The Federal Trade Commission's Use of Evidence to Determine Deception

Michael T. Brandt, Vinyl Plastics, Inc.
Ivan L. Preston, University of Wisconsin-Madison
ABSTRACT - A census of 3,337 advertising decisions from 1916 to 1973 was conducted to test the conventional wisdom that the FTC relies heavily upon its own supposed "expertise" in determining that deception exists. While the data bear this out for the overall 58-year period, they also show trends toward using evidence from outside sources. Consumer testimony and consumer surveys have been relied upon in more than half the cases of the 1970s.
[ to cite ]:
Michael T. Brandt and Ivan L. Preston (1977) ,"The Federal Trade Commission's Use of Evidence to Determine Deception", in NA - Advances in Consumer Research Volume 04, eds. William D. Perreault, Jr., Atlanta, GA : Association for Consumer Research, Pages: 197-203.

Advances in Consumer Research Volume 4, 1977   Pages 197-203

THE FEDERAL TRADE COMMISSION'S USE OF EVIDENCE TO DETERMINE DECEPTION

Michael T. Brandt, Vinyl Plastics, Inc.

Ivan L. Preston, University of Wisconsin-Madison

[Based on a thesis by the first author (Brandt, 1975), directed by the second author. The article also appears in the Journal of Marketing, 41 (January 1977).]

ABSTRACT -

A census of 3,337 advertising decisions from 1916 to 1973 was conducted to test the conventional wisdom that the FTC relies heavily upon its own supposed "expertise" in determining that deception exists. While the data bear this out for the overall 58-year period, they also show trends toward using evidence from outside sources. Consumer testimony and consumer surveys have been relied upon in more than half the cases of the 1970s.

INTRODUCTION

Upon what evidence does the Federal Trade Commission decide that an advertisement or other sales representation has the capacity or tendency to deceive? This article reports a study that answers that question in the only conclusive (yet not previously done) way--by conducting a census of the 3,337 cases in which such decisions have been made from the FTC's beginnings to the present day (through 1973).

The study reveals that the conventional wisdom about the Commission's uses of evidence, while accurate as a generalization across the entire 58-year period, is lacking in precision and is sparse in detail about the actually wide variety of categories of evidence employed. Furthermore, the conventional wisdom is essentially misleading with respect to the FTC's use of evidence in the 1970s, which has shown a considerable qualitative change.

Marketing people who rely on past assumptions thus are likely to err on the low side in assessing the degree of research sophistication evident in FTC cases today. Correction of this perception will not only give the Commission its due but could also aid the marketer in achieving a higher batting average in court.

Conventional Assumptions About FTC Uses of Evidence

Most observations on the type of evidence used by the FTC tut11 to what may be called the "internal-external" issue. Does the Commission stay "internal," concentrating on its own intuitive understanding of the presence of deception in the message? Or does it go "external," concentrating for example on testimony obtained directly from consumer witnesses? Since deception is clearly a behavioral event occurring within the consumer's m/nd, the crux of the issue is that "internal" evidence is no evidence at all to behaviorally oriented marketing people. The FTC therefore is likely to be held in low esteem and to be subjected to calls for reform by such people if they find it to be concentrating on an "internal" approach.

And that is what the conventional wisdom finds. The legal journals have established the viewpoint through statements such as Millstein's (1964) that "generally the Commission will find that an advertisement promises what the Commission itself believes it promises." Gellhorn (1969) scornfully describes "the 'evidence,' or more accurately, the lack of evidence supporting FTC findings of consumer understanding" (p. 564). LaRue (1971) observes that "Congress intended the Federal Trade Commission to be a body of experts," (p. 9) and that the FTC Act (1964) therefore provided that the Commission's findings of fact, if supported by evidence, shall be conclusive (p. 10). When asked to rule on whether supporting evidence indeed exists, the courts of appeal have adopted the habit of checking only on its existence and rarely questioning its type or quality. LaRue rues this omission because it results in "cases in which the presumption of evidence has saved the day for insufficiently supported Commission findings" (p. 31).

The courts have also established that the commissioners have the explicit right to rely solely on their own intuitive understanding about deception, which means that they need not consider testimony from consumers (Zenith Radio, 1944; Doris Savitch, 1955). The thrust of LaRue's article, however, is that the presumption of Commission expertise is invalid and that judicial deference to it by the appellate courts should stop.

