Trade Commission v. Kay, 7 Cir., 35 F. (2d) 160, 162 [13 F. T. C. 575; 1 S. & D. 1162], certiorari denied Kay v. Federal Trade Commission, 281 U. S. 764; cf. Federal Trade Commission v. Winsted Hosiery Co., 258 U. S. 483, 494 [4 F. T. C. 610; 1 S. & D. 198].

There is no merit to petitioner's argument that, since no straight-thinking person could believe that its cream would actually rejuvenate, there could be no deception. Such a view results from a grave misconception of the purposes of the Federal Trade Commission Act. That law was not "made for the protection of experts, but for the public-that vast multitude which includes the ignorant, the unthinking and the credulous," Florence Mfg. Co. v. J. C. Dowd & Co., 2 Cir., 178 Fed. 73, 75; and the "fact that a false statement may be obviously false to those who are trained and experienced does not change its character, nor take away its power to deceive others less experienced." Federal Trade Commission v. Standard Education Soc., 302 U. S. 112, 116 [25 F. T. C. 1715; 2 S. & D. 429]. See, also, Stanley Laboratories, Inc. v. Federal Trade Commission, 9 Cir., 138 F. (2d) 388, 392–393 [37 F. T. C. 801; 3 S. & D. 596]; Aronberg v. Federal Trade Commission, 7 Cir., 132 F. (2d) 165, 167 [35 F. T. C. 979; 3 S. & D. 528]; D. D. D. Corp. v. Federal Trade Commission, 7 Cir., 125 F. (2d) 679, 682 [34 F. T. C. 1821; 3 S. & D. 455]. The important criterion is the net impression which the advertisement is likely to make upon the general populace. Stanley [680] Laboratories, Inc. v. Federal Trade Commission, supra; Aronberg v. Federal Trade Commission, supra; Federal Trade Commission v. Standard Education Soc., supra; Ford Motor Co. v. Federal Trade Commission, 6 Cir., 120 F. (2d) 175, 182 [33 F. T. C. 1781; 3 S. & D. 378], certiorari denied 314 U. S. 668; Newton Tea & Spice Co. v. United States, 6 Cir., 288 Fed. 475, 479. And, while the wise and the worldly may well realize the falsity of any representations that the present product can roll back the years, there remains "that vast multitude" of others who, like Ponce de Leon, still seek a perpetual fountain of youth. As the Commission's expert further testified, the average woman, conditioned by talk in magazines and over the radio of "vitamins, hormones, and God knows what," might take "rejuvenescence" to mean that this "is one of the modern miracles" and is "something which would actually cause her youth to be restored." It is for this reason that the Commission may "insist upon the most literal truthfulness" in advertisements, Moretrench Corp. v. Federal Trade Commission, 2 Cir., 127 F. (2d) 792, 795 (34 F. T. C. 1849; 3 S. & D. 480], and should have the discretion, undisturbed by the courts, to insist if it chooses "upon a form of advertising clear enough so that, in the words of the prophet Isaiah, 'wayfaring men, though fools, shall not err therein.'" General Motors Corp. v. Federal Trade Commission, 2 Cir., 114 F. (2d) 33, 36 [31 F. T. C. 1852; 3 S. & D. 282], certiorari denied 312 U. S. 682.

That the Commission did not produce consumers to testify to their deception does not make the order improper, since actual deception of the public need not be shown in Federal Trade Commission proceedings. Federal Trade Commission v. Winsted Hosiery Co., supra, 258 U. S. at page 494 [4 F. T. C. 610; 1 S. & D. 198]; Federal Trade Commission v. Raladam Co., 316 U. S. 149, 152 [34 F. T. C. 1843; 3 S. & D. 474]; Herzfeld v. Federal Trade Commission, 2 Cir., 140 F. (2d) 207, 208 [38 F. T. C. 833]; Federal Trade Commission v. Balme, 2 Cir., 23 F. (2d) 615 [11 F. T. C. 717; 1 S. & D. 666]; certiorari denied Balme v. Federal Trade Commission, 277 U. S. 598; Brown Fence & Wire Co. v. Federal Trade Commission, 6

