unanimous opinion of the United States Supreme Court, Federal Trade Commission v. Keppel & Bro., 291 U. S. 304, February 5, 1934.

The petitioners and the other practitioners of this type of merchandising have followed that ancient precept of the sea, "women and children first," except that they pervert instead of protect weakness. Taking candy from children has never been highly regarded. Forcing it upon them through their possession of an instinct that the adult world recognizes and has always recognized as at the bottom of many of its troubles, seems to us shameful.

The case of Bunte Brothers, Inc., Chicago, was argued April 27, 1939, before the Seventh Circuit (Chicago), which, on May 17, 1939, unanimously affirmed the Commission's order, saying (104 F. (2d) 996):

Petitioner's attack upon the Commission's order as it affects the "punchboard assortments" is somewhat difficult for us to comprehend.

To us it is devoid of all logic. The customer who spends his dollar on a candy punchboard does so with the expectation of acquiring a box of candy. If he succeeds he has procured a box of candy which otherwise he would have purchased as a cash sale. If. however, he spends his dollar on the punchboard and wins nothing, his money is gone and there will be no cash sale of a box of candy. In either event the dealer who offers his candy for cash has been deprived of a sale and his business reduced and interfered with to that extent. We think it is a fallacy to say there has been a diversion but no competition. It is difficult for us to understand how a competitor could be injured except by diverting his business. The one who is responsible for that diversion is a competitor and if the diversion is occasioned by a gambling apparatus which is contrary to public policy, per se, we think, unquestionably, such a method constitutes unfair trade practice as defined by the act.

Bunte Brothers, Inc., also, November 5, 1938, petitioned the Seventh Circuit (Chicago) for a review of an order of the Commission in another case, prohibiting unfair trade practices in intrastate commerce which injuriously affect interstate commerce. This case was pending on June 30, 1939.

The Sweets Co. of America, New York, February 6, 1939, docketed with the Second Circuit (New York), its petition to review and set aside the Commission's order. By stipulation, the petitioner was granted until September 25, 1939, for printing the transcript, following which the case was to be briefed and argued.

E. J. Brach & Sons, Chicago, May 13, 1939, petitioned the Seventh Circuit (Chicago), for a reversal of the Commission's order. Following the decision of the National Candy Co. case (supra), this case was, on June 30, 1939, dismissed, by stipulation of the parties. A case involving the Sweet Candy Co., Salt Lake City, docketed with the Tenth Circuit (Denver), May 19, 1938, was still pending on June 30, 1939, as a result of a stipulation withholding further action until after final adjudication of the cases involving the Ostler

Candy Co., Glade Candy Co., and the Shupe-Williams Candy Co., argued in that Court June 19-20, 1939.

Capon Water Co., Philadelphia, and Capon Springs Mineral Water, Inc., Capon Springs, W. Va., on May 19, 1938, petitioned the Third Circuit (Philadelphia) to review and set aside the Commission's order of January 20, 1938. The order directed them to cease and desist from representing, directly or by implication, that the use of their product "Capon Springs Water" alone, either externally or internally, will cure kidney troubles, nephritis, rheumatism, arthritis, and some 30 other diseases and ailments. The case was argued on the merits June 9, 1939, and at the close of the fiscal year awaited decision.

Carter Carburetor Corporation, St. Louis, one of the largest manufacturers of automobile carburetors, on March 15, 1939, petitioned the Eighth Circuit (St. Louis), to review and set aside the Commission's order requiring the respondent to cease and desist from making or renewing contracts with service stations or other retail dealers, on the condition that they shall not use or deal in the products of the respondent's competitors; from fixing prices to be charged or discounts to be allowed such purchasers on the same condition, and from notifying them that if they deal in competing products they will be required to pay a higher price for Carter products, or their servicestation contracts will be terminated, and other practices deemed to be in violation of section 3 of the Clayton Act. As of June 30, the case awaited the printing of the record, briefing, and argument. Century Metalcraft Corporation, Chicago, on June 28, 1939, petitioned the Seventh Circuit (Chicago) to review and set aside the Commission's order, which prohibited representations that doctors or hospitals have endorsed the kitchen utensils distributed by the respondent, unless such endorsements are made by doctors who are dietary experts or hospitals acting through dietary experts; circulation of disparaging statements concerning the respondent's competitors, or representing that the utensils designated by it as "Silver Seal" contain no aluminum or are more durable or easily cleaned than aluminum or granite utensils; that they will not pit, and that the method of cooking made possible by the utensils is new and revolutionary, or that the utensils were used generally by the United States Army during the World War. On June 30, the case awaited certification and printing of the transcript, briefing, and argument.

