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.
Speaker: 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.
Speaker: 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.
Philip B. Heymann: Yes.
Arthur J. Goldberg: Am I correct?
Philip B. Heymann: Yes. You do not have to assume that every --
Arthur J. Goldberg: Why do have that in this case? Isn't that an abstract proposition because with the matter it does, the Commission responds that that is a false claim. Now what we have to confirm here is an abstract question is wrong?
Philip B. Heymann: No, they're certainly not Your Honor. The Commission found there were two misrepresentations. First of course a misrepresentation about what Rapid Shave could do.
Potter Stewart: That's out of the case.
Philip B. Heymann: That's out of the case, that's been decided. Second of all, a misrepresentation that the respondents had furnished visual proof of the truth of their claims. Now the second misrepresentation was also made the basis for the Commission order. The Commission order had two paragraphs I should say. It's one order with two paragraphs. The order is of course before this Court. Now there would be one way in which you could say that this is an abstract case. If an order forbidding shaving -- misrepresentations about shaving cream was adequate to cover the harms of misrepresentations that you're furnishing proof of the truth of a claim, then there would be no reason to enter both of them, one would do. But if it isn't adequate, then you should have both paragraphs of the order, and my argument is that it very plainly is not adequate.
Arthur J. Goldberg: Well you're going to cover that in your argument.
Philip B. Heymann: I most certainly intend to.
Arthur J. Goldberg: [Inaudible]
Philip B. Heymann: Well, I don't know whether it helps to think of it Your Honor. The question, the Commission believes that there were two misrepresentations made in this case, just as if they had said Rapid Shave can shave sandpaper and can also shave fur. You have an order against both of them, or Rapid Shave can shave sandpaper and some other product can do something else and we want to reach both misrepresentations. If there's any -- if one --
Potter Stewart: Now here, we're proceeding on a hypothesis which is contrary to facts, but we're proceeding on the hypothesis that Rapid Shave could cause a razor to shave sandpaper.
Philip B. Heymann: I think that's a fair way of putting it. You can simply say the question before this Court is, is there something independently wrong with misrepresenting that you're giving proof of the truth to your claims.
Potter Stewart: Right and we're assuming the claim is true, although we know as a matter of fact it's not.
Philip B. Heymann: The falsity of the claim is irrelevant to this case.
Potter Stewart: Right and then therefore, we by hypothesis assume it's true.
Philip B. Heymann: Assume it's true. I'm quite prepared to take that.
Potter Stewart: And so the fact that the sandpaper does not and cannot be made to look like sandpaper on television is a very relevant fact, isn't it?
Philip B. Heymann: Well, I would like to argue that Your Honor.
Potter Stewart: Alright, but it is relevant, isn't it?
Philip B. Heymann: I don't think it's particularly relevant. It's true. No, it's something that should be kept in mind. I don't mean it's not relevant in the sense that it shouldn't be kept in mind. I don't think that sandpaper -- the fact that sandpaper doesn't look like sandpaper on television, is any justification for saying what you're seeing on television is sandpaper. It's justification for saying, we're about to show a dramatic reenactment of tests that were actually done. It's not adequate --
Potter Stewart: And the claim that we can't do it because sandpaper doesn't look sandpaper.
Philip B. Heymann: I don't think it's necessary to explain that.
Potter Stewart: I would take up the whole commercial.[Laughter]
Philip B. Heymann: I don't think it is remotely necessary Your Honor. I think you can simply say, “Oh, it's been done elsewhere,” but it -- under -- we're showing you a reenactment of tests we've done under actual laboratory conditions.
William J. Brennan, Jr.: Well that [Inaudible] isn't Mr. Heymann the issue before us is whether it maybe proper to misrepresent that an actual experiment namely shaving sandpaper is being carried on, on television, even though in fact for the purpose of this case, you can shave sandpaper and even though in fact for the purposes of this case, what is being shown as shaving sandpaper accurately portrays what happens when you shave sandpaper.
Philip B. Heymann: That's correct, that is correct.
William J. Brennan, Jr.: So the only -- our only proposition, the only thing we have to decide is as to the scope of the order whether or not an advertiser may have it appear that he is shaving sandpaper even though he is not, although he could shave?
Philip B. Heymann: Whether he can say he's proving the truth of this claim that he can shave sandpaper when he's not. I might --
William J. Brennan, Jr.: It's assumed for the purpose of this case as I gather that he can shave sandpaper.
Philip B. Heymann: That's correct, now --
William J. Brennan, Jr.: Let's assume for the purpose that we can.
Philip B. Heymann: That's correct.
Potter Stewart: And what you're F.T.C. Claims so far as to do is to restrain them however from using something which is not in fact shaving sandpaper, but gives the appearance that it is shaving sandpaper.
Philip B. Heymann: Not from using it, simply from using it and adding to that use a representation that he is providing visual proof of the truth of his claims.
William J. Brennan, Jr.: And yet there is no misrepresentation of the quality the product.
Philip B. Heymann: It's exactly the same in our mind as if he had said, we can shave sandpaper and the Hyman Testing Agency has checked the truth of this claim and certifies it's correct. We would say that it's a unfair and deceptive trade practice to say falsely that the Hyman Testing Agency has tested it, regardless of the truth of the claim. That's the heart of our case.
William J. Brennan, Jr.: That's what I thought.
Philip B. Heymann: We say a lie about the basis for belief is material. And I don't think there's any -- I'd like to get on with my argument, I'm afraid my time is running very quickly. We believe this case turns on a single proposition and I think this proposition is 100% provable. The Commission has not forbidden the use of mock-ups or props. It has forbidden misrepresentations that a seller is furnishing proof of the truth of his claims. The Commission recognizes that the means of making claims is a matter of indifference to buyers. It does say that representations that go to the basis the buyer has for believing in the truth of what a seller says is material. We don't care whether that misrepresentation is made by means of mock-ups or any other way. It's -- the Commission order at page 6 does not forbid mock-ups, page 6 of our brief. The Court would like to delete all reference to mock-ups, we'd be delighted. The respondents will object because it will broaden the order.
Potter Stewart: Oh, this white shirt fits around the neck perfectly. Actually, it's not a white shirt, it's a blue shirt, but it has to be blue in order to show up white on television, what then?
Philip B. Heymann: There's no representation of proof, perfectly all right to use it. No representation that you're showing it --
Potter Stewart: How can you distinguish that from this case?
Philip B. Heymann: What we're talking about, Your Honor, is the class, which is an immense class of skeptical buyers who tend to believe that sellers exaggerate the qualities of their claims who tend to suspect sellers claims because sellers exaggerate, because sellers have the greatest interest in making their product look as attractive as possible. If one of those buyers sees an ad on television where a man is --
Potter Stewart: I can't think of a worse way to make something look attractive than having it appear that you can shave things like sandpaper.
