher was not true. Notwitbstanding, Sears continued to disseminate this untrue representation by television, radio, magazine and print advertisements.

Tbe !IT Tests 122. During pretrial proceedings, in April 1978, Sears engaged personnel at the Ilinois Institute of Technology (!IT) in Chicago to conduct a series of tests of the Lady Kenmore dishwasher under conditions of "normal consumer usage" for use in this litigation (Dr. Norman, Tr. 3189a-91). To evaluate its cleaning ability Dr. Renny Norman, Engineering Advisor at !IT, directed tbe tests (RX 99, p. 3). He was fully informed that the tests were being conducted for litigation purposes and that Sears' advertising claims of no prescraping and pre-rinsing were at issue (Dr. Norman, Tr. 3191-92). Dr. Norman was assisted by Ms. Shari Bryant, a borne economist (Dr. Norman, Tr. 3193-94). Both Dr. Norman s and Ms. Bryant's qualifications are set forth in Appendix B. The !IT tests were conducted as follows: two loads in April 1978; two loads in June 1978; and one load in July 1978 (Norman, Tr. 3200, 3211- , 3217, 3226, 3269; RX 99, 173). For the two dishwasher loads in April, May and June, one load was done using the normal cycle and tbe other using the power wash cycle; the normal cycle loads were referred to as May Load 1 and June Load , p.

Initial . Decision 95 F. , respectively, and the power Wa.sh cycle loads were referred teas May Load 2 andJuneLoa.d 2 respectively (Bryant, Tr.A084;CX 354D; RX 99, p..15).. Theoneu.stlo"d in July was done using thepower wash cycle (Bryant, ')r. 4212), 123. Sears proyiqedal971m()del dishwasher t9 lit for the April test; this dishw"sher didn9thave a serial number(or ana.meplate on it (Dr; Norman, Tr. . 3200 3218, 3651). Two identicalIlodel1973 Lady Kenmore dishwashers, one of . which was new, were supplied by Sears to II') for theMay, Junea.nd Julytests(pr. Norman, Tr. 3218-19; RX , p, 4 173 l).

124. Acc()rdingto Dr. Norman and. Ms; Ilryant, the purpose of the April test wasto conduct a dry-run in order to become familiar with all cif the u.st procedures as;.ell as to determine that. everyhing. was workingproperly(Dr, Norman Tr. 3204-- , 3209 10; Bryant, Tr. 4078- 79). No. report was prepared .on the Apriltest(Dr. N.orm"n, Tr. 3209; Bryant, Tr. 4086).Although Polaroid photographs had. been taken of the dishes in the test, both Dr. Norman and Ms.. Bryant testified that the photographs were.of p90rquality and were discarded (Dr. Norman . 3210; Bryant, Tr. 4086). Dr. Norman testified that he and. Ms. Bryant "didn t really evaluate the results. (of tbe April test)." (Dr. Norman, Tr. 3209). Since the dishwasher used in the April test was not the correct year dishwasher involved in this proceeding and since the pr()ccdureHollowed in the April test and the results are fragmentary, at best, tbe April test carries no probative value as to the truth of Sears' cleaning performa.nce claim. (48) 125. Photographs were taken of the dishes in the May, June and July tests at the various stages of the test procedure (May: Dr. Norman, Tr. 3219-22; .CX 352A-V. June: RX 99, photographs 1-24;CX 360A-Y. July: RX 173, p. 6; RX 173, photographs 1-20). Photograpbs were taken of the two dishwashers, the pots and cooking utensils with the food contained in them for the June test and after the food ha.d been removed, the dishes both after they had been initially soiled and after tbe dinner plates had been resoiled (for the June test), the dishes after they bad been loaded into the upper and lower racks of both disbwashers, and tbe dishes after they had been washed, both while stil in the dishwasher and after being unloaded (May: Dr. Norman, Tr. 3225, 323()- , 3235, 3239- , 3245-8; June: Dr; Norman, Tr. 3294-95 3301--2, 3311, 33235 and Bryant, Tr. 4123, 4127 , 4131--5 and RX , p. 4, 16-17; July: Dr. Norman, Tr. 8485-'7, 3489, 3492-98 a.nd Bryant, Tr. .421:J15, 4217-24 and RX 173, pp. 5-6). All photographs . One of the dinner p!I1tc !/nd both of the caroles l! in the Ju!ytests Iu minor flaws iJitheir finish. which the Ilt testing group thought would appe as ooilin the photogTphs. Therefore, di8grmfi itrid phooogrpiu of the itemsshowing the loction of the flu.wswei'prepa! prior to the application ofanyloo ooil (RX 173- photo 18, 19 20; Dr. Norman, Tr. 3496-99; 3879; Bryant; Tr. 4224; ex 35Z02, Z0, Z0). SEARS, ROEBUCK AND CO., ET AL. 455 406 Initial Decision taken during the May, June and July !IT tests were taken by a professional photographer, employed by !IT and working under Dr. Norman s direction (Dr. Norman, Tr. 3220). Tbe same photographer was used in each of the tests (Dr. Norman, Tr. 3221, 3485). The photograpbs were printed by an independent pboto processing service which had no knowledge of the test program; the photographs were not retouched in any way (RX 99, p. 5; Dr. Norman, Tr. 3221 , 3485). Tbe purpose of the photographs was to provide a record of the "before and "after" condition of the dishes (Dr. Norman, Tr. 3221-22). After the dishes and utensils were inspected and photographed, they were immediately placed in plastic bags, labeled, sealed and stored; subsequently, they were brought to the bearings in this proceeding, where they were opened and inspected (May: Dr. Norman, Tr. 3219, 3241-4Q 3245, 3248 and see BX 183, 184; June: Dr. Norman, Tr. 3311, 3902-8 and Bryant, Tr. 4127-28 and see RX 181, BX 185; July: Dr. Norman Tr. 3519, 3902-,08 and Bryant, Tr. 4220-21 and see RX 182). 126. During defense hearings, Sears offered in evidence only the test reports, photographs, and dishes of tbe June Load 2 test, and the dishes wasbed in the July load (June, RX 99; July, RX 173). Sears did not offer in evidence the results of June Load 1 or either May Load 1 or May Load 2. At the suggestion of complaint counsel, in order that the record contain the complete series of tests run at !IT, the law judge received on his own initiative the dishes from June Load 1 (BX 185) and the dishes from both May Load 1 and May Load 2 tests (BX 183 184).

127. Because the Sears' !IT tests conducted during the course of this litigation are obviously subsequent to tbe dissemination of the advertisements featuring tbe no scraping, no pre-rinsing (49)representation (CX 62-77), the tests can have no bearing on the "reasonable basis" issues raised in Paragraphs 11 and 14 of tbe complaint. The Sears tests conducted by !IT can only bear on the truth or falsity of Sears no scraping, no pre-rinsing claim (Tr. 476&-67). 128. Tbe test conducted on May 8 and 9, 1978, followed procedures set out in a dishwasher performance test protocol promulgated by the Association of Home Appliance Manufacturers ("A HAM") (CX 355A , L, M, P, CX 1851 , J, K; Dr. Norman, Tr. 3218). The food soils used in tbe May test loads were: spaghetti sauce, scrambled eggs, cream-style corn, hamburger patties, mashed potatoes, oatmeal, scalloped potatoes ':i yellow cake, sirloin tip roast, macaroni and cheese, mustard, blueberry pie fillng, molasses, peanut butter, jelly, coffee, tea, milk, tomato juice, egg, butter, spinach and Wheatena (CX 355C, H, J). Tbe dishload consisted of various aluminum and stainless steel utensils, Corning and Pyrex casserole dishes, Corning Corelleware dishes, stainless steel ., .. ;:;: :;.;:;; (, ., ,. :;, . . ,. p\ ( ,. ,, ,. :; ,.,,,. . p . .,,.,. ,,, ,,,,,,,: (\;;.,.(,::::::, ,. ,,,. :..,,,,,y ,;.;:: ..,... \:,::;:, . ;:::.::,.,.,.,,,,, ,, , ,,,..,,,,.,.,,.,.;;;.).?; . , . ,,,.,..\,::,.::,,, .,. :;,. .,. ,,., ,,,., ,...,,,,,. _..(,,,.,,,,.,,,, ,.,(,,......, :.,, ). .,,,,,, ::,;::;::.. ,;; \.,).,.. ..,,., ,,,,.,,,,.,,,,,.:,.. .\g,,,,,,. :;; ..,,,,.).(:;::;::,:..,,, :);.,;;,,,. ;,..,,,,, ,,,,,,., . ,::: ,..... :,., .::.; ;:. ,,,,,,,,,. ,,. ( .. . , . . ,. ,... . C1Sl01\S 95j'.'t.

lss CO " 't1J",p t:,., "",.f'" , to 1J'" . I\UO"(' \ e1CI\"(\"(, e1'I\ e"(t SO\\ ,cJ. ?,fJ"C, pe l' . ffe \""$",I\ e, :c\C\I\ "(I\ 0"( 1\ s"(1'e " I\$$O ,,o.o' tests "".9" , II'\ ,e ,,\e"(tS, et I\S coo\l\"(g. e e"e"( t\l co"("(t\e$$ \"(g "" I" . cl',, el\co"("(te to "(o \ \"( I\"(U :"" .W,,, ,,0 "(0 ,. d cl' ,DO' I,,"" " t\le '\ '3?f; ,o"". fo\\O",e "(I\"(' I\ 1) t\le \J " 0"( t\le "(o o ",\le e'p "(t ge"(e to . \\O",e" e"(o"e t\le "(te"($\ $ $"(I\"(t e., (1) t, m"' ;.w"' t"(e"( m "\. "(I\"(' '\ "( 1\"( te$t\"(g 1' e"(t ",I\S 1'\I\C "" '" DO. 0' ,.,h. f t\le "\$ \'3\) f I\"( ,,.,, w '3'2\, '3zA). C- t\le ,,\$ \"($1'ect\o"( 0 ,,OJ. to t\le fte . ""w "". "" ,;,"W ," ' nO :I', . "nO $ ",e :;::;,;t': o$;;J"("(e tes::;i:, , t\le st ol\U 'ii;, " o s"(I\"( e l' '\t\o"($ (1) e1''' . cO' '0'" e1'I\ co" w" "' eV.fO '""'o ot"'\"(. t\l \21 t\ll\t t 1'I\$se "$ 1\"(" ,,\$ "(se" l.l;\)_1\)) \le foo ,0 '" ", ::t::; to" 4' "(s t t\le food $0\ $ J; ot\le 0 e,,"(\t\"(g e "I\,,1'\W$ '6el\ "( t $ 1\"(""("( co"'.1'\"\"( ec\1'1\ . " \J co"(s"("(e co"($"("(e e"(co"("(te , U.L 406 Initial Decision June test. The foods were prepared by Ms. Bryant on June 1 (Dr. Norman, Tr. 3279). In preparing tbe foods, Ms. Bryant followed normal" consumer recipes and procedures, including package directions wbere available (Dr. Norman, Tr. 3764; Bryant; Tr. 4110, 4112- 14; RX 99-112).

134. In tbe June test, all tbe cooking and baking utensils, except for a cake pan, were countcraged overnight with the cooked food remaining in the utensils (Dr. Norman, Tr. 3809-11; Bryant, Tr. 4118; RX 99, pp. &-11). On tbe next morning, June 2, at about 11:00 a. , the cooked foods were removed from tbe utensils, according to the types of procedures that would "ordinarily" be used by consumers in serving such food and so that a typical amount of food residue remained in the utensils (Dr. Norman, Tr. 386&-67; RX 99, pp. 13, 15). After tbe foods had been removed, the utensils containing tbe food residue were allowed to counterage until they were loaded into the dishwasher at 2:20 p.m. and 3:58 p.m. tbe same day for Loads 1 and 2, respectively. The utensils were counteraged for 3 hours, 20 minutes for Load 1 and 4 hours, 38 minutes for Load 2 (RX 99, p. 16; Dr. Norman, Tr. 3289-90). 135. Tbe dinner plates used in tbe June test were initially soiled by Ms. Bryant on June 1 with eggs, spinach, butter and Wheatena (Dr. Norman, Tr. 3279; Bryant, Tr. 4115). Dr. Norman testified that when he first saw tbe soiled plates on June 2, it was his opinion that tbe dishes should have been more heavily soiled (Dr. Norman, Tr. 3285-6 3981). Subsequently, the dinner plates were washed 'and resoiled on June 2, applying a beavier amount of soil than had first been used (Dr. Norman, Tr. 3287; Bryant, Tr. 4115-17). After resoiling the plates, they were allvwed to counterage for 3 hours, 50 minutes and 5 hours, 10 minutes for Loads 1 and 2 respectively, before being loaded for washing (Dr. Norman, Tr. 3287; RX 99, pp. 7, 9). 136. None of tbe items to be wasbed were pre-scraped, pre-rinsed pre-soaked or pre-treated in any way (Dr. Norman, Tr. 3292; Bryant Tr. 4124-25; RX 99, p. 15). The disbwasher was loaded according to the directions contained in the Owners Manual, with the dishes and utensils divided between Loads 1 and 2 so as to create two disbwasber loads (Dr. Norman, Tr. 3291- 94; Bryant, Tr. 412425, 456061; RX 99 (51)p. 15). After tbe disbwasher was loaded, Ms. Bryant filed tbe two dispenser cups on the Load 1 disbwasher and the two cups in tbe Load 2 dishwasher with Cascade disbwashing detergent in accordance with the Ownl'rs Manual instructions (Bryant, Tr. 4491-92; RX 99, p. 15). At this point, Ms. Bryant put both dishwashers into operation (Dr. Norman, Tr. 3726; Bryant, Tr. 4126).

137. After the completion of the disbwashing cycle, the dishwasher was unloaded by Ms. Bryant and Dr. Norman who tben inspected the ". ".. n . l0 OLJ 458 EDERAL TRADE COMMISSION DECISIONS Initial Decision 95 F.

dishes and utensils for cleanliness (Dr. Norman, Tr. 3311; Bryant, Tr. 138. Another test was performed at lit on July 27, 1978 (Dr.4127-28). 'Norman, Tr. 3479, 3481). The purpose of the July test was to duplicate a test procedure for the evaluation of dishwasbers that was developed by Mr. Anthony Eberwein, a former employee of General Electric and one of complaint counsel's expert witnesses (Dr. Norman, Tr. 3479-80 3484; Bryant, Tr. 4204; RX 173, p. 1). RX 173 is the report which Ms. Bryant prepared on the July test (Bryant, Tr. 4203-4). 139. Mr. Eberwein s test protocol is reflected in RX 174, pp. 31- (Bryant, Tr. 4204-06). Tbe particular procedure used in the July test was Mr. Eberwein s type 8 test, whicb he designed in 1972 as a means to test a disbwasher s ability to remove baked-on foods (Bryant, Tr. 4204-6; Eberwein, Tr. 1232-4).

140. In conducting the July test, Ms. Bryant used the following food soils which were specified under Mr. Eberwein s type 8 test procedure: pork and beans, coffee, macaroni, oatmeal, evaporated milk preserves, tomato sauce, beef gravy, beef ravioli, sugar, mustard cheddar cheese, butter, homogenized milk, flour, salt and pepper (RX 173 , p. 2, 174, p. 36). Mr. Eberwein s type 8 procedure permits tbe person conducting the test to choose between "Option (a)," in which a baked bean casserole and a macaroni and cheese casserole are used as baked-on soils, and "Option (b)," in which an oatmeal pan and an omelet fry pan are used for baked-on soils (RX 174, p. 59). In conducting the July test, Ms. Bryant cbose "Option (a)," because the option included soils which bad not been used in prior lit tests (Bryant, Tr. 4206-07). The dishload consisted of assorted cbina glassware, stainless steel flatware, and porcelain china casserole dishes (RX 173, p. 1, and pp. 34-35; Bryant, Tr. 4210-11). 141. In preparing and applying the food soils for tbe July test, Ms. Bryant followed tbe cooking prepartion and soiling procedures described by Mr. Eberwein in his type 8 test procedure (Compare RX 173 pp. 2-5 with RX 174, pp. 55-58). In Mr. Eberwein s type 8 test procedure, the cooking procedures contained in cookbook recipes that were used in preparing some of the foods were modified in order to obtain more severe soil adhesion" (RX 174, pp. 56-58; Eberwein, Tr. 1230-31). Nonetheless, the food soils that were used in the July test are among those "normally and expectably encountered by (52jconsumers." However, for the same reasons discussed in reference to the foods used in the May and June tests, the food soils used bere do not represent tbe universe of food soils that was addressed by Sears in its unqualified claim.

142. Ms. Bryant departed from Mr. Eberwein s procedures in that ET AL. SEARS, ROEBUCK AND CO., Initial Decision 406 test she did not remove excess food soils from the plates used ins opiniothe Tr. 4211). In Mr. Eberwein(Dr. Norman, Tr. 3483; Bryant, the plate washed in the July test were in the condition, excepttheythat excesswould , Tr. have been had he prepared them under his protocol food was not scraped off as his protocol recommendeds (Eberweiprocedure was departure from Mr. Eberwein 1246). The result of this beef gravy and amount of ravioli, Tr. that the July test involved an excess, Tr. 1246; Bryant, tomato sauce on the plates and forks (Eberwei Sears' witness Dr. Norman admitted that p. 2). However, 4214; RX 173, the ravioli used in the July test was soft and moist to dishwasher;the point thatDr.it fell off the dishes as they were being loadedwouldin notthe be adhered and Norman testified that such food residue, Tr. would bc relatively easy to remove in the dishwasher (Dr. Norman 3899-3900). , the baked- soils were prepared and applied 143. After the food soils were allowed to counterage for three hours sandtypethe8 otherprocedurefood as specified in Mr. Eberwein soils for one hour, pp. 55-58). pp. 2-5; with RX 174, (Compare RX 173, loaded into the dishwasher according to 144. The dishes were then, Tr. 4213; RX 173 Owners Manual (Bryant the directions in the Sears' Tr. 1336-7). Ms. Bryant added detergent and started p. 56; Eberwein, the machine (Bryant, Tr. 4217). , she and Dr. 145. After the dishwasher was unloaded by Ms. Bryant, Tr. 3519; Norman inspected the utensils for cleanliness (Dr. Norman Bryant, Tr. 4220). attack the lit tests as unreliable and poorly 146. Complaint counsel conducted alleging many irregularities and defects.defense ,Complaintthe lit testscounselare far from supporting Sears' contend that, rinsing claim is false. not further evidence that the no scraping, no pre- 147. The undersigned law judge finds thatwill thecompletelyIlT testsremovedo Lady Kenmore " , pots establish that the Sears' without prior rinsing or scraping, all residue and film from dishes and pans used in cooking and baking according to normal consumer recipes and under other circumstances, as complaintnormallycounseland contend,expectedlythe encountered by consumers." Indeed Kenmore wil not perform Ilt tests tend to show that the Sears Lady as Sears told the public in its advertisements. Sears did not offer in evidence the results of all 148. As described, but only the results of the June Load 2 test and the thc Ilt tests, , Sears relied on only (531two results of the July test. In other words of its Lady Kenmore. The June Load 1 was not offered test operatio wash" cycle should have been by Sears on the ground that the "power and the May tests were not wash" cycle, used rather than the "normal .. ,. (\\$.\ . .\ . : ,. ,,, ... ,,\\, . ,. ,... .. : $ \& ,..,,, (\ : (\\(\$ . .. . ,., \\$ ,;;(\,, . .. ,, , . .,,;.; ,... :...,.. . ,.::,,,;,.,.. .. . ,,,.,., ,,..... ...,;.\. ::.. ..:,,,, , : .,,,. . ., ..,,.. ,. ,,,, ,,,,,,.,,,,,. \$,,,, .. .\\, ,, , ,,,,,..,,,.,,, . ,... ,,., ,.,,,p, ... , ..,,.,,,,,, .,,.:... .,,,(\.,.. ..,,,;,..,,... .,..,,, ... , , .,. ,,...,,,. ,..,,. .,..,,, ,,.. . ,,. . ,(\\,,.. .; . ,,,,.,,.. ..,..;,,,,.,: ,,,., ,.,?, , ,,, ,,,,,,,,,, ...:;.,, ..... \.,,,.;p,,.. . ,. ,., . .,,, ...:;,,,. ,, ,.,, ,,,. ,...,.. ..:,.. ,,?,, _.. ,.. .. ;:.;,.,,....,. , ...,, .. ,.. ,,,,.,,,.. .,. , ., ,,,, ,,.,, .,.... , . .. , .. , ,,, ,... lot\S 't. 1'C1S .1SS10t\ D ".\ett 1' C ,,;.D cis' n1'.-'\,. D .0" 3.-,,$00tte$1\tt . 1'" oQt-- J '" W,,1\J"V, " '(. ,"0' "" P.$ '00 .\e &0 "l . 01\. 0" \ce, 1!$"g ese1\ (\\S.\e$ 01!1\ 1\$1!1ie )le1\ e(\1!e1\e " " \\1i\ (\ 1\1!tt \, 0& ,,1\ \1\ \(\.,f' M" . W' -'''' ". U' .\. :"t\1\\\.\e 1\" . 01\$ ,,W" e\e$$ " dO ';'''l' h'" h'"

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406 Initial" Decision testing n()t eating purposes., Infact none- of the three (54JfQoas they are. suggeste to be prepared provide the flavor and/() cOllsistency of wltat the same foods would he if we servedlhem to be eaten as .. a typical meal The AHAM Wheatena recipe,forexample; is not even what the package suggests.

