source: Caselaw Access Project

author: Mr. Justice Goldberg

license: Public Domain

text:
    SANSONE v. UNITED STATES.
    No. 365.
    Argued March 10, 1965.—
    Decided March 29, 1965.

      Merle L. Silverstein argued the cause for petitioner. With him on the briefs was Stanley M. Rosenblum.

      Paul Bender, by special leave of Court, argued the cause for the United States pro hac vice. With him on the brief were Solicitor General Cox, Assistant Attorney General Oberdorfer and Joseph M. Howard.

   Mr. Justice Goldberg

delivered the opinion of the Court.

Petitioner Sansone was indicted for willfully attempting to evade federal income taxes for the year 1957 in violation of § 7201 of the Internal Revenue Code of 1954. Section 7201 provides:

“Any person who willfully attempts in any manner to evade or defeat any tax imposed by this title or the payment thereof shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, shall be fined not more than $10,000, or imprisoned not more than 5 years, or both, together with the costs of prosecution.”

The following facts were established at trial. In March 1956 petitioner and his wife purchased a tract of land for $22,500 and simultaneously sold a portion of the tract for $20,000. In August 1957 petitioner sold another portion of the tract for $27,000. He did not report the gain on. either the 1956 or 1957 sale in his income tax returns for those years. Petitioner conceded that the 1957 transaction was reportable and that, in not reporting it, he understated his tax liability for that year by $2,456.48. He contended, however, that this understatement was not willful since he believed at the time that extensive repairs on a creek adjoining a portion of the tract he retained might be necessary and that the cost of these repairs might wipe out his profit on the 1957 sale.

To counter this defense, the Government introduced the following signed statement made by petitioner during the Treasury investigation of his tax return:

“I did not report the 1957 sale in our joint income tax return for 1957 because I was burdened with a number of financial obligations and did not feel I could raise the money to pay any tax due. It was my intention to report all sales in a future year and pay the tax due. I knew that I should have reported the 1957 sale, but my wife did not know that it should have been reported. It was not my intention to evade the payment of our proper taxes and I intended to pay any additional taxes due when I was financially able to do so.”

At the conclusion of the trial, petitioner requested that the jury be instructed that it could acquit him of the charged offense of willfully attempting to evade or defeat taxes in violation of § 7201, but still convict him of either or both of the asserted lesser-included offenses of willfully filing a fraudulent or false return, in violation of § 7207, or willfully failing to pay his taxes at the time required by law, in violation of § 7203. Section 7201 is a felony providing for a maximum fine of $10,000 and imprisonment for five years. Both §§ 7203 and 7207 are misdemeanors with maximum prison sentences of one year under each section, and maximum fines of $10,000 under § 7203 and $1,000 under § 7207.

The requested instructions were denied. Petitioner was found guilty by the jury of violating § 7201, and was sentenced by the court to pay a fine of $2,000 and to serve 15 months’ imprisonment. The conviction was upheld by the Court of Appeals. 334 F. 2d 287. We granted certiorari to consider the applicability of the lesser-included offense doctrine to these federal tax statutes. 379 U. S. 886.

I.

We are faced with the threshold question as to whether or not § 7207, which proscribes the willful filing with a Treasury official of any known false or fraudulent “return,” applies to the filing of an income tax return. If § 7207 does not apply to income tax returns, it is obvious that the' defendant was not here entitled to a lesser-included offense charge based on that section.

This Court held in Achilli v. United States, 353 U. S. 373, that § 7207’s statutory predecessor, § 3616 (a) of the Internal Revenue Code of 1939, which made it a misdemeanor for any person to deliver to the Collector of Revenue “any false or fraudulent list, return, account, or statement, with intent to defeat or evade the valuation, enumeration, or assessment intended to be made . . (emphasis added), despite its broad language, was not intended by Congress to apply to income tax returns.

There were two major bases of this Court’s conclusion in Achilli that § 3616 (a) did not apply to such returns. First, unlike other criminal provisions clearly applicable to income taxes which appeared in the income tax chapter of the 1939 Code and were specifically designed to punish evasion of that tax, § 3616 (a) was placed among the Code’s “General Administrative Provisions” and did not specifically refer to income taxes. Second, § 3616 (a) required that the false or fraudulent return be filed “with intent to defeat or evade the valuation, enumeration, or assessment intended to be made.” This provision, as the Court had already held in Berra v. United States, 351 U. S. 131, if applied to income tax returns would have made § 3616 (a) completely co-extensive with the predecessor of § 7201 where the attempt to evade income taxes was accomplished by' filing a fraudulent income tax return. It was clear that the predecessor of § 7201 applied to this method of attempting to evade income taxes and the Court was unwilling to presume that Congress intended to enact both felony and misdemeanor provisions which completely overlap in this important area.

Both of these bases of decision were removed by the 1954 Code. Unlike their predecessors in the 1939 Code, §§ 7201, 7203, and 7207, together with other sections clearly applicable to income tax violations, were all placed in the same section (Part I of Chapter 75) of the 1954 Code. Congress specifically stated that it placed all these provisions in the same part of the Code because it wished them to apply to taxes generally, including income taxes. See S. Rep. No. 1622, 83d Cong., 2d Sess., 147; H. R. Rep. No. 1337, 83d Cong., 2d Sess., 108. In contrast, Part II of Chapter 75 contains provisions applicable only to specified taxes, none of which include income taxes.

Further, Congress, in enacting § 7207 did not re-enact § 3616 (a)’s requirement that the false or fraudulent return be made with “intent to defeat or evade” the tax due. Thus the second basis for the Court’s conclusion in Achilli that § 3616 (a) did not apply to income taxes was removed. See Berra v. United States, supra, at 134, n. 5. Finally, in providing that the false or fraudulent return be made “willfully,” § 7207 was conformed to the language contained in the other misdemeanor provisions clearly applicable to income taxes. See, e. g., § 7203.

We conclude, therefore, that § 7207 applies to income tax violations. Since there is no doubt that §§ 7201 and 7203 also apply to income tax violations, with obvious overlapping among them, there can be no doubt that the lesser-included offense doctrine applies to these statutes in an appropriate case. See Spies v. United States, 317 U. S. 492, 495; Berra v. United States, supra.

HH 1 — f

The basic principles controlling whether or not a lesser-included offense charge should be given in a particular case have been settled by this Court. Rule 31 (c) of the Federal Rules of Criminal Procedure provides, in relevant part, that the “defendant may be found guilty of an offense necessarily included in the offense charged.” Thus, “[i]n a case where some of the elements of the crime charged themselves constitute a lesser crime, the defendant, if the evidence justifie[s] it . . . [is] entitled to an instruction which would permit a finding of guilt of the lesser offense.” Berra v. United States, supra, at 134. See Stevenson v. United States, 162 U. S. 313. But a lesser-offense charge is not proper where, on the evidence presented, the factual issues to be resolved by the jury are the same as to both the lesser and greater offenses. Berra v. United States, supra; Sparf v. United States, 156 U. S. 51, 63-64. In other words, the lesser offense must be included within but not, on the facts of the case, be completely encompassed by the greater. A lesser-included offense instruction is only proper where the charged greater offense requires the jury to find a disputed factual element which is not required for conviction of the lesser-included offense. Berra v. United States, supra; Sparf v. United States, supra, at 63-64. We now apply the principles declared in these cases to the instant case.

III.

The offense here charged was a violation of § 7201, which proscribes willfully attempting in any manner to evade or defeat any tax imposed by the Internal Revenue Code. As this Court has recognized, this felony provision is “the capstone of a system of sanctions which singly or in combination were calculated to induce prompt and forthright fulfillment of every duty under the income tax law and to provide a penalty suitable to every degree of delinquency.” Spies v. United States, supra, at 497. As such a capstone, § 7201 necessarily includes among its elements actions which, if isolated from the others, constitute lesser offenses in this hierarchical system of sanctions. Therefore, if on the facts of a given case there are disputed issues of fact which would enable the jury rationally to find that, although all the elements of § 7201 have not been proved, all the elements of one or more lesser offenses have been, it is clear that the defendant is entitled to a lesser-included offense charge as to such lesser offenses.

As has been held by this Court, the elements of § 7201 are willfulness; the existence of a tax deficiency, Lawn v. United States, 355 U. S. 339, 361; Spies v. United States, supra, at 496; and an affirmative act constituting an evasion or attempted evasion of the tax, Spies v. United States, supra. In comparison, § 7203 makes it a misdemeanor willfully to fail to perform a number of specified acts at the time required by law — the one here relevant being the failure to pay a tax when due. This misdemeanor requires only willfulness and the omission of the required act — here the payment of the tax when due. As recognized by this Court in Spies v. United States, supra, at 499, the difference between a mere willful failure to pay a tax (or perform other enumerated actions) when due under § 7203 and a willful attempt to evade or defeat taxes under § 7201 is that the latter felony involves “some willful commission in addition to the willful omissions that make up the list of misdemeanors.” Where there is, in a § 7201 prosecution, a disputed issue of fact as to the existence of the requisite affirmative commission in addition to the § 7203 omission, a defendant would, of course, be entitled to a lesser-included offense charge based on § 7203. Cf. Spies v. United States, supra. In this case, however, it is undisputed that petitioner filed a tax return and that the petitioner’s filing of a false tax return constituted a sufficient affirmative commission to satisfy that requirement of § 7201. The only issue at trial was whether petitioner’s act was willful. Given this affirmative commission and the conceded tax deficiency, if petitioner’s act was willful, that is, if the jury believed, as it obviously did, that he knew that the capital gain on the sale of the property was reportable in 1957, he was guilty of violating both §§ 7201 and 7203. If his act was not willful, he was not guilty of violating either § 7201 or § 7203. Thus on the facts of this case, §§ 7201 and 7203 “covered precisely the same ground.” Berra v. United States, supra, at 134. This being so, on the authorities cited, it is clear that petitioner was not entitled to a lesser-included offense charge based on § 7203.

