For instance, in Allen B. Wrisley v. Federal Trade Commission (113 F. (2d) 437), the court stated (p. 440):

"One of the brands named in the complaint and the findings is, 'Palm and Olive Oil Soap.' Was the use of such brand and label a representation that it was a 100-percent olive-oil soap, and does the evidence substantially support a finding to that effect? There was testimony by a number of witnesses, including some of the witnesses for the Commission, who testified it would mean to them a soap, the contents of which included, at least, both palm oil and olive oil. The only evidence to the contrary, upon which the Commission is forced to rely, is found in a stipulation between counsel for the respective parties entered into during the course of the hearing. It was stipulated and agreed that if 30 members of the consuming public were called to testify, they would give certain testimony regarding various, matters in controversy. Included in such matters was that '16 of said 30 persons would testify that they understand olive-oil soap to be one, the oil content of which is 100 percent olive oil,' while 14 would testify to the contrary, and 24 of said 30 persons would testify that use of the expression 'palm and olive oil soap' would lead them to believe that said soap is an oliveoil soap, i. e., one containing 100-percent olive oil. In our judgment, such a stipulation can be given little, if any, weight, and cannot be said to be substantial in view of the unanimous testimony to the contrary given by witnesses who appeared personally. How a person with any intelligence could look at the label or brand upon a cake of soap or the wrapper thereof, containing the two descriptive words 'palm and olive' oil and be mislead into believing that such words meant 100-percent olive oil, is so incredible as to be unbelievable. We suppose that by the same process of mental reaction, such witness would believe that the words 'goose grease and lard' means 100-percent lard and no goose, grease, or that if shown a picture of a cow and a horse, would be led to believe he had seen a picture of two horses."

As to other brands involved in the Wrisley case, the court found that the order went far beyond the scope of the proceeding, requiring the naming of each ingredient in the brand name (p. 442):

"Various oils and fats are used in the manufacture of soap, such as olive, palm, tallow, white grease, olive oil foots, etc. Where the soap contains a number of oils, the order, as we understand it, would require that the name of each be inIcluded in the brand or label name. This would seem highly impractical, which perhaps is immaterial, but the essential objection is that such a requirement is beyond the involved issue. The sole issue, as stated heretofore, was that the representation of a 100-percent olive-oil soap was an unfair method of competition. If it failed to meet that requirement, it was immaterial and beside the issue as to what other ingredient it might include. It was that representation which deceived the public. The purpose of the order is to prevent such deception. In order to accomplish such purpose, the public, who has been deceived, needs be informed only that petitioners' soap is less than 100-percent olive oil. With that information, the public who demands a 100-percent olive-oil soap will no longer be interested in petitioners' product, or its contents."

In Gimbel Brothers v. Federal Trade Commission (116 F. (2d) 578), having found that mixtures of wool and other fibers had been represented as "woolens" (without any finding that the petitioner knew, or was negligent in not knowing, that the goods were not all wool), the Commission ordered that when fabrics composed partly of wool were offered for sale, the petitioner could thereafter use the words "wool" and "woolen" (in referring to them as "Mixtures of Wool and Rayon," for example) only if the percentage of each constituent material was stated. The court modified the Commission's order, stating (p. 579):

"We are satisfied that the Commission's order was correct, except for its burdensome proviso. This required, in the case of fabrics composed only partly of wool, words describing each constituent fiber in the order of its predominance by weight; and if any particular fiber was not present in a substantial amount by weight the percentage in which such fiber is present was required to be stated. This goes too far (Whirsley Co. v. Federal Trade Commission, 113 F. (2d) 437, 442 (C. C. A. 7). * * * To require each constituent element to be described in the order of its predominance or in percentages would seem to require the retailer to make a laboratory test of each piece of goods put on sale. The petitioner's competitors are not required to describe mixed woolens in any such detail. The Commission expressly found that one competitor 'truthfully represented' similar merchandise as 'Mixtures of wool and rayon.' We think the order should be modified * * *"