Cir., 64 F. (2d) 934, 936 [17 F. T. C. 680; 2 S. & D. 230]; Pep Boys— Manny, Moe & Jack, Inc. v. Federal Trade Commission, 3 Cir., 122 F. (2d) 158, 161 [33 F. T. C. 1807; 3 S. & D. 401]; Bockenstette v. Federal Trade Commission, 10 Cir., 134 F. (2d) 369 [36 F. T. C. 1106; 3 S. & D. 539]; Federal Trade Commission v. Hires Turner Glass Co., 3 Cir., 81 F. (2d) 362, 364 [21 F. T. C. 1207; 2 S. & D. 315]. Representations merely having a "capacity to deceive" are unlawful, Federal Trade Commission v. Algoma Lumber Co., 291 U. S. 67, 81 [18 F. T. C. 669; 2 S. & D. 247]. Herzfeld v. Federal Trade Commission, supra; General Motors Corp. v. Federal Trade Commission, supra; and, as we have seen, the facts here more than warrant a conclusion of such capacity. Likewise it is not material that there was no consumer testimony as to the meaning of petitioner's representations. The testimony of the dermatologist, a person whose occupation took him among the buyers of Rejuvenescence Cream, is a qualified source of information "as to the buyers' understanding of the words they hear and use." Benton Announcements v. Federal Trade Commission, 2 Cir., 130 F. (2d) 254, 255 [35 F. T. C. 941; 3 S. & D. 495]; Stanley Laboratories, Inc. v. Federal Trade Commission, supra, 138 F. (2d) at page 390 [37 F. T. C. 801; 3 S. & D. 596].

Petitioner contends finally that, even if the Commission's findings of fact be upheld, that part of the order is inappropriate which bars use of the word "rejuvenescence." To delete this part of the order, however, would be not merely to create a patent ambiguity as to the meaning and effect of the broad prohibition of the remaining part of the order, but also to a large extent to frustrate the purposes of the whole proceeding to insure truth telling in the cosmetic trade. Certainly courts should be reluctant to emasculate a remedial order by striking out its more dynamic and practically effective parts while they affirm the Commission's proceedings as a whole. In any event, as we recently pointed out in Herzfeld v. Federal Trade Commission, supra, 140 F. (2d) at page 209 [38 F. T. C. 833], the Supreme Court in recent cases "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"; and the present order seems peculiarly one wherein the special competence of the Commission in deciding "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" makes it "for all practical purposes supreme."

The order is affirmed and an enforcement decree will be entered.

CORN PRODUCTS REFINING CO. v. FEDERAL TRADE COMMISSION 1

No. 8116-F. T. C. Dock. 3633

(Circuit Court of Appeals, Seventh Circuit. July 6, 1944)

METHODS, ACTS AND PRACTICES-DISCRIMINATING IN PRICE-CLAYTON ACT, Sec. 2(a) -DELIVERED PRICES-FICTITIOUS OR "PHANTOM" FREIGHT-WHERE PREDICATED ON INCLUSION OF, OR BASING POINT SYSTEM-AS INVOLVING DIFFERENCE IN CHARGES NOT BASED ON ACTUAL DIFFERENCES IN SERVICE OR Delivery, and in VIOLATION OF STATUTE.

Manufacturer of glucose having factories in Chicago and Kansas City and fixing selling prices by adding to effective Chicago price the freight rate from Chicago to destination, regardless of whether merchandise was forwarded from Kansas City or Chicago, violated the Clayton Act as amended, prohibiting discrimination in price, since the statute forbids any difference in charges to different competitive customers not based upon actual differences in service or delivery. Clayton Act sec. 2(a), as amended by Robinson-Patman Price Discrimination Act sec. 1, 15 U.S.C.A. sec. 13(a).

METHODS, ACTS AND PRACTICES-DISCRIMINATING IN PRICE-CLAYTON ACT, Sec. 2(a) -VIOLATION OF PROOF-ACTUAL INJURY-WHETHER REQUISITE.

The Clayton Act as amended, prohibiting persons engaged in commerce from discriminating in price, does not require [212] proof of actual injury, but it is unlawful to discriminate in price between different purchasers where effect may be substantially to lessen competition, or to injure, destroy or prevent competition with any person who either grants or knowingly receives benefit of discrimination STATUTES AND STATUTORY CONSTRUCTION-CRITERIA-WISDOM OF LEGISLATION— JUDICIAL LIMITATIONS.

