Sponsor (Oct-Dec 1964)

THE WEEK in WA.SHIN'GTOM' AS VIEWED BY OUR WASHINGTON NEWS BUREAU The mockup issue will be one more aspect to be included in NAB's continual revaiT^) of its code rules. The FTC attorneys have been smarting under mild twitting by Appeals Court ' s reminder that on tv ice cream had to be mashed potatoes, under camera lights. The commission's brief tells the Supreme Court grimly that it is perfectly able to decide when a mashed potato substitute is necessary and legitimately portrays ice cream. But the commission says it is just as well equipped to determine when substitutes are deceptive. In the Rise shaving cream case, the Appeals Court upheld FTC's order that ruled off the Rise use of thickened foam for its own commercial bow, and a swiftly collapsing water-foam for brand X. This particular mockup was clearly deceptive said the court — but FTC was to rewrite the order easing strictures on non-deceptive mockup use. A similar ruling was handed down by Appeals Courts on the ColgatePalmolive case. On the second remand, FTC again stubbornly rewrote the order in wording Colgate and Bates felt was much too broad. The order would make the commission the final arbiter on any use of non-genuine materials used in commercial mockups. The commission put down the Colgate plea for modifying this order and scolded both FTC and Colgate-Bates counsel for "extreme arguments" during court hearings. The commission said it would clear up any ambiguities here and now: "The Supreme Court has frequently reminded the federal administrative agencies" that when ambiguities arise, it is the duty of the agency to clear them up, "not its lawyers arguing on appeal." Nevertheless, FTC attorneys' brief to the Supreme Court still uses fairly extreme language. It refers to "sham" and "rigged experiments," and says if such mockups are permitted, television can never realize its potential as a medium for bona fide showing of what products can do. The FTC brief scolds the Appeals Courts for substituting their judgment for the agency delegated by statute to decide these matters. Actually, the Appeals Court in the Rise case upheld much of the FTC claims. It found the use of the mockup deceptive, and warned advertisers not to use substitute materials unless they were necessary to overcome photographic problems. The courts also upheld FTC's duty to pursue a case long after the offending advertising has been withdrawn. But human psychology being what it is, the Fifth Circuit Appeals Court's eloquent and rather whimsical decision on Rise shaving cream may have put the commission's back up the crucial notch to bring the earlier Colgate case to the Supreme Court. "Everyone knows that on tv, " sighed Judge John Wisdom, "the lily must be painted... coffee looks like mud..." FTC's crucial May, 1963? order to Colgate and Bates warns against unfairly and deceptively advertising "any product." '^^.^u/ /A^ 14 SPONSOR