The viewpoint of the legal writers has been adopted more recently by marketing and consumer researchers. Gardner (1975) states that "there has been little concern for incorporating the consumer into any understanding of deception in advertising," (p. 41) and he adds that the FTC and FDA have no research procedures but only legal procedures and that they therefore "operate on the basis of 'fireside' inductions" (p. 46). Jacoby and Small (1975a) state that "the FTC has relied on three types of evidence as a substitute for actual consumer data." Citing Gellhorn as source, they identify the types as the commissioners' own intuitive expertise, dictionary definitions, and testimony from outside experts. [Also see Jacoby and Small, 1975b. For a criticism of Jacoby and Small and of Gardner, see Preston, 1976.]

NEED FOR CATEGORIES OF EVIDENCE

These many observations notwithstanding, the various categories of evidence used by the FTC have never been identified comprehensively, nor have their proportions of use been stated precisely. Further, no changes in the use of various types of evidence across the years have been identified, despite the suggestion derivable from casual observation that Commission reliance on consumer testimony and surveys has appeared to increase considerably in the 1970s.

The present study was designed therefore to give the most complete report possible of FTC usage of various types of evidence.

DATA COLLECTION PROCEDURES

The entire set of decisions recorded in all published volumes of FTC Decisions was examined (1974 and beyond not available at this writing). The 3,337 cases were analyzed in which the Commission made a formal finding that a sales representation (of any sort, not just advertising) was or was not deceptive. Nearly all cases involved were adjudicated proceedings consisting of the issuance of a complaint, finding of facts, and resulting cease and desist order (in 3,182 cases) or dismissal (in 119 cases). In the 1940s numerous orders labeled as "consent orders" were found to have the formal characteristics of cease and desist orders and were treated as such. The genuine consent orders generally were not included; they involved no formal hearing and presentation of evidence. However, 36 consent orders in 1952-56 included formal findings of deception and so were included.

The type or types of evidence cited in each decision were recorded under the categories described below. Coding was done by the first author in consultation with the second author and with Gerald J. Thain, a former director of the national advertising division of the FTC. Coding reliability was not formally examined; the authors feel such checking was unnecessary because assignment to categories was obvious enough as to leave virtually no room for subjective variance.

A category was recorded only once for each decision, even when more than one application of it appeared. Evidence cited in dismissals as showing the absence of deception was recorded. Evidence cited but described as rejected (often for reason of bias) was not recorded.

Where both commissioners and administrative law judge (hearing examiner, in earlier years) recorded findings and/or opinion, the total writing was considered as one decision. Types of evidence mentioned by the law judge were recorded unless the evidence or the whole initial decision was rejected by the commissioners. Recent cases in which the initial decision was not yet acted upon by the commissioners were not included. Where a remand or reversal by an appeals court was based upon rejection of certain categories of evidence, the existence of the categories was excised from the data. If remand or reversal was jurisdictional or procedural, the recording of the categories was retained.

Sometimes the Commission recorded a decision for a particular complaint and then filed memoranda decisions pertaining to a number of similar but separate complaints. The memoranda decisions stated no separate findings nor opinion, so were not recorded. Similarly, decisions involving multiple companies but having only one set of findings and opinion were recorded only once.

What was categorized in all cases was evidence cited of a representation's deception or deceptive capacity. FTC cases also cited evidence of a representation's falsity. Since falsity is conceptually distinct from deception, evidence of it was not recorded, except where the FTC (erroneously, we feel) held falsity to imply deception.

THE CATEGORIES OF EVIDENCE OF DECEPTION

Preliminary selection of categories was mace from the literature (Millstein, 1964; Gellhorn, 19691Gerlach, 1972; Armstrong and Russ, 1975; Pollay, 1969). However, final determination was made directly from the primary records, enabling identification of a more complete set of categories than was previously described.

The first step was to select some natural groupings of categories. The first was called Internal Commission Evidence, consisting essentially of the Commission's own thought processes in examining the sales representation. It involves no observations of anything else outside the agency, and no observations obtained from any persons outside. Some writers have scorned internal evidence as no evidence at all (Gellhorn, 1969; LaRue, 1971; Gerlach, 1972; Preston, 1975), but it is called that here because it is offered in case records as evidence and because the law has sanctioned it as such.