In Establissements Rigaud, Inc., v. Federal Trade Commission (125 F. (2d) 590), the Commission had found that perfume bearing a French name and showing a Paris address, as well as a New York address, on the bottle, misled the public, since the perfume was not compounded in France and the manufacturer was "not strictly a French concern," even though some of its officers lived in France and essential oils used in the perfumes were imported from France. In modifying the order the court said (p. 591):

"We think the order is too broad. The proceeding against Rigaud and Fougera was calculated to correct abuses which at best were trifling and but for the broad discretion lodged in the Commission we should regard as hardly worth serious consideration. It must, however, be remembered that the ingredients of the perfumes were mainly French and that the business to a great extent has been supervised by French directors and stockholders. It is notorious that French names are commonly used to describe perfumes and for some reason seem to be favorites with the trade. It is doubtless permissible to forbid the use of words which indicate a French origin and manufacture when strictissimi juris there is none, but we can see no reason for proscribing the use of all French words when designating the perfumes or for the rather fantastic requirement of the order that the price of retention must be an accompanying English translation. It is enough to insist upon the abandonment of the words 'Paris' or 'Paris, France' unless they are limited as in clause 1 of the order."

It is obvious that substantial injustice would have resulted had the reviewing courts not modified the orders in the Wrisley, Gimbel, and Rigaud cases cited above. Since those cases were decided, however, several decisions of the Supreme Court appear to have taken away the power of the circuit courts of appeals to review the remedies prescribed by administrative bodies, with the result that if the above cases were decided today, the circuit courts would be powerless to change the orders of the Commission, unjust as they were. This is apparent from the recent case of Herzfeld v. Federal Trade Commission (140 F. (2d) 207, O. C. A. second circuit). In this case the court was considering an order of the Federal Trade Commission which forbade the petitioners to use the word "Mills" as part of their title where it appears that they were importers and wholesalers, but not manufacturers. After finding that the Commission was justified in concluding that retailers were misled by petitioner's title, the court said (pp. 208, 209):

66* * ** It does not follow that the relief granted should extend to an entire suppression of the word, 'Mills'; and, if we thought ourselves free to control the remedy, we might be satisfied to modify the order by merely adding some such suffix as the Supreme Court thought adequate in Federal Trade Commission v. Royal Milling Co. (288 U. S. 212, 218, 53 Sup. Ct. 335, 77 L. Ed. 706); and as we imposed in Bear Mill Mfg. Co. v. Federal Trade Commission (2 Cir., 98 F.2d 67). Assuming that the distinction taken by the Court of Appeals for the District of Columbia in Federal Trade Commission v. Army & Navy Trading Co. (66 App. D. C. 394, 88 F. 2d 776), is valid, it would not apply to the situation here; the petitioners are near enough to being manufacturers to justify their use of the title as it stands, provided all chance of deception were removed.

"However, since Federal Trade Commission v. Royal Milling Co., supra (288 U. S. 212, 53 Sup. Ct. 335, 77 L. Ed. 706), was decided, the Supreme Court has as much circumscribed our powers to review the decisions of administrative tribunals in point of remedy, as they have always been circumscribed in the review of facts. Such tribunals possess competence in their special fields which forbids us to disturb the measure of relief which they think necessary. In striking that balance between the conflicting interests involved which the remedy measures, they are for all practical purposes supreme. International Ass'n of Machinists v. National Labor Relations Board (311 U. S. 72, 82, 61 Sup. Ct. 83, 85 L. Ed. 50); Phelps Dodge Corp. v. National Labor Relations Board (313 U. S. 177, 198-200, 61 Sup. Ct. 845, 85 L. Ed. 1271, 133 A. L. R. 1217); Virginia Electric & Power Co. v. National Labor Relations Board (319 U. S. 533, 541-543, 63 Sup. Ct. 1214, 88 L. Ed. 1568); Williams Motor Co. v. National Labor Relations Board (8 Cir., 128 F. 2d 980, 965). It is true that all these decisions concerned the Labor Board, but that tribunal does not enjoy a position of peculiar authority, as the court has indicated in other connections. [Citing cases.] In controversies about trade-marks, and particularly about trade-names and make-up, the question is almost always one of degree; i. e., how far the chance of deception outweighs the inconvenience, or worse, to the merchant inevitable in compelling him to change his mark, his name, or his package. The decree marks the compromise which the court thinks adequate and necessary; it is the resultant of those unex