Section 7207 requires the willful filing of a document known to be false or fraudulent in any material manner. The elements here involved are willfulness and the commission of the prohibited act. Section 7207 does not, however, require that the act be done as an attempt to evade or defeat taxes. Conduct could therefore violate § 7207 without violating § 7201 where the false statement, though material, does not constitute an attempt to evade or defeat taxation because it does not have the requisite effect of reducing the stated tax liability. This may be the case, for example, where a taxpayer understates his gross receipts and he offsets this by also understating his deductible expenses. In this example, if the Government in a § 7201 case charged tax evasion on the grounds that the defendant had understated his tax by understating his gross receipts, and the defendant contended that this was not so, as the misstatement of gross receipts had been offset by an understatement of deductible expenses, the defendant would be entitled to a lesser-included offense charge based on § 7207, there being this relevant disputed issue of fact. This would be so, for in such a case, if the jury believed that an understatement of deductible expenses had offset the understatement of gross receipts, while the defendant would have violated § 7207 by willfully making a material false and fraudulent statement on his return, he would not have violated § 7201 as there would not have been the requisite § 7201 element of a tax deficiency. Here, however, there is no dispute that petitioner’s material misstatement resulted in a tax deficiency. Thus there is no disputed issue of fact concerning the existence of an element required for conviction of § 7201 but not required for conviction of § 7207. Given petitioner’s material misstatement which resulted in a tax deficiency, if, as the jury obviously found, petitioner’s act was willful in the sense that he knew that he should have reported more income than he did for the year 1957, he was guilty of violating both §§ 7201 and 7207. If his action was not willful, he was guilty of violating neither. As was true with § 7203, on the facts of this case §§ 7201 and 7207 “covered precisely the same ground,” Berra v. United States, supra, at 134, and thus petitioner was not entitled to a lesser-included offense charge based on § 7207.

Petitioner makes one final contention. He argues that he could have been acquitted of attempting to evade or defeat his 1957 taxes, in violation of § 7201, but still have been convicted for willfully failing to pay his tax when due in violation of § 7203 or willfully filing a fraudulent return in violation of § 7207, if the jury believed his statement contained in the government-introduced affidavit, that, although he knew that profit on the sale in question was reportable for 1957 and that tax was due thereon, he intended to report the sale and pay the 1957 tax at some unspecified future date. The basic premise of this argument is that, although all three sections require willfulness, on the facts here, the contents of these willfulness requirements differ. The argument' is made that while an intent to report and pay the tax in the future does not vitiate the willfulness requirements of §§ 7203 and 7207, it does constitute a defense to a willful attempt “in any manner to evade or defeat any tax imposed by” the Internal Revenue Code, in violation of § 7201. While we agree that the intent to report the income and pay the tax sometime in the future does not vitiate the willfulness required by §§ 7203 and 7207, we cannot agree that it vitiates the willfulness requirement of § 7201.

No defense to a § 7201 evasion charge is made out by showing that the defendant willfully and fraudulently understated his tax liability for the year involved but intended to report the income and pay the tax at some later time. As this Court has recognized, § 7201 includes the offense of willfully attempting to evade or defeat the assessment of a tax as well as the offense of willfully attempting to evade or defeat the payment of a tax. Lawn v. United States, supra. The indictment here charged an attempt to evade income taxes by defeating the assessment for 1957. The fact that petitioner stated to a revenue agent that he intended to report his 1957 income in some later year, even if taken at face value, would not detract from the criminality of his willful act defeating the 1957 assessment. That crime was complete as soon as the false and fraudulent understatement of taxes (assuming, of course, that there was in fact a deficiency) was filed. See United States v. Beacon Brass Co., 344 U. S. 43, 46. See also Spies v. United States, supra, at 498-499.

In sum, it is clear here that there were no disputed issues of fact which would justify instructing the jury that it could find that petitioner had committed all the ele-merits of either or both of the §§ 7203 and 7207 misdemeanors without having committed a violation of the § 7201 felony. This being the case, the petitioner was not entitled to a lesser-included offense charge and the judgment of the Court of Appeals is

Affirmed.

Mr. Justice Black and Mr. Justice Douglas dissent, believing that there was evidence sufficient to require the Court to charge the jury, as petitioner requested, that they could acquit him on this felony charge of having willfully attempted to evade or defeat taxes in violation of § 7201 but still convict him of the lesser misdemeanor offenses included in the felony charge. See Berra v. United States, 351 U. S. 131, 135 (dissenting opinion). Cf. Achilli v. United States, 353 U. S. 373, 379 (dissenting opinion).

       Petitioner was charged with a violation of § 7201 for 1956 in addition to the charge for 1957. The jury acquitted him with respect to the 1956 charge, which is consequently not involved in this case.

       Section 7207 of the Internal Revenue Code of 1954 provides:
      “Any person who willfully delivers or discloses to the Secretary or his delegate any list, return, account, statement, or other document, known by him to be fraudulent or to be false as to any material matter, shall be fined not more than $1,000, or imprisoned not more than 1 year, or both.”

       Section 7203 of the Internal Revenue Code of 1954 provides:
      “Any person required under this title to pay any estimated tax or tax, or required by this title or by regulations made under authority thereof to make a return (other than a return required under authority of section 6015 or section 6016), keep any records, or supply any information, who willfully fails to pay such estimated tax or tax, make such return, keep such records, or supply such information, at the time or times required by law or regulations, shall, in addition to other penalties provided by law, be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $10,000, or imprisoned not more than 1 year, or both, together with the costs of prosecution.”

       The full instructions requested by petitioner were as follows:
      No. 1. “Under the law you may find a defendant guilty of a lesser crime than the crimes charged in the indictment.
      “A statute upon which a lesser crime is based (Section 7203 of the Internal Revenue Code of 1954), omitting that part of the Act which does not apply in this case, reads as follows:
      “ ‘Any person required under this title to pay any . . . tax, . . . who willfully fails to pay such tax, ... at the time or times required by law or regulations, shall, in addition to other penalties provided by law, be guilty of a misdemeanor.’
      “and then the statute provides for the penalty.
      “Therefore, if you find beyond a reasonable doubt that (with respect to either or both of the counts in this indictment) the defendant willfully failed to pay the correct tax to the United States at the time of the filing of his return, but you further find that the defendant did not willfully attempt to defeat and evade his income taxes by the filing of a false and fraudulent return, you will in your verdict say ‘Guilty of violating a lesser-ineluded offense.’
      “If you have a reasonable doubt as to whether defendant willfully failed to pay the correct tax when filing his income tax return or returns under any count or counts of this indictment, you will resolve the doubt in favor of the defendant and acquit him of the lesser-included offense as to such count or counts.”
      No. 2. “As I have said previously, the law permits the jury to find a defendant guilty of any lesser offense which is necessarily included in the crime charged. The offense charged in the indictment here necessarily includes a lesser offense based upon the following statute (Section 7207 of the Internal Revenue Code of 1954), omitting that part of the Act which does not apply in this case; it reads as follows:
      “ ‘Any person who willfully delivers or discloses to the Secretary [of the Treasury] or his delegate any . . . return, ... or other document known by him to be fraudulent or to be false as to any material matter,’
      “and then the statute provides for the penalty.
      “Therefore, if you find beyond a reasonable doubt that (with respect to either or both of the counts in this indictment) the defendant willfully delivered to the District Director of Internal Revenue at St. Louis, Missouri his and his wife’s federal joint income tax return or returns for the years 1956 and 1957 which were known by him to be fraudulent or false as to any material matter, but you further find that the defendant did not willfully attempt to defeat and evade his income tax by the filing of a false and fraudulent return, you will in your verdict say ‘Guilty of violating a Iesser-included offense.’
      “If you have a reasonable doubt as to whether defendant willfully so delivered under any count or counts of this indictment his and his wife’s federal joint income tax return or returns which were known by him to be fraudulent or false as to a material matter, you will resolve the doubt in favor of the defendant and acquit him of the lesser-ineluded offense as to such count or counts.”

       This issue divided the Court of Appeals, with two judges holding that § 7207 does not apply to false income tax returns and one judge, concurring in result, dissenting on this point.

       This Court has long recognized that to hold otherwise would only invite the jury to pick between the felony and the misdemeanor so as to determine the punishment to be imposed, a duty Congress has traditionally left to the judge. See Sparf v. United States, supra, at 63-64; Berra v. United States, supra, at 135. This general principle is particularly applicable in this area. In commenting on § 7201, the House Ways and Means Committee expressly stated that minimum penalties were omitted from § 7201 in order to make it “possible for the judges to better fix the penalties to fit the circumstances.” H. R. Rep. No. 1337, 83d Cong., 2d Sess., 108. The lack of minimum penalties- also, of course, denies to the prosecutor an unbridled discretion as to the penalty to be imposed upon particular defendants by deciding whether, on the same facts, to charge a felony or a misdemeanor.


author: Per Curiam.

text:
    HENRY v. COLLINS.
    No. 89.
    Decided March 29, 1965

      Robert L. Carter, Barbara A. Morris, Jack H. Young and Frank D. Reeves for petitioner in both cases.

      W. O. Luckett for respondents in both cases.

      Together with No. 90, Henry v. Pearson, also on petition for writ of certiorari to the same court.

   Per Curiam.

The petitions for certiorari are granted. The judgments are reversed.

After petitioner’s arrest on a charge of disturbing the peace, he issued a statement to the effect that this arrest was the result of “a diabolical plot,” in which respondents, the County Attorney and Chief of Police of Clarksdale, were implicated. Respondents brought suits for libel and obtained jury verdicts. The Supreme Court of Mississippi affirmed. -Miss.-, 158 So. 2d 28;-Miss. -, 158 So. 2d 695.