The remaining groups constitute three varieties of external evidence, using sources beyond the Commission's own perceptions of the materials at issue. Group II is Precedential Evidence, in which previous decisions by FTC or courts about the same or similar representations are cited. The finding of deception in the earlier instance is held to compel the same finding in the present case. While such precedents are external to the case at hand, some had been decided originally on the basis of Group I evidence; other precedents were decided on the basis of evidence which was truly external. The truly external groupings of evidence consist of observations made of materials beyond the FTC or made by persons beyond the FTC. They include Group III, External Non-Consumer Evidence, and Group IV, External Consumer Evidence. Non-consumer and consumer sources were separated because evidence of consumers' perceptions obtained from consumers themselves is distinctly different from that obtained elsewhere.

Group I

Six categories of Internal Commission Evidence, Group I, were identified:

Category 1: Deception Per Se. The decision recorded the representation as deceptive or not deceptive with no further comment. This was the purest category of legal evidence that was no evidence of behavior at all.

Category 2: Falsity Equals Deception. The representation was found to be false, and the conclusion that it was deceptive followed without explanation. This was taken to imply a Commission belief that falsity amounted to deception. The determination of falsity probably came from external evidence, but we are concerned here with the determination of deception, which did not.

Category 3: Official Notice. The Commission waived proof of certain facts on the ground that they were obvious because they were agreed to by both sides or because they were similar to facts in previous cases. It then stated that these facts indicated deception.

Category 4: Citation of Commission Expertise. The Commission's own expertise was cited as capable of determining deception. While not effectively different from Category 1, this category involved the Commission's attention to the notion that a source should be cited; thus it cited itself.

Category 5: Consumer Understanding/Consumer Preference. The Commission declared that the consumer understood a representation in a certain way or had a preference for a particular product, such understanding or preference resulting in deception. While this implied the existence of an external source, none was identified.

Category6: Representation Itself. The Commission stated it was relying upon the advertisement or other representation itself as evidence of its deceptiveness.

Group II

Under Group II, Precedent/al Evidence, the numbering of categories continues consecutively:

Category 7: Commission Precedents.

Category 8: Court Precedents. These included the U.S. Courts of Appeals and the Supreme Court.

Group III

Group III, External Non-Consumer Evidence, included:

Category 9: Dictionary Definitions. Including encyclopedias and other similar references, this category's usage involved the assumption that the consumer understood the words or phrases to mean what the source stated they meant.

Category 10: Trade Definitions. A trade or industry may have its own definitions or product composition or of what a word or phrase means in the trade. Again, the FTC assumed that the consumer most have understood the meaning in the same way.

Category 11: Trade Understanding of Consumer Perception. A trade or industry may have determined how it believed the consumer would perceive or understand words, phrases, or representations.

Category 12: Trade Testimony. This was testimony given by a person in the respondent's industry, not in the employ or former employ of respondent. He was qualified not as an expert in the industry but simply as a representative of it.

Category 13: Expert Testimony. This was testimony from a recognized expert in respondent's industry or in a relevant field such as marketing, advertising, or psychology. Testimony was categorized as expert only when the Commission cited it as such or when it cited the person's qualifications beyond a simple statement of his employment.

Category 14: Respondent Testimony. This was testimony (or other response, such as an answer to the complaint) by the respondent or his agents or former employees.

Category 15: Unidentified or Miscellaneous Testimony. The testifier was not identified in the record, or did not fit into any of the other testimony categories.

Category 16: Other Federal Agencies. This consisted of a ruling or finding by another agency that a representation was deceptive.

Category 17: Documentary Evidence. This included letters, contracts, or additional materials not categorized elsewhere.

Category 18: Actual Deception. Instances of actual deception were cited, and the Commission held them to imply deception or deceptive capacity for other persons as well.

Group IV

Group IV, External Consumer Evidence, included:

Category 19: Consumer Testimony. This was testimony by members of the public to whom the representation was made or by members of the public at large.

Category 20: Respondent Surveys. These were surveys of consumers conducted by or commissioned by the respondent.

Category 21: Commission Surveys. These were surveys of consumers conducted by or commissioned by the FTC.

Category 22: Unidentified Surveys. These were surveys of consumers whose source was not identified.