pressed determinants which collectively we conceal under the term 'discretion.' We do not forget that from time immemorial this duty has been entrusted to courts, but that is irrelevant. Congress having now created an organ endued with the skill which comes of long experience and penetrating study, its conclusions inevitably supersede those of courts, which are not similarly endowed." Having in mind the observations of the second circuit court in other Federal Trade Commission matters, the irony in the last sentence quoted above is apparent.

Even before the Supreme Court took away the power of the reviewing courts to exercise discretion with respect to the remedy exacted by the Commission, it had cut off any tendency toward the use of judicial discretion in the review of the Commission's findings of fact in its decision in Federal Trade Commission v. Standard Education Society (302 U. S. 112). That case involved sales methods used in marketing an encyclopedia. The Circuit Court of Appeals for the Second Circuit had followed earlier cases and taken what might be termed an adult view of certain of the Commission's findings (86 Fed. (2d) 692, 695):

"Coming now to the practices forbidden, the first and third clauses of the order were in substance the same; they forbade representing that the 10 books were given away and that only the 'extension service' was sold. It is true that the Commission is not to sanction unfair trade practices merely because they are of long standing; its duty is to bring trade into harmony with fair dealing (Federal Trade Commission v. Winsted Hosiery Co., 258 U. S. 483, 493, 494, 42 Sup. Ct. 384, 385, 386, 66 L. Ed. 729). To the discharge of that duty it should not, however, bring a pedantic scrupulosity; too solicitous a censorship is worse than any evils it may correct, and a community which sells for profit must not be ridden on so short a rein that it can only move at a walk. We cannot take seriously the suggestion that a man who is buying a set of books and a 10 years' 'extension service,' will be fatuous enough to be misled by the mere statement that the first are given away, and that he is paying only for the second. Nor can we conceive how he could be damaged were he to suppose that that was true. Such trivial niceties are too impalpable for practical affairs, they are will-o'the-wisps, which divert attention from substantial evils (Winston Co. v. Fed. Trade Comm., 3 F. (2d) 961 (C. C. A. 3)). It is possible to read Consolidated Book Publishers v. Fed. Trade Comm. (53 F. (2d) 942 (C. C. A. 7)), as holding to the contrary, but the case was complicated by a number of graver practices which probably colored the whole. We are not satisfied that stripped of these, the bare practice would have been held bad; if so, we prefer to follow the third circuit."

The circuit court had also taken the liberty to determine that another clause of the order was not supported by evidence, because the only evidence referred to was a witness' conclusion which was outweighed by other evidence. The court stated (p. 697):

"The eighth and ninth clauses were related; they concerned testimonials used as advertisements. For the eighth, which forbade the use of such testimonials which had not been given by the person whose name was used, we have been able to find no support in the evidence; and we are referred to none except the conclusions of one Nixon, which are outweighed by her identification of the handwriting of the person whose name was used."

The decision of the circuit court of appeals was reversed by the Supreme Court as to clauses 1, 3, and 8 of the order (302 U. S. 112, at p. 117). The Supreme Court stated (p. 117):

"The courts do not have a right to ignore the plain mandate of the statute which makes the findings of the Commission conclusive as to the facts if supported by testimony. The courts cannot pick and choose bits of evidence to make findings of fact contrary to the findings of the Commission. The record in this case is filled with evidence of witnesses under oath which support the Commission's findings. Clauses 1 and 3 of the Commission's order should be sustained and enforced.

*

"The court of appeals reversed the eighth clause of the order of the Commission. The reason given by the court below for this action was as follows: "For the eighth, which forbade the use of such testimonials which had not been given by the person whose name was used, we have been able to find no support in the evidence;

* *

"We are convinced that the Commission's findings of fact justified this clause of the order and that the testimony supports these findings."