Courts are not concerned with determination of wisdom of legislative policies, the only functions of judiciary being to so interpret statute as to promote and effectuate disclosed intent of Congress, to determine whether factual situation is within contemplation of act and whether legislation or acts of administrative bodies charged with enforcing it infringe upon constitution.

METHODS, ACTS AND PRACTICES-DISCRIMINATION IN PRICE-CLAYTON ACT, SEC. 2(a) -SPECIFIC PATTERNS-DESIRABILITY OF.

The court must give effect to words of Clayton Act as amended as written, and to determine, not whether any suggested formal pattern is beneficial and desirable, but whether the specific practice of petitioners seeking review of order of Federal Trade Commission to cease and desist from discriminating in prices was within prohibition of act.

METHODS, ACTS AND PRACTICES-DISCRIMINATING IN PRICE-CLAYTON ACT, SEC. 2(a) -SPECIFIC PATTERNS-IF FACTS WITHIN CERTAIN FORMULAE.

The Clayton Act as amended, prohibiting discrimination in price by any per

1 Reported in 144 F. (2d) 212. For case before Commission, see 34 F. T. C. 850.

son engaged in commerce, does not grant exemption from discrimination merely because the facts fall within certain formulae; the real question being whether the discriminations inherently have the condemned probable effect upon competition. METHODS, ACTS AND PRACTICES-DISCRIMINATING IN PRICE-CLAYTON ACT, SEC. 2(a) -BOOKING PRACTICE ON PRICE ADVANCES-WHERE ORDERS FOR FUTURE DELIVERY AT OLD PRICE, ACCEPTED FROM FAVORED CUSTOMERS.

Evidence that, upon promulgation of price advances, petitioners, for five to ten days, accepted orders from favored customers for future delivery at previously prevailing lower price, justified Federal Trade Commission's finding that the favored customers received an illegal discriminatory advantage in violation of the Clayton Act as amended, prohibiting discrimination in price.

METHODS, ACTS AND PRACTICES-DISCRIMINATING IN PRICE-CLAYTON ACT, SEC. 2(a) -BOOKING PRACTICE ON PRICE ADVANCES-WHERE ORDERS FOR FUTURE DELIVERY AT OLD PRICE, ACCEPTED FROM FAVORED CUSTOMERS-WHETHER JUSTIFIED BY COMPETITION-IF TESTIMONY MERELY STATEMENT OF CONCLUSIONS OF WITNESSES.

Prima facie case of discriminatory booking practice where sellers accepted orders for future delivery from favored customers at previously prevailing lower prices for five to ten days after prices were increased was not rebutted by testimony merely stating conclusions of witnesses that prima facie case of discrimination was justified by competition.

METHODS, ACTS AND PRACTICES-DISCRIMINATING IN PRICE-CLAYTON ACT, SEC. 2(a) -QUANTITY DISCOUNTS-IF EXTENDED TO CERTAIN CUSTOMERS IN TERRITORY WITHOUT ORDER TO OTHERS THEREIN.

Stipulation that petitioners sold for resale to certain customers in territory gluten feed and meal under contracts giving buyers discounts of 50 cents or more a ton from regular market prices, depending upon quantity bought, without giving similar discounts to other buyers in same territory, warranted Federal Trade Commission's finding that discriminations were illegal as reasonably probable to produce prohibited injurious effect upon competition.

METHODS, ACTS AND PRACTICES-DISCRIMINATING IN PRICE-CLAYTON ACT, SEC. 2(e) -SPECIAL FACILITIES OR SERVICES-WHERE ACCORDED TO ONE AND NOT OTHERS -CONGRESSIONAL INTENT.

Congress, when it forbade extension of special facilities to one purchaser not accorded to others by the Clayton Act as amended, intended to forbid special favors to one purchaser over competitors in all cases where goods are sold and resold without processing or are included in a processed product. Clayton Act sec. 2(e), as amended by Robinson-Patman Price Discrimination Act, sec. 1, 15 U.S.C.A. sec. 13(e).

METHODS, ACTS AND PRACTICES-DISCRIMINATING IN PRICE-CLAYTON ACT, SEC. 2(e) -SPECIAL FACILITIES OR SERVICES-WHERE ACCORDED TO ONE AND NOT OTHERSIF DISCRIMINATION THEREBY IN FAVOR OF ONE PURCHASER AGAINST ANOTHER OF COMMODITY Bought for RESALE "WITH OR WITHOUT PROCESSING."

