Federal Trade Commission v. Colgate-Palmolive Company

PETITIONER: Federal Trade Commission
RESPONDENT: Colgate-Palmolive Company
LOCATION: Point of picking up hitchhiker

DOCKET NO.: 62
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: United States Court of Appeals for the First Circuit

CITATION: 380 US 374 (1965)
ARGUED: Dec 10, 1964
DECIDED: Apr 05, 1965

Facts of the case

Question

Media for Federal Trade Commission v. Colgate-Palmolive Company

Audio Transcription for Oral Argument - December 10, 1964 in Federal Trade Commission v. Colgate-Palmolive Company

Earl Warren:

Number 62, Federal Trade Commission, Petitioner versus Colgate-Palmolive Company et al.

Mr. Heymann.

Philip B. Heymann:

Mr. Chief Justice, and may it please the Court.

I should like to discuss in this Federal Trade Commission case, first, the merits, returning only if there is time to the question of compliance with the mandate.

That will very much simplify the statement of facts.

Late in 1959, over five years ago, the respondents created and disseminated over network television, three commercials for Colgate-Palmolive's product Rapid Shave.

Each of them showed what the respondents called a “sandpaper test” which again in the respondent's words was said to prove the super-moisturizing power of Rapid Shave.

The test showed someone spreading lather on a rather coarse piece of sandpaper and then immediately shaving a clean path through the lather and the sand.

After viewing the commercials, the Commission found specifically that each represented that buyers were being given visual experimental proof of the truth of the words the seller were saying, the truth of the seller's claims.

In fact, the sandpaper test was not a test at all.

The respondents had sprinkled sand on the piece of plexiglass which had some mildly adhesive liquid spread over it and shaved a clean path through the loose sand.

A rather colorful set of test conducted before the hearing examiner, proved conclusively that no comparable piece of sandpaper could be shaved in seconds, minutes or even after an hour.

Finally, they came up with a piece of sandpaper that seemed to be roughly comparable, it was shaved after 80 minutes.

On the basis of these facts, the Commission found that respondents had engaged in two misrepresentations.

Did the sandpaper [Inaudible]

Philip B. Heymann:

The sandpaper on the undisputed record would not look like sandpaper on television, if that's what you mean Your Honor.

Sandpaper would not look like sandpaper on television.

Except the fact [Inaudible]

Philip B. Heymann:

Actual sandpaper -- I am in no position to contest actual sandpaper would not appear like sandpaper on television.

William O. Douglas:

I thought you said that if they had used sandpaper, the commercial would have taken 80 minutes.

Philip B. Heymann:

That Justice Douglas is certainly true too, but even if they could have done it, if there were no -- there was some talk about why didn't they use sandpaper.

Well, I don't know how you go into motivations like this.

There was a very good reason for not using sandpaper, they couldn't do it.

Even if they could have done it, they wouldn't have been able to show a visual experiment involving sandpaper.

They would have had to say, what you're watching is a dramatic reenactment of tests actually performed under laboratory conditions.

Arthur J. Goldberg:

Why did the government have this argued as to whether they could shave sandpaper in the question presented by the petitioner? You would assume that you could.

Philip B. Heymann:

I don't think it is relevant in this argument whether they could shave sandpaper.

I'm not prepared to say that it is irrelevant.

I'm not prepared to say that the possibility of false claims is irrelevant to the issue before the Court, but whether these respondents could shave sandpaper is not relevant to this case.

Arthur J. Goldberg:

So we have to assume for this case that they could shave sandpaper.