The effect of the Standard Education case is reflected in the opinion of the second circuit court in Moretrench Corp. v. Federal Trade Commission

(127 F. (2d) 792), where the court displayed, some impatience with the "pedantic scrupulosity" of the Commission, but confessed its impotence to do anything about it. The Moretrench case involved advertising of devices known as well points, which were sold to engineering contractors for use in draining wet places preparatory to building or engineering operations. The following portion of the court's opinion is of interest (p. 794):

"The second question is of the effect of not introducing a second valve to prevent 'backwash.' The second valve does do just that, and the Commission now concedes that the Moretrench Corp. should be allowed to proclaim the advantages of its own construction; for this reason its order only forbids 'disparaging' the Complete or Griffin well points because they do not prevent 'backwash.' Apparently the trade differs as to the value of this feature; particularly in the case of a pointed well point, like the Complete and the Griffin; some people believe it to be an advantage to have some of the 'jetting' water flow back into the draining space and out through the holes in the side of the point. They think that it lubricates' the surrounding soil and makes it easier to sink the well point. Moreover, they believe that the 'backwash' helps clear the screen as it sinks, and that it is otherwise likely to become clogged There was testimony to that effect which the Commission might accept, as it did in preference to the contrary testimony of the Moretrench Corp.'s experts. On the record we doubt whether we should have concluded that the 'disparaging' statements were misleading; but since our office ends as soon as substantial support for the finding, this part of the order must also be affirmed.

we find

"The next statement challenged is that one Moretrench well point is as good as any five others and never clogs. This was part of an insignificant advertisement which appeared over 5 years ago and had been discontinued before the complaint was filed. It was put in quotes and followed by the words 'say experienced contractors.' It is not apparent how it is important now to forbid its repetition. Nevertheless, the Commission thought it otherwise, took evidence upon the issue, found that it was untrue-which literally it was-and now presses this part of the order. The only point which can be made against it is that it was put forward as an opinion of others, and not as emanating from the Moretrench Corp. itself. It is extremely hard to believe that any buyers of such machinery could be misled by anything which was patently no more than the exurberant enthusiasm of a satisfied customer, but in such matters we understand that we are to insist upon the most literal truthfulness (Federal Trade Commission v. Standard Education Society, 302 U. S. 112, 116 (25 F. T. C. 1715)). Nor is it an excuse for a statement after it is known to be false that it is put forward as a quotation (United States v. John J. Fulton Co. (33 F. (2d) 506, 507 (C. C. A. 9)).

"The last of the misleading statements is that 'contractors all over the world testify' that operating cost of the Moretrench system is 50 percent lower than that of any other. This was part of the same obscure advertisement we have just mentioned, and of another, equally obscure, published 13 months later. Literally speaking, it was, of course, untrue; contractors 'all over the world' did not testify as they were quoted. As this was the only part found to have been false, it is again hard to imagine how anyone reading it could have understood it as more than puffing; yet for the reasons we have just given, if the Commission saw fit to take notice of it, we may not interfere."

The recent case of Jacob Siegel Company v. Federal Trade Commission (150 F. (2d) 751), decided in 1944 by the Circuit Court of Appeals for the Third Circuit, is an excellent demonstration of the extent to which the hands of the reviewing courts have been tied by the development over the years of the inhibition against any exercise of judgment with respect to the quality of the evidence relied on by the Commission, as well as the remedy prescribed by the Commission. In this case, the circuit court felt strongly that the Commission's order was far too harsh, and stated that if the court were still in control of the remedy, it would modify the order. It is also rather evident from the court's opinion that it felt that the evidence relied upon by the Commission, although "substantial," was against the weight of the evidence.

