10, 1938. The Commission's findings were to the effect that the com-pany's advertising representations had a tendency to and do mislead and deceive buyers into the mistaken belief that the company's preparation has substantial therapeutic and curative value. The casewas argued on the merits June 5, 1939, and on June 30 awaited decision.

Hershey Chocolate Corporation, Hershey, Pa.; Peter Cailler Kohler Swiss Chocolate Co., Inc., Fulton, N. Y.; Lamont, Corliss & Co., New York; Sanitary Automatic Candy Corporation, New York; Berlo Vending Co., Philadelphia; and Confection Cabinet Co., Newark, N. J.-These companies, which include two of the largest chocolate candy-bar manufacturers, a sales corporation, and the three largest vending-machine operators, on May 12, 1939, petitioned the Third Circuit (Philadelphia) to review and set aside the Commission's order of March 14, 1939, directed against restraint of trade agreements in the sale of candy bars to the vending-machinetrade. The Commission found that the Cabinet company, operating machines in theaters throughout the United States, the Sanitary Corporation in the New York metropolitan area and on the West coast, and the Berlo company in the Middle Atlantic States, entered into agreements with the Hershey and Kohler companies that the special chocolate bars made by these companies would be sold only to the respondent vending-machine companies and that the result was that competing vending-machine operators had difficulty in getting and keeping their vending machines in theaters, because they could not buy the Hershey and Nestle chocolate bars at a price that would permit sufficient profit. The order required the termination of these exclusive distributor arrangements. On June 30, the case awaited printing of the transcript, briefing, and argument.

H. N. Heusner & Son, Hanover, Pa., on May 18, 1938, petitioned the Third Circuit (Philadelphia) to review and set aside the Commission's order of May 29, 1937, which directed it to cease and desist from "representing, through the use of the words 'Havana' or 'Habana,' alone or in conjunction with any other word or words, or through the use of any other words of similar import and effect, or in any other manner, that cigars not manufactured entirely from tobacco grown on the Island of Cuba are Havana cigars." The Commission found that the petitioner's "Heusner's Havana Smokers," and "Martinez Havana Smokers," have not at any time contained Havana tobacco, but have been manufactured entirely from domestic tobacco grown in the United States. After briefs had been filed, the case was argued March 21, 1939, and on June 30 awaited decision.

International Art Co., American Discount Co., and John C. Kuck, Chicago. These Illinois corporations and their president, principal

owner, and managing director, petitioned the Seventh Circuit (Chi- ·· cago) on February 14, 1939, to set aside the Commission's cease and desist order of December 16, 1938, which was directed against alleged false and misleading representations in connection with the advertising and sale, in interstate commerce, of tinted or colored enlargements of family and other photographs, and of frames therefor. On June 30, 1939, the case awaited certification and printing of the record, briefing, and argument.

Geo. H. Lee Co., Omaha, Nebr., on August 24, 1938, petitioned the Eighth Circuit (St. Louis) for review of the Commission's cease and desist order of June 30, 1938, which was directed against what the Commission had found to be misleading claims as to the efficacy of "Gizzard Capsules," a remedy for worms in poultry. On March 10, 1939, the Court denied the company's motion "for a special order in this case directing that, in the first instance and until further order, the printing of record and the filing of briefs and the arguments in this case be limited to the question of judicial estoppel, or res judicata, raised by the petition * *." The company claimed that the Commission was estopped from issuing its order because of a prior decision by a district court involving the same subject matter. On March 25, the Court entered an order continuing the case to the October term.

Millinery Creators' Guild, Inc. and others, New York, on November 19, 1937, filed with the Second Circuit (New York) their petition for review and reversal of the Commission's cease and desist order of April 29, 1937, directed against certain "cooperative" practices having the alleged effect of lessening competition in the interstate sale of women's hats. The transcript has been printed and the Commission filed a cross petition requesting the court to affirm and enforce the Commission's order to cease and desist. As of June 30, 1939, the case awaited briefing and argument.

Moretrench Corporation, Rockaway, N. J.-This corporation, a manufacturer of well points, pumps, and equipment used in drawing water from wet soil during excavation work, petitioned the Second Circuit (New York), April 6, 1939, to set aside the Commission's order issued against it on February 6, 1939. The order prohibits the disparagement of competitive products through various means. On June 30, the case awaited printing of the transcript, briefing, and argument.

National Biscuit Co., New York.-The United States District Court, New York, November 28, 1938, handed down an opinion (25 F. Supp. 329) directing a verdict for the National Biscuit Co. in this case. The action was brought under section 10 of the Federal Trade Commission Act to recover penalties aggregating $40,000 for

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delay in furnishing information to the Commission in connection with its agricultural income investigation.

A previous decision by the same court (February 16, 1937) upheld the Commission in its petition for writ of mandamus to require the company to supply certain data required for use in this investigation.

The court held in the instant case that the "annual or special reports" referred to in section 10 of the statute, the failure to file which affords basis for penalty suits, do not include answers to a questionnaire (provided for under section 6-b of the act) and that consequently the action for penalties could not be sustained. At the same time, however, it made it clear that the suit for penalties was "not precluded on constitutional grounds, nor by an election of remedies due to the proceeding for a mandamus.”

National Silver Co., New York, on September 24, 1938, petitioned the Second Circuit (New York) to review and set aside the Commission's modified cease and desist order (a petition to review the original order had been filed May 17, 1938) forbidding the company from "using the word 'Stainless' as a trade name, brand, stamp, label or part thereof, or otherwise, upon or for knives and flatware cutlery, or in advertising or representing the same unless such knives and flatware cutlery are made of steel containing from 9 to 16 percent of chromium and containing not more than 0.7 percent carbon." The modified order prohibited the use of the word "Stainless" "unless such knives and flatware cutlery are made from an alloy commonly known in the trade as 'stainless steel,' produced from iron, chromium, and carbon or other alloying elements, said alloy having the ability to resist corrosion, high temperatures, erosion and abrasion." On motion of the petitioner, both petitions were withdrawn May 1, 1939, and the proceedings dismissed.

