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R. J. Reynolds Tobacco Co. v. Federal Trade Commission.

November 1, 1951

R. J. REYNOLDS TOBACCO CO.
v.
FEDERAL TRADE COMMISSION.



Author: Major

Before MAJOR, Chief Judge, KERNER and FINNEGAN, Circuit Judges.

MAJOR, Chief Judge: This case is here on petition to review an order of the Federal Trade Commission (hereinafter referred to as the Commission), issued March 31, 1950. The proceeding before the Commission was on an amended complaint charging unfair methods of competition and unfair and deceptive acts and practices, in violation of Sec. 5 of the Federal Trade Commission Act (15 U.S.C.A. Sec. 45). The alleged unfair methods of competition consisted of the dissemination of false, misleading and deceptive statements, representations and testimonials in connection with the sale in interstate commerce of "Camel" cigarettes.

Petitioner answered the complaint with a general denial of its allegations but admitted jurisdictional facts and the dissemination of the representations, with certain minor exceptions, and the use of testimonials in its advertisements, as charged. A hearing was held before a trial examiner who made his report to the Commission. After the submission of briefs and the hearing of oral argument by counsel for the respective parties, the Commission made its findings as to the facts and concluded that the acts and practices of the petitioner, as found, were in violation of the Federal Trade Commission Act and, predicated thereon, issued the cease and desist order presently under review.

The portion of the order here under attack is as follows:

"It Is Ordered that the respondent, R. J. Reynolds Tobacco Company, a corporation, and its officers, agents, representatives and employees, directly or or through any corporate or other device, in connection with the offering for sale, sale or distribution in commerce, as 'commerce' is defined in the Federal Trade Commission Act, of its 'Camel' brand of cigarettes, do forthwith cease and desist from representing, directly or by implication:

"1. That the smoking of such cigarettes encourages the flow of digestive fluids or increases the alkalinity of the digestive tract, or that it aids digestion in any respect.

"2. That the smoking of such cigarettes relieves fatigue, or that it creates, restores, renews, gives, or releases bodily energy.

"3. That the smoking of such cigarettes does not affect or impair the 'wind' or physical condition of athletes.

"4. That such cigarettes or the smoke therefrom will never harm or irritate the throat, nor leave an aftertaste.

"5. That the smoke from such cigarettes is soothing, restful or comforting to the nerves, or that it protects one against nerve strain.

"6. That Camel cigarettes differ in any of the foregoing respects from other leading brands of cigarettes on the market.

"7. That Camel cigarettes or the smoke therefrom contains less nicotine than do the cigarettes or the smoke therefrom of any of the four other largest selling brands of cigarettes.

"It Is Further Ordered that said respondent, and its officers, agents, representatives and employees, in connection with the offering for sale, sale or distribution in commerce, as 'commerce' is defined in the Federal Trade Commission Act, of its 'Camel' brand of cigarettes, do forthwith cease and desist from using in any advertising media testimonials of users or purported users of said cigarettes which contain any of the representations prohibited in the foregoing paragraph of this order or which are not factually true in all respects."

The Commission contends that each of the seven inhibitions contained in the order is based upon adequate findings and that such findings are substantially and adequately supported by the evidence and that the findings and inhibitions are in conformity with the allegations of the complaint. On the other hand, petitioner contends that the inhibitions either exceed the scope of the complaint, are not supported by the findings or are based upon findings not supported by the record ...


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