FINDINGS

The FTC's 3,337 determinations about deception averaged 57.5 decisions annually for the 58-year period, ranging from 239 in 1939 to just one in 1917.

Table 1 records the frequencies and proportionate use of each of the 22 categories of evidence, from most to least frequent, and for each of the four groups and some combinations of groups. There were 4,535 uses of types of evidence recorded, an average of 1.36 per decision.

The three most used categories were all from Group I, Internal Commission Evidence, and one or more of the Group I categories appeared in 94.7% of the decisions. There were 2,910 (87.2%) which used evidence from one or more Group I categories only, further indicating how preponderant was the reliance on such evidence. Surprising, however, in view of the literature cited earlier, was the weak usage of Category 4, involving the Commission's citation of its own expertise. All of the other Group I categories, however, involved the Commission's invoking of its own expertise---although without so stating. This was done most often by using Category 2, involving the theoretically questionable practice of seeing deception follow automatically from falsity.

With the dominance of Group I, only 427 decisions (12.8%) utilized any of the other three groups of evidence, and of these only 349 (10.5%) used one or both of Groups III or IV. The most frequently used single category outside of Group I appeared in only 5.8% of the decisions.

Trend Over Years

Space does not permit tabulation of data by individual years. However, the first two columns of Table 2 show percentages of use for selected time periods. The periods of 1916-54 and 1955-73 were chosen because the figures for many of the categories and groups change notably at or near 1954-55. No advance prediction was made that this would occur, but a post hoc explanation is discussed below regarding a change in reporting procedures made by the Commission in 1954.

Table 2 shows that the use of Internal Commission Evidence, Group I, has decreased in 1955-73, and that use of both groups of external evidence has greatly increased. While use of Precedential Evidence has also increased sharply, no significance is placed on the fact because precedents must be established before they can be used.

Table 2 also shows data for selected categories that were either large for the entire 1916-73 period or showed significant change in 1955-73. The decrease in use of Group I thus is seen as due mostly to Category 5, while Category 2 declined only slightly and Category 1 actually increased in the later period. The other categories of Group I were used so infrequently that they show no indication of trends.

The two categories of Group II showed almost identical patterns of change, so are not listed.

The four Group III categories listed are the only ones in that group that appeared in more than one per cent of cases. Each showed strong increases in the later time period. While dictionary definitions participated in this increase, they were not as prevalent as implied by Millstein (1964, p. 476) and Gellhorn (1969, p. 565).

TABLE 1

USE OF CATEGORIES AND GROUPS OF EVIDENCE

TABLE 2

PERCENTAGE OF USE OF CATEGORIES AND GROUPS OVER TIME

While all Group IV categories increased in 1955-73, the frequencies for three of them were so small that the bulk of the group's increase is easily attributed to Category 19, Consumer Testimony.

To summarize the trends in the first two columns of Table 2, there was an increase in external evidence and a decrease in internal evidence. The significance of the latter decrease may be appreciated not so much from a decline in its sheer usage but rather from the decline of 35.3 percentage points in the tendency to rely on it solely.

Table 2 also presents, in its third column, data to determine whether the trends established during 1955-73 may have been even more emphatic in the most recent part of that period, 1970-73. With the Nader and ABA reports on the FTC published in 1969 (Cox, Fellmeth, and Schultz, 1969; American Bar Assn., 1969), changes in Commission procedures might reasonably be hypothesized for the ensuing period. The data bear this out, with usage of Group I only dropping to 361 and usage of Group IV increasing greatly.

Readers accustomed to examining the statistical significance of differences or trends should recall that the data reported here represent the entire population, not a sample, of the FTC decisions involved.

REASONS BEHIND THE FTC'S USE OF EVIDENCE

Why has the FTC relied so heavily on "internal" sources of evidence, and why has it shifted in recent times Coward using "external" evidence?

Use of Internal Evidence

Probably the principal reason for the use of Internal Commission Evidence (Group I) is the basic tenet that an administrative agency is held to be a body of experts possessing among themselves the expertise to make findings of fact. Not only may they make decisions on internal evidence only, but they no doubt fear that the principle of expertise would be threatened if they made decisions on external evidence only.