While. a witness in this proceeding, .Ms. Bryanttestificd that AHAM" food soils used in the May II tests, i. Wheatena, eggs, and spinach, were itl:morrnal stating " just didn think it was the way som one would do something in the hOJJe/' (Bryant, Tr. 4384). The tenl10us basis. for Ms. Bryant's opinion that the food soils used in the May IIT tests were "abnormal " howev r,was brought out during cofuplaintcounsel's cross-examination of Ms. Bryant. 151. According. to Ms. Bryant . the spinach used in th May tests was abnormal because, prior to being applied to the dishes, it was ither heated nor seasoned )Vth salt, pepper etc., as would happen in a normal consumer household (Bryant, Tr. / 4385, 4405-6). . The Wl1eatena was "abnormal" in ' Ms. 'Bryant'sviewbecauseinlkwastlsed to prepare it rather than water (Bryant, Tr.. 4406); ho",ever, she conceded on cross-examination that the Wheatena package states When preparing Wheaten a, milk maybe used ill place of water. " (Tr. 4408). The eggs used in May were "abnormal" according to Ms. Bryant because only the yolk was used as a test soil (Bryant, Tr. 4409). In answer to the question What was abnormal about the egg, Ms. Bryant " she testified Well, do you usually prepare eggs and just serve the yolk?" (Bryant, Tr. 4409). Ms. Bryant had " 110 idea" whether the abnormalities she detected in the AHAM food soils affected the adherence of those soils to dishes and utensils (Bryant, Tr 4386). 152. There"sonsfor Ms. Bryant's opinion thattbeAHAM test soils used in the May IIT test of Sears' Lady Kenrnore dishwasher w abnormal" are insubstantial; inde, they border on the frivolous. Sears' objection . on this ground that the May tests are to disr garded is without merit and is rejected. 153. The AHAM test protocol (CX 185) was designed "to establish a uniform and repeatable procedure or standard method for measuring specified product characteristics of dishwashers " and was "intended to provide a means by which different brands and models of dishwashers can becOlllpared and evaluated with. respect to characteristics of significance in the use of the product." (CX 185E). The AHAM test protocol is an industry standard.. An examination of tbe food soils and food preparation procedures set out in the AHAM test protocol reveals nothing that appears to be extraordinary. Spinach, wbeat cereal (Wheatena) made wit!) skim milk, soft"boiled egg yolks margarine tomato juice and tea, are the test soils specified for use (CX 185H). Very explicit instructions are giv n for food soil preparation (CX ,,,,, y. ,,, .,. .. , ... ;,::;,,, . , ) :,.;. . ,,,,: .,.. .. ,. ,;,,,,,,..,,.,.,.., .. .. ., .,.:,..,./...,,,, , :;: ,,,,.,,,,..:,,,,, ,.. , ::... ,...,. ... .,. \ ,..\ .,.\.,..;: ,,, ,:;,.;,,,.. ,..::.,..,;:;..,,.. ;.:,::;:,. ,;::,.. ,. , . ,,,,,...;: ::::. , .,:.;;; ,.,. , l$\O 1':r.

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1'o\,\ 't\-(e SEARS, ROEBUCK CO., ET AL. 463 406 Initial- Decision Obviously, as Seam' house counsel indicated, the difference in the cleaning phase of the foregoing normal cycle and power wash cycle is insignificant. The Sears' Owners Manual, however, described the power wash cycle of the Lady Kenmore as having "2 extended washes and lists the total time of the power wash cycle as 4 minutes longer than the total time of the normal cycle (CX 99G and 100G). Sears has also stated that the cleaning ability of the Kenmore dishwasher is the same as the Lady Kenmore. Sears' Kenmore dishwashers do not have tbe power wash cycle. In its proposed findings, Sears stated in comment on the testimony of Ms. Fraser relative to the alleged August 1972 tests at D&M which were done with a Kenmore dishwasher: "The dishwasher used in this testing was a middle-of -the-line 1972 Sears machine, mechanically equivalent to the 1972 Lady Kenmore .. The cleaning capability of this dishwasher was identical to the 1972 Lady Kenmore" (RPF 15). Shortly following the preceding finding, Sears stated that in the August 1972 tests at D&M the dishes "were washed in the (Kenmore sJ normal cycle, as was D&M's standard practice. . . This cycle was equivalent to the 'power wash' cycle on the 1972 Lady Kenmore" (RPF 18).

155. Sears did not resolve tbe ambiguity created by the information it gave tbe Commission in connection with its Special Report, CX 83Z002 and CX 85B, the statements in the Sears' Owners Manual, CX 99G and 100G, and the statements by Sears that the Kenmore dishwasher s normal cycle has the same cleaning capability as the Lady Kenmore. The ambiguity can be resolved by an inference that tbe normal wash cycle of the Lady Kenmore differs from the normal wash cycle of the Kenmore. That inference, however, mayor may not be true. Further, IIT tests were conducted to validate the no scraping, no pre-rinsing claim, and counsel for Sears was closely involved. The IIT tests used the normal cycle as May Load 1 and June Load 1 demonstrate. The reason this was done, if only tests with the power wash are valid, has not been explained by Sears. 156. Sears advertised the no scraping, no pre-rinsing claim in connection with its Kenmore dishwashers having normal wash" cycle not merely its top of the line Lady Kenmore (see CX 6-, 10). Significantly, Sears' no scraping, no pre-rinsing claim was not limited to the "power wash" cycle of the Lady Kenmore. Nothing in Sears advertisements or in the Owners Manual stated, even indirectly, that neither scrapingnorpre rinsingwasnecessary, provided purchasers used "power wash." On the contrary, tbe claim was made in a blanket fashion by Sears for its dishwashers generally. 157. Sears has the burden of justifying its objection to consideration of the May Load 1 and June Load 1 tests, and it did not establish . ,, ., ,.,, ,y, ,; ,.,,p . ,, :: ,,,, .. . , ,,,,,, ! ,, ,: :: ,,, , :. ,,, , ; ..:,., ;. ,,,,,, . . . ,,,,\;.,,,,,. :;;;. ,.,,,,. :, ,,,,.. :,,, .; , ,..,..,,,.,, .,,,p;\. ,,, ,,,,,,,,,. ,:,, ,,,,,,,,p,. ,,..\:. .,,,, , ;.. ,.,,, ,,,,,. , ,,...!,,,.,,,,,,,,. :,.,, ,,,,,,.,.,.,,?;,,.,..,,. . ,,.,,,...,,,,,, ...:.,,,),,. ,,. ,,:\,,, ,.,.. .,,.., ,;,.. ...,....:;. ,\,,..,,.,..,.. ,,;,,).,,.., ,. ,.. . ,,... .,,,,,,,, .,..,,..,,,. ,.,,,. ..,,.\,,. .,. !... ,,,:,.. , ,,,, ., ,.. ,....... ., ;, . . \. , .. . , . ,, 1". D",C15 t""t C01o 'D'" .'( o "" . t" ). ,,1' \1e l' " n" Deo\:\01\ "'nut 1,1\ ..",'io1\t "N"':V' q,1,'\1f tt \\ ,11\to"t\01\"" ' """ f;' e01\: 'x-U' "'e 'u\,:. d ''' ag\1\(I " t ,,1\ 11\ t" a '2 ': nO "", J ,'" ': .",n c\e":,ut"\1\; o '" "" :"''' ":h',,,h:"" u''' 5\aue ''n d"" OW" "

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406 Initial. ' Decision (Dr; Norman, Tr;occurrel1ceiri the consumer s1Jse '. of dishwasher 3899). Dr. Norman also acknowledged that another plate in the same load was tipped; however, this plate was cleaned (Dr. Norman, Tr. 3897 98; RX 173 - photographs 4, 5, 6). Thus, these are completely normal circumstances and provide no basis for excluding from consideration the stil-dirty dinner plates when evaluating the July test.

160. There is no valid reason for excluding the May Load 2 test from consideration on the issue of the truth of Sears' no scraping, no pre-rinsing representation. The fact is that a number of items (58) washed on the "power wash" cycle of the Lady Kenmore dishwasher emcrged from the washing, like a number of July test load items, not clean (Dr. Norman, Tr. 3930-2, 3934; Bryant, Tr. 4630-2). See aluminum roasting pan, plates, Corningware caserole dish, forks spoons and knives (BX 184). As stated with respect to the June Load 2 test and the July single load test, the claim that the Sears' no scraping, no pre-rinsing representation is true obviously cannot be established by a test in which a number of the items washed emerged dirty. 161. The IIT tests, as the foregoing findings show, not only failed to support the truth of Sears' no scraping, no pre- rinsing claim, but constitute evidence that it was false. Beyond that finding, it is found that there were substantial deficiencies both in the IIT tests themselves and in the evidence introduced by Sears to show the results of those tests.

162. Photographs are inadequate to establish that the cooking and eating dishes were washed clean of an residue and fim by the dishwasher. It cannot be determined from an examination of photographs whether dishes, pots and pans are, in truth, clean. Although some photographs may be satisfactory for this purpose, others are not. For example, it cannot be determined from the photograph of two aluminum cooking utensils washed in the May Load 2 test whether or not they are clean of all residue and film (CX 352U). Furthermore photographs are deficient as evidence that the dishes, pots and pans are clean because they do not show all surfaces; even in those instances where the cooking and eating surface is shown, Sears' photographs do not show the back or underside surface (CX 352B , 360B-Y; RX 99 photos 2-25, RX 173, photos 2-7, 9 20) upon which it is perfectly possible that "redeposited" soil may have been placed by the washing action of tbe dishwasher, resulting in a dish which is not clean. Witnesses testified in this proceeding that photographs have serious limitations as a means of determining whether dishes, pots and pans arc clean (Eberwein, Tr. 991- , 994; Ferguson, Tr. 1674-76; Annis, Tr. 2276-77). For instance, photographs do not always show grease, film or ,:, :; \ \ ( \\ ( ,,, g. , ( . , p. \. ,. :\.!) & \,. .: . \,,, ,j! ,.\,: \\ : , ,,:: , : .. , ,;,:;... ..p. . ;:,,\ :( ; . j! :: p,,, \\\\\ 1011\\ 't. 1011p"C\\\a"e rt,01\ ",e,1\ ato ,,'per . 't ,. .\0" I't "nw.",t0) "d "r\ 1,,\t\'" pee'a I'': 1'1' r .

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164. Beyond the foregoing, complaint counsel question the IIT tests because of the fail ure to use any systematic scoring procedure, because of the alleged involvement of Sears' counsel in tbe tests, and on tbe ground that a number of proccdures were followed which would maximizc the cleaning ability of the Sears' dishwasher (CPF 168-70 183-92). In view of tbe findings herein that there are fundamental and fatal deficiences in the IIT tests as evidence that tbe Sears' dishwasher would perform as advertised because (1) tbe (60)food soils were not representative of the universe of food soils encompassed by the claim and tbe Commission s complaint, and (2) a number of tbe dishes came out of thc dishwasber dirty, it is not necessary to evaluate in detail these other objections to the IIT tests. The following findings nevertheless, are made.

165. Neither RX 99, the June test report, nor RX 173, tbe July test report, contained any scoring procedure to evaluate the cleanliness of the items washed (Dr. Norman, Tr. 3742). The May test also did not involve a scoring procedure (Dr. Norman, Tr. 3742). Instead, the test reports relied solely on the photograpbs to provide the results (RX 99 p. 18, 173, p. 6). A protocol for testing tbe cleaning ability of dishwashers should contain an objective procedure for scoring tbe dishes (Eberwein, Tr. 988-94, 1251-52; Sullivan, Tr. 1431; Annis, Tr. 2274-77). Dr. Norman, who conducted the IIT tests, conceded that it is not customary in scientific design and experimentation to use photographs alone to determine the results of a test (Dr. Norman, Tr. 3742- 43. See also Fraser, Tr. 5273-74).

166. Sears' counsel was involved in tbe actual testing procedures more than seems proper for allegedly objective and important tests conducted by an academic institution (See, Dr. Norman, Tr. 3681-8 , :.,\ ., \.\) \.\) \,.\ . , , , , \. ; \:j, . ,:;;:. ,, ,,,:\\,,\ \. . , ,:,,\ ::;.:; .).. ;:. . . , : ;.:;:\.\), $C1S10 90 1" :t.

lS S ,0 01 \1\ tQ 0 '\l'p.u" CO test \' e eC\'\O" 1\,0"" 1 as tr. t, '\ 1" "D ,,\1" 1""",1 U se 0 i tne!;, ". "' 'ia1\ ",n\en o. tne a1\t tyco\""J'.\1\ -:J 1.19) e\ecteo.0ti ,.w'" 1\se 1\ ,\1". . c te ,W "' ", --'" : deal"S e 1'01"tia 01 10 en"" l00-"' 'l). " \'\)1". . 1"a' \ect;' a \\st e llr "o testSgn a \\ 0'1\e tnat ""a, . h ,o\t" 0- \SO ese1\t 9) ",e\1\ 1\ .tne 'oe ,\1". se, 'co tne se \1\ . Seal"S sed 1")' ""a,a1\t,0 100 0. M\)SO\\s Co se, I(i tests" to soti 459 ). to \) ,\1". i tne 1(9?r9 '.e1"e )'a1\ \\S 1\e" 100 oos\1\g \) :"a1\' '\ eta \o. o., tn 'a1\t, ag:91.), en e\eS to t \est\1\ \.v'J "'O at\01\a\ tnat e 1\0 \\"1 1.19 01 t '\1". 459 ",asn c'i tne no a' \,e- . 1'01"'"",e e "" a 1\ti, tne 1"e a1"\O 'i ot 01\ 01\ a1\" \1\\1\g e sett\ 1) at\1\g t 011 S'\1\ 1" ,\1". 'e'i 1\) "" ,"a\ o.ete1" e1"at .. te" ,\1". 5 1\ tages1\a,"\C\\"\ne ati o&a1\, "'J' ti\' a1\o. \' ti\1\\"g 1' ag'1\g \.C"1hoOS\1\g tne te 1"'i "t, ",n\C" o.ete1" o.\snes o 1\te1" 4 &41.., tiea"s0' 1 tne ad 01 c t, ,\1". o1(1(), c ,\1". as tia)o1"tne t 1"e\'o ,"\,1"e\,a tia'" a\,ns 1). he tes ",as a 1"'i . 1' 1'z \t\1\g t 1"e\,o t s .tteo. a tietno. \. 'oti\ ,"\1\ se neate1" 'oe 1 \,no 1". 0. \" "' l\"a\ "e se ':'01"tia" ",a gest\1\te1" . g t" \)1". e tne e \) 1'01"tial\",ne e\, o"se- ",as \1\'io\'ie to e \. 1\se\ eS a1"\ts .00e1\C, , eO tt \.C"1 ,\1". '.11).dt \\"1 99 test: to e'i\ t Seal" S e o. \ o. ". o. tn 1.1(1' &a1\, 1\ tne . eet\'ie h o to :n :tt\ce 0 \) . 1'0 s \)t": \1\t ':\'i' \ '\ne o sn"'". a1\ ti?" tte nas '0 'ose'\ sta; o \.C"1 a:o.t,,1\t\'i ,\ne o. : o.\sne s sseo. ,,1\0. a,,\1\g ",\,a'o\ e\'o e . o.\se te1\S\ a"o. 0. tt 1" ",e tie \,o" 99). \ a1\\"g oO"\1\g oo"\,,g e SO '" \.\\S\los:ftne c c e'i\S\ a"ge 0.' 'oase hat tne: s. C ti"\ " ate C01\o.\t\O g 1\? ) SO t e1\t 1\\1\g ",as C tnetne s to e 1\e G\1 . eo tne tn\s '\ 'i5G) a" C01\t1" \ 0 tes o gratic,, c\e':n\enes 01"tia ase1". e SO\\1\o",eie tne \': \,1"O gra. 0. 1"",a e o.\sn"' \\e 51( 1\se\ \ t tne 1\ce :\ e ":e1"e\. C"1 se1" o s\\'ie e 1"eS. ",\tn a1"S cO 'o)eet\ . aceo e1"e to \) aiel"ag a1"e '" . ",\ne 0 sne1" \" \ oc . "S te". \ ). ete~e" ;tl:f 99, 1? , S\\'ie h",a t'j o.\. a")' o.\SC rt \ 1" st; th a1\"01" " o. '0 1\t a1\1" \1\te1""" '\1\" t\es .'" 1 a o.\She 1"oc i 1\ot "'\)' tha s, \' a1"" a1\ ca\''' 0.\1\ l1\g 0 "oc \. testi\' e"S\"a1\ o. 0 0. ,.\"goa" 1"awl\.eo.J st" u" t t \)1". 1\S\\S, e to a s e0 oO,,\1\1?eoe O"\"b, ce51(.20l") 1"t 0 1'01"'"te \" ,, ture 1" 0. to "e s"ti ;.';w:: e to \,e" i t" 1.G\'. 1"t"Ce "e \1\S e S t\"a\ ;'oC \.1.51( , 0. t" th 0. 01\ i;"g e \se ti 1"e 1" &,,1\ eie1", t th "1('0 to th te1" 5). 1"" 1\0'" 11\g th" test\eo.'o".e th" testi\' \)1". 1'0 ass ti\'t\o1\",ate1", a" 51('L\)\) s \\s st"t 1"tace 1.1(). ",as a1\ 1"ge 0' te1\ tl:f . sch 99, t 1"e te"S\\" . 1\ 0.\ e \.,. tetir"e1"" 3.,,\ , tne era. &Ce . Ol- testi\' . \ s te1\S\ ti\,e t the te S.;ARS, ROEBUCK AND CO., ET AL. 469 406 Initial Decision never any actual measurement of the surface temperature of tbe utensils (Dr. Norman, Tr. 3985-88). The additional language as to utensil surface temperature was added between the time the draft report was submitted to Sears' counsel and tbe completion of the final report (Dr. Norman, Tr. 3988). The involvement of Sears' counsel in the actual conduct of tbe IIT tests is a factor to consider in judging these tests.

169. A water softener was used in the IIT tests (Dr. Norman, Tr. 3796). Soft water does enhance the cleaning action of a dishwasber (Eberwein, Tr. 1035-37; Dr. Norman, Tr. 3796). Failure to mention in the test report (CX 99) that a water softener was used, however, is a questionable factor.

IV. Sears Did Not Have a Reasonable Basis for the Representation That Dishes in the Top Rack Will Get As Clean As Tbose in the Bottom Rack 170. Paragrapb 13 of the complaint alleges that Sears' advertisements represented that dishes in the top rack of the dishwasher will get as clean as tbose on the bottom rack without prior rinsing or scraping. As bas already been found, this representation was made by Sears. CX 1 specifically states:

And the dishes on top get as dean as those on the bottom. Because every cup and glass is scoured inside and out by a field of eight uppcr jets. See also CX 2.

171. Paragraph 14 of tbe complaint charges that when Sears made this representation, it had no reasonable basis for it and, therefore, tbe claim was deceptive and unfair. The complaint does not charge that the representation was false.

172. The upper rack on tbe Sears' dishwasber, which Sears advertises as tbe "Roto-Rack " is a circular rack whicb is designed (62) water pressure (CX 2, 277Z0l4, Z054; Fraser, Tr. 5240). Sears has promoted the Rota-Rack as an exclusive Sears feature, as an advantage over competitors' square racks and therefore, as another reason to purchase Sears' dishwashers. For instance, ex 3, a print advertisement stated:

Lady Kenmore s upper rack is the revolutionary RotaRack. It holds as much glasware as square racks, yet has no 'dead corners . And it revolves to make sure not a dish is missed, See also CX 14B and CX 42.

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h'" 1 , ",,'0", ,bO. " ;",. DO" W' ' t' "",,,\\t1\g. ' .h'" ", " IC)' ,uJJ '" 11","5\\e\" \h "'" ",,,,,,,," ..

(\ b"l 5. . 1\ i1\C01\sistent "" "ut"O ct COu.c\US10 .. 'C , ""no fo\\O",\1\""" 'O OC):

,. d\""

C " ,,w""" t tne \\1"'"."",.0 ,0w '" ",e,e ,\\Uec ,\i' ,0'.do"O"'."'\tJd"' ;. '0' ''' d\' '-"00'- T1s\totc \.'Pt\1JUoJ SEARS, ROEHUl).K 1\l'\U \JV. , ell 406 Initial Decision which were soiled with very adhesive soils particularly egg and oatmeal, retained these soils. The silver with dried-on egg appeared as though jt had not even been touched by any wash action. The oatmeal in the upper rack was as bad but the lor rack item.r; that were soiled with oatmeal did not come out much cleaner. (Emphasis added). 176. Similar considerations bear on Mr. Clifford's testimony also discussed earlier. According to Mr. Clifford, during his visits to the Home Economics kitchen of Sears, across the street from his office sometimes made so as to be there "when they were taking something , Tr.out of the oven to enjoy a little bit of their cooking" (Clifford 4826), he observed the performance of the Sears dishwasher and found dishes in both racks to be equally clean (Tr. 4869). As previously stated Mr. Clifford was responsible for procurement of Sears' dishwashers and was also involved in the representations disseminated in Sears advertising of dishwashers (Clifford, Tr. 4792, 4794-4800). He approved ads containing the top rack claim (Clifford, Tr. 4868). As in the case of Ms. Fraser, Mr. Clifford's testimony amounts simply to an unverified assertion unsupported by any documentation a witness one (sic) with an interest in the outcome of this proceeding that the Sears dishwasber wil perform as advertised. Again, such testimony is unconvincing and unreliatlc to prove facts of crucial significance in this proceeding.

177. Neither the testimony of Ms. Fraser nor that of Mr. Clifford is reliable, probative or substantial evidence that Sears had a reasonable basis for representing to the public that "dishes in the top rack of the dishwasher wil get as clean as tbose on the bottom rack." 178. Although the truth of Sears' representation that dishes in the top rack of the dishwasher get as clean as those on the bottom rack is not in issue, tbe truth or falsity of that claim is relevant to the issue of reasonable basis. From the 6(b) materials that were submitted by Sears, it is apparent that tbe lower rack performed much better than tbe upper rack. CX 90 shows a considerable difference (64)between the cleaning of disbes in the upper rack and in the lower rack, the lower rack being superior. (Sullivan, Tr. 1479, 1502-3, 1590-92). Sears' 6(b) report (CX 83) contains charts showing the results of the CX 90 tests performed at D&M in 1972. These charts are included in this decision in Appendix A. In some of these tests, the same type of cooking dish soiled with the same food was washed in the upper rack and lower rack. The charts show that, in the majority of instances, the dishes washed in the lower rack were cleaned more thoroughly than those wasbed in the upper rack (CX 83Z007-Z009).