Philip B. Heymann: Well --[Laughter]
Potter Stewart: This is one buyer that does get effected.
Philip B. Heymann: One of the hardest problems in the case has fortunately been eliminated, and that is whether anyone would buy Rapid Shave because it can shave sandpaper, which finally resolved on the basis that if the sellers thought so, they know more about it than we do.
Arthur J. Goldberg: [Inaudible]
Philip B. Heymann: Your Honor, I think it's an excellent mock-up. I think it should be shown on television tomorrow. I have no objection. The Commission would have no objection to it.
Arthur J. Goldberg: [Inaudible]
Philip B. Heymann: No one would look at that picture and say they were seeing experimental proof of a claim for rope. It's an obvious drawing. I don't know why Bates puts it in.
Arthur J. Goldberg: [Inaudible]
Philip B. Heymann: I'm interested in knowing Your Honor whether it looks like they're drawing. Their drawing doesn't look like a real thing to me and it doesn't look like a real thing to anybody. It looks like a drawing. If they make a detailed paper mache machine, and they say to the viewers, “Look, lots of people claim that their rope can withstand 6,000 pounds of pull.” But you know sellers. Sellers exaggerate. We'll prove to you the truth of our claim. There's something you can act on, our proof. Watch this test performed under -- performed with a machine before your very eyes. They do that with the mock-up, that's material, it's false, and it's unfair to competitors.
Arthur J. Goldberg: [Inaudible] [Laughter]
Philip B. Heymann: Your Honor, I don't think there's anyone in the country who believes that's a stomach it's going to.[Laughter] I'm afraid I'm doing better as a comedian than getting my argument out and I think I'd better proceed. The heart of the Commission's argument can be stated very simply. I'm going to arbitrarily state it in four steps, they could be condensed, they could be expanded. The Commission believes the Act has always been read as forbidding all material misrepresentations. By that, we mean all misrepresentations, calculated or intended to influence the purchasing decision of buyers. That's the language that's always been used. I had quotes, but I'll skip them now. We know of no exception in the hundreds of cases that have come before the Federal Trade Commission, the respondents have pointed to none, the evidence in history and in earlier cases are overwhelming. I don't understand the respondents to really question this proposition. The Act forbids all represent -- misrepresentations intended to influence the decisions of buyers. One factor --
Potter Stewart: What if the real product looked very, very much better because of the non-television.
Philip B. Heymann: Your Honor, I think that's a red herring that's always --
Potter Stewart: It is definitely better.
Philip B. Heymann: It's always -- I think that's always been a red herring and I've never bothered to answer it, I'm glad you asked.
Potter Stewart: Yeah, of course.
Philip B. Heymann: If they have a product, Judge Aldridge asked, what if they have a cream that looks better on television.
Potter Stewart: Yeah.
Philip B. Heymann: Well of course they should use a mock-up of it, in talking about the creaming and in showing it. They should use a mock-up because they shouldn't fool people into thinking the cream looks better than it does, but they can't say by definition of the hypothetical. They can't say lots of people claim they have good looking creams. We can prove to you. We can separate our claim out from the ordinary exaggerated puff of claims of other people. We can separate out -- we'll prove to you what our cream looks like. Here's a picture of it directly on television, coming right from the studio into your living room. They can't say that because by definition it's false.
Potter Stewart: Well it is a picture of the cream coming right into the living room.
Philip B. Heymann: Well, they can't say that because it exaggerates the -- because it makes the cream look better than it does. The fact of the matter is they can't say television accurately transmits the picture of our cream when it doesn't. But they can of course they should use a mock-up in advertising their cream and showing people drinking that or what have you.
Potter Stewart: Not that they should, they have to.
Philip B. Heymann: They have to.
Potter Stewart: Or I suppose they could if with one of these explanations that you have. Say this is the picture of the actual product, but the television makes it look better than it really is.[Laughter]
Philip B. Heymann: Well – I think -- Your Honor, to talk about it, giving an explanation whenever you show a product in an ad makes the situation ridiculous. You can't give an explanation whenever you show a mock-up. This case isn't about mock-ups. It's about 3% of the ads on television or 1% or one-third of 1%, those which say we're giving proof. Now all we're saying is in that tiny category of ads; they should really be giving proof. And if they want to put on a test, if they want to illustrate proofs they've done elsewhere, in that tiny category they should say, “We're showing you a reenactment of tests we've done elsewhere.” Not whenever -- this case has nothing to do with the use of mock-ups in 95% of ads on television. People smoking cigarettes, drinking Coca-Cola, drinking beer, eating ice cream, all of those can be mock-ups. None of them involved a representation that an experiment or test furnishes visual proof of the truth of a claim. That's what the Commission order says, that's what its reasoning says.
Potter Stewart: I'm not sure then that I understand the definition of a mock-up. How can a person be smoking a cigarette be a mock-up?
Philip B. Heymann: Well, apparently they don't use real cigarettes frequently.
Potter Stewart: What do they use --
Philip B. Heymann: I don't know.[Laughter] Let's pass that. I meant that my example involved the hypothesis that they weren't using a real cigarette. Of course, if my hypothesis is wrong, pass it. They don't drink real beer because their head would disappear under the camera lights.
Potter Stewart: What does mock-up mean? That's my real question.
Philip B. Heymann: It means, it's a word that's been created as far as I know by this case.
Potter Stewart: What does it mean?
Philip B. Heymann: It means a prop that is substituted for something else. It means a piece of paper mache or cardboard or something else that is substituted for the real product, or it can be -- it means a substitute.
Earl Warren: I suppose a good distinction would be if they wanted to show a mock-up of a shaver on the television. It would be perfectly alright, but if they said, “See what it will do now” and then they have something that it doesn't do, then you would -- then it would be a misrepresentation.
Philip B. Heymann: I'm afraid we go further than that, Your Honor. If they say, “We're going to prove to you what it can do by showing it to you before your very eyes”, they have to be showing it to you before your very eyes, even if it can do it.
Earl Warren: That's what I meant to say.
