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THE WEEK in Wi^SIIINGTON
AS VIEWED BY OUR WASHINGTON NEWS BUREAU
October l6, I96U
A very straight-faced Supreme Court will soon examine in full conclave a i960 tv commercial showing an alleged shave of a piece of sandpaper with the aid of Colgate-Palmolive ' s Rapid Shave cream. The high court will hear argument by the Federal Trade Commission that the mockup of loose sand on Plexiglas was deceptive. The court will decide whether the FTC should have the final word on what can and what cannot be used in tv camera dramas of product capabilities.
The Supreme Court's decision to hear this case indicates that it is fully aware of the smashing national impact of the television commercial on the advertising of American goods — and on the general economy which is being propelled by advertising.
Even a few years back^ the advertising puff would have seemed like a tenpest in a teapot. What if there was a bit of exaggeration in portraying the marvelous "moisturizing" powers of Rapid Shave with the mockup? Attorneys for Colgate and its advertising agency, Ted Bates, defending mockups in general and this advertisement in particular, have told the Supreme Court the matter is "trivial" and not worth the court's valuable time.
Lower courts have leaned similarly. In two instances, they have chided. the FTC — in Rapid Shave, and Carter's Rise cases — for over-strict ruling that would make all mockups subject to attack. Appeals Courts said there should be no bar to substitute materials for camera use, unless they show the product as doing what it could not do in real life.
In the particular instances, the Appeals Court found both Rapid Shave and Rise commercials deceptive.
The commission holds that courts cannot decide the mockup issue. FTC claims it is up to agency expertise to decide when the public is being deceived by mockups on tv, or any kind of advertising.
The broadcaster has a big stake in the whole matter. As NAB's Code director Howard Bell recently pointed out, the consumer becomes as irritated with the station as with the advertising he sees on it, when the commercials are patently bad. The media's whole stature as a reliable representative of product is endangered when viewers feel they've been led down the garden path.
A voluntary drawing back from this ground of FTC challenge might have been a more tactful course for the advertiser and agency involved. But horns have locked, and the decision will make a point of reference for the FTC for the rest of the tv commercial's natural life, if the high court upholds the agency's "right of expertise."
The impact will travel through commercials in production and planning.
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