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Federal Trade Commission v. American Snuff Co.

February 13, 1930

FEDERAL TRADE COMMISSION
v.
AMERICAN SNUFF CO.



Petition by Federal Trade Commission against the American Snuff Company for enforcement of anorder of the Commission.

Author: Buffington

Before BUFFINGTON and DAVIS, Circuit Judges, and THOMSON, District Judge.

BUFFINGTON, Circuit Judge.

Without entering into a recital of the bulk of testimony involved and the numerous questions discussed, we limit ourselves to matters and things pertinent and decisive.

The case involves the construction and enforcement of section 5 of the Federal Trade Commission Act (15 USCA ยง 45), which provides: "If such person, partnership, or corporation fails or neglects to obey such order of the commission while the same is in effect, the commission may apply to the circuit court of appeals of the United States, within any circuit where the method of competition in question was used or where such person, partnership, or corporation resides or carries on business, for the enforcement of its order. * * *"

As we read the statute, the jurisdiction of this court, and, therefore, its power to enforce, rests on two facts, first whether the respondent has failed or neglected to obey the order of the Commission -- a question of fact, and secondly, whether such order is valid -- a question of law.

The respondent is using, on packages of snuff made and sold by it, this label []

The Commission made an order to cease and desist which, inter alia, provided:

"(3) It is further ordered that the respondent, its officers, agents, representatives, servants and employees, cease and desist from.

"(a) Using the word 'Dental' and the depiction of a tooth, or either of them, alone or in connection with any other word or words, in the brand name or on the labels on the containers of any of its snuff products to represent, describe or define such product, when its said product contains no ingredient, other than tobacco.

"(b) Making, publishing or circulating written or oral statements or representations in connection with the sale or distribution of any of its snuff products that such product will cure toothache, pyorrhea, bleeding gums, neuralgia or other like maladies, when such product contains no ingredient other than tobacco."

To this the respondent answered:

"With respect to paragraph Three (a) of the said order, Respondent asserts that the Commission has erred, exceeded its authority and acted beyond its jurisdiction in ordering Respondent to cease and desist from 'using the word "Dental" and the depiction of a tooth, or either of them, alone or in connection with any other word or words, in the brand name or on the labels on the containers of any of its snuff products to represent, describe or define such product, when its said product contains no ingredient, other than tobacco,' and Respondent respectfully declines to comply with this part of the Commission's order."

It appearing, therefore, that the respondent has not obeyed the order, it remains for us to decide the question of law whether in view of the proofs, the order is lawful. The jurisdiction of this court to review orders made by the Trade Commission was considered by this court in Curtis Publishing Co. v. Federal Trade Commission, 270 F. 881, 909. We there said that Congress, in enacting that Circuit Courts of Appeal "shall have jurisdiction of the proceeding and of the question determined therein, and shall have power to make and enter upon the pleadings, testimony and proceedings set forth in such transcript, a decree affirming, modifying, or setting aside the order of the Commission" was using ...


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