Philip B. Heymann: Yes, Your Honor. That's exactly right. I was trying to get out the four steps -- it seems to be when you realize that this case is not about mock-ups, but about misrepresentations of proof, it fits so squarely, so snuggly within established principles, that I'd like to see the respondents take it out on -- when they get up. The Act forbids all misrepresentations calculated to induce purchasers to act in some way or another. It's almost by definition of the statute. The basis purchasers have for believing the truth of a claim is such a misrepresentation. Now, if a seller says, “My product can do X and Y and a testing agency has checked it and certifies it”, he has to be telling the truth when he says a testing agency has checked it and certified it. This is material to buyers. I don't understand the respondents to question this. All the questions the Court has asked this morning can apply equally to that. The product may be able to do it, but if he's going to tell buyers, “You can rely on the truth of my words because a testing agency has checked it”, that has to be true too. If he says, “You can rely on my words because I'm a minister” and that has to be true too, even though the product maybe able to do exactly what it wants. You can't require competitors to go around saying -- you can't require them to choose between losing sales and bolstering their true claims if you want with representations that they had been checked, misrepresentations they had been checked by testing agencies or that the seller is a minister or some other form of clergymen. We say that an experimental proof on television, the sponsor says, “You're seeing -- we'll give you visual proof of the truth for claim it's exactly the same as a certification of a testing agency or any other misrepresentation that goes to the basis for the buyer's belief.” It makes no difference if the seller says, “My glue can hold 500 pounds per square inch” or if he says, “And I'll prove it by a testing agency”, or if he says, “I'll prove it by showing you an experiment on television.”
Arthur J. Goldberg: [Inaudible]
Philip B. Heymann: Your Honor, the very purpose of showing a mock-up of ice cream, it's easier to think of it in terms of a magazine ad. There's a magazine ad for ice cream and there's a delicious looking piece of ice cream and it says, “Eat Sealtest ice cream.” The purpose of it is to cause someone's mouth to water and someone to say, “Let's go out and get Sealtest ice cream.” A skeptical buyer will not look at that ad and think he has anything better than the seller's words to bolster -- he has anything better than a seller's word to go on. The seller's word may make his mouth water, he may feel like taking a fling, that's what advertisers want buyers to do, go out and take a fling. If you show him a test and you say to him, “My product can shave sandpaper and I'll prove it by showing you a test where sandpaper is shave before you very eyes, the skeptical buyer is told specifically, lay aside your doubts, you're seeing the real thing. This isn't a visual portrayal of the buyers -- of the seller's claims. This is it.
Arthur J. Goldberg: [Inaudible] in light of the difficulties of the administration?
Philip B. Heymann: Your Honor, I'd like to talk about the harms for a minute, Your Honor. Some of the harms are obvious. They are the harms that always characterize any material misrepresentation and justify the breadth of the rule. Purchases are by definition tricked into making purchases. Many people don't like to be tricked into doing things. The trick maybe costly. Purchaser may pay more, because he thinks he's seen the product proved. I'll pay more for a product if I believe it's been proved to me. He may switch from Rapid Shave to Rise or from Rise to Rapid Shave, because he's seen the product -- the qualities of the product proven, he has something better to go on than the seller's words. That one cuts right over to what's been the traditional, the thing most traditional in the Federal Trade Commission. Protection of competitors against being required to do things which people regard as repugnant, morally repugnant. Tricking other people into acting, into spending their money is generally regarded this way. I was going to quote from the Kepple decision, Justice Stone, I think I'd like too. A trader may not by pursuing a dishonest practice, force his competitors to choose between its adoption and the loss of their trade. A method of competition which casts upon one's competitors the burden of the loss of business, unless they will descend to a practice which they are under a powerful, moral compulsion not to adopt even though it is not a criminal, will stop to involve the kind of unfairness at which the statue was aimed.
Arthur J. Goldberg: [Inaudible]
Philip B. Heymann: Your --
Arthur J. Goldberg: [Inaudible]
Philip B. Heymann: Your Honor, the fact of matter is, I want to go further into that, but the fact to matter is that they can't prove it, and that's exactly what they're saying they are doing.
Arthur J. Goldberg: [Inaudible]
Philip B. Heymann: Maybe they could and maybe they couldn't and that presents the question --
Arthur J. Goldberg: [Inaudible]
Philip B. Heymann: I mean in general. I -- that's what I answered Justice Stewart in the first place. Let me respond, I'm afraid in a way that will take ten sentences. I haven't even mentioned what we regard as the most important harm in this case. Advertising should be a means of communication between sellers and buyers. It's at best an uncertain means. There are two sources of uncertainty. Only the minor source, only the less important source is the possibility that the seller maybe a scrounger who cares not a wit about the truth and will lie freely. The major source, the most -- the most important source is that sellers have the greatest interest in making their product look attractive, that's how you sell it and they will exaggerate and they will pop within the realm of what they regard as substantially true. Buyers have the greatest interest in knowing just what the product can do, not receiving a puffed ad within the realm of what the seller regards -- within the limits that the seller regards as substantially true. We know of only one way that a seller can tell buyers that he is receiving the real thing. Only one way he can say this is a no puffing ad. This is an ad better than one that the Commission will check three years from now and find out if it -- if they regard it as material. This is an ad -- only one way they can say, “Here's an ad that you can judge for yourself if the variations are material and here's an ad where you don't have to wait three years.” And that is for the seller to say, “We will show you on television the very product, doing the very thing we can claim for it -- we claim for it.” And that's what they do in this case. This avenue of communication, the only possibility of sellers giving buyers the specific truth and of eliminating the uncertainty that pervades advertising, the uncertainty of exaggeration is eliminated if the Commission cannot forbid misrepresentations that you're furnishing proof when you're not. Now that's why I said, I didn't know -- I don't know whether the product can do it or not. In some cases, the seller will guess wrong. I'm just assuming that he's going to use his best judgment to keep within the limits of substantial truth. In some cases, you'll guess wrong and others you won't. In all cases, there will be a variation and the buyer will think he's seeing the very thing. I want -- for two minutes to address myself to what I regard as the respondent's answer to our contention that there is no justification from falsely representing that you're giving proof when you're not. The seller seems to say that when they put a test on television, they're not saying that they're proving the truth of the claim. They're simply saying, here's a test that we've done and you can do. To that we have three answers. First, the Commission has found otherwise after viewing the commercials and the Commission's judgment on the nature of misrepresentations is entitled to the greatest deference. Second and more important, I think the Commission was plainly correct. When a seller says to a buyer, “I'll prove the truth of my claims,” he says “I'll give you independent evidence of the honesty and accuracy of what I'm saying.” That's what proof mean for anybody. It means giving evidence that will compel belief. That's what Webster says, it's especially true in sellers and buyers. If I -- and this is what they said in this case, we will give you evidence to prove the truth of our claims. If I may use two analogies, if I were to say to this Court, I can kick a football 50 yards and I'll prove it. And then I showed a movie of a football being kicked 50 yards, I think every justice on this Court would believe that he was seeing me kick the football 50 yards, not an accurate portrayal. Well the claim has a certain implausibility about it, but not an accurate portrayal of the claim using substitutes. If a seller says -- if a seller of a cleaning fluid says that his claim can remove heavy grease stains immediately and he will prove it to the buyer and then shows him a movie showing grease -- what appears to be grease stains removed by what appears to be the same product, buyers believe that they're seeing the very thing done. They believe they are receiving something to -- on which they can rely. That's what proof is, some independent confirmation of the truth of their claims. Finally, the Commission's order is limited to this. The Commission's order doesn't reach as the respondents would suggest every use of mock-ups and test. It forbids a representation that tests furnish actual proof. And I'll close by saying, it doesn't forbid anything about mock-ups. Mock-ups can be eliminated from the order. The Commission would have no objection. I'll save the rest of my time for rebuttal Your Honor.