The National Silver Co. also petitioned the Second Circuit on September 24, 1938, to set aside another Commission order entered July 29, 1938, directing the company to cease and desist from misleading representations as to special or reduced prices or quality of its silver-plated ware, or from aiding, abetting or assisting retailers in making such misrepresentations; and from representing itself as a manufacturer when such was not the case. On June 30, 1939, this case awaited printing of the transcript, briefing and argument.

Oliver Brothers, Inc., New York, and others.-A petition to review and set aside the Commission's order of December 31, 1937, was docketed with the Fourth Circuit (Richmond, Va.) on May 20, 1938. The Commission's order prohibited practices found to have been in violation of the brokerage section of the Robinson-Patman Act and named as respondents this New York corporation which sells

a market information service and purchasing services principally to wholesalers, and certain companies for which Oliver Brothers either purchases or sells commodities, including automobile, electrical, radio, mill, machine, plumbing, steam, and hardware supplies. The case was argued on the merits January 12, 1939, and the Commission's order unanimously affirmed March 25, 1939 (102 F. (2d) 763).

The opinion is a definite determination of the most important questions which have arisen in connection with interpretation of the brokerage section (sec. 2-c) of the Robinson-Patman Act. It unequivocally holds that this section is constitutional as applied independently of the other sections of the act. It holds in effect that an intermediary may collect brokerage fees only from the party to whom he renders a service; that the buyer in no case can render a selling service to the seller; and that in no case is the buyer entitled to receive brokerage fees directly or indirectly from the seller. Quality Bakers of America, and others, New York.-On June 16, 1939, this trade association, composed of approximately 70 member wholesale baking concerns located in various sections of the United States, petitioned the First Circuit (Boston) to review and set aside the Commission's order of April 27, 1939, directed against an alleged violation of the brokerage clause of the Robinson-Patman Act.

The respondents, including Quality Bakers of America, Inc., a purchasing agent for the associated baking companies, were ordered to cease and desist from receiving or accepting brokerage fees or discounts in lieu thereof in connection with the purchase of commodities by any member baker and from transmitting directly or indirectly any such fees to the members or stockholders of the association. Certain named members of the association were ordered to cease and desist, from receiving or accepting the prohibited fees, and Pillsbury Flour Mills Co., Minneapolis, and Consolidated Flour Mills Co. and The Kansas Milling Co., both of Wichita, Kans., were ordered to cease paying, directly or indirectly, prohibited brokerage or discounts in lieu thereof.

On June 30, 1939, the case awaited printing of the transcript, briefing, and argument.

Raladam Co., Detroit, engaged in the interstate sale of a desiccated thyroid preparation described as "Marmola," on May 16, 1938, petitioned the Sixth Circuit (Cincinnati) to review and set aside the Commission's order of January 21, 1937, directed against what the Commission found to be unwarranted and extravagant claims as to the value of Marmola as a weight-reducing agent. The Commission found that the acts and practices of the Raladam Co. were to the prejudice of the public and of the company's competitors, and con

stituted unfair methods of competition in interstate commerce. As of June 30, 1939, the case awaited printing of the record, briefing, and argument.

Benjamin D. Ritholz and others, trading as Dr. Ritholz Optical Co. and National Optical Stores Co., Chicago.-Involving various misrepresentations in the sale of optical goods, the Commission's complaint was issued June 4, 1937, and tried in Dayton, Ohio, Knoxville, Tenn., Atlanta, Ga., and Chicago, where, on April 4, 1938, the Commission's case was completed. Hearings on behalf of the respondents were scheduled to begin August 9, but on August 3 the respondents, in the United States District Court, Washington, D. C., instituted proceedings to enjoin the Commission from further prosecuting the case. The Commission moved for dismissal and was sustained September 2. In its decree, entered November 17, the District Court recited that the Federal Trade Commission Act provided the respondents with an adequate legal remedy in the event of an adverse ruling by the Commission, namely, an appeal to the United States Circuit Court of Appeals, and that such right of review barred remedy by injunction. The respondents, on January 10, 1939, appealed to the United States Court of Appeals, Washington, D. C., which denied motion for temporary injunction and, in a unanimous opinion delivered by Chief Justice Groner on June 26, affirmed the District Court in sustaining the Commission's motion to dismiss the suit.

With respect to the principal question raised by the suit for injunction, i. e., "Did the amendment of section 5 of the Federal Trade Commission Act of 1914 repeal former section 5 so as to terminate the Commission's authority to proceed against persons for unfair competition occurring before the date of amendment?"—the court concluded:

In the case we have here, the act of Congress which constituted the Federal Trade Commission and defined its duties was changed by the amendment so as to enlarge the Commission's field of operations and to revamp the procedure for enforcement of its orders. Both before and after the amendment the Commission had precisely the same power to issue complaints, to make findings, and to render a decision, and that is what appellants now ask us to restrain. The Commission is not seeking to penalize appellants for prior acts but, as we have seen, is carrying on an administrative proceeding which at most can result in an order prospective in effect. The prior acts afford merely the occasion for the institution of the proceedings. If we need any indication that it was the intent of Congress that the new method of enforcement is to apply to pending complaints, we have it in section 5 (a) of the amending act that as to orders already issued the new 60-day period for review is to date from the enactment.

Sheffield Silver Co., Jersey City, N. J., on March 17, 1938, filed with the Second Circuit (New York) its petition to set aside the