179. Mr. Eberwein testified that he performed many tests on Sears dishwashers and that there were technical reasons why the Roto-Rack would not clean as thoroughly as tbe lower rack, such as greater water , Initial Dccision 95 F.

pressure from the lower spray arm servicing the lower rack than from the upper spray tube servicing tbe Roto-Rack, difficulties in weight distribution in tbe Roto-Rack which affect its rotation, and possible clogging of the upper spray tube (Eberwein, Tr. 1026, 1115- , 1125-- 26). In tests of Sears' dishwashers, Mr. Eberwein found that the lower rack performed much better than the Roto-Rack in cleaning pots and pans with baked-on foods. ,The upper rack's overall performance was not nearly as good as tbe lower rack (F berwein, Tr. 1114-15, 1121). 180. Tbe evidence establisbes that when Sears advertised that disbes on the top rack would get as clean as those on the bottom rack Sears did not possess any reasonable basis for making such a claim. Not only did Sears lack a reasonable basis, but the documentation submitted by Sears in its 6(b) report showed that the upper rack did not get disbes as clean as tbe lower rack, results directly contradictory to Sears' representation.

V. The Demonstrations Do Not Prove, tbe No Scraping, No Pre-rinsing Claim 181. Paragrapb 18 of the complaint charged that Sears represented that tbe demonstrations used in its advertisements, proved the no scraping, no pre-rinsing claim, and Paragrapb 19 charged that the representation was deceptive because the demonstrations did not, in truth, prove the claim. As set out in prior findings, CX 1 contains a picture of the inside of a Sears' Lady Kenmore under the statement This demonstration recreates the powerful cleaning ability of Sears Lady Kenmore Dishwasher (Certified by the Nationwide Consumer Testing institute)." CX 4, a TV commercial broadcast over network television (CX 64A-F), entitled "Birtbday Cake " shows the inside of the Lady Kenmore washing dishes during whicb the following words are superimposed on the TV screen Demonstration Certified by Nationwide Consumer Testing Institute" (see CX 55 which is the videotape of CX 4. See also CX 2 and 8). As bas already been found in the order granting partial summary decision, Sears' advertiscments did represent that these demonstrations proved the no scraping, no prerinsing claim.

182. The Nationwide Consumer Testing Institute prepared a (65) research report" which was submitted to the Commission by Sears as part of its response to the 6(b) Order to file a Special Report substantiating the no scraping, no pre-rinsing claim in CX 1. This report has been received in evidence as CX 87. CX 96 was also submitted by Sears to substantiate the no scraping, no pre-rinsing claim conveyed by the demonstration referred to in CX 2 and other ads. ";Acts, ROEBUCK AND CO., ET AI.. 473 406 Initial Decision Like CX 87, CX 96 has been analyzed in detail earlier in this decision. Neitber CX 87 nor CX 96 establish that the demonstrations depicted in CX 1, 2, 4, and 8 (CX 55) prove that the Sears' Lady Kenmore wil completely remove, without t prior rinsing or scraping, all residue and fim from all dishes, pots and pans used in cooking and baking according to normal consumer recipes and under other circumstances normally and expectably encountered by consumers. VI. The Owners Manual Instruction 183. The Scars' Owners Manual directed users to " pre-soak or lightly scour firmly cooked or baked-on foods" (CX 99D, 100D). This manual was provided to purchasers of Sears' dishwasbers, including the Lady Kenmore, at the same time as Sears' no scraping, no prerinsing claim was being made in Scars' advertising. The instruction in the Owners Manual to pre-soak or scour firmly cooked-on foods is directly contradictory to and materially inconsistent with the no scraping, no pre-rinsing representation disseminated in Sears' advertising. The Owners ~anual instruction was, therefore, a material fact requiring disclosurc.

184. The instruction in Sears' Owners Manual was factually correct since pre-treatment of firmly adhered food soil on dishes, pots and pans was required for them to be washed clean. The instruction appeared not only in the 1972 Owners Manual, but in all Owners Manuals until the 1976 line, when Mr. James Clifford, Sears' national dishwasher buyer, substantially changed the instruction (Clifford, Tr. 4844, 4991). or scour firmlyThe instruction in the Owners Manual to pre-rinse adhered food soil was correct, tbe argument of Sears that this instruction appeared in the Owners Manual through "error or oversight" (RPF 193-97; RRB, pp. 48-49) lacks credibility. The contention is discussed later in this decision. The argument is based on the testimony of Mr. Clifford, which has been found to be self-serving and unreliable in this respect. Tbe instruction was disseminated to thousands of purchasers and directly contradicted the advertising representations that Sears was disseminating at the time. Under the circumstances, the instruction was a material fact, as stated, which, in view of Sears' no scraping, no pre- rinsing representation, should have been disclosed. Failure of Sears to disclose that tbe Owncrs Manual directed pre-soaking and scouring when it was disseminating its no scraping, no pre-rinsing claim nationwide was deceptive and unfair. VII. The " Sani-wash" Cycle 185. In the order granting partial summary decision, the law judge , , , Initial Decision 95 F.

found with respect to tbe "Sani-wash" that Sears' (66Jadvertisements represented to the public that the Lady Kenmore kills all harmful and other bacteria and microorganisms on tbe disbes, pots and pans as charged in Paragraph 15 of tbe complaint. Sears contends that this ruling was erroneous, and asks that it be reconsidered and vacated (RB, p. 23).

186. Sears' contentions are as follows: tbe term hygienically clean " has been used and approved by GSA and tbe U.S. Department of Agriculture in contexts making clear that these Federal agencies do not equatc tbe phrase with literal sterilization (RB, pp. 2425); there is no evidence that Scars' advertisements would be perceived by consumers "as a representation that the dishwasher would literally sterilize dishes and utensils" (RB, p. 29); even if the ads were so perceived, the consumer s understanding of the term sterilization" is not necessarily the killing of all bacteria and microorganisms because the consumer equates sterilization with the process used to treat baby bottles which is not, in truth, complete sterilization (RB, pp. 27--0); and the Sears dishwasher does, in fact render dishes "hygienically clean" and sanitized" "by reducing bacterial populations to levels which are safe from a public health perspective" (RB, p. 30). Complaint counsel vigorously contests the truth of these assertions of Sears. 187. Tbe net impression conveyed by the advertisements to the public controls, and that net impression is not determined by the technical meaning, if any, accorded to the term "hygienically clean" by specialists in GSA or elsewhere.

188. The terms sterile" or "sterilzation " are not used in Sears advertisements or in the complaint. In any event, there is no evidence or basis to conclude, as Sears contends (RB, p. 28), that the public understands and believes that "sterilization is what one does to a baby botte" and that sucb will not result in the elimination of all bacteria. 189. That the Sears Sani-wash" cycle reduces bacteria, if it does to levels which are safe from a public health standpoint and tbus sanitizes" dishes and gets them "hygienically clean 4 (RPF 98 et seq. , p. 24) is irrelevant to this proceeding. The law judge has found that Sears' advertisements conveyed to tbe public, or had the capacity to convey, that all harmful and other bacteria and microorganisms on the dishes, pots and pans were kiled. If that finding is incorrect Paragraphs 15, 16 and 17 of the complaint fail. As the law judge ruled during hearings, the question of whether or not tbe Sears' dishwasher sanitized" dishes in the sense of reducing bacteria to a safe level of 100 or fewer colonies per utensil is not an issue in the proceeding (Tr. , Complaint counsel contend this has nqt btn proven by &ani (see CRB, pp- 2026). , SEARS, ROEBUCK AND CO., ET AL.

Initial Decision 5648). The undersigned reiterates that ruling and no findings on that subject wil be made in this decision. (67) 190. Sears' request that the ruling granting summary decision as to the meaning of the uSani-wash" portion of Sears' advertisements be vacated is denied. Upon review of Sears' arguments, the law judge finds no reason to change the ruling. As set out in that order, based on a reading of the advertisements themselves, tbe Sears' advertisement conveyed, or had the tendency and capacity to convey, the representation that the "Sani-wash" cycle of the Lady Kenmore destroyed "all harmful and other bacteria and microorganisms on the dishes, pots and pans." There are two issues remaining under Paragraphs 16 and 17 of the complaint. The first is whether or not Sears possessed and relied on a reasonable basis for this representation. The second is whether or not the representation is true. The answer to both of these issues is negative.

Lack of Reasonable Basis 191. During this proceeding, on application of complaint counsel Sears was ordered to produce all documentation upon which it based its statements in CX 1 relating to the "Sani-wash" cycle (CX 239F specification 2). In compliance with this subpoena, Sears produced 10 documents (CX 240B) which have been received in evidence as CX 242 through CX 251 (see CX 345, pp. 19-20).

192. James Brown, an expert called by complaint counsel, testified on these documents. Mr. Brown s qualifications are set out in Appendix B. Mr. Brown holds a Master s degree in public health from the University of Michigan. He is currently Managing Director of Customer Service, National Sanitation f"oundation ("NSF"), Ann Arbor Michigan. The NSF works with industry, user groups and regulatory agencies to establish standards for food service equipment including dishwashers (CX 302-05, 319; Brown, Tr. 2814-17, 2824). Mr. Brown has studied dishwashers and evaluated their performance (Brown, Tr. 2819, 2827-30). He has authored a publication Mechanical Dishwashing," which is used to train sanitary workers in the field evaluation of dishwashers (CX 309; Brown, Tr. 2841-42).

193. Mr. Brown testified that the documents supplied by Sears, CX 242 through CX 251, do not establish that the Lady Kenmore "Saniwash" cycle wil destroy an bacteria and other microorganisms on dishes, pots and pans (Brown, Tr. 288485).

194. Dr. Frank Bryan, Chief of Foodborne Disease, Center for Disease Control, Atlanta, Georgia (Dr. Bryan, Tr. 2592), was called by complaint counsel and also testified concerning the Sears' documents CX 242 through CX 251. Dr. Bryan holds a Ph.D. degree in bacteriology ,.;VERAL TRADE COMMISSION DECISIONS Initial Decision 95 F.

from Iowa State University (CX 296A; Dr. Bryan, Tr. 2594-95). Dr. Bryan s qualifications are set fortb in Appendix B. Dr. Bryan has authored many publications dealing with foodborne diseases, pathogenic microorganisms and their thermal destruction (Dr. Bryan, Tr. 2629.-36).

195. Dr. Bryan reviewed CX 242 througb 251 and testified that they did not establish that the Sears' dishwasher " would sterilize or (68)kil all microorganisms" on the surfaces of the dishes, pots and pans (Dr. Bryan, Tr. 2641).

196. One of tbe Sears' documents, a November 12, 1968 letter from a Ms. Virginia Peart, D&M Home Economics consultant, advised the Sears' Home Economics laboratory that " dishwasher temperature (even if 180 . is achieved) alone cannot sterilize tableware" (CX 245B). CX 1 states that the "Sani-wash" cycle provides "an extra-hot 155 final rinse. " There is evidence, however, that the "Sani-wash" cycle docs not actually reach this temperature (Clifford, Tr. 50459). 197. During the course of the hearings, Sears' counsel stated that Sears did not undertake any bacteria, microbiological testing of its dishwashers prior to the submission of the data that we submitted in the post-complaint subpoena." This referred to "actual physical microbiological tests, swabbing and all of that" (Tr. 2090). The Standard Swab Test" for detecting the presence of bacteria remaining on the surface of dishes, pots and pans after washing and drying in a dishwasher is not difficult or costly, and has been used by microbiologists for many years (CX 243D E; Dr. Godwin, Tr. 2085-8 2091; Dr. Bryan, Tr. 2661 63).

198. Mr. Eugene Kramer, Manager of Environmental Engineering at Sears and former Group Manager of Sears' Chemical Laboratory (Kramer, Tr. 5339-41), testified that in 1971 or 1972 he bad verbally approved a request from Sears' Legal Department to use the terms Sani-wash" and "hygienically clean" in advertising for Sears' dishwashers (Kramer, Tr. 5351--4). Mr. Kramer served as Sears' microbiologist during the period 1972 through 1975 (Kramer, Tr. 5387, 5493). He testified that Sears had seen no need for microbiological testing of the Sears' disbwasber and that, if any bad been done, it would have been lone in his laboratory (Kramer, Tr. 5389 90). No such microbiological testing was performed (Kramer, Tr. 5388-- , 5392). To Mr. Kramer nowledge no tests were performed by Sears on the 1972 through 1975 !Odds of Sears' dishwashers to assess the microbiological capabilities 'the "Sani-wash" cycle (Tr. 5392).

199. Sears did not possess and rely on a reasonable basis for the presentation found to have been conveyed by the advertising that 406 Initial Decision the "Sani-wash" cycle destroys an harmful and other bacteria and microorganisms on dishes, pots and pans.

Sears Sani-wash" Cycle Does Not Destory AU Bacteria and Microorganisms on the Dishes, Pots and Pans 200. The Sears' Lady Kenmore s "Sani-wash" cycle does not destroy all harmful and other bacteria and microorganisms on dishes pots and pans. In one of tbe documents submitted by Sears in response to the subpoena issued by the law judge requiring production of all documents relative to the "Sani-wash" statements in ex 1 , the fonowing appears (CX 242D): (69) Apparently many consumers believe that home-type dishwashers "sterilize" the utensils, It is obvious from the results summari1.ed above that this term, which means destruction of all microorganisms, cannot be used, It is probable that the word "sanitize" can be used, since a larger perccntage of the utensils were acceptable by Public Health Standards.

This statement appeared and was reprinted in an article in Soap and Chemical Specialities by three autbors from the Agricultural Research Service, U.S. Department of Agriculture, Beltsvile, Maryland. 201. Another document furnished by Sears in response to the subpoena issued by tbe law judge is entitled "Microbiology and Public Health Aspects of Home Appliances:' and is a paper delivered at a meeting of the American Society of Sanitary Engineering in October 1970 (CX 243). According to this study, although mecbanical dishwashers did a creditable job of reducing bacterial count below 100 colonies per utensil, all bacteria and microorganisms were not kiled (CX 24N). 202. Dr. Glyn J. Godwin testified as an expert witness in this proceeding on the " Sani-wash" issues. Dr. Godwin has a ~aster degree in microbiology from Southeastern Louisiana University and has a Ph.D. degree in food science from Louisiana State University. He is a registered food, dairy, industrial, agricultural and sanitation microbiologist (CX 293A; Dr. Godwin, Tr. 2035-6). His qualifications are contained in Appendix B. Dr. Godwin agreed with the statement in CX 245B, the letter from Ms. Peart of D&M to Sears' Home Economics laboratory, referred to in a preceding finding, that even if the temperature of 180 were achieved in a dishwasher all microorganisms would not be kiled. Dr. Godwin testified that such a temperature is not sterilzation temperature" and "does not kin spores (which) can easily survive that heat treatment." (Dr. Godwin, Tr. 2060-61). 203. Dr. Bryan testified that domestic household dishwashers are not designed to kill all microorganisms present on cooking and eating dishes placed in them (Dr. Bryan, Tr. 2637). More specifically, Dr. Initial Decision 95 F.

Bryan testified that tbe Sears Sani-wash" water temperature of 155 for two minutes (even if achieved) would not kill all microorganisms on cooking and eating utensils (Dr. Bryan, Tr. 2664). 204. Mr. Brown testified that dishwashers do not sterilize dishes and that certain types of organisms and spores would survive the temperature and duration of the "San i-wash" cycle (Brown, Tr. 2851 2853-57).

205. Dr. Charache, a physician and Director of Microbiology, (70) Jobns Hopkins University School of Medicine, testified that various pathogenic microorganisms would survive the j'Sani-wash" cycle (Dr. Charache, Tr. 6120). Dr. Cbarache s qualifications are set forth in Appendix B.

206. Furthermore, Sears' own witnesses, Dr. Ordal and Mr. Kramer, testified that the "Sani-wash" cycle on Sears' dishwashers, with its temperature of 155 , will not sterilize disbes (Kramer, Tr. 542; Dr. Ordal, Tr. 5760- , 5773). Dr. Ordal' s qualifications are set forth in Appendix B.

207. Thus, the "Sani-wash" cycle does not ki1 all harmful and other bacteria and microorganisms on dishes, pots and pans. Materiality 208. While he was an assistant professor at the University of Rhode Island, Dr. Godwin was tbe food science expert for the state (Dr. Godwin, Tr. 2029). He is a member of the Institute of Food Technologists and its Division of Food Microbiology (Dr. Godwin, Tr. 2031--2; CX 293A). Dr. Godwin is particularly familiar with the critical points in food processing and canning (Dr. Godwin, Tr. 2036-7). 209. Dr. Godwin testified on the safety of processing jars that are to be used in home canning in the "Saui-wash" cycle instead of using stronger bactericidal measures. Dr. Godwin testified that spores of clostridium botulinum bacteria may remain on canning jars after being washed in the Sears' dishwasher with the " Sani-wash" cycle and then germinate once food is put in tbe jars (Dr. Godwin, Tr. 2120). Spores of botulinum bacteria could also be redeposited in tbe glass canning jars on residue from other dishes and objects in the dishwasber (Dr. Godwin, Tr. 2123). Tbe spores of botulinum organisms are widely found in nature and would commonly be found in the kitchen (Dr. Charache Tr. 6123-27). Once the spore germinates, the bacteria can grow and multiply within tbe food, creating botulinum toxin (Dr. Godwin, Tr. 2120). The toxin is dispersed in the food and there may not be any odor to warn that the food is contaminated (Dr. Godwin, Tr. 2120-21). It is common knowledge that botulinum toxin is one of the most dangerous , SEARS, ROEBUCK AND CO., ET AL. 479 406 Initial Decision toxins known to man and even 1.6 biliontb of a gram can kil a full grown person (Dr. Godwin, Tr. 2120).

210. If the Sears' advertisements cause purchasers who engage in home canning to believe mistakenly that the "Sani-wash" cycle kils all bacteria and other microorganisms when it does not, there is more than a theoretical possibility of serious barm (Dr. Godwin, Tr. 2119-21) particularly in view of the large number of dishwashers that Sears markets annually.

211. In addition to home canning, there are other significant risks if purchasers mistakenly believe that the Lady Kenmore s "Sani-wash" cycle kills all bacteria and other microorganisms when it does (71Jnot. Spores of various bacteria will survive the "Sani-wash" cycle (Dr. Godwin, Tr. 2061, 206366; Dr. Bryan, Tr. 266467; Brown, Tr. 2853- 59). Such surviving spores can pose a health risk to buman beings (Dr. Godwin, Tr. 2063- 2119-22; Dr. Bryan, Tr. 2670-78; Brown, Tr. 2859; Dr. Cbarache, Tr. 6128).

212. Dr. Bryan testified that if bacilus enteritidis, clostridium botulinum, or clostridium perfringens spores remain on food storage utensils after surviving the HSani-wash" cycle, they may return to a vegetative multiplying, state as a result of food being stored in tbe utensil and, thereupon, can cause gastroenteritis or botulism (Dr. Bryan, Tr. 2670).

213. Dr. Charache also testified that certain health risks could arise if purchasers of Sears' disbwashers erroneously believed that the Sani-wash" cycle killed all bacteria and other microorganisms (Dr. Characbe, Tr. 6128-31). Spores that survived could return to the vegetative state and produce a toxin that causes disease (Dr. Charache Tr. 6129-30). If the utensils are mistakenly thougbt to be sterile, tbe person wbo uses them may handle them as though they were sterile and put other products in them which would be contaminated (Dr. Charache, Tr. 6130.-31). Susceptible individuals sucb as infants could be adversely affected (Dr. Charache, Tr. 6128-29). 214. One of Sears' print ads Eight Things That Make Lady Kenmore tbe Best Cleaning Lady in Town " (CX 3) published in Better Homes and Gardens and House Garden magazines (CX 71 , 72), advertised tbe "Sani-wash" feature as "especi8.liy nice for glasses and baby bottes," as set out earlier. Dr. Cbarache testified that before recommending washing baby bottes in a dishwasher she would want to be certain of how well the disbwasber removed the milk deposits and residual film of milk because tbe long, narrow shape of baby bottles makes them difficult to clean (Dr. Charache, Tr. 6135). Based on the representation in this adver6sement, however, purchasers of Sears disbwasbers may believe erroneously that all tbe bacteria and microoruMCAL TRADE COMMISSION DECISIONS Initial Decision ganisms on baby bottl!'s are kiled after peing;vashed in th!' Saniwash" cycle. As a cOllsequimce, they may put milk or some other food into. the bottes and use them without first boiling th!' bottles (Dr. Charache, Tr. 6135-37). If this ;veri' done, and allbacteriaa.nd microorganisms had not been kiled, the infant might rec!'ive a heavier than desirable bacteriaUoad and be subjectto harm (Dr; Charache, Tr. 6137-'8).

215. Dr. Bryan testified that a clostridium botulinum spore on a baby bottle could survivl'the " Sani-wash" cycl .produce toxins and cause an ilness called infant botulism (Dr. Bryan, Tr. 267() 71, 2fJ73- 75). Infant botulism differs from botulism in that only the spore need be ingested to caus!, it. The spor!' can germinate in the infant's intestin!, and produce toxin with potentially dangerousconsequ!'nces (Dr. Bryan, Tr. 2670-71 , 2673). Nelson, Textbok of Pediatris Tenth Edition, 1975, recommends the boiling of baby bottles for 5 to 10 minutes (CX 340D). Dr. Bryan testified (72)that this was a standard procedure which .was usually recommended because "(i)nfants are far more susceptible to smaller numbers of microorganisms than adults" (Dr. Bryan, Tr. 2681-8), Dr. Charache agreed that boiling baby bottles was desirable "to reduce the bacterial load. . . so you are not giving the infant large numbers of pathogens with the milk" (Dr. Charache Tr. 6134). She testified that "if the person using the dishwashers had the impression that the dishwasher made the bottle cleaner than it did tben this would be a danger" (Dr. Charache, Tr. 6135). Although there is some conflct in tbe record on the . question of boiling baby bottles that are to be used to feed newborn infants (see RX 171), the preponderance of the evidence establishes that the practice is desirable to avoid the possibility of disease. The Sears' advertisements for the Sani-wash" feature bav!' the capacity to induce purchasers to cease using this procedure which could prevent illness in newborn babies under the mistaken impression that the dishwasher s "Sani-wash" cycle kils all bacteria and microorganisms when it does not in actuality, do this. (73) DISCUSSION Sears disseminated advertising nationwide which made an affirmative product claim for its dishwashers. It is an unfair practice and a violation of Section 5 of the Act to make such a claim without a reasonable basis. Pfizer, Inc. 81 F. C, 23, 64 (1972). It is well established that an affirmative product claim necessarily carres with it a representation that the party making it possesses a reasonable oasis for the claim Natiol Commission on Egg Nutrition 88 F. ), ), 481 ET AL. SEARS, ROEBUCK AND CO., Initial Decision cert. denied 99 S.