The following instructions requested by the respondents, approved by the trial judge, were read to the jury:

“The court instructs the jury for the plaintiff that malice does not necessarily mean hatred or ill will, but that malice may consist merely of culpable recklessness or a wilful and wanton disregard of the rights and interests of the person defamed.”

The jury, was also instructed, at respondents’ request, that

“. . . [I] f you believe from the evidence that defendant published a false statement charging that his arrest . . . was the result of a diabolical plot. . . , you may infer malice, as defined in these instructions, from the falsity and libelous nature of the statement, although malice as a legal presumption does not arise from the fact that the statement in question is false and libelous. It is for you to determine as a fact, if you have first determined from the evidence that defendant published the statement in question and that it is false, whether or not the statement in question was actually made with malice.”

The jury might well have understood these instructions to allow recovery on a showing of intent to inflict harm, rather than intent to inflict harm through falsehood. See Garrison v. Louisiana, 379 U. S. 64, 73. “The constitutional guarantees . . . [prohibit] a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made . . . with knowledge that it was false or with reckless disregard of whether it was false or not.” New York Times Co. v. Sullivan, 376 U. S. 254, 279-280.

For the reasons set out in their respective concurring opinions in New York Times Co. v. Sullivan, 376 U. S. 254, 293-305, and Garrison v. Louisiana, 379 U. S. 64, 79-88, Mr. Justice Black, Mr. Justice Douglas and Mr. Justice Goldberg concur in reversal of these judgments, not merely for error in the instructions read to the jury, but on the ground that it would violate the First and Fourteenth Amendments to subject petitioner to any libel judgment solely because of his publication of criticisms against respondents’ performance of their public duties.


author: Per Curiam. Mr. Justice Harlan,

text:
    O’KEEFFE, DEPUTY COMMISSIONER, BUREAU OF EMPLOYEES’ COMPENSATION, U. S. DEPARTMENT OF LABOR v. SMITH, HINCHMAN & GRYLLS ASSOCIATES, INC., et al.
    No. 307.
    Decided March 29, 1965.

      Solicitor General Cox, Assistant Attorney General Douglas and Morton Hollander for petitioner.

      George W. Ericksen for respondents.
   Per Curiam.

Robert C. Ecker drowned during a Saturday outing while boating on a South Korean lake. At the time of his death he was employed at a defense base in South Korea by the respondent, Smith, Hinchman & Grylls Associates, a government contractor.

The decedent had been hired in the United States under an oral contract the terms of which provided that he was to be transported to South Korea at his employer’s expense, remain there for two years, and then, at his employer’s expense, be transported back to the United States. The employer paid his rent and provided him with a per diem expense allowance for each day of the year, including weekends and holidays, to cover “the necessary living expenditures in the Korean economy.” He worked on a “365 day per year basis . . . subject to call to the job site at any time.” He “quite often” worked on Saturdays and Sundays and at other times outside the normal work day. The employer considered all its employees to be “in the course of regular occupation from the time they leave the United States until their return.” The employer expected the decedent and its other employees to seek recreation away from the job site on weekends and holidays.

Based upon the above stipulated facts, the Deputy Commissioner of the Bureau of Employees’ Compensation, United States Department of Labor, petitioner herein, determined “that the accident and the subsequent death of the decedent arose out of and in the course of employment.” 222 F. Supp. 4, 6. He therefore awarded death benefits to the decedent’s widow and a minor child in accordance with the terms of the Longshoremen’s and Harbor Workers’ Compensation Act, 44 Stat. 1424, as amended, 33 U. S. C. § 901 et seq. (1958 ed.), as extended by the Defense Base Act, 55 Stat. 622, as amended, 42 U. S. C. § 1651 et seq. (1958 ed.). The employer and its insurance carrier, respondents herein, then brought this action in the United States District Court for the Middle District of Florida to set aside and enjoin the enforcement of this compensation award. The District Court affirmed the compensation award and granted the Deputy Commissioner’s motion for summary judgment. 222 F. Supp. 4. A panel of the Court of Appeals for the Fifth Circuit summarily reversed and set aside the award. 327 F. 2d 1003. But compare the later decision of another panel of the Fifth Circuit in O’Keeffe v. Pan American World Airways, Inc., 338 F. 2d 319.

The petition for writ of certiorari is granted and the judgment of the Court of Appeals is reversed. Section 2 (2) of the Act, 33 U. S. C. § 902 (2) (1958 ed.), provides workmen’s compensation for any “accidental injury or death arising out of and in the course of employment.” Section 19 (a), 33 U. S. C. § 919 (a) (1958 ed.), provides for the filing of a “claim for compensation” and specifies that “the deputy commissioner shall have full power and authority to hear and determine all questions in respect of such claim.” Section 20 (a), 33 U. S. C. § 920 (a) (1958 ed.), provides that “[i]n any proceeding for the enforcement of a claim for compensation under this chapter it shall be presumed, in the absence of substantial evidence to the contrary . . . [t]hat the claim comes within the provisions of this chapter.” Finally, § 21 (b), 33 U. S. C. § 921 (b) (1958 ed.), provides that the Deputy Commissioner’s compensation order may be suspended and set aside by a reviewing court only “[i]f not in accordance with law.”

In cases decided both before and after the passage of the Administrative Procedure Act, 60 Stat. 237, as amended, 5 U. S. C. § 1001 et seq. (1958 ed.), the Court has held that the foregoing statutory provisions limit the scope of judicial review of the Deputy Commissioner’s determination that a “particular injury arose out of and in the course of employment.” Cardillo v. Liberty Mutual Ins. Co., 330 U. S. 469, 477-478; O’Leary v. Brown-Pacific-Maxon, Inc., 340 U. S. 504, 507-508.

“It matters not that the basic facts from which the Deputy Commissioner draws this inference are undisputed rather than controverted. ... It is likewise immaterial that the facts permit the drawing of diverse inferences. The Deputy Commissioner alone is charged with the duty of initially selecting the inference which seems most reasonable and his choice, if otherwise sustainable, may not be disturbed by a reviewing court. . . . Moreover, the fact that the inference of the type here made by the Deputy Commissioner involves an application of a broad statutory term or phrase to a specific set of facts gives rise to no greater scope of judicial review.. . .” Cardillo v. Liberty Mutual Ins. Co., supra, at 478.

The rule of judicial review has therefore emerged that the inferences drawn by the Deputy Commissioner are to be accepted unless they are irrational or “unsupported by substantial evidence on the record ... as a whole.” O’Leary v. Brown-Pacific-Maxon, Inc., supra, at 508.

The Brown-Pacific-Maxon case held that the standard to be applied by the Deputy Commissioner does not require “a causal relation between the nature of employment of the injured person and the accident. Thom v. Sinclair, [1917] A. C. 127, 142. Nor is it necessary that the employee be engaged at the time of the injury in activity of benefit to his employer. All that is required is that the ‘obligations or conditions’ of employment create the ‘zone of special danger’ out of which the injury arose.” Id., at 507. And, borrowing from language in Matter of Waters v. Taylor Co., 218 N. Y. 248, 252, 112 N. E. 727, 728, the Court in Brown-Pacific-Maxon drew the line only at cases where an employee had become “so thoroughly disconnected from the service of his employer that it would be entirely unreasonable to say that injuries suffered by him arose out of and in the course of his employment.” 340 U. S., at 507. This standard is in accord with the humanitarian nature of the Act as exemplified by the statutory command that “[i]n any proceeding for the enforcement of a claim for compensation under this chapter it shall be presumed, in the absence of substantial evidence to the contrary . . . [t]hat the claim comes within the provisions of this chapter.” § 20 (a), 33 U. S. C. §920 (a).

In this case, the Deputy Commissioner, applying the Brown-Pacific-Maxon standard to the undisputed facts, concluded “that the accident and the subsequent death of the decedent arose out of and in the course of employment.” 222 F. Supp. 4, 6. The District Court, likewise applying the Brown-Padfic-Maxon standard, held “that the Deputy Commissioner was correct in his finding that the conditions of the deceased’s employment created a zone where the deceased Ecker had to seek recreation under exacting and unconventional conditions and that therefore the accident and death of the decedent arose out of and in the course of employment.” 222 F. Supp., at 9.

We agree that the District Court correctly affirmed the finding of the Deputy Commissioner. While this Court may not have reached the same conclusion as the Deputy Commissioner, it cannot be said that his holding that the decedent’s death, in a zone of danger, arose out of and in the course of his employment is irrational or without substantial evidence on the record as a whole. The decedent was hired to work in the exacting and unconventional conditions of Korea. His transportation over and back was to be at the employer’s expense, and while there he was considered to be working on a 365-day-per-year basis, subject to call at the job site at any time, and quite often he worked Saturdays and Sundays and at other times outside the working day. The employer considered decedent and all other employees at this hazardous overseas base to be “in the course of regular occupation from the time they leave the United States until their return.” Finally, the employer provided neither housing nor recreational activities for its employees, but expected them to live, while necessarily in the country to perform its work, under the exacting and dangerous conditions of Korea. The employer paid decedent’s rent and provided him with a per diem expense allowance for each day of the year, including weekends and holidays, to cover the necessary living expenses in the Korean economy. The accident here occurred on an outing for a short period of time on a lake located only 30 miles from the employer’s job site. In the words of the District Court, “It was reasonable to conclude that recreational activities contributed to a higher efficiency of the employer’s work and that when conducted in the restricted area of employment, on a work day, so to speak,, and in a manner not prohibited by the employer, such activity was an incident of the employment.” 222 F. Supp. 4, 9.

The dissent, while giving lip service to the Brown-Pacific-Maxon standards, would reverse the determination of the Deputy Commissioner and District Court here, as well as the Deputy Commissioner and the Courts of Appeals in other cases, that the several accidents involved were within the “zone of special danger.” As Brown-Pacific-Maxon made clear, it is just this type of determination which the statute leaves to the Deputy Commissioner subject only to limited judicial review. Indeed, this type of determination, depending as it does on an analysis of the many factors involved in the area of the employment, would seem to be one peculiarly for the Deputy Commissioner.

