Lee Boyer's Candy v. Federal Trade Commission

128 F.2d 261, 1942 U.S. App. LEXIS 3560

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 25, 1942
• Docket: No. 9938
• Status: Published

Opinion

MATHEWS, Circuit Judge.

This is a petition to review an order of the Federal Trade Commission. Petitioner’s brief specifies as error,¹ not the entire order, but only so much thereof as requires petitioner to cease and desist from: “(1) Selling' or distributing any merchandise so packed and assembled that sales of said merchandise to the public are to be made or may be made by means of a game of chance, gift enterprise or lottery scheme.”

Other paragraphs of the order — paragraphs (2), (3) and (4) — are not here challenged. As to paragraph (1), petitioner’s only objection is to the phrase “or may be made.” This phrase, petitioner contends, makes the order too broad. Supporting petitioner’s contention are: Helen Ardelle, Inc., v. Federal Trade Commission, 9 Cir., 101 F.2d 718; Federal Trade Commission v. A. McLean & Son, 7 Cir., 84 F.2d 910; Federal Trade Commission v. Charles N. Miller Co., 1 Cir., 97 F.2d 563; Sweets Co. v. Federal Trade Commission, 2 Cir., 109 F.2d 296. Opposed are: National Candy Co. v. Federal Trade Commission, 7 Cir., 104 F.2d 999 ;² Ostler Candy Co. v. Federal Trade Commission, 10 Cir., 106 F.2d 962; Hill v. Federal Trade Commission, 5 Cir., 124 F.2d 104; Kritzik v. Federal Trade Commission, 7 Cir., 125 F.2d 351.

We are asked by the Commission to overrule our decision in Helen Ardelle, Inc., v. Federal Trade Commission, supra. This we decline to do; for, although some courts have refused to follow it,³ we still believe our decision was correct.

The order is modified by striking from paragraph (1) thereof the phrase “or may be made.” As thus modified, the order is affirmed.

1 See Rule 20 (2) (d) of our rules governing appeals and Rule 5 of our rules governing petitions for review or enforcement of orders of boards or commissions.

2 Overruling Federal Trade Commission v. A. McLean & Son, supra.

3 National Candy Co. v. Federal Trade Commission, supra; Ostler Candy Co. v. Federal Trade Commission, supra; Hill v. Federal Trade Commission, supra; Kritzik v. Federal Trade Commission, supra.