This probably explains why use of internal evidence has gone down only slightly while external evidence has gone up dramatically. As a recent FTC opinion states, "When [external] evidence is offered to assist the Commission in interpreting advertising representations, it supplements rather than supplants the Commission's expertise" (Crown Central, 1974). The second author has observed that in two presentations he has made as an expert witness in FTC cases the law judges have stated pointedly that they have used his testimony not to establish points directly but merely to corroborate their own similar judgments that they have made independently (Sun Oil, 1974;Ford, 1976). (One suspects the judge often formulates his opinion on the basis of outside testimony, yet maintains for reasons of propriety, with an eye on the commissioners' review of his decision, that he has made the determination on his own.)

The courts have upheld these developments by deferring to the Commission's expertise. Millstein (1964) observes that they rarely reverse the FTC and only where it is "arbitrary or clearly wrong or not supported on the record as a whole by substantial evidence' (p. 470). Since the courts are prone to affirm Group I evidence as being in their opinion "substantial," there is small likelihood that the Commission will be caught lacking in that requirement.

An example of court review was that of Double Eagle (1964) in which respondent produced consumer testimony that certain labels were not deceptive. The commissioners determined otherwise, on their own expertise. On review (Double Eagle, 1965), the court upheld the commissioners by saying other evidence was not necessary where the exhibits themselves demonstrated their capacity to deceive: "If the Commission can find deception without evidence that the public was deceived, we believe that it can make the same finding on the basis of its visual examination of exhibits though numerous members of the public have testified that they were not deceived."

Pertinent to this and most cases is the FTC's need to argue only that there is a "capacity to deceive" rather than actual deception. Since capacity to deceive may exist prior to actual deception, the Commission is further persuaded to ignore the difficult task of showing actual effects on consumers.

Clearly, the obtaining of external evidence may lengthen the time and increase the cost of prosecutions. Since disputed sales representations may continue in use during litigation, there has been much pressure placed on the Commission to reduce the time a decision takes. Consumer spokesmen have been prominent in pressing this point, thus it is ironic that their efforts may inadvertently help persuade the Commission to continue relying heavily on internal evidence.

Rise of External Evidence

Despite such gloomy prognoses, the use of external evidence has risen. Probably a fundamental reason has been the more subtle forms of deception that the FTC has become desirous of controlling. 'Was it deceptive for Wonder Bread (ITT, 1973) to claim it is high in nutrition when the claim is literally true yet might imply falsely that the quality is unique to itself? Did the name "Safety Champion" (Firestone, 19721 Firestone, 1973) imply that a tire is perfectly safe, or that it is safer than other tires? A Commission desiring to press such matters against stiff industry resistance, including respondents' own consumer surveys and consumer witnesses, is bound to become a Commission with a developing sensitivity toward the need for "real" evidence.

The most obvious types of deception probably become more likely over time to be settled by consent decree rather than adjudicated order. Certain principles become so well established that respondents eventually tend to concede that given situations automatically mean deception. Thus it is the more subtle cases that will now lead most often to the formalities of a hearing. Since it is also the more subtle cases that most clearly necessitate the obtaining of external evidence, it is possible that the increase in such evidence is due in large part to the increase in cases now settled by consent which would formerly have been litigated.

Not evidently a reason for the increase in external evidence is the involvement of television in recent FTC cases. Television advertising has been charged with being particularly subtle and manipulative, which suggests that better evidence should be required in order to show deception. However, this study found only twelve cases involving television alone, apart from the confounding effects of other media. It is not a substantial enough record to permit a generalization.

Another pressure toward using external evidence probably was a change in reporting procedures that the Commission adopted in 1954. This policy decision (FTC, 1954) required that the hearing examiner must issue findings in every case and the Commission must write an opinion in every case. Further, the examiner must "abandon formal and legalistic 'findings' and adopt instead narrative and descriptive reports." As early as 1924 Henderson (1924) had complained about legalistic, non-informative reports, saying they did not provide any clues as to how the Commission reached its conclusions. This possibly means that external evidence may have been introduced into some cases up to 1954 without being mentioned in the recorded decisions. It is clear, at any rate, that the trend toward greater use of external evidence appears most predominantly in the years following 1954.