Earl Warren: Mr. Sonnett.
John F. Sonnett: Mr. Chief Justice, and may it please the Court. Your Honors will find at page 39 of the record, the statement by the Court of Appeals in its first opinion about eight lines, ten lines up from the bottom where the Court of Appeals said, in other words referring to the Commission's theory, in other words, it would be no defense that as the examiner found on undisputed testimony here, the shaving of sandpaper even when in fact accomplished, does not properly reproduce on television and must be simulated to be affective. That I think Your Honors is the only thing in the record before you specifically on the point. But --
Earl Warren: It could be done but it would take 80 minutes to do it. Would you for one minute put that on television and tell the public it could be done if it took 80 -- but it take 80 minutes to do it?
John F. Sonnett: Mr. Chief Justice, that would not only destroy the value of the commercial, but I think it would drive Madison Avenue and the broadcasting business and the viewers wild. I can't imagine anybody looking at a commercial for 80 minutes.
Earl Warren: I beg your pardon?
William J. Brennan, Jr.: It wouldn't take 80 minutes?
John F. Sonnett: I don't think it takes 80 minutes either, but I'm suggesting Mr. Chief Justice that --
Earl Warren: I was just restating what I thought Mr. Heymann said.
John F. Sonnett: You correctly restated it, Your Honor. My difficulty is what his statement, of what the record shows. There was during the hearing before the examiner, attention given primarily to the question of how long you had to soak the sandpaper before you could shave it, and there was expert evidence and the parties concentrated on the question whether the representation was true or not. That was the focus and the focal point of the hearing before the examiner. The Colgate counsel at that time put great effort into proving and we think, made a reasonably good record that the word soak used in the commercial, which Your Honor will find at pages 8 and 10 -- through 10 I believe of the record. At page 10, there is a description of this commercial. Now in this commercial, the announcer said with respect to the sandpaper test, it was apply soak and often a stroke. It was held below that, that was a misrepresentation, because the soaking could not be done as quickly as the ad implied. And we do not here challenge that aspect of the finding, because that is not the question before Your Honors. It is quite a different question, that phase of this case is behind us so far as decision is concerned.
Earl Warren: Well, isn't it still a part of the question as to whether there was a misrepresentation at all.
John F. Sonnett: We do not here contend before Your Honors today, that there was no misrepresentation in that respect. However, that has nothing really to do we submit with the question Your Honors have called out to decide which was injected into this case late in the game and on the basis of a wholly inadequate record. What I am suggesting to Your Honor is that there is nothing in the record before you with respect to the use of mock-ups in television, their need, their justification, the public awareness of them or anything of that kind. What we had here was the Commission coming up with a pet theory of law, which it dragged into this case by the heels on the basis that the record limited only to this sandpaper commercial ad, and what the Commission has done by its order, contrary to what the government suggests, is to say and this is the proposition before this Court. When it is necessary in a television or other commercial or advertisement to use a substitute in order to convey the truth, you may not use the substitute, in order to convey the truth unless you tell the viewer that you are using a substitute. That is the heart of the problem.
Byron R. White: Well if you -- I take it then, or do you deny that there are two misrepresentations involved? Let's assume that the stand -- that your first one is a misrepresentation, well the stand that you can really shave sandpaper. We get the – do you say there's a misrepresentation at all about what you're showing?
John F. Sonnett: I say there is no representation, Mr. Justice White based on what this commercial was. And secondly, I say there is no representation that it was actually sandpaper with respect to a material claim being made for the product, namely the moisturizing qualities.
Byron R. White: Yes but –
John F. Sonnett: That it was necessarily real sandpaper or that if it was, the representation was material. The basic representation made was a representation with respect to the product.
Byron R. White: Well, I understand that, but the viewer is expected to think he is seeing an actual proof of the claim. He thinks that here is a razor shaving sandpaper and you intend him to think that.
John F. Sonnett: Yes, Mr. Justice White.
Byron R. White: And as a matter of fact, it is false. It is a misrepresentation. You say this is material, is that your point?
John F. Sonnett: I say that the representation that is material is whether, if the viewer were in the studio and if the test were performed before his eyes, and if real sandpaper were used and if it could be shaved exactly as the commercial depicted it --
Byron R. White: Yes.
John F. Sonnett: – that, that would all be true, but when they want to put a television camera on the same thing in order to convey that truth to the viewer, they must use a substitute. Hence, there is no material misrepresentation. This is peculiarly enough a case in which --
Byron R. White: It's misrepresentation but not material --
John F. Sonnett: Well, either way or both. However, Your Honors should decide it to be. I say that -- I prefer to think of it as neither a representation or if it is one, a material one. But --
William J. Brennan, Jr.: Mr. Sonnett if you please, may I just add, I'm looking at pages 93 to 95 which I understand -- of the record, which I understand is the final order, third and final order and all that we have involved, am I correct about this, is the provision of paragraph 1, neither 2, 3, 4, or 5 of that order. When I say two, three, four, five I mean Roman numerals, no problem under those sections that --
John F. Sonnett: Well, with respect Your Honor to -- there is a problem with respect to paragraph 3 relating to Bates which is covered by the briefs.
William J. Brennan, Jr.: Oh, I see.
John F. Sonnett: And I don't propose to get into that question. With respect to paragraph 2 relating to Colgate, there is a problem with respect to the language of that order, and that language has not been approved by the court below. The court below, Your Honor will find in its opinions specifically refused to approve the provisions, any of the provisions of the order and said to the Commission, you'd better draft a brand new order confined to the facts of this case.
William J. Brennan, Jr.: I don't want to take your time, but I'm just trying to find out which provisions of this order are before us.
John F. Sonnett: Before you, at this time, it is only paragraph 1.