The District Court therefore correctly upheld the determination of the Deputy Commissioner and the Court of Appeals erred in summarily reversing its judgment. Cf. O’Keeffe v. Pan American World Airways, Inc., 338 F. 2d 319 (C. A. 5th Cir. 1964); Pan American World Airways, Inc. v. O’Hearne, 335 F. 2d 70 (C. A. 4th Cir. 1964); Self v. Hanson, 305 F. 2d 699 (C. A. 9th Cir. 1962); Hastorf-Nettles, Inc. v. Pillsbury, 203 F. 2d 641 (C. A. 9th Cir. 1953).

Since we believe that the Deputy Commissioner and District Court properly applied the Brown-Pacific-Maxon standard, and since we deem it necessary to preserve the integrity of the administrative process established by Congress to effectuate the statutory scheme, the judgment of the Court of Appeals is

Reversed.

Mr. Justice Harlan,

whom Mr. Justice Clark and Mr. Justice White join,

dissenting.

Ecker was employed in Seoul, Korea, as an assistant administrative officer for Smith, Hinchman & Grylls Associates, Inc., an engineering management concern working under contracts with the United States and Korean Governments. His duties were restricted to Seoul where he was responsible for personnel in the stenographic and clerical departments. He was subject to call at the job site at any time, but the usual work week was 44 hours, and employees were accustomed to travel far from the job site on weekends and holidays for recreational purposes. Ecker did not live at the job site; he was given an allowance to live on the economy in Seoul. On his Memorial Day weekend he went to a lake 30 miles east of Seoul where a friend of his (not a co-employee) had a house. Ecker intended to spend the holiday there with his friend and another visitor. Their Saturday afternoon project was to fill in the beach in front of the house with sand, but none was readily available. In order to obtain it the three crossed the lake in a small aluminum boat to a sandy part of the shore. There they filled the boat with a load of sand, intending to transport it back to the house. The return trip, however, put Archimedes’ Principle to the test; in the middle of the lake the boat capsized and sank. Two of the three men drowned, including Ecker.

The Longshoremen’s and Harbor Workers’ Compensation Act, as extended by the Defense Bases Act, provides workmen’s compensation for any

“accidental injury or death arising out of and in the course of employment, and such occupational disease or infection as arises naturally out- of such employment or as naturally or unavoidably results from such accidental injury, and includes an injury caused by the willful act of a third person directed against an employee because of his employment.” 33 U. S. C. § 902 (2).

The Court holds, per curiam, that Ecker died in the course of his employment. I see no meaningful interpretation of the statute which will support this result except a rule that any decision made by a Deputy Commissioner must be upheld (compare Rogers v. Missouri Pac. R. Co., 352 U. S. 500). That interpretation, although meaningful, is unsupportable.

O’Leary v. Brown-Pacific-Maxon., Inc., 340 U. S. 504, relied upon by the Court, did not establish such a rule. The Court there upheld a compensation award arising from the accidental death of an employee of a government contractor on the island of Guam. The employer maintained for its employees a recreation center near the shoreline along which ran a very dangerous channel. After spending the afternoon at the employer’s recreation center, and while waiting for the employer’s bus, the employee heard cries for help from two men in trouble in the channel. He drowned in his attempt to rescue them. Mr. Justice Frankfurter, writing for the Court, stated the standard of coverage as:

“All that is required is that the ‘obligations or conditions’ of employment create the ‘zone of special danger’ out of which the injury arose.” 340 U. S., at 507.

That language was intended to mean only that where the employer had placed a facility for employees in an especially dangerous location and thus had created a danger of accidents, a “reasonable rescue attempt” could be “one of the risks of the employment.” This was made crystal clear by the caveat: “We hold only that rescue attempts such as that before us are not necessarily excluded from the coverage of the Act as the kind of conduct that employees engage in as frolics of their own.” Ibid.

He went on to state that the standard of review to be applied to the Deputy Commissioner’s finding that the employee died in the course of his employment was the same as that set out in Universal Camera Corp. v. Labor Board, 340 U. S. 474, for review of Labor Board decisions. Mr. Justice Frankfurter wrote both Universal Camera and Brown-Pacific-Maxon, and delivered the opinions on the same day. Reliance upon Universal Camera in Brown-Pacific-Maxon shows beyond doubt that the Court was not establishing a rule that any compensation award by a Deputy Commissioner would be automatically upheld, for it was the whole purpose of Universal Camera to effectuate congressional intent that the courts expand their scope of review over administrative decisions. That opinion defined judicial responsibility for examining the whole record in Labor Board cases, and not just those parts of the record which tended to support the Board. It remains today as the leading judicial guide for administrative review, and the most prominent directive to lower courts not to underestimate their responsibilities in this regard. I think it untenable to read a case which purports to apply the Universal Camera standard of review as embodying a philosophy of judicial abdication.

I read Brown-Pacific-Maxon to mean that some questions of application of “arising out of and in the course of employment” to the facts of a case will be left to the discretion of the administrator, and review of his decision treated as review of a finding of fact. The cases in which this limited review of the administrator’s decision is appropriate are those in which one application of the statute to the external facts of the case effectuates the judicially recognizable purpose of the statute as well as another. Dominion over the broad or clear purposes of the statute thus remains firmly in the courts’ hands, while within the confines of such statutory purposes, administrators are left discretion to provide the intimate par-ticularizations of statutory application. Brown-Pacific-Maxon is illustrative. The employee drowned in a particularly treacherous channel with which his job brought him into proximity. The danger was not great that circumstance would force him to swim in the channel, but the danger existed and was peculiar to the locality to which his job brought him; and it was out of this special danger that the employee’s injury arose. This, taken together with the other elements of job connection which the administrator thought relevant, rendered an award in the case consistent with the broad purposes of the compensation statute. Yet had the Deputy Commissioner come out the other way, I think that his decision would have been equally supportable. Although it was true that the injury was related to an especially dangerous channel with which the employee’s job brought him into proximity, the administrator could have ruled that the danger, although special, was so remote that the connection between the job and the injury was not sufficient to justify compensation. Either result would have been consistent with the statutory purpose of compensating all job-connected injuries on the actual job site and, additionally, those injuries off the job site which result from the “special” dangers of the employment. In the sense that both results would have been supportable, the review of the choice actually made by the Deputy Commissioner was treated as review of a finding of fact.

In the case before us, the Deputy Commissioner’s ruling is not consistent with the statutory purpose. The injury did not take place on the actual job site, and it did not arise out of any special danger created by the job. In no sense can it be said that Ecker’s job created any “special” danger of his drowning in a lake, or more particularly, of his loading a small boat with sand and capsizing it. Nothing indicates that the lake was rougher, the boat tippier, or the sand heavier than their counterparts in the United States. If there were “exacting and unconventional conditions” in Korea it does not appear that the lake, boat, or sand was one of them. There is nothing more than a “but for” relationship between the accident and the employment. To permit the award of compensation to stand reads the “job-connected” emphasis right out of the statute, an emphasis which is clearly there. Only injuries “arising out of” the employment are compensated. A disease or infection is covered if it arises “naturally out of such employment.” Injuries willfully inflicted by third persons upon an employee are covered only if inflicted “because of his employment.” A “but fpr” relationship between the injury and the employment should not in itself be sufficient to bring about coverage.

Whether the injury is compensable should depend to some degree on the cause of the injury as well as the time of day, location, and momentary activity of the employee at the time of the accident. I would distinguish between a case in which Ecker smashed his hand in a filing cabinet while at the office and one in which he tripped over a pebble while off on a weekend hike. In the first case Ecker’s injury would have arisen out of and in the course of his employment, whereas the statute would not apply to the second case unless the injury were traceable to some special .danger peculiar to the employment, which was clearly not the case. Thus, if while off on that same weekend hike Ecker stepped on a mine left over from the Korean conflict, á different result could follow.

This view of the statute makes far more sense to me than the view adopted by the Court as indicated by the result in this case and its approving citation of such cases as Self v. Hanson, 305 F. 2d 699, and Pan American World Airways, Inc. v. O’Hearne, 335 F. 2d 70, cert. denied today. It is difficult to determine just what such cases stand for. In Self v. Hanson, for instance, Miss Williams was in the company of a gentleman in a pick-up truck parked at the end of a breakwater on Guam Island at 11 o’clock in the evening. The gentleman said that he wanted to show her a ship in the harbor. Apparently they had been looking at it for over-half an hour when the driver of another vehicle on the breakwater lost control and ran into the pick-up truck, causing Miss Williams spinal injuries. The Ninth Circuit upheld the Deputy Commissioner’s ruling that she was injured in the course of her employment as a secretary on a Guam defense project.

To permit compensation for such injuries is to impose absolute liability upon the employer for any and all injuries, whatever their nature, whatever their cause, just so long as the Deputy Commissioner makes an award and the job location is one to which the reviewing judge would not choose to go if he had his choice of vacation spots. Before setting its stamp of approval on such an interpretation of the statute, the Court at the very least should hear argument and receive briefs on the- merits. The Solicitor General has pointed out that “there are several thousands of injury cases reported annually” under this Act. He urged that this question be definitively resolved by this Court. Because of the importance placed by all parties upon resolution of the proper application of the Act to these cases, and because I do not believe Brown-Pacific-Maxon, supra, dictates the Court’s result, I respectfully dissent from its decision to treat O’Keeffe v. Smith, Hinchman & Grylls Associates, Inc., summarily, from its decision on the merits in that case, and from its denial of certiorari in Pan-American World Airways, Inc. v. O’Hearne, No. 474, and Pan American World Airways, Inc. v. O’Keeffe, No. 852.

Mr. Justice Douglas, dubitante.