In the Siegel case, the Commission ordered the petitioner to cease and desist from using the word "Alpacuna" to describe the coats which it manufactured, which were made of a combination of alpaca, mohair, and wool fibers, on a cotton backing. The company had used the word to describe coats of this cloth since 1930. The Commission found that the word was misleading and deceptive, as

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representing that the coats contained fiber obtained from the animal known as vicuna (pp. 752, 753):

"According to the petitioner's testimony, which was not contradicted, the name 'Alpacuna' was created by its sales manager who used a fanciful variation of the word 'alpaca,' which animal represented 50 percent of the wool fibers in the fabric. To alpaca the suffix 'una' was added partly in order to obtain a word that was very easy to pronounce and partly to signify that the Siegel Co. was the one manufacturer and the first to make the coat. The head of the Siegel Co. testified that he did not have vicuna in mind at all in connection with the name ‘Alpacuna.' He said further: 'I was not familiar with it [vicuna] and I have been in business for 30 years and only in the last 5 years or 6 years I have heard of vicuna. I was not interested in it. We never used it.' It is undisputed that the vicuna is one of the rarest of animals. It is found principally in the high mountains of Peru and is of the llama family. In order to obtain its hair, the animal itself has to be killed. Such killing is regulated by law. Vicuna hair is one of the softest, finest animal fibers but has poor wearing qualities. Only a small amount of the fiber comes into the United States. The overcoats made from it are valuable and run as high as $900. The 'Alpacuna' coats retail at $40.

"Strong testimony was presented supporting the petitioner's proposition that 'Alpacuna' is a proper trade name for the particular coats and that the name does not represent to the public that the coats contain vicuna fiber. There was evidence of a poll taken in the particular section of a large New York department store where such coats were sold. Over 200 customers chosen at random were questioned and not one of them declared that the name 'Alpacuna' indicated vicuna to them. There were numerous other witnesses, including members of. the public, reputable people in the clothing trade, department store specialists in protecting customers, a representative of clothing workers, a textile expert, etc. A person connected with the National Better Business Bureau stated he has never received a complaint regarding the name Alpacuna.' One of the functions of that organization is to receive complaints as to merchandise. The only person in the country who manufactures vicuna coats sent a letter to the Commission saying that he had no objection to the use of the name 'Alpacuna' by petitioner. In addition to the direct defense testimony, some of the Government witnesses supported the defense contention affirmatively by testimony to the effect that 'Alpacuna' did not mean vicuna content to them; there were other Government witnesses whose testimony was weak; and still others indicating prejudice or bias.

"Petitioner next stresses the point that vicuna animal fiber and its qualities are not generally known to the public. It calls attention to the admitted rarity of the animal. One expert for the Commission stated that it is almost extinct. * * * It is contended that the thought of the $40 ‘Alpacuna' coat capitalizing on the term vicuna is far-fetched since most of the potential customers do not have the least idea as to vicuna and the few who do readily understand that a coat for large production and in the lower price field could not be produced from vicuna fiber."

The Commission also produced an array of witnesses who associated vicuna with the word "Alpacuna." These witnesses included representatives of stores who, presumably, did not handle the petitioner's coats; but the court pointed out that even if it assumed that some of the testimony on behalf of the Commission was prejudiced or biased, the court could not intervene whatever its thought, if the Commission wished to rely upon such testimony. The opinion continued (p. 754):

"Obviously, from the above very brief outline of the evidence, the petitioner has made an impressive showing in its effort to retain the name 'Alpacuna.' The Siegel Co. is a well-known and highly regarded concern and its coats have achieved considerable popularity in their own price range. They are widely publicized and large sums of money have been expended by the Siegel Co. and various retail stores in merchandising them. The Siegel Co. coined the name for the coats in 1930, and has been using it since that time. At this time it is a valuable asset not only to the company but, as the amicus curiae brief points out, to certain retail establishments throughout the United States.

*

"Just as obviously, it clearly appears that there is substantial evidence supporting the Commission's decision. * * Upon the whole record the Commission made a finding that the name 'Alpacuna' is misleading and deceptive to a substantial portion of the purchasing public in that it represents or implies to such persons that the coats contain fiber obtained from the animal known as