William J. Brennan, Jr.: That's what I want.
John F. Sonnett: Of the order, Section 1, Your Honor.
William J. Brennan, Jr.: Thank you. I need not to bother you any more.
John F. Sonnett: Well, all of one, Your Honor is before you on the main point of the appeal. There are questions with respect to three which are briefed, but in terms of the principle problem before you, it is paragraph 1 of the order.
Arthur J. Goldberg: [Inaudible]
John F. Sonnett: You do Mr. Justice Goldberg. I think --
Arthur J. Goldberg: [Inaudible]
John F. Sonnett: I think that we must recognize that this proceeding has had a rather peculiar history. It went through the Commission, once it went up to the Circuit Court of Appeals. There was a decision in which the Court of Appeals flatly rejected the theory of law that the Commission was proceeding on. It went back to the Commission which did not comply with the mandate and did not petition for certiorari. The Commission took another crack at expressing its theory of the law because it felt that it wasn't clear enough the first time. It restated its argument, it went back to the Court of Appeals again. The Court of Appeals in another patient and detailed review again disagreed with the Commission and it got back and is now here.
Arthur J. Goldberg: [Inaudible]
John F. Sonnett: Mr. Justice Goldberg, that question is not before you and I would not so maintain in any event. That's another phase of this case not here involved, but I think that the problem with the case is that the government, having made four or five stabs at it hasn't yet really defined the question. And the question which Your Honors have been seeking to have defined today is I believe and it's the only question really before you, where the use of a substitute is necessary or perhaps even appropriate in order to communicate the truth in an advertising message on the television, is the use of the substitute alone, without disposing it an unfair trade practice. That's I think is the question and the only question presented. Your Honors will find that the Commission --
Earl Warren: [Inaudible] the way the question is presented to us in the petition for certiorari or in the brief.
John F. Sonnett: Mr. Chief Justice, you've given me the opportunity to comment on something in that regard, which without meaning to twit the government but I think there maybe at least a violation of the spirit if not the letter of Rule 40 (d) -- 41 (d) (1) of the Rules of Practice of this Court. Your Honors will recall that, that rule is designed to prevent the presentation to this Court in argument of questions which differ in substance from the question presented in the petition for certiorari. Now whether or not there's a violation by the government of Rule 40, I don't press, but I would like to call your attention, the very curious and very revealing, because it's revealing the lack of clarity with which the government has approached this problem. If Your Honor will look at the question presented in the petition at page 2, it reads as follows, whether the Federal Trade Commission may prohibit as an unfair or deceptive trade practice, the representation that a test, experiment or similar demonstration shown on television provides the viewer with visual proof of a product claim (which may itself be true) when the test is a sham which proves nothing because of the undisclosed use of a mock-up in the test. Now, when the government comes to present this question in its brief, the furious and revealing omission is that they takeout the matter in the parenthesis which was in the question stated in the petition for certiorari. The heart of the problem is that the claim made is true by definition before Your Honors today. It's true in every case. That is the question really being presented to you. Curiously enough, the government sought to duck the question in its brief and they're still ducking it. The only rational basis we submit upon which the Federal Trade Commission or the courts should view advertisements is whether the message communicates the truth. Neither the Commission nor the Court should be concerned with the problem of how the truth is communicated, so long as by definition, the truth is communicated and so understood by the viewer. Here by definition the viewer on the television screen would see the representation of a sandpaper test identical with what he would see if he went to the studio and they used real sandpaper and everything by hypothesis. And the question before you is assumed to be absolutely true and correct, the product claim, everything is correct except for one thing. We have to use plastic with sand on it rather than sandpaper because as the finding shows, sandpaper won't be photographed. Now if the Commission is going to get into the business of regulating advertising by telling advertisers how to tell the truth rather than stopping them from lying, we're going to have the Commission getting into a business where the hand of the government can create great havoc. The need for mock-ups in this industry which is a vital and growing industry, the nature of the changes in the technology of broadcasting, the justification whether it be technical or economic for this or that device in broadcasting, the matter is better left I think to the industry rather than by government regulation. In any event, where what is done tells only the truth and the viewer can understand only the truth from what is told, I submit there can be no deception within the Act.
Earl Warren: I didn't see the broadcast but did it show the application of this cream in the telecast and then show an immediate shaving of the --
John F. Sonnett: There was, Mr. Chief Justice, a pause and this was a matter of some controversy below -- before the examiner. The word soak, it was apply soak and then off in a stroke. Now, we don't dispute the present purposes that it couldn't be shaved as quickly as the ad made it appear, but that problem is not before us. By definition here, and I think perhaps the Commissions' own words on this maybe helpful Mr. Chief Justice, by definition here, every word that we said in that commercial was true, that's the hypothesis of the problem before you. Every word is true.
Earl Warren: The government might want to force us to go farther than we have to go in the case.
John F. Sonnett: Yes Your Honor if I --
Earl Warren: And do we have to go that far?
John F. Sonnett: I don't think you do.
Earl Warren: You did say they would press us to do it. If it is a fact, if it is a fact that the telecast showed a picture of the application of this cream and an immediate shaving of a piece of sandpaper and it will not do that way, it takes 80 minutes or some -- of soaking and some other preparation to get it to do that, wouldn't that be a misrepresentation --
John F. Sonnett: That is --
Earl Warren: – that we should have to take into effect where the government says we want you to go all the way or not?
John F. Sonnett: Mr. Chief Justice, we do not here dispute that. We do not here dispute that.
Potter Stewart: It would be a violation.
John F. Sonnett: It would be sir, yes, yes Mr. Justice.
Potter Stewart: This was a violation in this case and it's been held so and you concede that that is correct.
John F. Sonnett: Yes, Your Honor. That is not our problem here. Our problem here is, if I may invite the Court's attention to a very interesting footnote in -- when this Commission took its -- made its second effort to express its theory with respect to mock-ups, because we're not concerned with the first portion of the case Your Honor. On page 60 of the record, footnote 12, the last footnote to the second opinion of the Commission. Your Honors will see that the Commission was still apprehensive as to whether they'd thought through or explained that position adequately and then in the second paragraph of that footnote, the Commission said “Thus even if it be assumed in the instant case that Rapid Shave can in fact shave sandpaper precisely as shown in the commercials and that a mock-up was used only because real sandpaper cannot faithfully by reproduced on television, it misses the point to say that the commercials were therefore free from falsehood.” Respondents they say did more than mere use a mock-up. They made an affirmative representation that it was falls namely that they were presenting an actual test and giving actual proof of Rapid Shave's ability to shave real sandpaper, and then in the test, real sandpaper was being used. They go on to say that the misrepresentation would not have been any worse if there had been an explicit statement that it was real sandpaper was being used. Now, the question therefore before Your Honors really I believe on analysis comes down to the simple proposition whether it can ever be an unfair trade practice to use a substitute in an advertisement where the use of the substitute is necessary in order to convey the truth in the advertising message and I think that's the heart of the question. I submit the answer to that can only be that the court below was right on this point because --
Byron R. White: [Inaudible] can it ever be, can it ever be as long as the representation is true about the charges to the product and even I suppose, even if you say that you're actually proving it by an actual test.