157 (7th Cir. 1977);89, 191 (1976), rrdified 570 F.2d 82 F. C. 48, 549--0 (1973), Cor.Ct. 86 (1978); Natiol Dynamics cert. denied 419 U.S. 993; (1974);aff'd 492 F.2d 1333 (2nd Cir. 451--2 (1972), aff'd, 481 81 F.T .C. 398, Firestone Tire and Rubber Co. 414 U.S. 1112 (1973). cert. denied 2d 246 (6th Cir. It has been found that Sears did not havedisseminated.a reasonableIn determiningbasis for the no scraping, no pre-rinsing claim it, it whether or not Sears possessed and relied upon a reasonable basis has been necessary to consider the standard that should be applied. Complaint counsel contend that the standard which(CPF 90).shouldAccordinggovern into this case is "valid and reliable scientific tests" complaint counsel, valid and reliable scientific tests, which theyrangewouldof should have included a truly representati require of Sears, and cooking temperatures. procedures, account food products, food preparation Sears' tests should have taken into Among other things, normal variations in usage of the dishwasher by consumers such as use, and should have controlled the of detergent and loading technique many other variables which affect dishwasher, methodologies,cleaning performance.conditions Complaint counsel contend that procedures and results should have been reported in detail so that the tests could be run again and similar results obtained. A scoring procedure should have been utilized to record the results at the conclusion of the tests and the tests should have been replicated at least three times to check the validity of the results. valid and reliable scientific Sears argues against the standard of " the technical, laboratorytests" (RRB, pp. 8-9). Sears contends that " controlled tests which complaint counselnot necessarywould torequiretheir assubstantiation;a reasonable basis for these claims are in fact and this is particularly true with respect to the claims in issue in this proceeding, which were approved and, indisseminatedPfizer hcldduringthat 'scientificthe very time period in which the Commission tests would not invariably be(RRB,requiredp. 9). in order to find a reasonable constitutes a basis for advertising claims" that what In the Commission made it clear would be Pfizer reasonable basis for a claim was a factualC. atissue64. ThewhichCommission basis. 81 F. determined on a case-by-case and well-controlled scientific further pronounced that "adequate C. at 68. (74) were not required for every claim. 81 F. studies or tests" Sears was not limited to setting of this case, In the factual in order to be tests" rinsing adequate and well-controlled scientific studies or held to have had a reasonable basis for the no scraping, no preclaim. Safety was not involved in the claim, nor was health in any although complaint counsel make an argument to immediate sense, p. ;, \, \,,, , ,:.., ,,, ,.\ (\,::: , \,\:\. 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'" ,(\,,,n ' c\",fi ,\.\,e" (\ (\'S"es\,o"fierge"e'"fo "- "r" , . \ \\r \,er r (\ \,n" '\,es \,\\e "p\e s\,eC'"\, 0"\. e"r \,,\.,,\, :\0"''' . se"rs '" \'n"\. re"so" "cC " (\,,,ne ", ""or se .\,\\erco"s",fi"orde p\\c. . s e co"'\'() \,0 \'\\'S '"s\''' \e"r\':' ,,,g (\,r\'': \. \, \'\\" "gr"\' \.0 """-0,,CC, or "" '" ,,\,\\e (\,"'\\ to"" \.n" re-r\:"",\,\'. ; s, " ,I'" ,,,I . ",,,s G(p) e "" r '; o OJ. ,. (\,tfer s,o" :"bfi \;i:",\)t Cofi 1\e"\.s ' 'i :'''': (\00" ",,,s\\er se",Fec\e". ""ed' """g f\ec orfi: re"so"a re e"rs\. \"c\ce r"' s\\O "o\' (\,,,\\ tlt \, re\'o (\0 \. ,,1 \,\\,,\' S tM'" s :rg"e """r \S \,ro"e " 10 . .\,\\er \1\g 1\e\ io"te, \,\\ere , ARS, ROEBUCK AND CO., ET AL.

406 Initial Decision scraping, no pre-rinsing claim nor show that Sears' dishwasber will not perform as represented. Scars states that the "tests" and documentation submitted in its 6(b) report "show tbe dishwasher s performance under aggravated circumstances, which is indicative of its enhanced performance ability under circumstances normally encountered in the home" (RRB, p. 5).

In further defense against the contention that it lacked a reasonable basis for the no scraping, no pre-rinsing claim, in addition to the 6(b) material, Sears relied in this proceeding on the testimony of Mr. James Clifford, its dishwasher buyer (RPF 8- , 27), on the testimony of Ms. Barbara Fraser, an employee of D&M (RPF 15-26), on the several instances in CX 90, which was submitted as part of Sears' 6(b) report in which dishes did come out of the disbwasher clean and where Sears asserts the food soils reflected "normal consumer procedures" (RPF 25), and finally on a memorandum of Ms. Juditb Cannon, a former home economist with Sears (RPF 28), which Sears quotes as stating, There is no need to pre-rinse dishes before washing, but it is necessary to remove large pieces of food from dishes" (CX 141A). This evidence bas been reviewed in detail in tbe findings and found to be grossly deficient, both as a reasonable basis for Sears' claim and as evidence that Sears' dishwasbers eliminated the need for prescraping and pre-rinsing. For example, in citing ~s. Cannon s memorandum, Sears fails to quote her final statement which specifically contradicts Sears' claim where she advised her superiors at Sears Baked or burned-on soil (cooking utensils: Casseroles, pans, etc. usually requires some additional effort for complete removal in a dishwasher" (CX 141A).

In addition to tbe preceding evidence, Sears also relied on tests conducted by lit (Ilinois Institute of Tecbnology) for use in this litigation to support tbe truth of its claim, contending that its dishwashers did, in fact, eliminate the need for pre-treatment of dishes, pots and pans and would perform as represented. The argument that inclusion in the complaint of the qualifying language according to normal consumer recipes and under other circumstances normally and expectably encountered by consumers materially changed what Sears was called upon to substantiate by the Commission s 6(b) Order is rejected. The language in the complaint merely climinated any possible interpretation that the Commission was challenging Sears' advertising on tbe ground that the Lady Kenmore would not remove every totally abnormal and unreasonable food soil occurring on disbes, pots and pans in the kitchen. Food soils that were the result of kitchen disasters or which it was otherwise unreasonable to expect any dishwasber to remove were eliminated from tbe scope of FgDERAL TRADE COMMISSION DECISIONS Initial Decision 95 F.

tbe representation Sears was found to have made. On occasion people forget that cooking dishes are in the oven or on the stove; as a consequence, extensive burned-on food residue may result (76Jwhicb is so severely adhered to the dish, pot or pan that it is extremely difficult to remove even with intensive scraping by hand. This is a common experience. Tbe complaint freed Sears from the contention that its advertising was false because, without pre-treatment, the Lady Kenmore would not completely clean such dishes, pots and pans. However, the language of the complaint did not limit its challenge to the truth of Sears' no scraping, no pre-rinsing representation only to food soils resulting from carefully followed cookbook recipes. The language of tbe complaint did not free the no scraping, no pre-rinsing claim from challenge whenever testimony could be elicited from a witness that particular food soils were not "normal" or not prepared in a way "that they would normally be prepared" (Fraser, Tr. 5109). By this standard, an omelet prepared "with milk rather than water would not constitute a "normal" recipe, a contention made by Sears (RPF' 31). Failure of Sears' disbwasher to remove sucb a food soil from dishes, pots and pans, by the standard Sears would impose in this proceeding, cannot be used either to judge wbetber or not Sears bad a reasonable basis for the no scraping, no pre-rinsing claim or to judge whether that claim was true. Such trivial distinctions by Sears border on frivolous argument and are rejected.

Sears' no scraping, no pre- rinsing rcpr sentation was unlimited and unqualified, as emphasized. ex 1 is an example; this advertisement was specifically incorporated into tbe complaint and challenged as false. CX 1 was tbe advertisement transmitted to Sears in 1975 for substantiation under the 6(b) Order. As stated in the beginning of the findings in this decision, the public cooks in myriad ways. Many individuals do not follow cookbook recipes, improvising their own recipes instead. They also cook the same foods for different amounts of time in different types of cookwarc under varying degrees of beat. They store food in casseroles, pots, pans and other dishes, to be heated and reheated for later meals. Some individuals may leave dishes, pOLS and pans unwashed for considerable periods. In sum, the public uses a tremendous variety of cooking techniques, recipes, methods and procedures. All of these fall witbin the ambit of the complaint and the qualifying language of Paragraph 10 except, in fairness to Sears disasters or procedures that produce food soils which it would be unreasonable to find that even Sears' unlimited claim represented would be removed by the Lady Kenmore without pre-scraping, prerinsing, or other pre-treatment.

Whether Sears possessed a reasonable basis for its claim, and SEARS, ROEBUCK AND CO., ET AL.

406 Initial Decision whether Sears' disbwasher would actually perform as advertised, were not tested against kitchen disasters or unreasonable food soils. As stated above, tbe tests which Sears submitted in response to the 6(b) Order specifically showed that, in many instances, food soils neither resulting from disasters nor. unreasonable cooking procedures remained on dishes after being washed in Sears' dishwasber. (77) Sears contends, as indicated earlier, that the results should not be considered because tbe degree of tenacious adherence of tbe food soils in the "tests" submitted with its 6(b) documentation was "beyond that acbieved by following customary in-home cooking procedures" (CX 83U). Therefore, the fact that the food soils were not removed does not show that Sears lacked a reasonable basis for its advertising claim and does not constitute evidence that Sears' dishwashers would not perform as advertised.

This line of argument is rejected. Examination of tbe food soils and method of cooking in CX 90 reveals neither kitcben disasters nor food soils resulting from unreasonable cooking procedures whicb it would be unfair and unreasonable to expect Sears' dishwashers to clean without scraping or pre-rinsing. For example, an omelet made with milk rather than with water, referred to earlier, is clearly not an abnormal food soil that would be excluded by the complaint from consideration as a soil to be tested. Nor are the other food soils used in CX 90 abnormal (see Sullivan, Tr. 1475- , 1478, 1481- , 152223, 1530-38 , 1550; Ferguson, Tr. 1697, 1701- , 1708-12, 1720, 1722-24, 173 3). The same is true for CX 89, the test protocol used by D&M for tbe test reported in ex 88 in which dishes were not, in many instances, washed clean by Sears' dishwasher (CX 88Z). Far from substantiating the no scraping, no pre-rinsing claim, the 6(b) documents demonstrate that Sears' dishwashers wil not perform in accordance with the promise of Scars' advertisements and therefore, that Sears' representation was false.

Tbe !IT tests also do not establish the truth of Sears' claim. These tests, too, have been the subject of detailed findings. Aside from serious methodological deficiencies, tbe tests did not, in a number of instances, produce clean dishes, pots and pans. Although Dr. Norman and Ms. Bryant, assisted by counsel for Sears, ran two test loads in May, two in June 1978, and one in July 1978, Sears bas rejected all but Load 2 in tbe June tests and the July load. The basis for this position is Sears' contention that tbe May Load 1 test and the June Load 1 test did not use the "power wash" cycle. This contention has been considered in the findings. Sears made tbe no scraping, no pre-rinsing claim for "Kenmore" dishwashers (CX 5, for example), not only the Lady Kenmore" which is tbe only Sears' disbwasher that has the 486 FEDERAL TRADle COMMISSION DECISIONS Initial Decision 95 F.

power wasb" cycle. Furthermore, Sears has admitted both that tbe cleaning ability of the Kenmore and Lady Kenmore dishwasber models arc the same and that the "normal wash" cycle on the Kcnmore models is the same as tbe "power wash" cycle on the top-of-the-line Lady Kenmore (RPF 15, 18).

Looking beyond that, however, there is no basis for the contention that the food soils used in May Load 2 were abnormal and that it was unfair to test tbe performance of Sears' dishwasher with these soils. These food soils were specifically devised by the Association of Home Appliance Manufacturers to "establish a uniform (78Jand repeatable procedure or standard method for measuring specified product characteristics of dishwashers" (CX 185). Sears' objection appears to be another example of a pattern to eliminate from consideration all items of evidence showing that Sears' dishwasbers will not eliminate the need for scraping, pre-rinsing, or other pre-treatment of firmly adbered food soils.

Sears disseminated throughout the country for between three to four years a blanket, unlimited claim by wbicb it sought to persuade bUridreds of thousands of consumers to buy its dishwashers. During this time period, Sears increased its share of the home dishwasber market in tbe U.S. and derived great economic benefits. It is ironic that Sears, when called to account, now urges a highly restrictive and technical approach to the evidence, including tbe very tests Sears conducted for use in this proceeding as well as the tests that Sears submitted as substantiation in 1975 in response to the Commission 6(b) Order (see RRB, pp. 5-37). Nevertheless, even June Load 2 and the July test did not result in all the dishes c?ming out completely clean (RX 181, 182).

But the two isolated !IT tests (June Load 2 and tbe July test) would not rebut the burden of proof met by complaint counsel, even if all tbe disbes were clean. It is fundamental that the unlimited Sears' claim cannot be proven true by merely two test operations of Sears dishwasher where the food soils used are not truly representative of the tremendous variety of food soils occurring "normally and expectably" in tbe nation s kitchens. Moreover, there is no truly credible means of ascertaining just how clean tbe disbes were after they bad been removed from the dishwasher. Clearly, the photographs are an inaccurate record of tbe state of tbe dishes; photographs do not show all sides of a dish and may often fail to reveal retained or redeposited food soil that would become evident upon visual or tactile inspection. Thc dishes themselves increasingly lose value as a record of cleaning performance in proportion to tbe length of time that passes after their removal from the dishwasher. At the time the dishes were examined , SEARS, ROEBUCK AND CO., ET AL. 487 406 Initial Decision for the record in this proceeding, December 1978, approximately six months bad elapsed from tbe !IT test dates; at the writing of this decision, over one year has passed. During that period, the dishes have been handled several times, exposed to air, and shipped to different locations. Tbe dishes, both at time of trial and now cannot be relied on to show that clean results were obtained.

Sears had no reasonable basis to advertise, as it did in CX 1 for instance, that "the dishes on top get as clean as those on the bottom. Sears possessed no tests conducted to determine whether this claim could be made trutbful1y. The unreliability and self-serving nature of the testimony of Mr. Clifford and Ms. Fraser bas been discussed in the findings. Although the truth of this representation has not been cballenged, the very materials that Sears submitted in alleged substantiation of its claims constitute evidence that the top rack did not get dishes as clean as those on tbe bottom (79Jrack. In some of its advertisements, as set out in the findings, Sears used visual depictions of tbe inside of its dishwasher during the washing cycle to reinforce the impact of the no scraping, no pre-rinsing claim (CX 1, 4). Sears represented that such demonstrations were certified by the "Nationwide Consumer Testing Institute" and proved the no scraping, no pre-rinsing claim. The tests of the " Nationwide Consumer Testing Institute" do not establish the truth of the claim. Indeed, they are close to preposterous as proof of Sears' unlimited and unqualified claim in CX 1 No scraping. No pre-rinsing. Lady Kenmore has 6 powerful hot water jets for tbe bottom rack, surging hot water with enough force to scrub every disb, pot and pan really clean. Even bakedon food comes off." Tbe demonstrations in the ads plainly do not provide visual proof of Sears' claim Golgate-Palrrlive Co. v. F. T. 380 U.S. 374 (1965), and do not reflect the complete inadequacy of the tests of "Nationwide Consumer Testing Institute" to prove the claim thus misleading the public. Standard Oil Go. of California 84 F. 1401 (1974), modified 577 F. 2d 653 (9th Cir. 1978). Sears' Owners Manual, which was given to purchasers of Sears dishwashers, including tbe Lady Kenmore, instructed users to pre-soak or scour firmly cooked or baked-on foods (CX 99D, 100D). This instruction contradicted the representation contained in Sears' advertisements which were being disseminated at tbe same time. The instruction to pre-soak or scour firmly cooked-on and baked-on food is clearly a material fact directly relating to the no scraping, no prerinsing claim. Sears explains this contradiction by a two-pronged argument. Sears asserts that its dishwashers will perform as advertised and, consequently characterizes the instruction in the Owners Manual as a mistake (RRB, p. 48). In other words, Sears contends that Initial Decision 95 F.

the advertisements are right and the instruction in tbe Owners Manual is wrong.

Addressing tbe first argument, it is clear that Sears' disbwasher will not perform as represented. Sears' dishwasher will not completely remove all firmly cooked-on and baked-on food residue and film from cooking and eating dishes without pre-treatment. Tbe statement in tbe Owners Manual is correct. Tbe second argument that the instruction to pre-soak or scour firmly cooked-on or baked-on food was retained in the Owners Manual for years through oversight or error is incredible. It is based on the testimony of Mr. Clifford which has been found to be self-serving and unreliable in this respect. As described earlier, Mr. Clifford, Sears' dishwasher buyer, asserted that his visits to the Home Economics kitchen of Sears, wbicb was located across the street from his office and where he observed, on occasion, tbe operation of tbe Lady Kenmore, convinced him that the Owners Manual instruction was in error. According to Mr. Clifford, he tben changed the instruction for tbe 1976 line. However, no other evidence supports Mr. Clifford' s assertions. On (80Jtbe contrary, Ms. Cannon, who was a Sears' Home Economist at the time and who worked on the 1976 Owners Manual, did not recall anyone suggesting that the instruction was in error (Cannon, Tr. 25). Sbe also testified that she believed pre-soaking or scouring was required for some cooking dishes for them to be cleaned (Cannon, Tr. 2543-4). The instruction remained in Sears' Owners Manuals for the years 1972 1973 1974 and 1975, until the 1976 line was put into production in 1975. As late as April 29, 1975, Sears' Consumer Services Manager advised a purchaser, who apparently bad complained about tbc dishwasher cleaning of cooking utensils, that "light - scouring may be necessary for foods "baked on during the cooking process" (CX 186). Sears' claim that the instruction to pre-soak or scour firmly cooked or baked-on foods was in the Owners Manual by mistake is beyond credibility and is rejected. For Scars to have secured purchasers by promising " scraping, no prerinsing," and tben to bavc told them the exact opposite in instructional materials, is unfair and deceptive. Montgomery Ward & Co. , Inc. 70 F. C. 52 (1966), a/I'd 379 F.2d 666 (7th Cir. 1967). Sears disputes the law judge s finding that Sears advertisements represented that the "Sani-wasb" cycle destroyed "all harmful and other bacteria and microorganisms on the dishes, pots and pans. " It is clear that tbe representation was made, not only from Sears' advertisements in general, but from CX 3 in particular. That advertisement disseminated nationally in 1972 (CX 72), states that the "Sani-wash" cycle is the Lady Kenmore disbwasber s way: . , , . ), 406 Initial Decision ofgettingdisheshygienically clean Jt.gives your dishes a final rins. 155 water whichiscstiiaIly. nice for glasses and j;abybottles, It is a legitimate question to ask why Sears chose to make a specific reference to "baby bottles; " This can not be attributed to accidel1t;on the contrary, in the view oftbe law judge, the reference had an obvious purpose.

It is everyday knowledge that boiling bottles that are used to feed babies only a few wceks old has been a commonplace practice among the American public for many years. The practice is grounded on the assumption that boiling baby bottles kils all the microorganisms on them and "sterilizes" the bottes. Whether or not this is true, the public has the impression that it is true. Sears' advertising exploited that belief by equating the performance of the "Sani-wash" cycle with the boiling of baby bottes. Sears Sani wash" cycle does. not sterilize baby bottles or dishes, pots and pans by kiling all microorganisms, and Sears had no reasonable basis for making this representation. As already determil1ed even if the term "hygienically clean" has (81Ja meaning to the scientific community, or to a portion of that community, and this is sharply in dispute (see Dr, Ordal, Tr. 5641 5848-62; Dr. Charache, Tr. 6081-88), the message that is conveyed to the public is what counts. The public plainly may not understand the technical meaning of the term "hygienically clean " but rather may conclude from that term and from the net impression conveyed by Sears' advertisements that the " Sani-wash" cycle sterilizes dishes, pots and pans. See Murray Space Shoe Corp. v. 304 F.2d 270, 272 (2nd Cir. 1962); Carter Products, Inc. v. 323 F.2d 523, 528 (5th Cir. 1963); Sun Oil Co. 84 F. C. 247, 270 (1974). Sears' contentions that the "Sani-wasb" cycle gets dishes "hygienically clean and.. that it " sanitizes" dishes,. rendering them. safe. to use are irrelevant. Complaint counsel question these contentions and argue that Sears did not prove that the "Sani-wash" cycle raised the surface temperature of dishes, pots and pans to 155 or that tbe "Sani,wash" cycle "sanitized" dishes (see CPF 215-17; CB, pp. 29c-0). Since Sears representation that the ' Saniwash" cycle kils all harmful and other bacteria and microorganisms on dishes, pots and pans is false Sears argument that the dishwasher does render the disbes safe from a public health standpoint is beside the point. It is elemental that the public is entitled to get what is represented to it. Waltham Watch Co. v. F.T. 1692; 1724 (1962), affd 318 F.2d 28 (7th Cir. cert. denied 375 U. S. 944 (1963); Manco Watch Strap Co., 60 C; 495 (1962). Consumers paid substantially more for Sears dishwashers which had the "Sani-wash" cycle. Sears' advertisements had the capacity to cause prospective purchasers to pay substantially 32, QL3 , , Initial Decision 95 F.

more for sucb dishwashers on tbe erroneous belief that the cycle ki1ed all microorganisms on the dishes, pots and pans, including baby bottles. If Sears' dishwashers did not do this, then the additional purchase price was paid by the public for performance it did not obtain. Moreover there is more than a purely theoretical possibility of actual harm from Sears' representation. There is substantial evidence, set out in the findings, that a mistaken belief on tbe part of the public that dishes pots and pans, including canning jars and baby bottes, have had all bacteria and microorganisms on them killed bas tbe capacity to cause actual injury.