The problems under this Act should rest mainly with the Courts of Appeals. What we said in Universal Camera Corp. v. Labor Board, 340 U. S. 474, 490, of review by Courts of Appeals of decisions of the National Labor Relations Board, should be applicable here :

“Reviewing courts must be influenced by a feeling that they are not to abdicate the conventional judicial function. Congress has imposed on them responsibility for assuring that the Board keeps within reasonable grounds. That responsibility is not less real because it is limited to enforcing the requirement that evidence appear substantial when viewed, on the record as a whole, by courts invested with the authority and enjoying the prestige of the Courts of Appeals. The Board’s findings are entitled to respect; but they must nonetheless be set aside when the record before a Court of Appeals clearly precludes the Board’s decision from being justified by a fair estimate of the worth of the testimony of witnesses or its informed judgment on matters within its special competence or both.”

Applying that test I would not be inclined to reverse a Court of Appeals that disagreed with a Deputy Commissioner over findings as exotic as we have here.

       44 Stat. 1424, as amended, 33. U. S. C. §901 et seq. (1958 ed.).

       55 Stat. 622, as amended, 42 U. S. C. §1651 et seq. (1958 ed.).

       See generally, Jaffe, Judicial Review: Question of Law, 69 Harv. L. Rev. 239 (1955).

       Petition for certiorari in No. 307, p. 11.

      These problems are unlike those under the Federal Employers’ Liability Act where suits can be brought both in state and in federal courts (45 U. S. C. § 56) and where the law, poorly received by the judiciary, has been severely eroded. See Wilkerson v. McCarthy, 336 U. S. 53, 68 et seq. (concurring opinion).


text:
    CHICAGO, ROCK ISLAND & PACIFIC RAILROAD CO. et al. v. UNITED STATES et al.
    No. 770.
    Decided March 29, 1965.

      M. L. Cassell and Don McDevitt for appellants.

      Solicitor General Cox, Assistant Attorney General Orrick, Robert B. Hummel, Donald L. Hardison, Robert W. Ginnane and Fritz R. Kahn for the United States et al. Alexander B. Hawes for Waterways Bulk Transportation Council, Inc.; Nuel D. Belnap for Federal Barge Lines, Inc., et al.; Charles J. McCarthy for Tennessee Valley Authority; Donald Macleay for Arrow Transportation Co.; and John C. Lovett for Farmers Union Grain Terminal Association et al.
   Per Curiam.

The motions to affirm are granted and the judgment is affirmed.


author: Mr. Chief Justice Warren Mr. Justice Harlan,

text:
    FEDERAL TRADE COMMISSION v. COLGATE-PALMOLIVE CO. et al.
    No. 62.
    Argued December 10, 1964.
    Decided April 5, 1965.

      Philip B. Heymann argued the cause for petitioner. With him on the briefs were Solicitor General Cox, Assistant Attorney General Orrick and James Mcl. Henderson.

      John F. Sonnett argued the cause for respondents. With him on the brief for Colgate-Palmolive Co. was Arthur Mermin. On the brief for Ted Bates & Co., Inc., were H. Thomas Austem and William H. Allen.

    Briefs of amici curiae, urging affirmance, were filed by Mahlon F. Perkins, Jr., for the American Association of Advertising Agencies, Inc., and by Gilbert H. Weil for the Association of National Advertisers, Inc.
   Mr. Chief Justice Warren

delivered the opinion of the Court.

The basic question before us is whether it is a deceptive trade practice, prohibited by § 5 of the Federal Trade Commission Act, to represent falsely that a televised test, experiment, or demonstration provides a viewer with visual proof of a product claim, regardless of whether the product claim is itself true.

The case arises out of an attempt by respondent Colgate-Palmolive Company to prove to the television public that its shaving cream, “Rapid Shave,” outshaves them all. Respondent Ted Bates & Company, Inc., an advertising agency, prepared for Colgate three one-minute commercials designed to show that Rapid Shave could soften even the toughness of sandpaper. Each of the commercials contained the same “sandpaper test.” The announcer informed the audience that, “To prove rapid shave’s super-moisturizing power, we put it right from the can onto this tough, dry sandpaper. It was apply ... soak . . . and off in a stroke.” While the announcer was speaking, Rapid Shave was applied to a substance that appeared to be sandpaper, and immediately thereafter a razor was shown shaving the substance clean.

The Federal Trade Commission issued a complaint against respondents Colgate and Bates charging that the commercials were false and deceptive. The evidence before the hearing examiner disclosed that sandpaper of the type depicted in the commercials could not be shaved immediately following the application of Rapid Shave, but required a substantial soaking period of approximately 80 minutes. The evidence also showed that the substance resembling sandpaper was in fact a simulated prop, or “mock-up,” made of plexiglass to which sand had been applied. However, the examiner found that Rapid Shave could shave sandpaper, even though not in the short time represented by the commercials, and that if real sandpaper had been used in the commercials the inadequacies of television transmission would have made it appear to viewers to be nothing more than plain, colored paper. The examiner dismissed the complaint because neither misrepresentation — concerning the actual moistening time or the identity of the shaved substance— was in his opinion a material one that would mislead the public.

The Commission, in an opinion dated December 29, 1961, reversed the hearing examiner. It found that since Rapid Shave could not shave sandpaper within the time depicted in the commercials, respondents had misrepresented the product’s moisturizing power. Moreover, the Commission found that the undisclosed use of a plexiglass substitute for sandpaper was an additional material misrepresentation that was a deceptive act separate and distinct from the misrepresentation concerning Rapid Shave’s underlying qualities. Even if the sandpaper could be shaved just as depicted in the commercials, the Commission found that viewers had been misled into believing they had seen it done with their own eyes. As a result of these findings the Commission entered a cease- and-desist order against the respondents.

An appeal was taken to the Court of Appeals for the First Circuit which rendered an opinion on November 20, 1962. That court sustained the Commission’s conclusion that respondents had misrepresented the qualities of Rapid Shave, but it would not accept the Commission’s order forbidding the future use of undisclosed simulations in television commercials. It set aside the Commission’s order and directed that a new order be entered. On May 7, 1963, the Commission, over the protest of respondents, issued a new order narrowing and clarifying its original order to comply with the court’s mandate. The Court of Appeals again found unsatisfactory that portion of the order dealing with simulated props and refused to enforce it. We granted certiorari, 377 U. S. 942, to consider this aspect of the case and do not have before us any question concerning the misrepresentation that Rapid Shave could shave sandpaper immediately after application, that being conceded.

I.

A threshold question presented is whether the petition for certiorari was filed within 90 days after the entry of the judgment below as required by 28 U. S. C. § 2101 (c) (1958 ed.). Respondents claim that the failure of the Commission to seek certiorari from the judgment of the Court of Appeals rendered on November 20, 1962, barred a subsequent order prohibiting the use of simulated props in commercials that offer visual proof of a product claim.

After a court of appeals has set aside an order of the Commission on a point of law, the Commission may seek certiorari if it disagrees with the court’s legal conclusion. Section 5 (i) of the Federal Trade Commission Act contemplates that when the time for filing a petition for cer-tiorari has passed without a petition being filed, the Commission will enter an order in accordance with the mandate of the court of appeals. The Commission may not merely restate its former position in a new order and then apply for certiorari when the court of appeals reiterates its previous objection. As was said in Federal Power Comm’n v. Idaho Power Co., 344 U. S. 17, 20, “If the court did no more by the second judgment than to restate what it had decided by the first one . . . the 90 days would start to run from the first judgment.” To the same effect see Federal Trade Comm’n v. Minneapolis-Honeywell Regulator Co., 344 U. S. 206, 211. However, it has also been held that when a reviewing court finds a legal error in an administrative order, the agency is not foreclosed upon the remand of the case from enforcing the legislative policy of the act it administers, provided the new order does not conflict with the reviewing court’s mandate.

Obviously, the court which drafted the mandate is normally in the best position to determine whether the Commission’s subsequent order is consistent with the mandate, but this Court is never foreclosed from determining the issue for itself. The resolution of this issue in the present case requires a detailed analysis of the various opinions, mandates and orders issued by the Commission and the Court of Appeals.

In its initial opinion, dated December 29,1961, the Commission commented that the heart of the commercials was the visual “sandpaper test” which was designed to leave the viewer with the impression that he had actually seen such an experiment being performed. The Commission expressed the view that without this visible proof of Rapid Shave’s moisturizing ability some viewers might not have been persuaded to buy the product. The Commission then entered into a far-reaching discussion on the use of mock-ups in television and the relationship between “truth” and “television salesmanship,” and finally concluded that the use of the plexiglass prop was a deceptive practice. The Commission’s order was as inclusive as its discussion. It ordered both repondents to cease and desist from:

“Representing, directly or by implication, in describing, explaining, or purporting to prove the quality or merits of any product, that pictures, depictions, or demonstrations . . . are genuine or accurate representations ... of, or prove the quality or merits of, any product, when such pictures, depictions, or demonstrations are not in fact genuine or accurate representations ... of, or do not prove the quality or merits of, any such product.” (Emphasis added.)

The Court of Appeals understandably was concerned with the broad language in the Commission’s opinion and order, especially' since the Commission was not dealing with an established deceptive practice but was applying the flexible standards of § 5 to a hitherto unexplored area. The breadth of the Commission’s order was potentially limitless, apparently establishing a per se rule prohibiting the use of simulated props in all television commercials, since commercials by definition describe “the qualities or merits” of products. The court’s impression that the order was “quite ambiguous” was not alleviated when in oral argument counsel for the Commission stated that if a prominent person appeared on television saying “I love Lipsom’s iced tea,” while drinking something that appeared to be tea but in fact was not, the commercial would be a deceptive practice.

In light of the Commission’s order and its oral argument, the court concluded that it was the Commission’s intention to prohibit all simulated props in television commercials. The court could not agree with this position since it believed that “where the only untruth is that the substance [the viewer] sees on the screen is artificial, and the visual appearance is otherwise a correct and accurate representation of the product itself, he is not injured.” But, in setting aside the Commission’s order, the court gave little specific guidance for the drafting of a new one. It merely criticized the Commission for holding that mock-ups are “illegal per se,” and indicated that the Commission’s order “may” have been too broad in other respects as well.