John F. Sonnett: Mr. Justice White, I would so maintain, but I don't think the Court has to go that far.
Byron R. White: Well I know but you say that's the question for it.
John F. Sonnett: Yes.
Byron R. White: Ever.
John F. Sonnett: Well, yes, yes. I would say and it our position that wherever you must use a substitute to tell the truth even if you don't disclose the use of the substitute, you are still nevertheless telling the truth and therefore there can be no misrepresentation.
Byron R. White: Even if you say that we're not using a substitution?
John F. Sonnett: Ah, now that's a different question and one not before us. I think that the specific reference to the question might render material --
Byron R. White: If this is an ever question --
John F. Sonnett: Well, never on the state of facts Mr. Justice White. If you add to it an explicit statement that no substitute is being used, I think that explicit statement tends to make more material, more material perhaps that --
Byron R. White: Why for heaven sake?
John F. Sonnett: Well, I'm not --
William J. Brennan, Jr.: What you're referring to would make a big difference.
John F. Sonnett: Logically, I don't think I need say that it would, but I don't think we need immediate here.
William J. Brennan, Jr.: No, but this is almost implicit.
John F. Sonnett: I don't think so --
William J. Brennan, Jr.: You don't think so?
John F. Sonnett: I don't think that the representation, in any event I'm sure in my own mind that if there is a representation, it's not material.
William J. Brennan, Jr.: But don't you have to say that if you made the affirmative representation that this is not a substitute, that you're nevertheless home free?
John F. Sonnett: I don't have to but I will sir. I think that we are -- I don't think we need to reach that to decide this. But I am prepared to say that, that is also our position. But we needn't reach that point, that's not in our case.
Byron R. White: Well it appears it's not saying anything, it means to most people that you're saying affirmatively that, I suppose we must reach it.
John F. Sonnett: Well, Mr. Justice White, one of the great deficiencies of this record is that there is nothing in the record to establish anything with respect to the public's awareness these days of the use of mock-ups and other artifices or substitutes on television. This record is wholly deficient with respect to anything relating to mock-ups and what the people understand. I suppose most people know that people wear blue shirts in order that they photograph white, that's pretty well-known. But, there is absolutely nothing in the record that warrants a general rule making or prohibiting as this does, the use of mock-ups where you need to use them to tell the truth, the Commission says you can only do that if you disclose that you are doing it.
Hugo L. Black: [Inaudible]
John F. Sonnett: Well Mr. Justice Black, it would render the commercials as the court below found, impractical and unworkable because --
Hugo L. Black: Well, why would it?
John F. Sonnett: The amount of disclosure you would have to make --
Hugo L. Black: I'm talking about this case.
John F. Sonnett: In this case --
Hugo L. Black: All you'd have to say would be this is not real sandpaper.
John F. Sonnett: Well, wouldn't we have to go further Mr. Justice Black and say, this is not real sandpaper because, although --
Hugo L. Black: I didn't say because, if you just want to tell the truth, why should they want to leave the impression, now I certainly would be left with the impression if I saw this advertisement that they are actually shaving real sandpaper. Well, why do they want to leave that such --
John F. Sonnett: Because --
Hugo L. Black: Impression on the public.
John F. Sonnett: Because by hypothesis as the question comes to you, we can actually shave real sandpaper just as the commercial describes it.
Hugo L. Black: Well, suppose you can, you're trying to impress them that you can shave it. As I understood it, you can't, but suppose you can, you're leaving the impression with them that this shaving cream is so wonderful in some respect, so miraculous that it kind of moistens the sandpaper and makes it disappear from sight and makes it easy to move. Now why does an advertiser want to do that if he simply wants to tell the truth?
John F. Sonnett: Because the truth by hypothesis Mr. Justice Black as the question comes to you is that this product can do exactly that, that's the hypothesis.
Hugo L. Black: Assume it can, assume it can, why on this -- why in this note that you just referred us to absolutely sound and that the reader, the man who is going to be impressed is being led to believe that it does just in this fashion when you put it on just like he's put it on there before his eyes and why would an honest businessman want to deceive the public in that fashion?
John F. Sonnett: Because there is no deceit involved. If I may restate --
Hugo L. Black: It would be if I saw it.
John F. Sonnett: Well, Mr. Justice Black, may I put it you this way. If you were to go to the NBC studio in Washington and see this test performed with real sandpaper and if by hypothesis, every word in that commercial using real sandpaper --
Hugo L. Black: But I wouldn't go --
John F. Sonnett: Were true --
Hugo L. Black: I'd seen it on the television.
John F. Sonnett: Yes, Your Honor.
Hugo L. Black: I'm not there.
John F. Sonnett: Yes, Your Honor.
Hugo L. Black: And what the advertiser is supposed to be doing is doing somewhere within the reasonable range of a truthful representation so that the public will not be deceived.
John F. Sonnett: There is no way that we could communicate to the public the fact that this test had been or could been -- could be performed which is, I think a fair reading also of the commercial. There is no way to do it by hypothesis in that basis.
Hugo L. Black: Can it actually performed, can it?
John F. Sonnett: I beg your pardon sir?
Hugo L. Black: Can it actually be performed?
John F. Sonnett: Well not within the time stated, but--
Hugo L. Black: But what you have is you're saying because it can actually be performed in the longer time, you can let the public look at the television which is all it can look at and leave the impression that it can do it in the time you were looking at it.
John F. Sonnett: No Mr. Justice Black, with great respect that is not the question. Your question assumes that we are here still trying to defend the ad as it actually went out and let me say that isn't the problem before you.
Hugo L. Black: No, no, I'm not say that you're defending them, but I'm trying to get back to the principle that the Court long ago said that you must take the most incredulous person that's looking at that advertisement and not try to deceive him.
John F. Sonnett: Well, to tell the truth by use of a substitute cannot possibly be deception, I submit. How can it be? How can it be? By hypothesis, we are communicating to the viewer what the viewer sees --
Hugo L. Black: Well where we differ -- where we differ here is that I don't think its telling the truth because to me what the television is saying is that we assure you right here, we take this sandpaper before your eyes, we put this thing on it, it moistened it and then it shaves beautifully --
John F. Sonnett: But --
Hugo L. Black: – and that's not the truth.