REMEDY The representations contained in Scars' advertisements which are the subject of this proceeding were disseminated in all media television, radio, newspapers, magazines, catalogues and point of sale were directed to both national and local audiences, and were disseminated from the latter part of 1971 through much of 1975, a three to four year period (CX 62-77). Relatively large amounts of money were expended in this advertising campaign, over one and one-half milion dollars in 1971, and around two million dollars in each of the years 1972 through 1974. (821 Although intent is not an element of a false advertising charge intent can bear on the quality of the violation, the likelibood of repetition, the need for an order and the scope of its provisions. v. National Lead Co. 352 U.S. 419, 42 1 (1957); Unit/3d States United States G!JJls.um Co. 340 U.S. 76, 88-90 (1950). Even if the dubious nature of the Sears' claim is put aside from the time it was first disseminated in 1971, the record shows from internal Sears documents (e. CX 125) widely circulated in the company (CX 272) that Sears had to know by June 1973 that its broad no scraping, no prerinsing claim was false. Market research of a highly reliable nature (Dr. Kassarjian, Tr. 1814-- , 1846) conducted by questioning a large number of recent purchasers of Sears' Lady Kenmore dishwashers revealed that a substantial proportion disagreed completely with the question Does not require prerinsing." Over half of recent Lady Kenmore purchasers surveyed, having used the machine in their homes, refused to register complete agreement with this statement (CX 125Z029). Over 70% of those surveyed refused to agree completely with the statement Washes pots and pans thorougbly" (CX 125Z030). Notwithstanding this information obtained through market research from a large percentage of purcbasers of the Lady Kenmore indicating that they had found the no scraping, no pre-rinsing claim untrue, Sears SEARS, ROEBUCK AND CO., ET AL. 491 406 Initial.. Decision continued to disseminate the l"eprescntation nationwide over aU media. Sears did not evcnconduct an inquiry to evaluatetbe propriety of the claim in view of the results of its survey, but continued to disseminate the claim through 1975 (CX 64E, F, 67, 69, 75). But there is more to the situation than. the foregoing. Sears conducted extensive market research in 1972 to find out what it was that members of the public most desired in a dishwasher (CX136, 180 205). This research showed that a large segment of the public wanted a dishwasher which eliminated the need for pre-scraping and pre-rinsing, and was wiling to pay more for thisfeature (CX 136Z008 Z009, 155H; Dr. Kassarjian, Tr. 1858-63). The ability of a dishwasher to clean dishes on the upper rack as thoroughly astbose on the bottom rack was also an important factor to the public (CX l40D, 180Z029 - Z033; Dr. Kassarjian, Tr. 1911-17), as was the ability of a dishwasher to clean pots and pans (CX l40D, 180Z029-Z033; Dr. Kassarjian Tr. 1900 1911- 192425).

Armed with the knowledge that the consumer wanted a dishwasher that would not require pre-scraping or pre-rinsing of dishes including cooking and baking dishes, Sears and J. Walter Thompson Company, its advertising agency, planned and conducted theadvertisingcampaign for Sears' dishwashers (see CX 142A, Y, Z02829, 143E-M and , 148-9, 151A, I, Nand 0, 165A-C). As an example, in a presentation to Sears . and its advertising agency on the Lady Kenmore, dated February 18, 1972, the "Crea.tive Objectives" of two commercials, one of which was "Birthday Cake" (CX 4), were stated (CX 193C): To present the superiority of the Lady (83)Kenmorefor its ability toeIiminate scraping and pre rinsing of dishes.

The campaign was effective. A "Mail Panel Awareness Tracking Study" (CX 130) conducted in two " waves" for Sears in December 1973 and July 1974 (CX 130D) revealed that 28% and .23% of persons contacted in waves 1 and 2, respectively, associated the no scraping, no pre-rinsing attribute with Sears' disbwashers, 23% and 21%, respectively, associated the attribute "clean pots and pans" with Sears dishwashers, and 21% and 19%, respectively, associated "jets for scouring dishes" with Sears' dishwashers (CX 130J, Z002). With no proof that the no scraping, no pre-rinsing representation for its dishwashers was true, and with actual evidence early in the advertising campaign in its possession and available that the claim was false (CX 88, 90, 125), Sears nonetheless disseminated the claim through aU media nationwide.

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406 Initial Decision home and includes such product.'\ as room air conditioners, dishwashers, disposers compactors, home laundry equipment, refrigerators and freezers, dehumidifiers, ranges and microwave ovens.

Sears' Motion to Dismiss Sears prefaced its Proposed Findings of Fact and Conclusions of Law with a Motion to Dismiss the Complaint. The motion to dismiss is denied.

Sears' Affirmative Defenses In its answer to the Commission s complaint, Sears raised four affirmative defenses, as noted in the Preliminary Statement to this decision. These affirmative defenses were first addressed in the pretrial Order of March 10, 1978, in which Sears' second and fourth affirmative dcfcnses were ruled as raising issues irrelevant to this proceeding. Sears' findings (RPF 19 202) and argument (RB, pp. 5&- 63) on these affirmative defenses fails to show that they have any validity. They are without merit and are rejccted (see also CRB, pp. 2& 38).

Conclusions 1. The Federal Trade Commission has jurisdiction over Sears Roebuck and Co. and over its acts and practices in the advertising, promotion, marketing and sale of dishwashers. 2. Sears, Roebuck and Co. at all times relevant hereto has been engaged in commerce as defined in the ederal Trade Commission Act and has been and now is in substantial competition in commerce with corporations, firms, and individuals in the sale of dishwashers. 3. Sears, Roebuck and Co. has disseminated false, unfair, misleading and deceptive advertisements in the promotion, marketing and sale of dishwashers. (85) 4. Sears, Roebuck and Co. has engaged in unfair and deceptive acts and practices, and unfair methods of competition, by disseminating advertisements making material representations and affirmative product elaims without having a reasonable basis, and without having substantiation for such representations and claims. 5. The dissemination by Sears, Roebuck and Co. of false, misleading and deceptive advertisements has had, and now bas, the capacity and tendency to mislead members of tbe public into the erroneous and mistaken belief that said advertisements were and are true and into the purchase of substantial numbers of Sears' disbwashers by reason of said erroneous and mistaken belief.

Initial Decision 95 F.

6. The dissemination by Sears, Rocbuck and Co. of false, misleading and deceptive advertisements, and the making of material representations and affirmative product claims without a reasonable basis and without baving substantiation, were and are all to the prejudice and injury of the public and of Sears, Roebuck and Co.'s competitors, and constituted and now constitute unfair and deceptive acts and practices in or affecting commerce, and unfair methods of competition in or affecting commerce, in violation of Section 5 of the F(.'reral Trade Commission Act.

7. This proceeding is in the public interest. ORmR It is ordered That Sears, Roebuck and Co., a corporation, its successors and assigns, and its 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 dishwashers, in or affecting commerce, as "commerce" is defined in tbe Federal Trade Commission Act, do forthwith cease and desist from:

1. Representing, directly or by implication, that any Sears dishwasher wil completely remove, without prior rinsing or scraping, all residue and film from all dishes, and from pots and pans used in cooking and baking, according to normal consumer recipes and under other circumstances normally and expectably encountered by consumers. (86) 2. Representing, directly or by implication, that dishes in the top rack of any Sears disbwasher will get as clean as those on tbe bottom rack without prior rinsing or scraping.

3. Representing, directly or by implication, that any Sears dishwasher destroys all harmful and other bacteria and microorganisms on disbes, pots and pans.

It shah be an affirmative defense to a compliance action brought under the preceding paragraphs for Sears, Roebuck and Co. to establish that the representation is truthful.

II.

It is further ordered That Sears, Roebuck and Co., a corporation, its successors and assigns, and its officers, representatives, agents and employees, directly or through any corporation, subsidiary, division or SEARS, Rm;BUCK AND CO., ET AL. 495 406 Initial Decision other device, in connection with the advertising, offering for sale, sale or distribution of j'major home appliances " in or affecting commerce as "commerce" is defined in the Federal Trade Commission Act, do forthwitb cease and desist from:

1. (a) Making any statements or representations, directly or by implication, concerning the performance of such products unless such statements or representations are true and unless, at the time the statements or representations are made, Scars, Roebuck and Co. possesses and relies on a reasonable basis for such statements or representations, which shall consist of competent and reliable tests, as defined in the next paragraph, or other competent and reliable evidence which substantiates sucb statements or representations. (87) (b) For purposes of this order, a competent and reliable test is one in whicb persons with skill and expert knowledge in tbe field conduct tbe test and evaluate its results in an objective manner using testing procedures which insure accurate and reliable results. Such tests must be truly and fully representative of expectable consumer usage. 2. Misrepresenting in connection with the advertisement of any such products or in any other manner, directly or by implication, tbe purpose, content or conclusion of any test, experiment, demonstration study, survey, report, or research.

3. Making any statements or representations, directly or by implication, in connection with the advertisement of any such products which arc inconsistent in any material respect with any statements or representations contained directly or by implication in post purchase material(s) supplied to tbe purchasers of such products. 4. For purposes of this order, the term "major home appliance includes air conditioning units (room or built-in), clotbes washers clothes dryers, disposers, dishwashers, trash compactors, refrigerators refrigerator/freezers, freezers, ranges, microwave ovens, humidifiers debumidifiers, and any other product that falls into the category of major home appliances.

II.

It .is further ordered That Sears, Roebuck and Co., a corporation, its successors and assigns, and its officers, (88)representatives, agents and employees, directly or througb any corporation, subsidiary, division, or other device, in connection with the advertising, offering for sale, sale or distribution of dishwashers or other "major home appliances " in or affecting commerce, as "commerce" is defined in the Federal Trade Commission Act, shall maintain written records: Initial Decision 95 F.

(a) Of all materials which were relied upon in making any claim or representation in advertising, sales materials, promotional materials or post purchase materials, concerning the performance characteristics of any of Sears, Roebuck and Co.'s dishwashers or other major home appliances;

(b) Of all matter in their possession which contradicts, qualifies or calls into question any claim or representation in advertising, sales materials, promotional materials, or post purchase materials disseminated by Sears, Roebuck and Co. , or by any advertising agency on behalf of Sears, Roebuck and Co. , concerning the performance characteristics of any of Scars, Roebuck and Co.'s dishwashers or other major home appliances.

Such records shall be retained by Sears, Roebuck and Co. for a period of three years from the date such advertising, sales materials promotional materials, or post purchase materials were last disseminated. Such records may be inspected by the staff of the Commission upon reasonable notice.

IV.

It is further ordered That Sears, Roebuck and Co. shall notify the Commission at least 30 days prior to the effective date of any proposed change in it as a corporate respondent such as dissolution, assignment or sale resulting in the emergence of a (89Jsuccessor corporation, the creation or dissolution of subsidiaries, or any other change in the corporation which may affect compliance obligations arising out of this order.

It is further ordered That Sears, Roebuck and Co. sball forthwitb distribute a copy of this order to each of its operating divisions, and to each of its officers, agents, representatives and employees, engaged in or connected with the preparation and placement of advertisements for dishwashers or other major home appliances. It is further ordered That Sears, Roebuck and Co. shall within sixty (60) days after service upon it of this order, and at such other times as the Commission may require, file with the Commission a report in writing setting fortb in detail the manner and form in which it has complied with this order.

Appendix A The following charts contain the results of the D&M Center tests on the Sears dishwasher, which are recorded in CX 83ZO7 CX 837.012: ,. ,,,, 406 Initial Decision HING RE.qU S OF D ENTER TE."TR ex - 8:

WlIhing Coking Method Remits D... Foo Stove Temp. Time Cycle (% Clean) 9/1/72 Eg", SSS Stove 4 Min. Nomal taned !!il" F",,, SSS Stove a Min. Nonnl retanedEliI" Eg", Stove 4 Min. NOnT!'l 100 F",,, Stove 3 Min. Nental 100 Cake Cake Dish 325" 35 Min. Nental clean Pork & Bens CII. Dish 4( Min. Norml clean 9/5/72 Eg", Stove 2 Min. Nonnal clean Eg", Stove 2 Min. Noma1 dean ;ggR SSS Stove .. Min. Norma! retained80iI" SSS Stove 3 Min. Normal retained soil" Pork & Bens Caso Dish 40 Min. Normal clean 9/6/72 fo;ggs Stove 4'1 Min, Normal 50- 75% (inupperrsk) Eg", Stove Min. Norml 75% (in lower rak) SSS Stove 4', Min. Norml (inIiPperrsk) SSS Stove 7 Min. Norml 25% Pork & Bens Cas. Dish ''-0 55 Min. (in NOnTa!lower rak) 95% Eg", Stove 7 Min. Normal 95% (in lower rak) E,,, Stove 1 Min. Nental (in upper rak) Eg,. SSS Stove Nonna! 75% E,,, SSS Stove 12 Min Nonnl 50-75% Pot.to Caso Dish 45 Min. NUI1I clean MlIolli Cas. Dish Min. Normal clean Maconi C!I. Dish '50" 60 Min. Norml Film on Bottom 917/72 Stove 3 Min. Norml F",. Stove 2 Min. Norml 100 E,,, SSS Stove 2 Mi". Norme.l 75% SSS Stove 2 Min. Nonnl 85% Pork & Beans Ca.'I. Dish 325' 45 Min. Normal only burned on !!il retained Cake Cake Dish 45 Min. Norme.l (in upper rak) Cake Cake Dish Oven 32S' 35 Min. Norme.l mak" retained (in lower rak) 9/8/72 Stove 4 Min, Norma! 85% (in lower rak) E,,, Stove Normal 100 (in upper rak) E,,, SSS Stove 4 Min. Normal 75% (in lower rak) E,,, SSS Stove 10 Min. Nonnl (in upper rak) Pork & Beans Cab. Dish 2 HI'. Normal clean ro Min.

,,,,,,,,,,,,,,,,,,,,,,,,,,,,,, Initial Decision HIN S OF D ENTF.R TE.';TS ex - 83Z0 Washing (',o m' K! Reults D,", Stove Temp. Time Cycle (%Clean) 9/11/72 Eg" Stove 7 Min. Norma! reteineon (inllppernck) upperedge E,,, Stove 7 Mill, Normal very litte (in lower I"k) retained SSs Stove 7 Min Normal E", SSS Stove 3'/: Min. (in Llpperrak)Norml 25% (in lower rak) Cake . Dish 32S 35 Min. Normal 25% (inupperrnk) Cake Cs.. Dish 325" 35 Min. Norml 6075% (in lower rack) M8Cni Cli. Dish 325. 60 Mi Normal sta.hpaicies (in upper rak) retained Maconi Ca&. Di 325" 60 Min. Normal alm06tclean (in lower rak) 9/12/72 Cream of Rice 36" 10 Min. Nonn) clean except Cream of Ri 36" 10 Min. Normal) for fim Cream of Rice C8.. Dish 36" 10 Mil!, Norma!) eleallexcept Cream of Rice CIU- Dish Oven 36" 10 Min. Norml) for film Chee! Sauce SkiHet Stove 6 Min. Norml almootcleao (one wllh) Chet Sauce Caso Dish Stove 6 Min. Norml almootclean (one with) Maconi Dish 30 Min. Norma! BOmestah retained 9/13/72 E,,, not cooked in pot Norml clean Eg" SSS not cooked in pot Nonn\ 4 paicles (inupperrsk) retained Eggs SSS Not coked in pot Nonnl 2 paicles (in !Qwer nik) retained Macni Nonnal 4. paicles retained Maconi Nonnl \7 paicles retained Oatmeal Caso Dish Nonn..! fim over 75% 9/14/72 Macroni Caso Dish 36" 4.5 Min. Nonnal clean (:I washes) Macroni Caso Dish 36" 40 Min. Nonna! :I W8Jhes: 15% 4. washes:

, SEARS, ROEBUCK AND CO., ET AL. 499 406 Initial Decision HING R SIJ S OF D F..TER T ex - 83Z0 ""0 WlIhing C.o Method WMh Reults De'" Foo Stove Temp. Time Cycle (% Clean) 9/15/72 Eg", Stove 6 Min. Norml clean Jo;ggs SSS Stove 8 Min. Normal reidue on sides Eg", Stove 10 Min Normal Eggs SSS Stove 10 Min. Normal Cake Cake Dish 3,,)0 10 Min. Norml &5% (in lower rak) o.k, Cake Dish "'eo 35' 10 Min. Normal 75% (inupperl"k) 9/18/72 Eg", Stove 6 Min. Normal 95% (1 wash) Eggs Stove 6 Min. Normal 95% (I wash) Eg", SSS Stove 8 Min. Normal 70% (1 wlth) Eggs' SSS Stove 8 Min. NOMnal (1 wash) Macni Cas. Dish Oven 3,,)O 4j Min. Normal (I wllh) Macroni' Cas. Dish ""0 35" 45 Min. Normal (1 wash) Cake Cake Dish "'eo 35. 10 Min. Norm",l 75% (1 w8Eh) Cake' Cake Dish Oven 35' 10 Min. Normal (1 wash) Eg", Stove 6 Min. Normal 100 (2 wlIhes) Eggs Stove 6 Min. Normal 100 (2 wlIhes) F;ggR SSS Stove S Min. Normal mostly clean (2 wlIhes) Eggs SSS Stove 8 Min, Normal (2 wa."hes) Ma.oni CII. Dish 35' 45 Min. Normal (2 waahes) M8.nmi Caso Dish 350 45 Min. Normal 75% (2 washes) Cake Cake Di.,h Ov,." 10 Min Normal 85% (2 w/Uhe8) Cake Cake Dish 3f,oo 10 Min. Normal (2 w8.he..) Aluminum 9119/72 Oatmeal Sauce Pan Stove 30 Min. NDrmal (1 cycle) Rice Caso Dish Normal 70% (1 cycle) Eg", Normal 95. (1 cycle) Rire Skillet Normal (1 cycle) &...

500 FEDERAL TRADE COMMISSION m;CISIONS Initial Decision 95 F. WASHING RJ.;SULTS OF D&M ('F:NTr R TF.STS ex - 83Z01O Oven Washing f',o Method W;wh Reults Date Foo Pot Stove Temp Time Cycle (% Clean For each test:

8/4/73 M.. roni Caso Dish Oven Lowest Unti 5 Min. Wash) 100 Settng Dry 2 Min. RinfJ) Macroni Cas. Dish Oven Lowest Until 2 Min. Rinse) 100 Setting Dry 20 Min. Wash) Beefaroni C=. Dish Oven Lowest Until 2 Min. Rinse) 100 Setting Dry 8/9/73 Macroni" Dish Oven 35" 45 Min. 20 Min, Wash) film retained Beefaroni5 e=. Dish Oven 35" 45 Min. 20 Min'. Wlth) 1009/26173 Macroni Ca$. Dish Ovcn 35" Min. 20 Min- Wa. 100 Macaroni C=. Dish Oven 3f.o Min. 20 Min. 100 Macaroni Caso Dish Oven Min. 20 Min. 100 Abbreviations Aluminum Ski!et Casso Dish - Pyrex Casserole Dish SSS - Slain!cRS Steel Skillet Temp. - Coking Temperature; - Not Recorded # ref",r. to stove setting from #1 (low) to #8 (high) Footnotes: All tests allowed pots to stand for two hours after baking and before placing in dishwasher except those footnote:

Ca(lcrolc dish with pork and beaI1 allowed to stand one hour and 20 minutc after baking and before placing in dishwasher. Casserole dish with pork and heans allowed to stand 24 hou,. after baking and before placinKin dishwasher. Casserole dishes with macaroni and chee allowed to stand 24 hourn before placing in dishwasher Each of these tests involved allowing the pots to stand for 24 hours before placing in dishwasher Each of these tests involved allowing the =erole dishes to stand for:16 hours before placing in dishwasher.

From October 6, 1972, to October 25, 1972, tests mn at D&M Center involved the following foo having ben prepared as follows: Cake - In cake dish; in oven; at 32.";0; 40 minute. Macaroni In c.serole dish; in oven; at 35" ; 40 minutes. Oatmeal In aluminum sauce pan; on stove; at #8 setting for 2 minutes, then #4 setting for 20 minutes.

Egg Omelet In aluminum skillet; on stove; at #4 ,*tting; 10 minute. The results of these tcsb are as follows:

, , . .,.% . . .,.,,.. % 406 Initial Decision KqU S OF D CF:

ex - 83Z011 Wash a,il Macroni 10/6172 5 Min. 15% 10% 10 Min. 30% 15% 95% 15 Min. 35% 95% 20 Min. '5% 95% 25 Min. 45% 45% 95% 30 Min. 70% 95% :-5Min. 70% 70% 95% 3Min. 75% 5 Min 75% 95% 10 Min. 85% 35% 95% 15 Min. 35% 95% 20 Min. 35% 90% 95% Min. 35% 95% 10/9/72 35 Min. Wlth 75% 15% 3 Min. Rinse 55% 3 Min. Rinse 85% 85% 25 Min. Wash 95% 95% 95% 10/10/72 2UMin. Film 85% 1O/1lJ72 30 Min. 35% 70% 10 Min. 15% 35% 10/1272 15 Min.

roMin. Not Teste 65% Not Telte 101l3/72 25 Min. 85% 35% 85% 10/16/72 20 Min. Wash) 3 Min. Rins) 3 Min. RiTL'\) 20 Min. Wih) 75% 85% 98% 100 3 Min. Rins) 3 Min, Rins) 10/17/72 20 Min. Wash) 3 Min. Rins) 3 Min. Rins) 20 Min. Wa9h) 75% 3 Min. Rins) 3 Min. RiJl'J Norma! Cycle 70% 98% 95% 10118112 Normal Cycle 10/19/72 20 Min. Wlth) 3 Mill, Rill) 3 Min. Rins) 20 Min. W8.h) 35% 95% 3 Min. Rinse) 3 Min. Rins) Norma! Cycle 85% Initial Decision 95 F.