A further reason for the rise of external evidence is the development in the 1970s of litigation over the use of corrective advertising. Since this is so severe a penalty for the advertiser, it is natural that the respondent will urge more strongly that the need for it be conclusively shown. The corrective remedy assumes a continuing damaging effect for an extended period after the consumer last sees the alleged misrepresentation. The idea of continuing damage presupposes damage in the first place, which in turn suggests a need to prove actual deception rather than just "capacity to deceive." Examination of corrective advertising cases shows that they have extensively utilized consumer evidence. There have, however, been only a few such cases (Sun Oil, 1974; ITT, 1973; Firestone, 1972, 1973; Warner-Lambert, 1975).

Similar reasoning applies to the FTC's (1973) newly-expanded authority to employ temporary injunctions against deceptive practices pending adjudication. Since the alleged misrepresentor has more to lose, it seems fair to argue that the evidence against him should be stronger.

Although most of the factors discussed here relate to legal procedures, it is also possible that the increasing sophistication of research methods available for obtaining external evidence is a factor in its increase. This has not been mentioned in FTC decisions, but there should be little hesitation in assuming it would have an effect.

A final encouragement we can mention for the use of external evidence is the criticisms of internal evidence made by the many sources cited above. If their reports of the Commission's over-reliance on internal evidence now seem outdated, it is likely that they have been made so by their own impact.

In any event, there is no doubt that the FTC's viewpoint toward external evidence is improved. In two 1973 decisions it indicated that its own expertise "does not preclude consideration of relevant and helpful evidence" (Coca-Cola, 1973), and that "in cases where, as here, extrinsic evidence exists in the record, the Commission should take it into consideration" (ITT, 1973).

SIGNIFICANCE FOR MARKETERS AND RESEARCHERS

With the likely continuation of the trends seen here, marketers defending their sales representations in FTC hearings should cease depending on the conventional assumption that the FTC will use internal evidence to determine deception. The organization which does not anticipate the commission's use of external evidence, or which does not consider introducing its own external evidence, may find itself with disadvantages it could have avoided. The second author had the experience of being the only witness in an FTC case (Sun Oil, 1974) to present survey evidence on consumer perceptions of the challenged representations. The other side challenged the survey's adequacy but its expert behavioral witness not only presented no survey evidence of his own but declined the judge's request to state an expert opinion as to what the representations meant to the public. The judge took cognizance of this reluctance and granted the lone survey more weight than it perhaps could otherwise have obtained. Marketers thus would he well advised to prepare as strong a type of evidence as the other side is capable of presenting.

The greatest attention should be given to the use of consumer testimony and consumer surveys, since this is the most direct possible evidence of what the consumer sees the message to be saying. Marketers should retain lawyers who are well trained not only in legal processes but also in interpreting and introducing behavioral data and in Contracting for the research needed to produce it.

Although attention to research has become necessary for successful defense against misrepresentation charges, no one should reply that it guarantees success. What is certain is that increased use of external evidence will lead to more accurate determinations of deception, which will be a positive contribution in the sense of assuring truth and justice. But the legal outcome of such accuracy for the individual marketer will vary in accordance with whether or not his challenged sales representations are in fact deceptive. For the organization that is "clean," nothing could be more welcome than the increased ability to prove it. But the organization which is deceiving consumers will by no means be so sanguine about the advantages of progress. In the case mentioned above in which only one side presented survey evidence, it may have been that the other side found itself unable to demonstrate through survey research anything other than the deceptive nature of its advertisements. Thus, being capable of conducting research does not necessarily mean that one can do so to advantage. Nor will the loser, when convicted by external rather than internal evidence, have the opportunity so often available in the past to complain that he was treated unfairly.

The ability of research to settle questions more conclusively will of course restrain the FTC as well as the marketers. Should the agency attempt to conduct cases at the traditional level of internal evidence, it will have to face the possibility of refutation at the external level. Increased use of research, in other words, will not necessarily favor the FTC; rather, it will most likely favor the side which stands closest to the truth.

An ominous development for marketers, however, is that the move in the 1970s toward external evidence has been accompanied by, and no doubt has facilitated, a trend of the FTC toward challenging more and more types of implications of messages (Preston, 1977). Each of these types involves a widening of what a sales message means to the consumer over and above what it literally states, with consequent greater vulnerability of the seller to charges of deception. Apart from this development, the increased use of research might lead only to better proof of the types of deceptions which have traditionally been identified. Now, however, it can lead as well to the identification of various representations as deceptive which have never previously been so labeled.