John F. Sonnett: No, no, but we're assuming in the hypothetical question you are called on to decide that it can be done Your Honor, that is whole point.
Hugo L. Black: Suppose it could, suppose it could.
John F. Sonnett: If it could, and that's the question before you. If it could, the problem is whether and I dislike confining it to this particular case because it does inject into the hypothetical question before you shades of the other question we're not here dealing with. I think the Rope Machine case maybe a better answer. If you look at the Bates brief at page 10, the point of that illustration is that you have a machine in a building some place surrounded with pipes and girdles and bricks and mortar and it's designed to test nylon rope and it can test it but you can't get the television cameras in there to photograph the actual test being made. So you make a prop, a paper mache and you put it up in the studio to look like the real machine, you use not nylon rope which the advertiser is selling but you use a cotton rope so it won't break the paper mache machine. You use an actor and not an engineer and the message is “Our machine, our test before your very eyes. We'll show you that our nylon rope will withstand the pressure of 6,000 pounds.” Now every word of that is true, every word of that is true. Where is the public deception?
Speaker: What effect do you think it would have on the viewing public if there is a short announcement, simply saying we're using a substitute?
John F. Sonnett: The difficulty with it is that the announcement I'm afraid can't be short and the message be of any utility. And before example, to revert to Mr. Justice Black's question and to get back again to the rather unfortunate problem of this sandpaper case which is wholly illustrative –
Hugo L. Black: [Inaudible]
John F. Sonnett: That is not what the Commission has done Your Honor.
Hugo L. Black: [Inaudible] Let's assume now that as you say it has been said, they can do this, when we know as a matter of fact, they can't do it and let's assume that, but that is a fact because you said they can't do it in the time and as shown on this place. Now why shouldn't the Commission if it orders you to stop making the misrepresentation which you say it's alright to do, why shouldn't it go far enough to protect the public from ingenious substitutes designed to accomplish the same purpose that they have just forbidden above?
John F. Sonnett: I would completely agree Mr. Justice Black that they can and should if that were our case, but it is not our case.
Hugo L. Black: That's all I see that number one does.
John F. Sonnett: No sir, that is not our case, because number one goes far beyond any necessity to eliminate misrepresentation with respect to any material claim concerning the product.
Speaker: [Inaudible] to the announcements that are made on a television program or a radio program comes out, this is recorded and not a live production?
John F. Sonnett: Well, I think that is again part of the problem that the Commission should have explored if it were going to try to legislate generally about the use of mock-ups. Your Honor has raised the question of pre-recordings. When you put on a program which happens to be pre-recorded and don't announce that its pre-recording that you're showing, are you misleading the viewer? I don't think so. I don't think the public so understands it.
William J. Brennan, Jr.: [Inaudible]
John F. Sonnett: Well as part [Attempt to Laughter] of the logical Mr. Justice Brennan, the logical result of what the Commission has said here, we'll be confronted with that I'm afraid.
William J. Brennan, Jr.: Well I mean, is -- this pre-recorded, is that the result of --
John F. Sonnett: Oh! This was pre-recorded but that isn't as such has not been the focal point of the problem.
William J. Brennan, Jr.: Incidentally, I gather what you're in substance saying is that if you did this on radio and you announced we've made an experiment with shaving sandpaper and we found that it works and this is good enough to shave sandpaper, there would be no question that you could do that and you're saying doing it this way is only doing the same thing except you have a peculiar problem in the medium of television, namely that you can't put on the actually what is done, is that it?
John F. Sonnett: That in substance is our position Mr. Justice Brennan, yes. It lets out that we had to use a substitute, which you have to -- where to tell the truth about the message, for the advertising you must use a substitute in a pictorial representation, you should be free to do it.
Speaker: It would be --
Byron R. White: If you have a studio full of people watching a certain program and you're in front of the television, for the studio, the people who are there, you actually use sandpaper and then shave sandpaper and it is an actual representation in the quality of your product.
John F. Sonnett: Yes.
Byron R. White: But just across the stage, the commercial on television, uses the mock-up, it doesn't have to. It's like if you say if they are showing a sports car that can go up a 20% grade on the side of the mountain. Instead of taking a picture of the outside, they use a model, using a small car going up the mountain right in the studio.
John F. Sonnett: You have our situation exactly Mr. Justice White. I find it impossible to believe that if a viewer in the studio, sitting there would see the actual test with the actual sandpaper and every word said to him was literally true, which is the hypothesis here and then you put a television camera on it but you have to take the sandpaper away because you need a piece of plastic that looked like sandpaper with sand on it, I find it hard to believe that that suddenly becomes a deceptive trade practice.
Arthur J. Goldberg: Why couldn't you ask him what's the difficulty with adding a very simple statement? This is a reproduction of an actual test which has been conducted.
John F. Sonnett: Because I think that the people in the broadcasting business, the people in the advertising business tend to agree with the feeling of the court below that the apologia with respect to it, might take so much time in a 30-second commercial that the commercial would be non-productive and it cannot use --
Arthur J. Goldberg: I think something [Inaudible]. This is a reproduction of an actual test which has been conducted.
John F. Sonnett: That Mr. Justice Goldberg is something, perhaps the Commission should have explored on a record, but didn't. There's nothing in this record that --
Potter Stewart: The Commission went much further than that?
John F. Sonnett: Oh! Yes indeed sir.
Potter Stewart: Now whether or not that would be permissible.
John F. Sonnett: There's no way of knowing what they really mean by disclosure. There's no way of knowing how much public awareness of television or broadcasting these days requires --
William O. Douglas: But thinking it was a reproduction would itself be false here. The reproduction would take 80 minutes instead of one second.
John F. Sonnett: Exactly Mr. Justice Douglas. Thank you Your Honors.
Arthur J. Goldberg: [Inaudible] and I thought and I think you have straightened this out. I thought the assumption was, now this case as mentioned and the reproduction of exactly the same at the same time that all [Inaudible] am I wrong about that?
John F. Sonnett: You are not wrong sir.
Arthur J. Goldberg: Because I take it is clearly a deceptive practice to misrepresent the timing?
John F. Sonnett: I could not agree more Your Honor, yes.
William O. Douglas: But it takes 80 minutes to do it with sandpaper?
Potter Stewart: No, no.
John F. Sonnett: Not 80 Your Honor but longer than what we're shown on --
William J. Brennan, Jr.: You violated the act --
John F. Sonnett: Oh! We're not disputing that Your Honor, we're not disputing that. What we're saying is --
William J. Brennan, Jr.: I wish you'd just make that clear.