HIN S m' D gNTf R T 'ns ex - Z012 1l r&Qw 10/20/72 Nomal Cycle Not Teste 75% Not Teste Not Teste 10/23/72 Normal Cycle Not Teste 65% Not Teste Not Teste 10/24/72 Normal Cycle Not Teste 75% Nut Teste Not Teste 10/25/72 00 Min. Wash 3% Min. Rins) 3% Min. Rins) 8 Min. Wash Not Teste 65% Not Teste Not Telte 4 Mid, Rinse 5 Min. Rinse 10/27/72 8 Min, Wash 3% Min. Rins) :i'h Min. RilU) 20 Min. Wl1h Not Teste Retained Not TeaW Not Teste 4 Min. Rinse Soil" 5 Min. Rinse Appendix B QUALIFICATIONS OF WITNESSES Patty J. Annis Patty J. Annis is an Assistant Professor of Household Equipment in the Deparment of Family Ecnomics at Kansas State University, where she is responsible for all of the household equipment courses taught in the Department of Family Economics (Annis, Tr. 226, 228; ex 289A). She is currently in charge of the Home Management Program at Kansas State (Annis, Tr. 229-0). She has a B.S. degree in Home Ecnomics from Mississippi State College for Women and an M. S. degree from the University of Tennessee (CX 289A; Annis, Tr. 22). Her field specialization is inside air contamination control (Annis, Tr. 220-2; ex 289A). Professor Annis has experience in the use, testing and analysis procedures with regard to basic household equipment including dishwashers and their performance vis- vis diffcrcnt types of foo soils (Annis, Tr. 226, 2260 226567). She has taught courses and done work in areas dealing with industry standars for appliances such a.o; dishwashers (Annis, 226-7). Professor Annis is a member of College Educators in Home Equipment, the ASTM Committe on Vacuum Cleaners and the American Home Economics Association (CX 289A; Annis, 22-5). James L, Brown Mr. Brown is currently Managing Director of Customer Servces of the National Sanitation Foundation ("NSF") in Ann Arbor, Michigan (Brown, Tr. 2814, 2817; CX 290A). The National Sanitation Foundation is a non-profit organization which works with industry, user groups and TCbrulatory agencies in the development of standards for foo service equipment, including commercial spray-typ dishwasher, and in the evaluation of that equipment (CX 302-05, 319; Brown, Tr. 2814-16). Mr. Brown Customer Services group evaluates and tests dishwashers in manufacturers' plants participates in coordinating tests for dishwashers in the NSF laboratory, and works in developing test procedures for such testing (Brown, Tr. 2819). Mr. Brown is also Resident , oc.n.n. , r.VCoDUl.n. .fll.L \.v. , Co .f.L. 406 Initial Dccision Lecturer on Environmental Health at the University of Michigan School of Public Health, covering sanitization and commercial dishwashers in the graduate courss he teaches (Brown, Tr. 282-; CX 290A). Mr. Brown holds a B.S. degree from the University of Toledo and a Masters of Public Health degree from the University of Michigan; his coursework included idcntifying the numbers and kinds of microrganisms on surfaces, thermal destruction of microorganisms and proper laboratory procdure (Brown, Tr. 2826-27), In his experience as a field sanitarian and supervsor, Mr. Brown has evaluate dishwashers for their ability to sanitize dishes; while at NSF, he has evaluated commercial dishwashers which are very similar in their design to home-typ dishwashers (Brown, Tr. 2827-30). He has been involved with setting standards for commercial dishwashing machines since 1964 and did much of the laboratory work for the 1964 NSF study (CX 3(0) on commercial dishwashers (Brown, Tr. 281-32; CX 29B). Mr. Brown has authored several publications including one entited Mechanical Dishwashing" (CX 309), which is used to train sanitarians in the field evaluation of dishwashers (Brown, Tr. 281-4; CX 290B). He is a member of several professional organizations including the Intersociety Acaemy for the Certification of Sanitaians and the American Public Health Association (Brown, Tr, 286; CX 290A). Dr. Frank L. Bryan Dr. Bryan is currently the Chief of Foodborne Disease, Bureau of Training, at the Center for Disease Control in Atlanta, Georgia (Dr. Bryan, Tr. 2692; CX 296A). The Center for Disease Control, an agency of the U.S. Department of Health, Education and Welfare, has primary responsibility for diseasc surveilance throughout the country, laboratory support to the states, and demonstration and training of diseae control (Dr. Bryan, Tr. 2592). Dr. Bryan received his B.S. degree from Indiana University, majoring in Public Health, and his Masters of Public Health degree from the University of Michigan (CX 296H). He obtained his Ph.D. degree at Iowa State University, majoring in Baeteriology with a minor in Food Technology (CX 296G). Since working at the Center for Discase Control, Dr. Bryan has conducted a major study on the evaluation of hometype dishwashers for use in small institutions (Dr. Bryan, Tr. 2598-260; CX 296E). This study was published in 1975 (CX 307). He has held training sessions in which he dealt with dishwashers (Dr. Bryan, Tr. 2626). Dr. Bryan has also done work involving the thermal destruction of microorganisms and has had to assess the presence, numbers and kinds of microorganisms on foods and surfaces (Dr. Bryan, Tr. 2596-97, 2626-27). Dr. Bryan is one of five representatives from the Unite States who sit on the 21 member International Commission on Microbiological Specifications for Foods (Dr. Bryan, Tr. 262829; CX 296K). He is a member of, and frequently has served as an officer on numerous other professional organizations and committes, including the American Society for Microbiology, Institute of Food Technologists, International Association of Milk, Food and Environmental Sanitarians, American Public Health Association, New York Acadcmy of Sciences, Sigma Xi-Scientific Research Society of North America, and the National Association of Environmental Health (CX 296 J-K). Dr. Bryan has authored numerous publications dealing with foodborne diseases, pathogenic microorganisms, and their thermal destruction (Dr. Bryan, Tr. 2629-2636; CX 296 B-F). Initial Decision 95 F.

Shari Bryant Ms. Bryant is a free-lance home economist speializing in consumer affairs; her clients have included corprations, advertising agencies, financial institutions and public relations firms (RX 128, p. 2; Bryant, Tr, 4028, 4030). Her previous positions were as the Director of Household Finance Corpration s Money Management Institute, Manager of Wilson Foo Company s Home Service Department, foo lecturer and cooking school director for Rural Gravure Publications, and staff home economist with Smith Bucklin Trade Association Management Firm (RX 128, p. 2; Bryant, Tr, 4010-27). Ms. Bryant has a B.S. degree in Home Economics from Northern Ilinois University (RX 128, p. 2; Bryant, Tr. 40(). She has been a member of various professional societies, including the American Home Economies Association, Grocery Manufacturers of America, and Chicago Better Business Bureau (RX 128, pp, 2--; Bryant, Tr. 4038). Ms. Bryant has general experiencc in food preparation procedures, consumer use of dishwa.'hers, and normal kitchen practices (RX 128, p. 2; Bryant, Tr. 4005-, 4012-14, 4016-19 , 4022, 4033 4037. 38).

Dr. Patriia CimrucM Dr. Charache holds numerous current appointments at Johns Hopkins University School of Medicine and Johns Hopkins Hospital, including the following positions among others: Associate Professor of Laboratory Medicine and Director of the Microbiology Division of the Departments of Pathology; Associate Professor of Medicine, Member of the Infectious Disease Division; Director of the Microbiology Laboratories; and Chairperson of the Committee on Infection Control (CX 365A). Dr. Charache is extensively involved in the areas of medical microbiology, disease prevention and identification, infection control, and patient care in her multiple capacitics as teacher researcher, staff and laboratory supervisor, hospital physician, and member or head of various medical school and hospital committees and department.o; (Dr. Charache, Tr- 6047-53). As Director of the Microbiology Division of the Department of Pathology, she has 55 full-time people under her supcrvision (Dr. Charache, Tr. 607-4). Prior to her present position, Dr. Charache was a Research Associate at Harard Medical School and Children s Hospital in Boston, where she studied immunology responses and infection control in patients; she has also served as Assistant Chief of Medicine for the Baltimore City Hospitals (CX 365B; Dr, Charache, Tr. 60545). Her areas of specialty are in infectious disease, medical microbiology, and epidemiology as it pertins to infection control, epidemiology, smoking, etc. (Dr. Charache, Tr. 6055). Dr. Charahe graduated from New York University School of Medicine, where she received various honors and awards for academic excellence (Dr. Charache, Tr. 6055-7). She also has received other honors, awards and fellowships which demonstrate her achievement in the medical profession (CX 365B, C; Dr, Charache, Tr. 6057-61 , 6072). Dr. Charache is a member of numerous honorary and professional socicties, such as the American Society for Microbiology, American Association for the Advancement of Sciencc, American College for Clinical Pharmacology, and Infectious Diseass Society of America, among others (CX 365C; Dr. Charache, Tr. 601-67). She has served as a consultant to NIH' s Board of Scientific Counselors for the National Institute for Allergy and Infectious Diseases (CX 365C; Dr. Charache, Tr. 6067-6). She presently serves as a consultant to the U. Department of Defense s Ad Hoc Study Group on Bacterial and Mycotic Diseases, as well as to other organizations (CX 365C; Dr. Charache, Tr. 606870). Dr. Charache has had numerous editorial appointmcnts and has written many published articles and books (CX 365G-H; Dr. Charache, Tr. 6070-73). Finally, Dr. Charache has done work involving sterilization procedures, thermal destruction of microorganisms, bacterial spores .. , , : , , SEARS; tlUJ:l1U\.A.I'.uv...

Initial Decision botulislI' sanitization, produres; ...andthe, susCptibility of infants varous (Dr. Charahe, Tr. 605-78).

AnthfYJiyF.in Mr. berweinispresently President ,.of InstallatioIl by Anthony, " Inc: insouthern florida;"acompany whjch instant holDe ,: appliance ami, provideaconsrilting servcet() consumers and builders (Eberwein, Tr. 990); Prviously, he worked for C:inadianGeneral Electric ("GGE' from 19541964); ' holding several sUccive Positions as a Field Servce Technician, DistrictPryxluclService Trainer and National ServceTrail1 r. In this 'last caPllcity, he asiste in wrting the servce manuals for CGE personrieland servicing deaIern the 'hiStaUation" . instrctions: for major" appliances " and, the " customer user books fpr the products manufacture in CanadaJEberwein Tr. :95; 95,6-7;CX 318A). From ' 1964 , to 1975" hcworked for General Electric ' Co; in the Ul1ite' States holding, sUcrive ' positi()ns, as a' Field, Servce Technician; ' Engineering, Laboratory TechriicianandDishwasher Perpr1ance Speialist(Eberwein Tr. 957'-; CX318A-B); Throughout his, car M)"'E;benveinhasspentexteIiive amounts :of time working with and, tetingdishwasher " (Eberwcin ;95g.; , CX318A-:B). Hehaa, also contribute," toward establishing' wash,' performance " standards in ' the, dishwashe:r tr(Eberwein Jr; 96): Mr. Eherwein orks\With and is familiar ' With, the hanical design and operation of Seat' dishwashers" inchlding the Lay, Kenmore tr()el (Eberweiri; Tr 952-).

VirgniaR H;rgu Virginia Ferguson is a Consultant iri the Foo and Agrbusines Section of RechArhurD, LitteinCambridge; asachusetts (Ferguson Tr. l65; ex 292A). Arthur D. Little is an iridependerit research organition '(Sullvan, Tr. l403-): Pror to that p()sition she:worked:asa Foo Chemist at the Foos Reserch Laboratory, Inc. (CX 292A; Ferguson, Tr; 1657). Ms. Ferg'soJl:rived her RS. degr in Education, majoring in Foo and Nutrtion; from Frmingham State College, and her M.S. degree in Foo and' Nutrition from Cornell University (CX292A; Ferguson, Tr 1ff9) Her experience ' is ' in thearaspf anaJyticaltesting and evaluation of fciprOucts, flavor evaluation;:product development, develppment of tet designandprocur fo:r theevaluationoffooproouctS 3ndas substantiation for foo advertising claims, andaderefoodsoHs (Ferglson Tr. 1657 l601, 166 70; ex 292A). Ms. Fergun is a member of the Institutedf Foo Teehn()logistsand a former Secreta for the Northeast setion; She is als a membefof the Institute's SelioryEvaluation Division and the MCJachm.ettsHomeEcnomics Ass()iation (CX292A;Fergun, Tr. 1656). Barbara J; Frr Ms;frarhas been employed by Design and Mariufacturing Corpration ("D&M" the, maker of Sear' di hwashers " since 1969, initially" staing ' out aia, laboratory tehniciaJldoingsome,work)n chemistryand gradlially assuming duties as atechnician intheen neering field(Fraser T(S080). Since 1976, she has beell employed in D&M' ng)Ileering Deparment as ' an engineer (Fr:r, Tr. so80)., Ms. Frasr ,ha a ' B.S. degr in Electncal Engineering ' from Purduc lJniversity (Fr:r Tr; 5081). Atd&M her functions and duties have ' inchidedtetingSear" and" competitors dishwashers designing tei:, doing:rsearchonwash systems and in other ar nd designing.cycles for-dishwashers (Frasr Tr. 508O-2). Alone point, whilestiH a tehniCian, she:was put incharge of a dishwasher testing groupat D&M (Frasr, Tr;5(). 324, 97!o-81,- 33:QU 506 FEm;RAL TRAm; COMMISSION DECISIONS Initial Decision 95 F.

Dr. Glyn J. Gowin Dr. Godwin received his B.S. and M.S. degrees in Microbiology from Southeastern Louisiana University, and has a Ph. D, dCbrree in Foo Science from Louisiana State University (CX 293A). In the past, he was Assistant Professor of Food Microbiology and Toxicology at the University of Rhode Island, during which time he also served as foo science expert for the State of Rhode Island (CX 293A; Dr. GOwin, Tr. 20-30). He is a Registered Food, Dairy, Industrial, Agrcultural ..oct Sanitation Microbiologist (CX 2931\; Dr. Godwin, Tr. 2035--36), During the course of his work, Dr. Gowin focused on food processing and food microbiological problems for the food processing industry within Rhode Island (Dr. Gowin, Tr. 2029-31), and designed and conducted scientific experiments associated with foos (Dr. Gowin, Tr. 2039). He has authore articles on food processing, canning and foo safety and has taught university courss on the same subjects (CX 293B). Dr. Godwin is a member of the Institute of Foo Technologist. belonging to it.'1 Division of Quality Assurance and Division of Food Microbiology. He is also a member of the American Society for Microbiology as well as a member of various honorary soieties (CX 293A B; Dr. Gowin, Tr, 2031--). Dr. Harold H. Kassaijian Dr, Kassaijian has ben a Professor at the Graduate School of Management at UCLA since 1961, and has taught courses in consumer behavior, marketing, mas communications, statistics, advertising, market research and research methodology (CX 294A, Dr. Kassaijian, Tr. 1798-99). Dr. Kassarjian ha.'i also conducted numerous research studies for individuals, government and industry on topics such as politics, product testing, attitude and opinion research, media research, and many aspects of marketing and consumer behavior (Dr. Kassaijian, Tr. 1799180; ex 294A). He ha served as a consultant to local, state and federal government, industry, and groups such as the National Science Foundation and the Public Broadcating Service (CX 294A-B; Dr. Kassaijian, Tr. 1802-04). Dr. Kassaijian received his B.A., M.A. and Ph.D. degrs in psychology from UCLA, and is a licensed California psychologist (CX 294A). He has ben President of the Pacific Chapter of the American Assoiation for Public Opinion Research from 1969- 1970 and a member of their Standar and Ethics Committee on the national level in 1975. He served as President in 1977 of the Association for Consumer Reerarch. Dr. Kassaijian is also a member of the American Psychological Association American Marketing Association and American Statistical Association (CX 294B; Dr. Kassaijian, Tr. 1800- 01). In 1972, he was elected as a Fellow of the American Psychological Association and, in a 1975 opinion poll of marketing educators throughout the country, Dr. Kassaijian was selected as among the top 12 leaders in marketing (Dr. Kassaijian, Tr. 1808-; CX 294C). Dr. Kassaijian serves as an Academic Editor for West Publishing Company, where he appraises the quality of marketing and consumer research manuscript. submitted for publication (CX 294B; Dr. Kassaijian, Tr. 180). He has also ben, or stil is, a meriber of the editorial board or reviewer for the Journal of Marketing (1970-1976), Journal of Consumer Affairs (1971-1974), Journal of Advertising (1975-present), Journal of Applied Psychology (1976), Journal of Business Research (1976-present), and the Journal of Consumer Research (1973 present); conseuently Dr. Kassaijian has reviewed and made recommendations on hundreds of consumer resarch articles (CX 294B; Dr. Kasaijian, Tr. 1804--). Dr. Kassaijian has also authored numerous books and articles in the field of consumer reearch (CX 294C-I; Dr. Kassaijian, Tr. 1809-13).

SEARS, ROEBUCK AND CO., ET AL. 507 406 Initial Decision Dr. Renny S. Norn Dr. NOMDan is Engineering Advisor in the Engineering Division of Ilinois Institute of Technology Ikscarch Institute ("lit") in Chicago (RX 127, p. 3; Dr. Norman, Tr. 3154). The Research Institute is a not-for-profit research organization asociate with the Ilinois Institute of Technology and performs contract reserch and development programs for government and industry (Dr. Norman, Tr. 31801). He has ben employed by lit since 1966, except for the period September 1969 to September 1972 during which he was a full time graduate student (RX 127, p. 2; Dr. Norman, Tr. 3177 79). Prior to 1966, he was employed for five years as a propulsion research engineer at NASA' s Lewi Research Center in Cleveland (RX 12, p. 2; Dr. Norman, Tr. 3175-77). Dr. Norman has a B.S. degree in Mechanical Engineering from Stanford University, an M. degree in Aeronautical Engineering from Purdue University, and a Ph.D. degree in Mechanical Engineering from lit (RX 127, p. 2; Dr. Norman, Tr. 31667, 3169, 3173). He also studied experimental aerodynamics for one year in Belguim at a school sponsore by NATO (RX 127, p. 2; Dr. Norman, Tr. 3171-73). Upon joining lit, Dr. Norman s initial responsibilities as an associate engineer included projects on aerodynamics and fluid mechanics (RX 127, p. 2; Dr. Norman, Tr. 3177-78). Subsequently, he has held succssive positions at lit as a Research Engineer, Senior Research Engineer, Manager of the Acoustics and Fluid Mechanics Section of the Engineering Mechanics Division and presently, Engineering Advisor (RX 12, pp. 2-; Dr. Norman, Tr. 3178-79). Since 1974 Dr. Norman has supervised a group of seven engineers in the area of acustics, fluid mechanic.'I , product design, experimental measurements, and instrumentation design, in addition to his currnt supervisory duties as Engineering Advisor (RX 12, pp. 2-; Dr. Norman, Tr. 3179-0). During his carer, Dr. Norman has ben extensively involved in designing test procdures, conducting tests, preparing test report, and designing instrumentation (Dr. Norman, Tr. 3174 3176-79 3182-). Dr. Zakari J. Orl Dr. Ordal is a Professor in the Deparment of Foo Science and the Deparment of Microbiology at the University of Ilinois, where he has ben since 1949 (Dr. Grdal, Tr. 5579, 5585). Previously, he was on the staff of the University of Ilinois College of Medicine and also worked in industry for a few years (Dr. Ordal, Tr. 55, 5593). Since 1940, the poitions that Dr. Ordal has held have always ben in the fields of bacteriology and microbiology (Dr. Ordal, Tr. 5593-94). Dr. Ordal reived his Ph.D degr in Bacteriology from the University of Minnesota (Dr. Ordal, Tr. 5592-3). During his teaching career, he has supervised graduate students and taught courss dealing with foo and industrial microbiology, the destruction or reuction of bacteria) populations through physical streascs such as heat, commercial canning, spores and orgnisms such as botulism, and the principles of sanitation in the food processing industry (Dr. Ordal, Tr. 558590). The areas in which Dr. Ordal has research interests include the following: bacterial spore activation, germination and outgrowth (breaking the dormancy or resistant state of the spore); injury and reovery of bacterial cells; sporulation (the pross through which a vegetative cell is convertd to a spore); physiology of bacterial spores; and bacterial swab testing (Dr. Ordal, Tr. 5580--8, 5591). His memberships in professional organizations include the American Acaemy for Microbiology, Institute of Foo Technologists, and Association of Milk, Foo and Dairy Sanitarians (Dr. Ordal, Tr. 5594-95). He has ben involved in activities under the aegis of the National Research Council of the National Academy of Science, Department of Defense, Department of Health, Education and Welfare, and Foo and Drug Administration (Dr. Ordal, Tr. 5595- Opinion 96). Dr. Ordal is the author of many scientific 95 F. T. papers on the effects of physical stresses on hacterialpublicationscells (Dr.and Ordalhas written severdl FierkrikSullivan, Tr. 558).