For researchers, meanwhile, the trends reported here are clearly attractive in that more research means more professional opportunities. Indicative is the appointment in 1976 of John Eighmy, a behavioral researcher and not a latter, as a deputy director for national advertising at the FTC. Lawyers of course will continue to run FTC proceedings, and lawyers have their differences with researchers (Preston, 1977). Nonetheless, the trend toward incorporating researchers into the process of determining deception is clear and obvious.

REFERENCES

American Bar Association, Report of the American Ear Association Commission to Study the Federal Trade Commission (Washington: ABA, 1969).

Gary M. Armstrong and Frederick A. Russ. "Detecting Deception in Advertising," MSU Business Topics, (Spring, 1975).

Michael T. Brandt, "The Federal Trade Commission's Use of Evidence to Determine Deception," unpublished M,A. thesis (University of Wisconsin-Madison, 1975).

In re Coca-Cola, Trade Regulation Reporter 1970-73, par. 20,470 (1973).

Edward F. Cox, Robert C. Fellmeth, and John E. Schulz, Nader's Raiders: Report on the Federal Trade Commission (New York: Grove Press, 1969).

In re Crown Central, Trade Regulation Reporter, par. 20,790 (1974).

Doris Savitch v. FTC, 218 F.2d 817, 818 (2d Cir.,1955). Double Eagle, 66 FTC 1039 (1964).

Double Eagle v. FTC, 360 F.2d 268, 270 (10th Cir., 1965).

In re Firestone, 81 FTC 398 (1972).

Firestone v. FTC, 481 F.2d 246 (6th Cir., 1973).

In re Ford Motor, Dkt. 9001, initial decision (1976).

FTC, Annual Report of the Federal Trade Commission, 3 (1954).

FTC Act, Sec. 5, amended, 15 U.S.C. 45 (1964).

FTC Act, Sec. 13, 15 U.S.C. 53, amended, P.L. 93-153, 87 Stat. 576 (1973).

David M. Gardner, "Deception in Advertising: A Conceptual Approach," Journal of Marketing, 39 (January 1975), 40-46, at 41.

Ernest Gellhorn, "Proof of Consumer Deception Before the Federal Trade Commission," Kansas Law Review, 17 (June 1969), 559-572.

Gary L. Gerlach, "The Consumer's Mind: A Preliminary Inquiry into the Emerging Problems of Consumer Evidence and the Law," Marketing Science Institute (December, 1972).

Gerald C. Henderson, The Federal Trade Commission (1924); reprint edition (New York: Agathon Press, 1968), 334-335.

In re ITT Continental Baking, Trade Regulation Reporter 1970-73, par. 20,464 (1973).

Jacob Jacoby and Constance B. Small, "Deceptive and Misleading Advertising: The Contrasting Approaches of the FTC and the FDA," Purdue Papers in Consumer Psychology, No. 146, mimeo (1975a), 2.

Jacob Jacoby and Constance Small, "The FDA Approach to Defining Misleading Advertising," Journal of Marketing, 39 (October, 1975b), 65-73.

Paul H. LaRue, "FTC Expertise: A Legend Ex-mined," The Antitrust Bulletin, 16 (Spring 1971), 1-31.

Ira M. Millstein, "The Federal Trade Commission and False Advertising," Columbia Law Review, 64 (1964) 439-499, at 470.

Richard W. Pollay, "Deceptive Advertising and Consumer Behavior: A Case for Legislative and Judicial Reform," Kansas Law Review, 17 (June 1969), 625-637.

Ivan L. Preston, The Great American Blow-Up: Puffery in Advertising and Selling (Madison: University of Wisconsin Press, 1975), 147.

Ivan L. Preston, "A Comment on 'Defining Misleading Advertising' and 'Deception in Advertising, '" Journal of Marketing, 40 (July 1976), 54-57.

Ivan L. Preston, "The FTC's Handling of Puffery and Other Selling Claims Made 'By Implication,'" in Arch G. Woodside, Jagdish N. Sheth, and Peter D. Bennett, eds., Foundations of Consumer and Industrial Buying Behavior (New York: American Elsevier, 1977).

In re Sun Oil, Dkt. 8889 (1974).

In re Warner-Lambert (Listerine), Trade Regulation Reporter, 21,066 (1975).

Zenith Radio v. FTC, 143 F.2d 29, 31 (7th Cir., 1944).

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