Following the decision by the Court of Appeals, the Commission entered a new “proposed final order” on February 18, 1963. This order was accompanied by an explanatory opinion that admitted error in the original disposition of the case and expressed an intention to eliminate the errors found by the Court of Appeals. The Commission explained that its new order was not directed toward the broad prohibition of all undisclosed simulated props in commercials, but merely toward prohibiting respondents from misrepresenting to the public that it was seeing for itself a test, experiment or demonstration which purportedly proved a product claim. According to the Commission, the television commercial in question did not merely tell viewers that the experiment had been or could be performed, but instead told them that they were seeing it for themselves and did not have to take the seller’s word for it. This, and not the mere use of a prop, was the misrepresentation found to be a deceptive practice. Over the vigorous objection of respondents, the Commission issued its final order on May 7, 1963. Both respondents were ordered to cease and desist from:

“Unfairly or deceptively advertising 'any . . . product by presenting a test, experiment or demonstration that (1) is represented to the public as actual proof of a claim made for the product which is material to inducing its sale, and (2) is not in fact a genuine test, experiment or demonstration being conducted as represented and does not in fact constitute actual proof of the claim, because of the undisclosed use and substitution of a mock-up or prop instead of the product, article, or substance represented to be used therein.”

Respondents again appealed to the Court of Appeals. Despite the urgings of respondents that it limit its review to a determination whether the Commission’s order was consistent with the previous mandate, the court re-examined the Commission’s new order on the merits. The court recognized that the new order no longer prohibited the use of all simulated props in commercials, but found that it would be impossible under it to distinguish between commercials which depicted a test, experiment or demonstration, and those which did not. The court held that so long as there is an accurate portrayal of a product’s attributes or performance there is no deceit and instructed the Commission, “as we thought we had directed it before,” to enter an order merely prohibiting respondents from using mock-ups to demonstrate something which in fact could not be accomplished.

We hold that the Commission’s order of May 7, 1963, was not in disregard of the Court of Appeals’ first mandate and was a good-faith attempt to incorporate the legal principles contained therein. An examination of the Commission’s first order and accompanying opinion shows an overriding emphasis on mock-ups as such and a failure to articulate with precision the actual deceptive practice found. As a result, it is not surprising that the court criticized the order as “ambiguous,” interpreted it as prohibiting the substitution of a mock-up for a product in any commercial, and found that it rested on a premise that mock-ups were “illegal per se.” It is true that the court also said that viewers are interested in what they see and not in the means by which they see it, but this statement occurred immediately after the court discussed the contention in oral argument that it would be a deceptive practice to represent that a person was drinking “Lip-som’s iced tea” when in fact he was not. The only clear directive in the court’s mandate was for the Commission to remove the “fundamental error [which] so permeates the order” — i. e., the error that every use of mock-ups is a deceptive practice.

We find it inconceivable that the Commission could have successfully sought certiorari from this judgment. Had it done so, it would have been forced to argue either that every use of mock-ups in commercials is a deceptive practice, an apparently unintended theory, or that this Court should reinstate the Commission’s decision on a theory of its own, something the Court said it would not do in Securities & Exchange Comm’n v. Chenery Corp., 332 U. S. 194, 196.

Support is given our conclusion by the refusal of the Court of Appeals to declare that the Commission’s subsequent order was inconsistent with the previous mandate. However, even if the first opinion of the Court of Appeals could somehow be construed to hold as a matter of law that it is never a deceptive practice to use undisclosed props in a commercial designed to convince a viewer that he is seeing for himself proof of a seller’s claims, we find that the Commission acted reasonably in construing the mandate more narrowly. The Commission’s vague first order had spawned a correspondingly vague opinion by the Court of Appeals. If the court meant its first opinion to say more than we have attributed to it, it was not until the second opinion that the court clearly articulated its reasoning. Therefore, at the least the court’s second opinion resolved a genuine ambiguity in the first, and the time within which certiorari had to be requested dates from the second judgment. See Federal Trade Comm’n v. Minneapolis-Honeywell Regulator Co., 344 U. S. 206, 211.

II.

In reviewing the substantive issues in the case, it is well to remember the respective roles of the Commission and the courts in the administration of the Federal Trade Commission Act. When the Commission was created by Congress in 1914, it was directed by § 5 to prevent “ [u] nfair methods of competition in commerce.” Congress amended the Act in 1938 to extend the Commission’s jurisdiction to include “unfair or deceptive acts or practices in commerce” — a significant amendment showing Congress’ concern for consumers as well as for competitors. It is important to note the generality of these standards of illegality; the proscriptions in § -5 are flexible, “to be defined with particularity by the myriad of cases from the field of business.” Federal Trade Comm’n v. Motion Picture Advertising Service Co., 344 U. S. 392, 394.

This statutory scheme necessarily gives the Commission an influential role in interpreting § 5 and in applying it to the facts of particular cases arising out of unprecedented situations. Moreover, as an administrative agency which deals continually with cases in the area, the Commission is often in a better position than are courts to determine when a practice is “deceptive” within the meaning of the Act. This Court has frequently stated that the Commission’s judgment is to be given great weight by reviewing courts. This admonition is especially true with respect to allegedly deceptive advertising since the finding of a § 5 violation in this field rests so heavily on inference and pragmatic judgment. Nevertheless, while informed judicial determination is dependent upon enlightenment gained from administrative experience, in the last analysis the words “deceptive practices” set forth a legal standard and they must get their final meaning from judicial construction. Cf. Federal Trade Comm’n v. R. F. Keppel & Bro., Inc., 291 U. S. 304, 314.

We are not concerned in this case with the clear misrepresentation in the commercials concerning the speed with which Rapid Shave could shave sandpaper, since the Court of Appeals upheld the Commission’s finding on that matter and the respondents have not challenged the finding here. We granted certiorari to consider the Commission’s conclusion that even if an advertiser has himself conducted a test, experiment or demonstration which he honestly believes will prove a certain, product claim, he may not convey to television viewers the false impression that they are seeing the test, experiment or demonstration for themselves, when they are not because of the undisclosed use of mock-ups.

We accept the Commission’s determination that the commercials involved in this case contained three representations to the public: (1) that sandpaper could be shaved by Rapid Shave; (2) that an experiment had been conducted which verified this claim; and (3) that the viewer was seeing this experiment for himself. Respondents admit that the first two representations were made, but deny that the third was. The Commission, however, found to the contrary, and, since this is a matter of fact resting on an inference that could reasonably be drawn from the commercials themselves, the Commission’s finding should be sustained. For the purposes of our review, we can assume that the first two representations were true; the focus of our consideration is on the third, which was clearly false. The parties agree that § 5 prohibits the intentional misrepresentation of any fact which would constitute a material factor in a purchaser’s decision whether to buy. They differ, however, in their conception of what “facts” constitute a “material factor” in a purchaser’s decision to buy. Respondents submit, in effect, that the only material facts are those which deal with the substantive qualities of a product. The Commission, on the other hand, submits that the misrepresentation of any fact so long as it materially induces a purchaser’s decision to buy is a deception prohibited by §5.

The Commission’s interpretation of what is a deceptive practice seems more in line with the decided cases than that of respondents. This Court said in Federal Trade Comm’n v. Algoma Lumber Co., 291 U. S. 67, 78: “[T]he public is entitled to get what it chooses, though the choice may be dictated by caprice or by fashion or perhaps by ignorance.” It has long been considered a deceptive practice to state falsely that a product ordinarily sells for an inflated price but that it is being offered at a special reduced price, even if the offered price represents the actual value of the product and the purchaser is receiving his money’s worth. Applying respondents’ arguments to these cases, it would appear that so long as buyers paid no more than the product was actually worth and the product contained the qualities advertised, the misstatement of an inflated original price was immaterial.

It has also been held a violation of § 5 for a seller to misrepresent to the public that he is in a certain line of business, even though the misstatement in no way affects the qualities of the product. As was said in Federal Trade Comm’n v. Royal Milling Co., 288 U. S. 212, 216:

“If consumers or dealers prefer to purchase a given article because it was made by a particular manufacturer or class of manufacturers, they have a right to do so, and this right cannot be satisfied by imposing upon them an exactly similar article, or one equally as good, but having a different origin.”

The courts of appeals have applied this reasoning to the merchandising of reprocessed products that are as good as new, without a disclosure that they are in fact reprocessed. And it has also been held that it is a deceptive practice to misappropriate the trade name of another.

Respondents claim that all these cases are irrelevant to our decision because they involve misrepresentations related to the product itself and not merely to the manner in which an advertising message is communicated. This distinction misses the mark for two reasons. In the first place, the present case is not concerned with a mode of communication, but with a misrepresentation that viewers have objective proof of a seller’s product claim over and above the seller’s word. Secondly, all of the above cases, like the present case, deal with methods designed to get a consumer to purchase a product, not with whether the product, when purchased, will perform up to expectations. We find an especially strong similarity between the present case and those cases in which a seller induces the public to purchase an arguably good product by misrepresenting his line of business, by concealing the fact that the product is reprocessed, or by misappropriating another’s trademark. In each the seller has used a misrepresentation to break down what he regards to be an annoying or irrational habit of the buying public — the preference for particular manufacturers or known brands regardless of a product’s actual qualities, the prejudice against reprocessed goods, and the desire for verification of a product claim. In each case the seller reasons that when the habit is broken the buyer will be satisfied with the performance of the product he receives. Yet, a misrepresentation has been used to break the habit and, as was stated in' Algoma Lumber, a misrepresentation for such an end is not permitted.