Frederick Sul/ivan is currently Senior Research Chemist and Foo and Agrhusiness Section of Arthur D. Little in company he has been with for 31 year. Prject Director in the Cambridge, Masachusetts , a organiztion (Sullvan, Tr. I40 Arthur D. Little", an independent the scientific testing and evaluation; CXof household295A). Mr.prouctsSullvan has extensive experience in rearh detergents, household appliances such as refrigerators and, dishwasherair conditionersand commercial soils (CX 295A-B). He bas Participated in dishwasher experiments using commercial detergents (CX 295A). Mr. Sul/ivan has written several puhlications involv;ng ,theandtetingfoo of chemical substances (CX 295D- Association, the Institute of Foo TeehnologistsE). He is a member of the American Chemical American Soiety for Testing Materials. He is past, andChairmanthe New ofEnglandthe AmericanCouncilSoietyof the for Testing and Materials Committee Products (CX 295C). E-18 on Sensory Evaluation of Materials and OPINION OF THE COMMISSION By DIXON Commissioner:

This . case involves a performance cbaracteristicscbalJengeof bomedishwashers.to the advertisingComplaintof variousin the matter was issued on November 20 and Co. ("Sears, 1977, and charged ), imd its advertising agency, J. WalterSears,ThompsonRoebuck with disseminating deceptive and unfair advertisements inviolation of Section 5 of tbe Federal Trade Commission ACt a campaign to promote sales of the Lady Kenmore, 15 U. , as part of particular, the complaint alJegedthatSears and J. Walter. dishwasher. In had made the following claims basis: , for which they lacked any reasonableThompson 1. the Lady Kenmore dishwasher prior rinsing or scraping, aU residue wi1and completelyfilm from dishesremove, without pans used in cooking and baking according to normal consumer recipes and under other circumstances normally and expectably encOUlltered, pots and by consumers; f2J 2. dishes in the top racJ. Qf the Lady Kenmore dishwasber will get as clean as tbose in the bottom rack without prior rinsing or scraping; 3. the Lady Kenmore "

extra-hot .155 degree final Sani-Wash"rinse cycle, by giving dishes an bacteria and microorganisms on the "dishesdestroysand potsall harmfulan(ipans.and other The complaint also alleged that the claims were false first and third of the foregoing further violated Section, as wells of asthe unsubstantiatedF'rC Act by disseminating advertise" , and that Sears had SEARS, ROEBUCK AND CO., ET AL.

Opinion ments depicting a demonstration that was misrepresented as proving the trutb of the claim that the Lady Kenmore eliminated the need for pre-rinsing and scraping of pots, pans, and dishes. Finally, the complaint charged that respondents had violated Section 5 of the FTC Act by disseminating a claim in their advertisements (that the Lady Kenmore eliminatcd the need for pre-rinsing and scraping) that was contradicted by instructions in tbe Lady Kenmore Owner s Manual. (1.D. p. 2)1 Following pre-trial proceedings, respondent J. Walter Thompson signed a consent agreement, and was removed from the adjudication. Hearings on the cbarges against respondent Sears were then held before Administrative Law Judge (ALJ) Daniel Hanscom, who entered an initial decision sustaining all allegations of the complaint, and recommended entry of an order prohibiting various misrepresentations and requiring that Sears maintain substantiation in the future for al1 advertisements of "major home appliances.

This matter is before the Commission upon an appeal by Sears from one of Judge Hanscom s findings of liability, and from . several provisions of tbe order that be entered. Sears does not challenge thc ALJ' s finding that it misrepresented that the Lady Kenmore would eliminate the need for pre-rinsing or scraping of dishes, pots, and pans. Nor does Sears challenge the finding that it lacked substantiation for this claim, or (3Jfor the claim that dishes on the top rack would be cleaned as well as tbose on tbe bottom rack of the Lady Kenmore. (TROA 3) Sears does, however, contest the ALJ's finding that it misrepresented that the Lady Kenmore would sterilize dishes, and tbe ALJ' s recommendation that Sears be required to maintain substantiation for all future advertisements of "major home appliances" as defined in tbe order. Our review of Sears' appeal follows. 1. Sani-Wash Issue The Sears Lady Kenmore dishwasher comes equipped with a "Sani- Wash" cycle, that is designed to provide dishes with a 2 minute wash in water that bas been heated to 155 degrees fahrenbeit. The benefits of this feature were described by Sears in its advertising as follows: 1 The CoUowillgabbreviations wil beuge in this opinion: I.D, - Initial Decisiof1, Finding No. J.D. p. Initial Decision, Page No. T,. - Transript of Testimony, Pag No. - Complaint Counool's f;xhibit No.

- Respondent s Exhibit No.

TROA - Transript of Oral Argument Before the Commission, Pa No. Opinion 95 F.

SANI-W ASH is her way of getting dishes hygienically clean. It gives your dishes a final rinse in 155 water. Which is especially nice for glass1!es and baby bottles. CX-3 Tbe complaint alleged that messages of the foregoing sort implied to consumers that the Sani- Wash cycle would "sterilize" dishes in the clinical sense, that is, rid them of all living microorganisms and bacteria, harmful or otherwise.

Sears acknowledges that tbe Sani-Wash cycle will not "sterilize dishes,' but it denies strenuously that its advertising implied that tbe Sani-Wash cycle would do this. It argues, rather, that the term bygienically clean" means simply a state in which bacterial populations are reduced to levels that are universally recognized as safe from a public health perspective.

In rejecting this contention, Judge Hanscom focused upon the reference to "baby bottes" in Sears' advertising, observing that many consumers are likely to associate the sanitization of baby bottles with tbe process of boiling, r 4Jwhich consumers may assume results in sterilzing tbe bottles. (I.D. pp. 80-1) Sears' reply is that boiling baby bottles does not sterilize them, and that the Sani-Wash cycle is likely to do as much to reduce the bacterial population on a baby botte as is boiling. (TROA 16) A threshold question in this dispute is what message is conveyed by the claim that the Sani-Wasb cycle will get dishes "hygienically clean. Judge Hanscom, upon review of tbe advertisements, concluded that the complaint bad correctly alleged that such advertising represented that the Sani-Wash cycle would kill all microorganisms. Sears objects to this finding, and upon our own review, we agree with its objections. It is well established that the Commission may rely upon the text of an advertisement itself to interpret the advertisement's meaning. Carter Products, Inc. v. FTC 323 F.2d 523 , 528 (5th Cir. 1963); Williams Co. , Inc. v. FTC 381 F.2d 884, 889 (6th Cir. 1967). Accordingly, Judge Hanscom did not err in turning to the text of the advertisements to discern what they represented. U nfortunatcly, the term "hygienically clean" appears rarely in common parlance. Sears observes that tbe term has been used by both tbe General Services Administration and the United States Department of Agrculture to refer to levels of sanitization short of complete sterilization. (RX 114- 5; CX 248-B, E; Tr. 5427). Obviously, however, use of the term in publications not designed for general circulation can be at best of limited value in determining the message that such a term would . Se' Appeal Brief, p. IOn. - While acknowledging that the time-temperature combination achieved by the Sani-Wash cycle wil not guarantee fiteri!i .ation in all ca, Seam BUg 8t. tha.t it may achieve Bt.rilizlion in some, depending upon the naturcof the bacterial colonie. parent. The Sani-Wl\h cycle wit! not kill certin thermophile! and bacterial Bpores. (Tr. 2054-2(8) SEARS, ROEBUCK AND CO., ET AL.

Opinion convey when disseminated in mass advertising, especially when coupled with other references, such as those to baby bottles. In response to this point, Sears observes that only a small number of the Sani-Wash advertisements referred to "baby bottles" and that even these spoke of Sani-Wash being especially nice for glasses and baby bottcs, tbereby diluting tbe implied analogy to boiling. It is hornbook law that where an advertisement is subject to two or more possible interpretations, an advertiser will be liable for the trutlJ of each sucb possible meaning. Rhodes Phar=al Co. , Inc. v. FTC 208 2d 382, 387 (7th Cir. 1953), aiid 348 U.S. 940 (1955). Before this principle may come into play, however, it must first be determined that an advertisement is reasonably subject to some interpretation that is false. In this respect we find the inferences urged by either side to be roughly equal in merit, or lack thereof, and that being so, Sears must prevail. (5) The foregoing is not to say, however, that we find Sears' advertising of the Sani-Wash cycle to have been "hygienically clean" from a legal point of view. Sears' advertising was obviously designed to convey some health-related message to consumers. Sears contends that its ads represented simply that Sani- Wash would sanitize dishes to a degree deemed satisfactory from a public bealtb perspective. (Gets dishes so clean you can eat off them!) There is no doubt that Sears' advertisements did convey at least this much, but the further clear inference to be drawn from the advertisements, we believe, is that the Sani-Wash cycle would provide a sanitation benefit significantly in excess of that afforded by the regular cycles of a dishwasher. This message is clearly conveyed by references to the Sani-cycle extra-hot" 155 degree rinse that leaves dishes "hygienically clean. " The reference to a special feature, the extra-hot rinse, combined with use of an uncommon term hygienically clean " to describe the result, would be likely to lead an average reader to conclude that the Sani-Wash cycle does, indeed provide a health benefit that a dishwasher without an extra-hot sanitization cycle does not.

As to whether the foregoing representation is or is not true, or substantiated, the record is unclear, in part, no doubt, because this representation was not pleaded in the complaint as having been made by Sears, nor was the case tried on this basis. There is evidence to suggest that the regular wash cycle of a dishwasher will sanitize dishes to levels that are deemed satisfactory from a public health perspective and that are practically indistinguishable from the level of sanitization achieved by Sani- Wash. (Tr. 2222--) On the other hand, Sears contends that the Sani-Wash cycle ensures that sanitization will occur, by guaranteeing water temperatures at 155 degrees, while a dishwasher , ,. ! , .. . . . . . . . .. . , , ,..,..,,,;., ,.,.. , ,. .... , . ,,, ,.. ,! . ,,,. , ::..,...,, ,.,,,,,., ;\...,,, . ..::.j;,,, ,.... ,,.. ......, ,,.., , ; ...,\.., ,.,,.,.,.... ,,,,,., ,...\....,. (\,,,: ..:,;,. ,, , ...,,,, ,......,,,,,,,,, ,.\..,,,,,.,,,,,,, , ..,. .,,,,.,, .... ,.,,,,,,,,,,,,;,.,,.. ,.,,,,,,...; ,,,,,?..,,, ,,,, ,. , .,,..,....:, ).,,,,..,, .,. .,. ,,,. . ,,,,, ,...; ,,,,,,,,:..,..::,, . ,,,,,., ;..; .. .. ,. . . , . , ,., . . .. .. . \SlOJ:S nO y.'t. \SS\OJ: D 11 CO ",po to relied e pe ffect tne Y11D11\\l'\"0\",,'0"'t\\ldc.. t to e ff\e\e1\ 1.1 1\ot \1\ eter' ' d "" b\1\"t\01\ s\1 "1\\t\$"t\01\ cycle co\1,o' .."",0' . . ' 0"

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' "" ,..' ,.he'".,', ,h' ,,' "", of ,'" , ho" If"" ,,' ,,1\ e d '" ,,,,,p"rt of, , wI. to" ."\,",or U"". a es " . 'b.."d ",ere \11\s\1\1es\,\o1\ ",ere .r.."" to be f,,\se lS\1\g "ge1\eY. to \.C1' \4"- 'rne c\,,\U"s \1\ ' ""re ,,,ere"". ,h . e ., '" ",1 11 e""'''\\Y'. . "r",et .t "ce. rt"ner cO"."",er""o",,b\e,,,"bci' oos\t\o1\\1\.. . """.for'" tb o.oU" ,,, .n "1"ree " ",'0'" ''"'"

cnose1\ to ". (" Qr "".," c.. "" be." ",erc"" .w1- . """,,, e "'''S o f\\" . ,"o tnc e1\'" lItb ",,&on it of- ad..e:f'\S1'Ug 'ej" eGi.t' SEARS, ROEBUCK AND CO., ET AL. 513 406 Opinion that would actually wash dishes, rather than simply rinse, rem9ve trace elements of dirt from, and dry dishes that bad already been scraped and pre-rinsed by a homemaker with better things to do. It hardly requires elaborate survey evidence (a!though tbe record is replete with it) to realize that a disbwasher that eliminates the need for pre-rinsing and scraping of dishes, pots, and pans, is likely to command the interest of large numbers of consumers, who wil be wiling to pay more for it because of that feature. (7)Sears advertising agency outlined the following rationale for its ad campaign:

Among the leading dishwasher brands, there is a gcncrallevel of product parity, with moot brands claiming or implying a straight cleaning consumer benefit. The Sears Lady Kcnmore Dishwasher positioning is uniq beuse it is the only brand strongly claiming convenience with effective c1meaning. It gains additional strength because it is based on two of the most important product features: no scraping, no pre rinsing. (CX 142Z029, emphasis in original) In order to establish Lady Kenmore as the convenience dishwasher, the "Freedom Maker/' Sears disseminated such messages as the following:

SEARS LADY KENMORE. THE DO-IT-ITSELF DISHWASHER No scraping. No pre rinsing. Lady Kenmore has 6 powerful hot water jets for the bottom rak, surging hot water with enough force to scrub every dish, pot and pan really clean. Even baked-on foo comes off. And the dishes on top get as clean as thos on the bottom. (CXemphasis in original) Another commercial depicted a bopcless!y unliberated husband, bis wife away from home, awash in a sea of dirty disbes. To tbe rescue Lady Kenmore:

Now s the time to really clean up during Sears gigantic dishwasher sale. With a Kcnmore you ll never have to scrapc or rinse again. Even dishes crty with leftover foo. Kenmore s 14 powerful hot water jets scour every dish clean. . .with no scraping or rinsing. Make your dish happy. . . . (CX--, emphasis in original) The theme that Sears Lady Kenmore would eliminate the need for pre-rinsing and scraping was maintained in Sears advertising on a widespread basis for three to four years, from sometime in 1971 to sometime in 1975 (CX 62-77), with roughly $8 milion spent on this promotional effort, in both national and local markets, in print and broadcast media. Altogetber, the record contains more than 50 distinct advertisements in which this theme was repeated. (CX l-CX 54) The . In fact, this commonsnse ptOpoition is borne out by surveys conducWd for Sean in 197 In one survey, for example, 41% of aU women1 respondents, aJ1d 32' of male repondents identified a " no preril1" feature (1 "very desirable" aJ1d a feature for which the repondents would pay extr, Only "extr lare capacity" outrnked "no pre rins" in this survey in terms of desirabilty and CO!lumer wilingnes to pay more to obtain it. (CX 136Z0) 514 FEDERAL TRAm; COMMISSION DECISIONS Opinion record also reveals that Sears' efforts to distinguish the Lady Kenmore as the dislnvasherthat WQuld eliminate the need for pre rinsing orpr scraping coincidejlwith a.dfamaticrisein the good Lady s market share. (8)Sea,rs incr \lsed its share of the dishwasher market frort, 26% in 1971 to 29% through August 1973 (CX 151C), and sales of the Lady Kenmore increased from 35 029 units in 1971 (10.4% of all Sears dishwasher sales) to 105 570 units in 1973 (23.8% of all Sears dishwasher sales): (QX isle) The record reveals, however, that even at the time that the nQ scrape, pre-rinse claim was first disseminated, Sears lacked substantiation, or a reasonable basis for making it. (I.D. 99) Indeed, if anything, the tests purportedly. relied upon by Sears, at the time that it made its claim demonstrated precisely the reverse"- that the Lady Kenmore could not enstire that the consumer would "never have to scrape or rinse again." (I.D. 100) And Sears' advertising message was further belied by th Owner Manual furnished to all purchasrs of Lady Kenmore, which advised them to pre-soak Qr "lightly" scour firmly cooked or baked-on foods before loading dishes in the dishwasher for washing. (I.D. Ill; CX 99D, 100D) Further evidence of the falsity of this advertising message appeared midway through its dissemination. Market research conducted in 1973 revealed that more than half of all recent purchasers of the Lady Kenmore either disagreed, or would not "completely agre" with the proposition that the Lady, Kenmore "does not require pre-rinsing. Notwithstanding the results of this survey, Sears Contintiedto disseminate widely its claim that Lady Kenmore eliminated the need for pre'rinsing or scraping until at least 1975, and, in more isolated instances until at least 1977. Sears disseminated at the same time the claim' that dishes on the top rack of the Lady Kenmorewould be cleaned as tboroughly as those on the bottom, also a matter of considerable importance to the purchasing choices of consumers. (CX 180Z031) (9) Extensive findings by Judge Hanscom reveal that neither the no pre-rinse claim, nor the equally clean on both racks, claim could be substantiated by Sears, either at the time it began the advertisements . 373 respondent. were a!ked to indicate on a sCeof 1 to 7 with 1 being "dil!gr completely and 7 being f'Rilling of Diahes, agr ' oompletely" their fwpOJ1 to the 85ration that Lay Kenmore l) Not Reuir Oily 49% of the repondcnt;jndicat. that they ag cOffpletelywith thillswtenient,11% compJetly, 2% sOmewheredi betwen thedid not answer, ari the remaining 38% indicit. leve!aof agment or diment extrmea, (CX 1251.29) Preumably; however; anything less thanoomplete agment with the "no prrins" claim wouJdsignify that in at least 50meca the reponder had enCountere dirty dihes after Il of the Lay Kenmore. With the atatement"W ashespoUi atidp8lJthoroughly" thesaffc survey reveaed that over70 of all repondents did notregiter oomph.\tC agmcnt. (CX 12Z0) Se i. Tr. i814-184. ), ;:blt;:, !tU tlll.K ANU L:U. T AL. 515 406 Opinion or now. (I.D. 33-98; 172-0) The record also demonstrates that the no pre-rinse claim is not true. (I.D. 101-69)6 Product Coverage To remedy the foregoing unfair and deceptive practice, complaint counsel proposed, and the ALJ adopted, an order prohibiting Sears from disseminating any untruthful or unsubstantiated performance claims for "major home appliances" as defined in the order. Sears contends on appeal that the order should extend only to prohibiting untruthful performance claims for dishwashers. (10Jlt is well established that in order to prevent recurrence of violations of law, the Commission may proscribe acts llIike and related" to the one condemned. FTC v. Mandel Bros., Inc. 359 U.S. 385, 393 (1959). Courts have recognized that various types of deceptive advertising are readily transferrable to a wide range of products. Therefore, to ensure protection of tbe public against a repetition of deceptive advertising once it is found to have occurred, courts have sustained Commission orders that applied to "all products" of a company, or a wide range of products, on the basis of findings of deceptive advertising of only one or a small number of products. FTC v. Colgate- Palmoli.ue Co. 380 U. S. 374 394-5 (1965) (use of deceptive mock-ups of all products" probibited based upon use of deceptive mock-up of one product); ITT Continental Baking Co., Inc. v. FTC 532 F.2d 207 (2d Cir. 1976) (order against misrepresenting growth properties of all food products sustained based upon misrepresentations of growth properties of one bread product); Jay Nors v. FTC, supra 598 F.2d at 1250 (order against unsubstantiated performance or safety claims for all products of a mail order merchandiser sustained on the basis of misrepresentations of attributes of 6 products); Niresk Industries, Inc. v. FTC 278 F.2d 337, 342- (7th Cir. cert. denied 364 U.S. 88 (1960) (order against deceptive pricing claims for aU products of a mail order 6 The truth of the "equaily clean" claim was not plac in jgque, but, as Judg- Hanscm obsed, tests submitted by Se/U itslf demonstrate that the lower rack Ilhieved a higher level of cleaning than the uppe rak. (1.D.In, 180) 1 In it. reply brief, Se has aso objecte to the term "performance" to describe the typa of claima that may not be made without auoolantiation. This objection was not rame, however, in Se' appeal brief, the pratica effect being that comph..int counsel have ben given nu opportunity to answer. Section S,S2(b) of the Commision s Rules of Prtice, 16 CFR 3,5Z(h), reuires that a party cont.ting an initial decision aha!! speify in its appeal brief "the questioll intended to be ur" and "the points of fact and law relied upon in support of the position taken on eah question. . . , The relln for such a requirement is to permit the timely and orderly consideration of points in issue. If a party withholds objections to a speifc par of an ALJ's order until the filing of its I'ply brief, to which the oppoing pay can make no resi)(Jn8C,the purp of the rule! is defp.!te. For this ren, we believe that Se&n hll waived its right to object to the term "performance" in the AU' s order, although wel' the issue properly ra8e we would find it to be without merit. This preise term hal ben deemed proper by reviewing court in the pat Jay Nur v. FTC 598 2d 12, 125, 12 (2d Cir. cer. denied 100 S. Ct, 481 (1979); Natiu Dgmu:g Co. v. FTC 492 F,2d 13.'1 , 1336 (2d Cir. 1973), em. denwd, 419 U.S. 933 (1974), and where, I! here, two major performance charteristics have ben misreprente, an order covering aU performance claims is appropriate. 516 FEDERAl" TRADE COMMISSION DECISIONS Opinion 95 F.

mercbandiser sustained on the basis of findings of deceptive pricing claims for one product).

The technique employed here, misrepresenting the performance characteristics of a dishwasher in a highly material respect, in order to , isdistinguish it from the competition and gain added market share readily generalizable to a wide range of products, and this proceeding would be a pointless exercise indeed if it left Sears able to repeat with respect to refrigerators, stoves, washing machines, or other home appliances, the same deceptive technique that it used to merchandise the Lady Kenmore.

Sears corrcctly observes that in some cases reviewing courts have narrowcd the product coverage of Commission orders, Chrysler Cor. v. FTC 561 F.2d 357 (D. C. Cir. 1977); Sfandard Oil Co. of California v. FTC 577 F.2d 653 (9th Cir. 1978). The striking difference in facts between those cases and this one, however, serves only to emphasize tbe propriety of multi-product order coverage here. (11) Tbe appropriate scope of an order necessarily depends upon a rough evaluation of the extent to which a practice is likely to be repeated. Needless to say, no onc can predict future events with precision, and so sucb an evaluation must inevitably be at best a rough guess. But within tbose constraints, the Commission and courts have looked to a variety of factors to judge the extent to which a respondent may be in need of restraint, and among them have been the nature of the violation itself (its magnitude and duration), the state of mind of the perpetrator (wilful, reckless, negligent, or unintending) and the prior history of violations by the respondent.

In at least two of the three foregoing respects, Sears' conduct is strikingly deficient, and warrants concern that its deceptive practices may be repeated with respect to other products if not restrained. The record bere suggests a conscious, deliberate effort by Sears to mislead tbe consuming public as to the capabilities of tbe Lady Kenmore dishwasher, nationwidc, over a period of three to four years, by numerous different advertisements. The advertisements that Sears ran were unequivocal in their meaning, and Sears should surely have known that that unequivocal message was without credible supportand untrue. If this was not manifest when the advertisements were first run (and we believe it was) it should certainly have become so to Sears by 1973 when consumer survcys revealed widespread disagreement with the "no-rinse" claim by Lady Kenmore users. Nevertheless widespread dissemination of the "no-rinse" elaim continued until 1975. These facts of record are in stark contrast to those of Standard Oil of California v. FTC, supra in which the sum of the deceptive Opinion advertising consisted of three advertisements, run for a period of five months. As tbe Ninth Circuit noted:

Publication of the three advertisements in question was not a blatant disregard of the law. Petitioners' errr was to miscalculate the effect which the televise commercials would have on the public. . . 577 F.2d at 66. (12JNo such "miscalculation" can be claimcd in this case. The meaning likely to be conveyed by "No scraping. No pre-rinsing." is not subject to reasonable doubt.

