P. Lorillard Co. v. Federal Trade Commission
186 F.2d 52 (4th Cir. 1950)
Parker, Chief Judge
This is a petition to set aside an order of the Federal Trade Commission which directed that the P. Lorillard Company cease and desist from making certain representations found to be false in the advertising of its tobacco products. The Commission has filed an answer asking that its order be enforced.
The company was ordered to cease and desist from representing by any means directly or indirectly: That Old Gold cigarettes or the smoke therefrom contains less nicotine, or less tars and resins, or is less irritating to the throat than the cigarettes or the smoke therefrom of any of the six other leading brands of cigarettes.
* * *
Laboratory tests introduced in evidence show that the difference in nicotine, tars and resins of the different leading brands of cigarettes is insignificant in amount; and there is abundant testimony of medical experts that such difference as there is could result in no difference in the physiological effect upon the smoker. There is expert evidence, also, that the slight difference in the nicotine, tar and resin content of cigarettes is not constant between different brands, but varies from place to place and from time to time, and that it is a practical impossibility for the manufacturer of cigarettes to determine or to remove or substantially reduce such content or to maintain constancy of such content in the finished cigarette. This testimony gives ample support to the Commissions findings.
* * *
The company relies upon the truth of the advertisements complained of, saying that they merely state what had been truthfully stated in an article in the Readers Digest. An examination of the advertisements, however, shows a perversion of the meaning of the Readers Digest article which does little credit to the companys advertising departmenta perversion which results in the use of the truth in such a way as to cause the reader to believe the exact opposite of what was intended by the writer of the article. A comparison of the advertisements with the article makes this very plain. The article, after referring to laboratory tests that had been made on cigarettes of the leading brands, says: The laboratorys general conclusion will be sad news for the advertising copy writers, but good news for the smoker, who need no longer worry as to which cigarette can most effectively nail down his coffin. For one nail is just about as good as another. Says the laboratory report: The differences between brands are, practically speaking, small, and no single brand is so superior to its competitors as to justify its selection on the ground that it is less harmful. How small the variations are may be seen from the data tabulated on page 7.
The table referred to in the article was inserted for the express purpose of showing the insignificance of the difference in the nicotine and tar content of the smoke from the various brands of cigarettes. It appears therefrom that the Old Gold cigarettes examined in the test contained less nicotine, tars and resins than the others examined, although the difference, according to the uncontradicted expert evidence, was so small as to be entirely insignificant and utterly without meaning so far as effect upon the smoker is concerned. The company proceeded to advertise this difference as though it had received a citation for public service instead of a castigation from the Readers Digest. In the leading newspapers of the country and over the radio it advertised that the Readers Digest had had experiments conducted and had found that Old Gold cigarettes were lowest in nicotine and lowest in irritating tars and resins, just as though a substantial difference in such content had been found. The following advertisement may be taken as typical:
OLD GOLDS FOUND LOWEST IN NICOTINE
OLD GOLDS FOUND LOWEST IN THROAT-IRRITATING TARS AND RESINS
See Impartial Test by Readers Digest July Issue. See How Your Brand Compares with Old Gold.
Readers Digest assigned a scientific testing laboratory to find out about cigarettes. They tested seven leading cigarettes and Readers Digest published the results.
The cigarette whose smoke was lowest in nicotine was Old Gold. The cigarette with the least throatirritating tars and resins was Old Gold.
On both these major counts Old Gold was best among all seven cigarettes tested.
Get July Readers Digest. Turn to Page 5. See what this highly respected magazine reports.
Youll say, From now on, my cigarette is Old Gold. Light one? Note the mild, interesting flavor. Easier on the throat? Sure: And more smoking pleasure: Yes, its the new Old Goldfiner yet, since something new has been added.
The fault with this advertising was not that it did not print all that the Readers Digest article said, but that it printed a small part thereof in such a way as to create an entirely false and misleading impression, not only as to what was said in the article, but also as to the quality of the companys cigarettes. Almost anyone reading the advertisements or listening to the radio broadcasts would have gained the very definite impression that Old Gold cigarettes were less irritating to the throat and less harmful than other leading brands of cigarettes because they contained substantially less nicotine, tars and resins, and that the Readers Digest had established this fact in impartial laboratory tests; and few would have troubled to look up the Readers Digest to see what it really had said. The truth was exactly the opposite. There was no substantial difference in Old Gold cigarettes and the other leading brands with respect to their content of nicotine, tars and resins and this was what the Readers Digest article plainly said. The table whose meaning the advertisements distorted for the purpose of misleading and deceiving the public was intended to prove that there was no practical difference and did prove it when properly understood. To tell less than the whole truth is a well-known method of deception; and he who deceives by resorting to such method cannot excuse the deception by relying upon the truthfulness per se of the partial truth by which it has been accomplished.
In determining whether or not advertising is false or misleading within the meaning of the statute regard must be had, not to fine spun distinctions and arguments that may be made in excuse, but to the effect which it might reasonably be expected to have upon the general public. The important criterion is the net impression which the advertisement is likely to make upon the general populace. As was well said by Judge Coxe in Florence Manufacturing Co. v. J. C Dowd & Co., with reference to the law relating to trademarks: The law is not made for the protection of experts, but for the publicthat vast multitude which includes the ignorant, the unthinking and the credulous, who, in making purchases, do not stop to analyze, but are governed by appearances and general impressions.
* * *
For the reasons stated, the petition to set aside the order will be denied and the order will be enforced.
From a practical perspective, what (if anything) is wrong with caveat emptorlet the buyer beware? The careful consumer could have looked at the Readers Digest article; the magazine was widely available in libraries and newsstands.
2. Why is not this just an example of puffing? (Puffing presents opinions rather than facts; statements like This car is a real winner and Your wife will love this watch constitute puffing.)