We need not limit ourselves to the cases already mentioned because there are other situations which also illustrate the correctness of the Commission’s finding in the present case. It is generally accepted that it is a deceptive practice to state falsely that a product has received a testimonial from a respected source. In addition, the Commission has consistently acted to prevent sellers from falsely stating that their product claims have been “certified.” We find these situations to be indistinguishable from the present case. We can assume that in each the underlying product claim is true and in each the seller actually conducted an experiment sufficient to prove to himself the truth of the claim. But in each the seller has told the public that it could rely on something other than his word concerning both the truth of the claim and the validity of his experiment. We find it an immaterial difference that in one case the viewer is told to rely on the word of a celebrity or authority he respects, in another on the word of a testing agency, and in the present case on his own perception of an undisclosed simulation.

Respondents again insist that the present case is not like any of the above, but is more like a case in which a celebrity or independent testing agency has in fact submitted a written verification of an experiment actually observed, but, because of the inability of the camera to transmit accurately an impression of the paper on which the testimonial is written, the seller reproduces it on another substance so that it can be seen by the viewing-audience. This analogy ignores the finding of the Commission that in the present case the seller misrepresented to the public that it was being given objective proof of a product claim. In respondents’ hypothetical the objective proof of the product claim that is offered, the word of the celebrity or agency that the experiment was actually conducted, does exist; while in the case before us the objective proof offered, the viewer’s own perception of an actual experiment, does not exist. Thus, in respondents’ hypothetical, unlike the present case, the use of the undisclosed mock-up does not conflict with the seller’s claim that there is objective proof.

We agree with the Commission, therefore, that the undisclosed use of plexiglass in the present commercials was a material deceptive practice, independent and separate from the other misrepresentation found. We find unpersuasive respondents’ other objections to this conclusion. Respondents claim that it will be impractical to inform the viewing public that it is not seeing an actual test, experiment or demonstration, but we think it inconceivable that the ingenious advertising world will be unable, if it so desires, to conform to the Commission’s insistence that the public be not misinformed. If, however, it becomes impossible or impractical to show simulated demonstrations on television in a truthful manner, this indicates that television is not a medium that lends itself to this type of commercial, not that the commercial must survive at all costs. Similarly unpersuasive is respondents’ objection that the Commission’s decision discriminates against sellers whose product claims cannot be “verified” on television without the use of simulations. All methods of advertising do not equally favor every seller. If the inherent limitations of a method do not permit its use in the way a seller desires, the seller cannot by material misrepresentation compensate for those limitations.

Respondents also claim that the Commission reached out to decide a question not properly before it and has presented this Court with an abstract question. They argue that since the commercials in the present case misrepresented the time element involved in shaving sandpaper, this Court should not consider the additional misrepresentation that the public had objective proof of the seller’s claim. As we have already said, these misrepresentations are separate and distinct, and we fail to see why respondents should be sheltered from a cease-and-desist order with respect to one deceptive practice merely because they also engaged in another.

Respondents finally object to what they consider to be the absence of an adequate record to sustain the Commission’s finding. It is true that in its initial stages the case was concerned more with the misrepresentation about the product’s underlying qualities than with the misrepresentation that objective proof was being given. Nevertheless, both misrepresentations were in the case from the beginning, and respondents were never prejudicially misled into believing that the second question was not being considered. Nor was it necessary for the Commission to conduct a survey of the viewing public before it could determine that the commercials had a tendency to mislead, for when the Commission finds deception it is also authorized, within- the bounds of reason, to infer that the deception will constitute a material factor in a purchaser’s decision to buy. See Federal Trade Comm’n v. Raladam Co., 316 U. S. 149, 152. We find the record in this case sufficient to support the Commission’s findings.

III.

We turn our attention now to the order issued by the Commission. It has been repeatedly held that the Commission has wide discretion in determining the type of order that is necessary to cope with the unfair practices found, e. g., Jacob Siegel Co. v. Federal Trade Comm’n, 327 U. S. 608, 611, and that Congress has placed the primary responsibility for fashioning orders upon the Commission, Federal Trade Comm’n v. National Lead Co., 352 U. S. 419, 429. For these reasons the courts should not “lightly modify” the Commission’s orders. Federal Trade Comm’n v. Cement Institute, 333 U. S. 683, 726. However, this Court has also warned that an order’s prohibitions “should be clear and precise in order that they may bé understood by those against whom they are directed,” Federal Trade Comm’n v. Cement Institute, supra, at 726, and that “[t]he severity of possible penalties prescribed ... for violations of orders which have become final underlines the necessity for fashioning orders which are, at the outset, sufficiently clear and precise to avoid raising serious questions as to their meaning and application.” Federal Trade Comm’n v. Henry Broch & Co., 368 U. S. 360, 367-368.

The Court of Appeals has criticized the reference in the Commission’s order to “test, experiment or demonstration” as not capable of practical interpretation. It could find no difference between the Rapid Shave commercial and a commercial which extolled the goodness of ice cream while giving viewers a picture of a scoop of mashed potatoes appearing to be ice cream. We do not understand this difficulty. In the ice cream case the mashed potato prop is not being used for additional proof of the product claim, while the purpose of the Rapid Shave commercial is to give the viewer objective proof of the claims made. If in the ice cream hypothetical the focus of the commercial becomes the undisclosed potato prop and the viewer is invited, explicitly or by implication, to see for himself the truth of the claims about the ice cream’s rich texture and full color, and perhaps compare it to a “rival product,” then the commercial has become similar to the one now before us. Clearly, however, a commercial which depicts happy actors delightedly eating ice cream that is in fact mashed potatoes or drinking a product appearing to be coffee but which is in fact some other substance is not covered by the present order.

The crucial terms of the present order — “test, experiment or demonstration . . . represented ... as actual proof of a claim” — are as specific as the circumstances will permit. If respondents in their subsequent commercials attempt .to come as close to the line of misrepresentation as the Commission’s order permits, they may without specifically intending to do so cross into the area proscribed by this order. However, it does not seem “unfair to require that one who deliberately goes perilously close to an area of proscribed conduct shall take the risk that he may cross the line.” Boyce Motor Lines, Inc. v. United States, 342 U. S. 337, 340. .. In commercials where the emphasis is on the seller’s word, and not on the viewer’s own perception, the respondents need not fear that an undisclosed use of props is prohibited by the present order. On the other hand, when the commercial not only makes a claim, but also invites the viewer to rely on his own perception for demonstrative proof of the claim, the respondents will be aware that the use of undisclosed props in strategic places might be a material deception. We believe that respondents will have no difficulty applying the Commission’s order to the vast majority'of their contemplated future commercials. If, however, a situation arises in which respondents are sincerely unable to determine whether a proposed course of action would violate the present order, they can, by complying with the Commission’s rules, oblige the Commission to give them definitive advice as to whether their proposed action, if pursued, would constitute compliance with the order.

Finally, we find no defect in the provision of the order which prohibits respondents from engaging in similar practices with respect to “any product” they advertise. The propriety of a broad order depends upon the specific circumstances of the case, but the courts will not interfere except where the remedy selected has no reasonable relation to the unlawful practices found to exist. In this case the respondents produced three different commercials which employed the same deceptive practice. This we believe gave the Commission a sufficient basis for believing that the respondents would be inclined to use similar commercials with respect to the other products they advertise. We think it reasonable for the Commission to frame its order broadly enough to prevent respondents from engaging in similarly illegal practices in future advertisements. As was said in Federal Trade Comm’n v. Ruberoid Co., 343 U. S. 470, 473: “[T]he Commission is not limited to prohibiting the illegal practice in the precise form in which it is found to have existed in the past.” Having been caught violating the Act, respondents “must expect some fencing in.” Federal Trade Comm’n v. National Lead Co., 352 U. S. 419, 431.

“(b) Any respondent subject to a Commission order may request advice from the Commission as to whether a proposed course of action, if pursued by it, will constitute compliance with such order. The request for advice should be submitted in writing to the Secretary of the Commission and should include full and complete information regarding the proposed course of action. On the basis of the facts submitted, as well as other information available to the Commission, the Commission will inform the respondent whether or not the proposed course of action, if pursued, would constitute compliance with its order.
“(c) The Commission may at any time reconsider its approval of any report of compliance or any advice given under this section and, where the public interest requires, rescind or revoke its prior approval or advice. In such event the respondent will be given notice of the Commission’s intent to revoke or rescind and will be given an opportunity to submit its views to the Commission. The Commission will not proceed against a respondent for violation of an order with respect to any action which was taken in good faith reliance upon the Commission’s approval or advice under this section, where all relevant facts were fully, completely and accurately presented to the Commission and where such action was promptly discontinued upon notification of rescission or revocation of the Commission’s approval.”

The judgment of the Court of Appeals is reversed and the case remanded for the entry of a judgment enforcing the Commission’s order.

Reversed and remanded.

Mr. Justice Harlan,

whom Mr. Justice Stewart joins,

dissenting in part.

Under the limited grant of certiorari in this case, the Court must assume that the advertiser can perform the experiment in question and that the demonstration is as simple to execute as it appears on television. The only question here is what techniques the advertiser may use to convey essential truth to the television viewer. If the claim is true and valid, then the technique for projecting that claim, within broad boundaries, falls purely within the advertiser’s art. The warrant to the Federal Trade Commission is to police the verity of the claim itself.

I do not agree that the use of “mock-ups” by the television advertiser is of itself a deceptive trade practice. Further, while there was an independent deceptive element in this commercial, I do not think this record justifies the broad remedial order issued by the Commission. I would remand the case to the Commission for further proceedings.

I.

“Mock-Ups” As Such.