A similar comparison with Chrysler Cor. v. FTC, supra highlights the propriety of a multi-product order in this case. In Chrysler the C. Circuit Court of Appeals, after characterizing the Commission case on the merits as "somewhat thin, 561 F.2d at 363, struck order provisions that extcndcd to "automotive products" based on Chrysler misrepresentations of automobile characteristics. The Court observed that in 12 out of 14 advertisements dealing with the same theme, Chrysler had endeavored to qualify the challenged representations so as to render them truthful, and concluded that Given (the Commission s) concession that the violations were unintentional, are not continuing, and were confined to two out of a campaign of fourtn advertisements, we fail to see any rational justification for these sweeping prohibitions. 561 F.2d at 364. A final factor considered by courts bas been the violator s past history of abuses. On this score, the record is less damning to Sears, but it hardly justifies ignoring the inferences to be drawn from the nature of the violation itself. Sears argues that the record shows it has compiled a good record with respect to maintaining substsntiation for other product claims for which thc Commission has requested substantiation. Complaint counsel argue that no inference may properly be drawn from cases in which thc Commission took no action after soliciting substantiation from Sears, and cite instead, prior consent orders signed by Sears as evidence of its propensity to violate the law. Sears argues that these past orders arc quite as irrelevant as complaint counsel believe Sears' unchal1cnged substantiation of non- dishwasher advertising to be.

On balance, we find these contentions of the parties as to the relevance of prior violations to be something of a wash. We have no 8 The court in Standard Oi was also troubled by the "exceptionably burensme. . .breth and generaity" of an order that applied to a wide range of product. that "number in the thousands." 577 F.2d at 661. Here, by contrt, the Commission s order would apply only to a cateory of products, major home applian . that is clo6ly relate to the product that was decptively advertise.

8 Of cour, it is not ncco. to a finding of Section 5 violat.ion that the misreprentation be shown to have ben intentional Regina Qr. v. FTC 322 F.2d 76.'),768 (&I Cir. 196), and a oompany that decives oonsumem through rekJess or even simply negligent disreKB of the trth may do just as much har WI one that decives oonsumersknowingly.

y.

Opinion 95 F.

doubt that with respect to the advertising of some other products, on some other occasions, Sears has adbered fully, and perhaps on some occasions, in an exemplary manner, to the requircments of the law. It would be shocking to discover that a retailer of its size and stature had not. But this hardly gives reason to disregard the blatant (13Jviolations of law that occurred and persisted in this case. We must also reject other argumcnts made by Sears that in its view mitigate the need for an order, or one such as that proposed by complaint counsel. Citing dictum from an initial decision of an administrative law judge in another case, Sears suggests that its storewide policy of "satisfaction guaranteed" obviates the need for an order, because any consumer whose own experience with a Sears appliance belies the advertising claims made for it can obtain a full refund of the purchase price. (Appeal Brief, p. 21) A money-back guarantee is no defense to a cbarge of deceptive advertising. Montgomery Ward Co. FTC 379 F.2d 666, 671 (7th Cir. 1967). Nor, as a practical matter, is a money-back guarantee in any way a satisfactory substitute for a requirement that an advertiser not engage in false and (14Junsubstantiated performance claims for its products. A money-back guarantee does not compensate the consumer for the often considerable time and expense incident to returning a major-ticket item and obtaining a replacement. Because of this, there are many circumslances in which consumers who have been materially misled by deceptive advertising may, upon discovering the deception be unable to obtain any effective redress whatsoever through the money-back guarantee.

A consumer who purchases a major ticket item is likely to spend lD A further consideration tending to neutn..jiz Se' claim of goo conduct is the entr of a COllnt order in , Robuk 1977 prohibiting Se from engang in "bait and switch" tatics in the sale of major home appliance.ser and Co., 89 F, C. 22 (1977). . . . Bait and switch is, like the practice challenge in this CB, a form of deceptive advertising. In bait and switch, the advertiser holds itslf out as being prepar to sell the COJlumcr a low-rt model of a product, but then disparges this "bait" item in favor of more expeIlBive models when the COflumer comes to the plac of sale.

Complaint counsel argue that the consent order should be taken as evidence of Se' reidivit tendencies, and cite two rent decisions inwhich consent orders have ben considered in dct.nnining the proper scpe of a later onler.Jay Nrr v. FTC 1lpr, 598 F.2d at 1246, n.3; Stndrd Oi "fCaliforia v, FTC, supr, 577 F.2d at 66. Se rejoins that such consideration is improper given that its COJl'Int order states that it " doe not constitute a.n adrnion by regpondentthlLtthelawh tJnvio!ate.

We agee that the consent order cannot bew.ken 81 evidence of prior law violations by Se. !til however evidence that in the rent past the Commission has had "rcn to believe" (the statutory standard for ioouing a complaint) that Seam engugc in deceptive advertising of home npplianCC. Thil is relevant to the limited extent that advertisements for it tends to undermine Se' contention that Commission inaction with repet to certin Se which the Commi'lion demanded subsw.ntiation demonstrate affiratively that Seam' adverising, save for the advertising challenge in this ca, has ben unimpehable. Of cours, even absnt prior onlen! agiIlt a particular respondent, the Commission s failur to challenge Lime advertising of a respondent doe not undennine the inference to he drwn from advertising that is challenge. In this ca, we bas our conclusion that n multi-product order is warrnte upon tbe rather egrgious circulItanCE surrunding the violations of law that have ben found. To the extent that respondent s conduct in running other advertisement. is considered, we find that on balance the evidence intruce neither strngtrw nor weaens our oonc!Wlion!ltothelLppropriatescpeoftheonler. SEARS, ROEBUCK AND CO., ET AL. 519 406 Opinion hours doing so, including tbe time taken to select tbe item at the store and, in many cases, time taken to supervise or be prescnt at home when tbe item is delivered and installed. If the consumer subsequently discovers that the appliance is not as represented in some respect, it may, nevertbeless, not be worth tbe consumer s while to utilze the money back guarantee, because the amount that tbe consumer would stand to save by returning the product may not exceed the value of the consumer s time required to purchase and install a proper substitute. The foregoing phenomenon is especially likely to be operative where tbe deceptive advertising is designed simply to distinguish one workable product from another, rather than to merchandise a wholly worthless product. There is no suggestion in the record here that the Sears Lady Kenmore is not a good dishwasher, comparable in quality to tbose of competing manufacturers. The record simply suggests that the Lady Kenmore may not be superior to its competitors with respect to its cleaning capabilities, because like its competitors, it does not eliminate tbe need for pre-rinsing or scraping of dishes. A consumer who might pay $20, $30, or $40 extra for a Lady Kenmore, rather than purchase a model without the alleged capacity to eliminate the need for pre-rinsing, would quickly discover the misrepresentation upon use of the machine. The consumer s ability to return the machine to Sears however, would in no way compensate him or her for the several additional hours necessary to supervise return of the product, purchase a substitute, and supervise its delivery and installation. Given that the Lady Kenmore might well perform no worse than a truthfully advertised substitute, the consumer would be faced with tbe choice of expending several additional hours of time in order to save a few dollars on an equivalent product. That many consumers would simply write the experience off to bad luck and retain the misrepresented appliance in these circumstances is clear. (15) If Sears "satisfaction guaranteed'" policy included a provision wbereby Scars offered to adjust the price of its products to compensate consumers for tbe extra money they paid in reliance upon its false advertising, and if Sears satisfaction guaranteed" policy included a provision whereby Sears would fully compensate consumers for consequential damages including tbe loss in time entailed by tbe need to return a major home appliance and purchase a replacement, it might be viewed as an adequate substitute for tbe relief ordered bere althougb it would stil not justify deceptive, unsubstantiated advertising. As tbe policy stands, however, it is likely to be virtually useless as a remedy for misleading advertising of the sort involved here. Similarly unpersuasive is Sears' contention that no order is needed because it discontinued the offending advertising in April 1975, prior to ), Opinion 95 F.

initiation of the Commission s investigation in July, 1975. (Sears Appeal Brief, p. 33). While it does appear that tbe bulk of Sears nationwide deceptive advertising campaign ended in 1975, references to the "no pre-rinse" capacity of the Lady Kenmore appeared in catalogue material in 1976 (CX 257) and 1977 (CX 259). Most importantly, however, discontinuance of a massive campaign of deceptive advertising after it has run for between three and four years can hardly be grounds not to fear resumption of such advertising in the future. Courts have recognized that discontinuance of an offending practice is neither a defense to liabilty, nor grounds for omission of an order. Fedders Cor. v. FTC 529 F.2d 1398, 1403 (2d Cir. cert. denied 429 U. S. 818 (1976); Cora, Inc. v. FTC 338 F.2d 149, 151-' (1st Cir. cert. denied 380 U. S. 954 (1964); Sears, Roolyu.ck Co. v. FTC 258 F. 307, 309-10 (7th Cir. 1919). One may imagine circumstances in which discontinuance of a deceptive practice would provide reason for confidence that it would not resume-for example, where an overzealous subordinate authorizes a false advertisement that is quickly squelched upon discovery by higher-ups. A three to four year campaign of misrepresentation, however, hardly fans into this category, and that, like most advertising campaigns, it eventually came to an end provides no reassurance at all that similar practices wil not be employed in the future.

Another argument raised by Sears is that tbe order of Judge Hanscom offends the First Amendment, by requiring Sears to maintain prior substantiation for performance claims made for major home appliances. Sears suggests that the order offends the First Amendment because it is overbroad, and because it would penalize an unsubstantiated claim even if that elaim bappened to be true. (16) The foregoing contentions have been addressed with relation to the First Amendment in a recent case Jay Nors v. FTC, supra and emphatically rejected by the reviewing court. 598 F.2d at 1251-2. The Commission s order in this case does no more than prohibit in related form, the precise deceptive practices found to exist in this case. Under any reading of the Supreme Court's recent commercial speech cases prohibitions upon deceptive commercial speech are not forbidden. Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. 425 U.S. 748, 771-72 (1976); Bates v. State Bar of Arizona 433 U.S. 350, 383 (1977).

While the Commission has previously held that unsubstantiated advertising is unfair within the meaning of Section 5 Pfzer, Inc. C. 23 (1972), we have also recognized that sucb speech is deceptive as well. As we have observed:

Many consumers are likely to &'Isume that when a product claim is advance which is in , , , . SEARS, ROEBUCK AND CO., ET AL. 521 Opinion theoryS1.bjectto objectiveveriicatioll the pary umkirigit possesses rCasoIlablebasis for so doing,. and that the assertion does notcotlstitute mer sunniseor\Vah!ulthillng the advertiser s par, AS rCult. the rendition ofa claim basooupon inadequate or nonexisterit subsbmtiationViolates. seticm 5 for failuret-o st.tea highly material fact whose orissionis ptive Natinl ' CmimusWrm Egg Nutritft, 88 F.T .C; 84, 191 (1976); affd. ami (fM"d enfored as -nifid, .570 F.2d 157 (7th Cir. 1977), cert. Mnwd 439 U.S. 821 (1978).

A consumer who is told by Sears that the Lady Kenmore will eliminate the need for pre-rinsing and scraping. of dishes is likely. to assume that Sears has based that. assertion on more than wishful thinking a.nd a desire to oj1tsellthe competition. Consumers properly assume thafan advertiser, which is in the best position to evaluate the eff()cy of its product, has, indeed, verified the claims tha.tit makes before it makes them. If consumers assumed otherwise, and could not depend on the reliability of advertising, advertising would lose much of its persuasive force, for no consumer would have any reason to believe in it.

Sears argues that the order entered herein would penalize it for the dissemination of a claim for which it Ia.cked substantiation but which might turn outto be truthful. (App, Br. 30-1). It cannot be denied that if an advertiser goes about spreading claims for its products (17) without regard for their accuracy (that is, without possessing prior substantiation), then the law of averages alone prolJably guarantees that some ofthese claims wil he true, even though the profit motive probably guarantees that more wil be false. In this peculiar sense it may be technically correct to say that the J'quirement of substantiation "burdens" the chanc( occurrence of truthful speech. This tiny burden, however, is surely one that tbe First Amendment must allow, because it is vital to ensuring a far greater quantity of truthful speech by advertisers. Jay Nors v. FTC, supr, 598 F.2d at 1252. For the foregoing reasoIls we believe that entry of a multi-product order is entirely appropriate and necessary in this ()se. The record reveals an extensive campaign of wilfully .or at best recklessly negligent deceptive advertising for one major home appliance product. The issue . is simply whether, in light of this record, the Commission may now attempt to protect the public from being subjected .to the same sort of advertising campaign .with regard to a related category of products in the future. The possibility of bringing ade 1W0 Section 5 proceeding each time a given product is misrepresented is obviously a wholly inadequate deterrent, if onJybecause the sanction for violating the Jaw (an order with prospective application only) pages in comparison with the financial incentives for bending the truth, The purpose of an order is to create financial incentives to tell the truth, to counterbalance those that may have led a violator to engage in deception. We , . . . ::,,,::, . . . ,. j :.. . ,, ., . .. )), . ,,, ..,. ( . . . .,::. ,.?. : .:,,,,.... ... . :/ ;,,,..;;;:... ,.,. \, ._, . .., . . :,, \,,,, ..( ,,,, , ,.::.., . g:;:::;::;:\\ . ,., ,,,,.\ . p...., p.:;;.; j, ,,,. $Ci$iO 9" "F:t.

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oJ="' ,-",uuun,- .t1'1.L \JV. , .c.! ftl 406 Opinion E. Summary of Order Changes Paragrapb I of the Commission s Order contains definitions collected from various parts of Judge Hanscom s Order. Paragraph 1(1) defines major home appliances" (ALJ's Paragraph II(4) as modifiedj and Paragrapb 1(2) defines a "competent and reliable test." (ALJ' Paragraph II(I)(a)j Paragraph II of tbe Commission s Order corresponds to Paragrapb I of Judge Hanscom s order, minus subparagraph (3) of tbe ALJ' s order which referred specifically to the Sani-Wash cycle. Sears does not object to the remaining provisions of this paragraph. Paragraph III of the Commission s Order corresponds to Paragraph II of Judge Hanscom s order, minus the definitional paragraphs. Subparagrapb (1) concerns tbe prior substantiation requirements discussed earlier. Subparagraph (2) governs misrepresentations of the significance of tests or demonstrations and subparagraph (3) prohibits advertising statements that are contrary to or inconsistent with statements made in post-purchase materials (such as owners' manuals) supplied to purchasers. Sears has not objected to either of these latter two subparagrapbs except insofar as they extend to "major home appliances" instead of Hdishwashers," Our discussion of the appropriate scope of the substantiation requirement is equally applicable to tbe scope of subparagrapbs II(2) and II(3).

Paragrapb IV of the Commission s Order corresponds to Paragraph III of Judge Hanscom s order, with tbe change in tbe rL'Cordkeeping provision of the second subparagraph discussed above. Paragraph V of the Commission s Order corresponds to Paragraph IV of Judge Hanscom s order, and contains routine compliance reporting requirements.

We have also added, at complaint counsel's suggestion, a synopsis of determinations, to facilitate application of some of the boldings in this case to other cases (pursuant to Section 5(m)(I)(B) of the FTC Act, 15 C. 45(m)(I)(B)j should others engage in tbe same practices as have occurred here.

An appropriate order is appended.

SYNOPSIS OF DETERMINATIONS FOR 15 U. C. 45(m)(I)(B) SEARS, ROEBUCK AND co., DOCKET NO. 9104 It is unfair and deceptive, and unlawful under Section 5 of the Federal Trade Commission Act (15 U. C. 45) for a party to engage in the following practices:

Making an advertising representation, directly or by implication Final Order 95 F.

that a dishwasher can completely clean dishes, pots and pans without prior scraping or rinsing, without possessing and relying upon a reasonable basis for the representation at the time that it is first disseminated. A reasonable basis for such a claim shall consist of competent and reliable tests or other competent and reliable evidence which substantiates sucb representation. Competent and reliable tests are those in which persons with skil and expert knowledge in the field conduct the test and evaluate its results in an objective manner using testing procedures whicb ensure accurate and reliable results. 2. Making an advertising representation for a product, directly or by implication, that is materially inconsistent with statements or representations contained in owners manuals or other fast purchase materials disseminated to purchasers of the product. FINAL ORDER This matter bas been heard by tbe Commission upon the appeal of counsel for respondent, and upon briefs and oral argument in support of and in opposition to tbe appeal. Tbe Commission, for the reasons stated in tbe accompanying Opinion, bas granted tbe appeal in part and denied tbe appeal in part. Therefore It is ordered That the initial decision of tbe administrative law judge, pages 1-85, be adopted as the F'indings of Fact and Conclusions of Law of tbe Commission, except for Findings 2425; last sentence of Finding 26; all of page 80 beginning with tbe first full paragrapb thereon; page 81 except for final paragraph; and except as is otherwise inconsistent with tbe attached opinion.

Other Findings of Fact and Conclusions of Law of the Commission are contained in tbe accompanying Opinion.

It is further ordered That the following order to cease and desist be entered: (2) ORDER It ,is ordered That for purposes of this order tbe following definitions sball apply:

1. "Major home appliance" means air conditioning units (room or built-in), clothes washers, clothes dryers, disposers, dishwashers, trash compactors, refrigerators, refrigerator/freezers, ranges, stoves, ovens (including microwave ovens), and humidifiers. 2. "Competent and reliable test" means a test in which persons SEARS, ROEBUCK AND CO., ET AL.

Final Order with skill and expert knowledge in the field to which the test pertains conduct the test and evaluate its results in an objective manner, using test procedures that insure accurate and reliable results. Such tests must be truly and fully representative of expectable consumer usage. II.

It is further ordered That Sears, Roebuck and Co., a corporation, its successors and assigns, and its officers, representatives, agents and employees, directly or tbrougb any corporation, subsidiary, division or other device, in connection with the advertising, offering for sale, sale or distribution of dishwashers, in or affecting commerce, as "commerce" is defined in the Federal Trade Commission Act, do forthwith cease and desist from:

1. Representing, directly or by implication, that any Sears dishwasher wil completely remove, without prior rinsing or scraping, all residue and film from all dishes, and from pots and pans used in cooking and baking according to normal consumer recipes and under other circumstances normally and expectably encountered by consumers.

2. Representing, directly or by implication, that dishes in tbe top rack of any Sears disbwasher wil get as clean as those on the bottom rack without prior rinsing or scraping.

It shall be an affirmative defense to a compliance action brought under the preceding paragraphs for Sears, Roebuck and Co. to establish that the representation is trutbful. (3) III.

It is further ordered That Sears, Roebuck and Co., a corporation, its successors and assigns, and its officers, representatives, agents and employees, directly or through any corporation, subsidiary, division or other device, in connection with the advertising, offering for sale, or sale or distribution of Hmajor home appliances " in or affecting commerce, as "commerce" is defined in the Federal Trade Commission Act, do forthwith cease and desist from:

1. Making any statements or representations, directly or by implication, concerning the performance of such products unless such statements or representations are true and unless, at the time the statements or representations are made, Sears, Roebuck and Co possesses and relies on a reasonable basis for sucb statements 0 representations, which shall consist of competent and reliable tests Final Order 95 F.

other competent and reliable evidence which substantiates such statements or representations.

2. Misrepresenting in connection with the advertisement of any such products or in any other manner, directly or by implication, the purpose, content or conclusion of any test, experiment, demonstration study, survey, report, or research.

3. Making any statements or representations, directly or by implication, in connection with the advertisement of any such products which are inconsistent in any material respect with any statements or representations contained directly or by implication in post purchase material(s) supplied to the purchasers of such products. IV.

It is further ordered That Sears, Roebuck and Co., a corporation, its successors and assigns, and its officers, representatives, agents and employees, directly or through any corporation, subsidiary, division, or other device, in connection with tbe advertising, offering for sale, sale or distribution of dishwashers or other "major home appliances," in or affecting commerce, as Hcommerce" is defined in the Federal Trade Commission Act, shall maintain written records: (4) 1. Of all materials that were relied upon in making any claim or representation in advertising, sales materials, promotional materials or post purchase materials, concerning the performance characteristics of any of Sears, Roebuck and Co.'s dishwashers or other major home appliances;

2. Of all test reports, studies, surveys, or demonstrations in their possession that contradict, qualify, or call into question any claim or representation in advertising, sales materials, promotional materials or post purchase materials disseminated by Sears, Roebuck and Co., or by any advertising agency on behalf of Sears, Roebuck and Co. concerning the performance cbaracteristics of any of Sears, Roebuck and Co.'s dishwashers or other major home appliances. Such records sball be retained by Sears, Roebuck and Co. for a period ,f three years from the date such advertising, sales materials 'romotional materials, or post purchase materials were last dissemi ated. Such records may be inspected by the staff of the Commission on reasonable notice.

is further ordered That Sears, Roebuck and Co. shall notify the SEARS, ROEBUCK AND CO., ET AL. u... 406 Final Order Commission at least 30 days prior to the effective date of any proposed change in it as a corporate respondent 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 corporation which may affect compliance obligations arisir;g out of this order.

It is further ordered That Sears, Roebuck and Co. shall forthwith distribute a copy of this order to each of its operating divisions, and to eacb of its officers, agents, representatives and employees engaged in or connected with the preparation and placement of advertisements for dishwashers or other major home appliances. It is further ordered That Sears, Roebuck and Co. shall within sixty (60) days after service upon it of this order, and at such other times as the Commission may require, file with the Commission a report in writing setting forth in detail the manner and form in which it has complied with this order.

"as FEDERAL TRADE COMMISSION DECISIONS Complaint 95 F.