Under the Clayton Act as amended, making it unlawful for any person to discriminate in favor of one purchaser against [213] another purchaser of a commodity bought for resale "with or without processing," the quoted words are employed as an all-comprehensive term.

638680m 47-45

METHODS, ACTS AND PRACTICES-DISCRIMINATING IN PRICE-CLAYTON ACT, SEC. 2(e) -SPECIAL SERVICES OR FACILITIES-WHERE ACCORDED TO ONE AND NOT OTHERSIF DISCRIMINATION THEREBY IN FAVOR OF ONE PURCHASER AGAINST ANOTHER OF COMMODITY BOUGHT FOR RESALE "WITH OR WITHOUT PROCESSING"-ADVERTISING EXPENDITURES BY MANUFACTURER IN FAVOR OF SELECTED CUSTOMER'S PRODUCT INCLUDING AS INGREDIENT PRODUCT OF MANUFACTURER.

Evidence showing that manufacturer of dextrose spent $750,000 in three years in advertising candies of certain purchaser of dextrose emphasizing dextrose content of such candies, without furnishing similar services to competing candy manufacturers buying dextrose from manufacturer, warranted Federal Trade Commission's finding that manufacturer unlawfully discriminated in violation of the Clayton Act as amended.

METHODS, ACTS AND PRACTICES-DISCRIMINATING IN PRICE-CLAYTON ACT, SEC. 2(e) -SPECIAL FACILITIES OR SERVICES-WHEN ACCORDED TO ONE AND NOT OTHERSVIOLATION-PROOF WHETHER SUBSTANTIAL BENEFIT TO ONE, OR INJURY TO ANOTHER REQUISITE.

Under Clayton Act as amended, prohibiting discrimination in favor of purchasers for resale in the furnishing of services or facilities, to establish a violation of the act, there need not be proof of actual substantial benefit to one, or of substantial injury to another of two or more competitors, or even probability of adverse effect upon competition, but there need only be proof of special services rendered one purchaser not rendered to similar competing purchaser.

METHODS, ACTS AND PRACTICES-DISCRIMINATING IN PRICE-CLAYTON ACT, SEc. 2(e) SPECIAL SERVICES OR FACILITIES WHERE ACCORDED TO ONE AND NOT OTHERS— WHETHER SALES OF PRODUCT TO FAVORED CUSTOMER IN INTERSTATE COMMERCE.

Evidence that petitioners sold dextrose to purchasers located throughout United States and shipped it in interstate commerce to such purchasers, that there was competition in commerce between favored purchaser and other purchasers, favored purchaser's business and that of petitioners were of interstate character, and that transactions in question were part of interstate commerce and directly affected such commerce, sufficiently showed that petitioner sold dextrose in commerce to favored purchaser for whose benefit petitioners furnished advertising not furnished to competing purchasers of dextrose.

CEASE AND DESIST ORDERS-ENFORCEMENT ABANDONMENT OF PRACTICE-DEALING ON EXCLUSIVE AND TYING BASIS-IN VIOLATION OF SEC. 3 OF CLAYTON ACT WHERE PRODUCT SOLD TO CUSTOMERS BELOW THEIR COST UNDER EXCLUDING ARRANGEMENT.

Where petitioners furnished pearl starch to purchasers at prices below cost at which purchasers could have manufactured it under agreement whereby purchasers agreed not to use any starch or starch products manufactured by competitors of petitioners, mere discontinuance would not justify court in refusing to enforce Federal Trade Commission's order directing petitioners to cease and desist from such practice. Clayton Act sec. 3, 15 U.S.C.A. sec. 14.

METHODS, ACTS AND PRACTICES-DISCRIMINATING IN PRICE-CLAYTON ACT, SEC. 2(a) -QUANTITY DISCOUNTS-CONTAINER SIZES-IF NO RESULTING DISCRIMINATION AMONG COMPETING PURCHASERS OTHER THAN DIFFERENCES NORMALLY ARISING FROM DIFFERENT SIZE QUANTITY BUYING.

That petitioners shipped their products to consumers in different sized contain