Educators Association, Inc., and others, New York.-Petition for review of the Commission's order of March 9, 1939, was docketed with the Second Circuit (New York), April 5. The association sells and distributes a school reference book designated "The Volume Library," employing as many as 1,500 agents and canvassers a year. The prac

tices prohibited by the order are: Representing, through use of the term "Educators Association" or any other means or device, that the petitioners constitute a group of educators or teachers formed into an association, or that the business operated by them is anything other than a private business enterprise for profit; representing to prospective representatives that they will refund deposits or pay any specific sums of money or salary to such representatives, unless they fully disclose all the terms upon which refunds or payments are actually made, and representing or implying that they or their representatives, agents or canvassers are connected in any manner with public schools or other educational institutions. On June 30, the case awaited the printing of the record, briefing, and argument.

El Moro Cigar Co., Greensboro, N. C.-Petition for review was filed with the Fourth Circuit (Richmond), April 22, 1939. The Commission's order directs the company to stop employing the word "Havana" or other words or picturizations indicative of Cuban origin to designate cigars not made from tobacco grown in Cuba. It was found that the company's "Havana Counts" cigars were made entirely of domestic tobacco. As of June 30, the case awaited printing of the transcript, briefing, and argument.

Fashion Originators Guild of America, Inc., and others, New York.-Petitions for review of the Commission's order of February 8, 1939, were filed with the Second Circuit (New York), April 6, with the Sixth Circuit (Cincinnati), April 8, and with the Seventh Circuit (Chicago), April 6.

The order required the Guild, its officers and directors, and membership composed of 225 manufacturers of textiles and women's garments, to cease and desist from certain boycotts and monopolistic practices. Other respondents include the National Federation of Textiles, Inc. (New York), comprising about 100 manufacturers, converters, dyers, and printers of silk and rayon fabrics, and Chicago, Minneapolis, and Baltimore retailer organizations and their respective officers, directors, and members, together with approximately 12,000 cooperating retailers, all of whom were found to have cooperated with Fashion Originators Guild of America in effectuating its unlawful policies.

The Commission found that the Fashion Originators Guild, usually referred to as F. O. G. A., had a membership whose sales of women's garments in the wholesale price range of $10.75 and up amounted to about 84 percent of the total sales of women's garments, and that this domination made it necessary for retailers to carry their lines to meet. the public demand. It was found that F. O. G. A. brought about agreements that its members would sell only to cooperating retailers and the retailer organizations agreed that their members would re

frain from purchasing from manufacturers not cooperating with F. O. G. A.; that cooperation of retailers was obtained by F. O. G. A. through threats that its members would refuse to sell to noncooperating dealers; that F. O. G. A. designated the respondent National Federation of Textiles as the official bureau for registering textile designs, and that the garment manufacturers agreed to buy only textiles registered with the federation and textile members agreed to sell only to cooperating garment manufacturers.

On June 30 the case awaited certification and printing of the record, briefing, and argument.

Fioret Sales Co., Inc., New York, in connection with the interstate sale and distribution of perfumes, was directed to cease and desist from representing, directly or through implication, through the use of such words as "Les Parfums des Jardine de Fioret," or through the use of any foreign words or phrases, or in any manner, that perfumes manufactured or compounded in the United States are made or compounded in France or in any other foreign country, or are imported. The company, May 17, 1938, petitioned the Second Circuit (New York) to review and set aside the Commission's order.