John F. Sonnett: When they say to us that we cannot use a substitute in order to convey the truth, where by definition everything we are communicating is true and they say you can't use a substitute without disclosing it, we think they're going to be on their powers.
Byron R. White: Mr. Sonnett, why isn't this just an abstract question here because you're not -- you violated the act, the sand -- you're not going to be using sandpaper --
John F. Sonnett: I hope not Your Honor.[Laughter]
Byron R. White: But why isn't it just an abstract question here in this Court?
John F. Sonnett: Well we did not think --
Byron R. White: This advertisement is out of business. I mean this particular commercial is just wrong.
John F. Sonnett: Well, the order of course goes far beyond just the television, the sandpaper advertising thing. It really reaches and it does, although the case -- the Court below described this case as trivial.
Byron R. White: Well, you didn't bring the case here; you were satisfied with the evidence.
John F. Sonnett: I'm delighted to be here, but still we came [Laughter] because we were respondents, but the point is that the order in paragraph 1 has an impact undoubtedly in the advertising and broadcasting business that goes far beyond this particular commercial. It has a very adverse impact on broadcasting and advertising.
Earl Warren: Mr. Heymann, I think [Inaudible]
Philip B. Heymann: Mr. Chief Justice, I -- my bewilderment is that I sit in that chair and I can agree practically with everything the respondents say. This case does not involve the Commission's objection to the use of mock-ups. I can state that in the clearest possible form. We object to their representing that they're giving proof. Use mock-ups all you like, it's a representation. In this case it's a verbal explicit representation, we proved it to you. We object to their saying, here you have something better than the ordinary ad of our competitors. You have proof, now it's that, it's not the mock-ups. You can completely forget about the mock-ups.
William J. Brennan, Jr.: [Inaudible] short of why the use of this possible remedy for what you're talking about?
Philip B. Heymann: Your Honor, I'm trying to get across that the order, if you look at it bars misrepresentations that you're furnishing proof.
William J. Brennan, Jr.: I know but suppose --
Philip B. Heymann: Justice Goldberg's suggestion by the way I take it takes you right out of the order. That doesn't take another order Mr. Justice Stewart. It takes you right out of it.
Potter Stewart: What Justice Goldberg read wouldn't be truth?
Philip B. Heymann: That it was a reproduction?
Potter Stewart: It's a reproduction of an actual test.
Philip B. Heymann: Oh in this case it wouldn't be the truth.
Potter Stewart: No, nor would be --
Philip B. Heymann: Why wouldn't it be -- if it were --
Potter Stewart: It's not an actual test, it's a --
Philip B. Heymann: No I think -- what they would be showing would be a reproduction of an actual test. There was an actual test that had been conducted.
Byron R. White: Not with a mock-up --
William O. Douglas: More interested in some other case with mock-ups than with this one.
Philip B. Heymann: Well, what both sides are interested in is the propriety of forbidding misrepresentations of proof and that is in this case and it isn't satisfied by the other half of the order.
Speaker: But you are trying to stop mock-ups, the use of mock-ups unless it's stated that they are mock-ups.
Philip B. Heymann: That is not so Justice Harlan, we are not trying to stop these mock-ups. We're trying to stop the use of the words we are proving something. If the Court would -- if we would get three quarters of what we want in this case, if the Court were to say “Don't use the words proof” that word in quotes unless you're actually getting proof.
William J. Brennan, Jr.: What would be the other court?
Philip B. Heymann: What?
William J. Brennan, Jr.: What would be the other court?[Laughter]
Philip B. Heymann: The other court would say don't imply the word proof. The first case in which the Commission presented this theory was not a mock-up case. A seller of cars represented that his -- a seller of wax represented that his wax could withstand great heat and cold variations. He poured gasoline on and lit the gasoline on television and then he poured cold water on it. He actually lit gasoline, he actually poured cold water on it, the fact of the matter is it was deceptive because pouring gasoline on doesn't -- the gasoline burns inches off the wax and it doesn't heat anything.
Arthur J. Goldberg: [Inaudible] that this is an actual test and you're saying that that is a misrepresentation and because what should be said is that this is a simulated but accurate reproduction of an actual test.
Philip B. Heymann: And I say that and I say it's very important to viewers, lots of people are going to buy this if they think its an actual test and not buy it if they have the uncertainty of not knowing.
Speaker: Is there any proof of that in the record?
Philip B. Heymann: I don't -- this has never been -- with all deference Your Honor I think the respondents have a red herring here.
Speaker: Well, shouldn't maybe we wait for a case where this issue is really presented as you suggested.
Philip B. Heymann: I don't see how the issue could be more clearly presented in any case than this one unless --
Potter Stewart: Here, it was false, concededly false. There was a conceded violation.
Philip B. Heymann: I don't understand how the falsity of the claim about the product can in anyway detract from the falsity of the claim that they were furnishing visual proof. I'd like to say just as Justice White asked, would you say -- could you say this is a mock-up or this is not a mock-up. This is it. Judge Bailey Aldrich suggested you couldn't. Our case is a representation. This is not a mock-up. They said you're seeing visual proof. You're being asked to draw a line between a representation that you're seeing visual proof and a representation that what you're seeing does not involve the use of a mock-up.
Byron R. White: Mr. Heymann, half the trouble is that the Commission and you in the argument here have not indicated what is necessary, perhaps you say, I don't have to say. Well --
Philip B. Heymann: What is --
Byron R. White: What is necessary to cure what you call is a misrepresentation?
Philip B. Heymann: I don't have any --
Byron R. White: That's what a lot of these questions go to. You say the misrepresentation is wrong and yet you don't object to the use of mock-up.
Philip B. Heymann: I think it's a good -- I'd like to respond to that Justice White. In 95% of the ads or 97%, I don't think that anyone could say that there was what the Commission orders -- refers to an experiment or test represented as actual proof. Nothing is required, if you put on a test, you have -- if you put on a test, in many cases you may have to say this is a reproduction of an actual test or you may have to say this is a dramatic reenactment of tests we actually performed in a laboratory.
Byron R. White: Because it obviously is not just to refrain from saying it is an actual test and just be silent. If you're just silent, most people will probably think that you're doing an actual test, so you're going to have to say something affirmative.
Philip B. Heymann: Words, only words of test and it can be --
William J. Brennan, Jr.: But this is not an actual test, that's all.
Philip B. Heymann: Well, I do think that would lead viewers to think that it couldn't be done.
Potter Stewart: It could not be an actual commercial I'm sure.[Laughter]