The faulty prop in the Court’s reasoning is that it focuses entirely on what is taking place in the studio rather than on what the viewer is seeing on his screen. That which the viewer sees with his own eyes is not, however, what is taking place in the studio, but an electronic image. If the image he sees on the screen is an accurate reproduction of what he would see with the naked eyes were the experiment performed before him with sandpaper in his home or in the studio, there can hardly be a misrepresentation in any legally significant sense. While the Commission undoubtedly possesses broad authority to give content to the proscriptions of the Act, its discretion, as the Court recognizes, is not unbridled, and “in the last analysis the words ‘deceptive practices’ set forth a legal standard and they must get their final meaning from judicial construction” (ante, p. 385). In this case, assuming that Rapid Shave could soften sandpaper as quickly as it does sand-covered plexiglass, a viewer who wants to entertain his friends by duplicating the actual experiment could do so by buying a can of Rapid Shave and some sandpaper. If he wished to shave himself, and his beard were really as tough as sandpaper, he could perform this part of his morning ablutions with Rapid Shave in the same way as he saw the plexiglass shaved on television.

I do not see how such a commercial can be said to be “deceptive” in any legally acceptable use of that term. The Court attempts to distinguish the case where a “celebrity” has written a testimonial endorsing some product, but the original testimonial cannot be seen over television and a copy is shown over the air by the manufacturer. The Court states of this “hypothetical”: “In respondents’ hypothetical the objective proof of the product claim that is offered, the word of the celebrity or agency that the experiment was actually conducted, does exist; while in the case before us the objective proof offered, the viewer’s own perception of an actual experiment, does not exist.” Ante, at 390. But in both cases the viewer is told to “see for himself,” in the one case that the celebrity has endorsed the product; in the other, that the product can shave sandpaper; in neither case is the viewer actually seeing the proof; and in both cases the objective proof does exist, be it the original testimonial or the sandpaper test actually conducted by the manufacturer. In neither case, however, is there a material misrepresentation, because what the viewer sees is an accurate image of the objective proof.

Nor can I readily understand how the accurate portrayal of an experiment by means of a mock-up can be considered more deceptive than the use of mashed potatoes to convey the glamorous qualities of a particular ice cream (ante, pp. 392-393); indeed, to a potato-lover “the smile on the face of the tiger” might come more naturally than if he were actually being served ice cream.

It is commonly known that television presents certain distortions in transmission for which the broadcasting industry must compensate. Thus, a white towel will look a dingy gray over television, but a blue towel will look a sparkling white. On the Court’s analysis, an advertiser must achieve accuracy in the studio even though it results in an inaccurate image being projected on the home screen. This led the Court of Appeals to question whether it would be proper for an advertiser to show a product on television that somehow, because of the medium, looks better on the screen than it does in real life. 310 F. 2d 89, 94; 326 F. 2d 517, 523, n. 16.

A perhaps more commonplace example suggests itself: Would it be proper for respondent Colgate, in advertising a laundry detergent, to “demonstrate” the effectiveness of a major competitor’s detergent in washing white sheets; and then “before the viewer’s eyes,” to wash a white (not a blue) sheet with the competitor’s detergent? The studio test would accurately show the quality of the product, but the image on the screen would look as though the sheet had been washed with an ineffective detergent. All that has happened here is the converse: a demonstration has been altered in the studio to compensate for the distortions of the television medium, but in this instance in order to present an accurate picture to the television viewer.

In short, it seems to me that the proper legal test in cases of this kind concerns not what goes on in the broadcasting studio, but whether what is shown on the television screen is an accurate representation of the advertised product and of the claims made for it.

II.

The Commission’s Remedy.

The Commission ordered both respondents to cease and desist from using mock-ups in any “test, experiment or demonstration” — in the case of respondent Bates, whether or not relating to Colgate products — as a result of its finding that the use of a plexiglass mock-up in this instance constituted a separate misrepresentation. If that were the only misrepresentation found by the Commission, I would affirm the judgment of the Court of Appeals. The Commission, however, found another misrepresentation, not disputed here, namely, that Rapid Shave would shave sandpaper as quickly as plexiglass, and on this record I cannot say that such finding might not support the Commission’s broad order.

In so concluding, some further observations are called for. The Court brings to the support of the Commission’s broad order the suggestion that it might be difficult for the Commission to police the reliability of simulated demonstrations, and, further, that the Commission might have cause for concern as to advertisers which have demonstrated a propensity for misrepresentation. The policing factor certainly should not permit the Commission to sweep with the broad brush it has used here, since the same risk of inaccurate reproduction inheres in all commercials, not only those involving tests or experiments. Although the Commission doubtless has wide discretion in fashioning remedies (ante, p. 395), I do not believe that an order banning use of all mock-ups can be justified merely on the score of “policing.”

There is some indication, however, that the Commission has had troubles with both respondents in the past (see 59 F. T. C. 1452, 1473 and n. 30). If the Commission should find that a pattern of misrepresentations by respondents creates a substantial risk that they will not accurately portray experiments if permitted to continue using mock-ups, the Commission’s present order might well be justified. I think the Commission should have an opportunity to make such findings, which were unnecessary under what I believe was its mistaken view of the case.

To that end, I would vacate the judgment of the Court of Appeals and remand the case to the Commission for further proceedings in light of what has been said in this opinion.

         38 Stat. 717, as amended, 52 Stat. 111, 15 U. S. C. §45 (a)(1) (1958 ed.):
      “Unfair methods of competition in commerce, and unfair or deceptive acts or practices in commerce, are declared unlawful.”

       52 Stat. 114, as amended, 15 U. S. C. § 45 (i) (1958 ed.):
      “If the order of the Commission is modified or set aside by the court of appeals, and if (1) the time allowed for filing a petition for certiorari has expired and no such petition has been duly filed, or (2) the petition for certiorari has been denied, or (3) the decision of the court has been affirmed by the Supreme Court, then the order of the Commission rendered in accordance with the mandate of the court of appeals shall become final on the expiration of thirty'' days from the time such order of the Commission was rendered, unless within such thirty days either party has instituted proceedings to have such order corrected so that it will accord with the mandate, in which event the order of the Commission shall become final when so corrected.”

        Securities & Exchange Comm’n v. Chenery Corp., 332 U. S. 194, 200; Federal Communications Comm’n v. Pottsville Broadcasting Co., 309 U. S. 134, 145.

       See Labor Board v. Donnelly Garment Co., 330 U. S. 219, 227; Federal Communications Comm’n v. Pottsville Broadcasting Co., supra, note 3, at 141.

       59 F. T. C. 1452, 1477-1478.

       310 F. 2d 89, 94.

        Ibid.

        Colgate-Palmolive Co., No. 7736, FTC, May 7, 1963. An additional clause was added to the order for the benefit of respondent Bates in recognition of the different positions of clients and advertising agencies, which often do not have all the information about a product that the client has. The clause reads: “provided, however, that it shall be a defense hereunder that respondent neither knew nor had reason to know that the product, article or substance used in the test, experiment or demonstration was a mock-up or prop.”

       326 F. 2d 517, 523.

       310 F. 2d 89, 94.

       38 Stat. 719 (1914), as amended, 15 U. S. C. §45 (a)(1) (1958 ed.).

       52 Stat. 111 (1938), 15 U. S. C. §45 (a)(1) (1958 ed.).

       See, e. g., Federal Trade Comm’n v. Motion Picture Advertising Service Co., 344 U. S. 392, 396; Federal Trade Comm’n v. Raladam Co., 316 U. S. 149, 152.

       See Universal Camera Corp. v. Labor Board, 340 U. S. 474, 488; Federal Trade Comm’n v. Pacific States Paper Trade Assn., 273 U. S. 52, 63.

       Brief for Petitioner, p. 13; Brief for Respondent Colgate, p. 22; Brief for Respondent Bates, p. 14.

       Brief for Respondent Colgate, p. 16: “What [the buyer] is interested in is whether the actual product he buys will look and perform the way it appeared on his television set.” Id., at 17: “[A] buyer’s real concern is with the truth of the substantive claims or promises made to him, not with the means used to make them.” Id,., at 20: “[T]he Commission’s error was to confuse the substantive claim made for a product with the means by which such claim was conveyed.”
      Brief for Respondent Bates, pp. 2-3: “If the viewer or reader of the advertisement buys the product, and it will do exactly what the portrayal in the advertisement asserts it will do, can there be any unlawful misrepresentation?” Id., at 13-14: “What induces the buyer to purchase is the claim that the product will perform as represented in the portrayed test. That is the material claim.” Id., at 25: “It is not a representation in any way relating to the product or to its purchase, so that even if the strained suggestion that there is such an implied representation were realistic, the representation plainly would be immaterial.”

        Federal Trade Comm’n v. Standard Education Society, 302 U. S. 112, 115-117; Kalwajtys v. Federal Trade Comm’n, 237 F. 2d 654, 656 (C. A. 7th Cir. 1956), cert. denied, 352 U. S. 1025.

        Kerran v. Federal Trade Comm’n, 265 F. 2d 246 (C. A. 10th Cir. 1959), cert. denied sub nom. Double Eagle Ref. Co. v. Federal Trade Comm’n, 361 U. S. 818; Mohawk Ref. Corp. v. Federal Trade Comm’n, 263 F. 2d 818 (C. A. 3d Cir. 1959), cert. denied, 361 U. S. 814.

        E. g., Niresk Industries, Inc. v. Federal Trade Comm’n, 278 F. 2d 337 (C. A. 7th Cir. 1960), cert. denied, 364 U. S. 883.

        E. g., Niresk Industries, Inc. v. Federal Trade Comm’n, supra, note 19; Howe v. Federal Trade Comm’n, 148 F. 2d 561 (C. A. 9th Cir. 1945), cert. denied, 326 U. S. 741.

       See, e. g., Stipulation 9083, 55 F. T. C. 2101 (1958); Stipulation 8966, 54 F. T. C. 1953 (1957).

       The Commission’s rules, 16 CFR §3.26 (1964 Supp.), provide:

        Federal Trade Comm’n v. National Lead Co., 352 U. S. 419, 429; Federal Trade Comm’n v. Ruberoid Co., 343 U. S. 470, 473; Jacob Siegel Co. v. Federal Trade Comm’n, 327 U. S. 608, 612.