The case was argued November 21, 1938, and decided in favor of the Commission December 5, 1938 (100 F. (2d) 358). The following extract from the court's opinion is pertinent:

The findings, sufficiently supported by the evidence, justify the conclusion that petitioners do not import a perfume, but only some of its ingredients, which are then combined with American alcohol to produce a marketable product known as perfume. Concentrates alone are not what petitioners usually sell, but their dilutions with alcohol, and it is the alcohol that makes the finished product.

By representing their product as an imported perfume, petitioners unfairly compete. The purchaser is unversed in the art of making a finished perfume and to say that a given perfume is imported must mean to him that the entire fluid is imported, not that only 5 percent of it is. To the purchasers of perfumes imported products are preferable to domestic products. By their conduct, petitioners are infringing upon the interest of the consuming public which purchases under the mistake that it is buying an imported perfume, a product rendered marketable and fit for use. They also compete unfairly with those importers of perfume whose concentrates and alcohol are blended in France and with those tradesmen who import, like petitioners, the concentrates and dilute them with domestic alcohol but who, unlike petitioners, sell their products accurately represented and advise the purchasing public that they are selling a domestic perfume.

A decree was entered December 16, 1938, and on December 23 the court denied the Commission's application to amend it. The Commission afterwards moved for resettlement of the decree, with the result that its motion was, on April 28, 1939, granted and the decree submitted by it was signed, superseding that previously entered.

Goodyear Tire & Rubber Co., Akron, Ohio.-After reargument on the merits on December 9, 1938, the Sixth Circuit (Cincinnati),

February 16, 1939, in an opinion by Circuit Judge Simons, set aside the Commission's order in this case. This was the second opinion by this Court, the first one, November 5, 1937, having held that the controversy between the Goodyear Co. and the Commission had become moot, and the Supreme Court, in turn, May 16, 1938, having reversed the lower court and remanded the case for determination on the merits.

The Commission's order had directed the Goodyear Co., its subsidiaries, and their officers and agents, to cease and desist from discriminating in price, in violation of section 2 of the Clayton Act," between Sears, Roebuck & Co. and the Goodyear Co.'s retail-dealer customers by selling automobile tires to Sears, Roebuck & Co., at net realized prices lower than those at which the Goodyear Co. sold the same sizes of tires of comparable grade and quality to individual tire dealers or other purchasers.

The Court concluded its opinion with the statement

that the Commission had no power to command discontinuance of price differentials reasonably based on quantity, and there is no finding which properly construed determines that those here involved are not so based, since no standard for the making of such finding is recognized.

In a dissenting opinion, Circuit Judge Hamilton took the position that

it was not intended that the prohibition-against discrimination in priceshould be canceled by the proviso "permitting discrimination by reason of difference in quantity." Such an interpretation would lead to an absurdity, and if the rule of liberality applied in the majority opinion is applicable to the proviso, it sets up a method of evasion not intended by the Congress.

Petition for writ of certiorari, on behalf of the Commission, was filed with the Supreme Court on May 16, 1939.

Great Atlantic & Pacific Tea Co., New York, on March 18, 1938, petitioned the Third Circuit (Philadelphia) to review and set aside the Commission's cease and desist order of January 25, 1938. This was the second Commission case involving the legality of the Robinson-Patman Act to reach the courts. The order directed the respondent company to cease and desist from various practices (listed in the Commission's Annual Report for 1938, pp. 84 and 85) held to be in violation of the brokerage section of the Robinson-Patman Act. The case was argued June 7, 1939, and on June 30 awaited decision.

Justin Haynes & Co., Inc., New York.-Petition for review of the Commission's order prohibiting certain alleged misrepresentations concerning the therapeutic value of a medication designated "Aspirub," was docketed with the Second Circuit (New York) June

11 The commission order in the Goodyear case was issued prior to enactment of the Robinson-Patman Act which amended section 2 of the Clayton Act.