LEE BOYER'S CANDY
v.
FEDERAL TRADE COMMISSION
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The court held that the phrase 'or may be made' in the FTC order was too broad and should be stricken.
Petitioner sought review of an FTC order, challenging only the portion prohibiting sales through games of chance if sales 'may be made' by such means.…
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MATHEWS, Circuit Judge.
This is a petition to review an order of the Federal Trade Commission. Petition er’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.
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.
Overruling Federal Trade Commission v. A. McLean & Son, supra.
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.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Lichtenstein v. Fed. Trade Comm'n, 194 F.2d 607 (9th Cir. 1952)
Authorities Cited
- Nat'l Candy Co. v. Fed. Trade Comm'n, 104 F.2d 999 (7th Cir. 1939)
- Hill v. Fed. Trade Comm'n, 124 F.2d 104 (5th Cir. 1941)
- Fed. Trade Comm'n v. A. McLEAN & SON, 84 F.2d 910 (7th Cir. 1936)
- Ostler Candy Co. v. Fed. Trade Comm'n, 106 F.2d 962 (10th Cir. 1939)
- Helen Ardelle, Inc. v. Fed. Trade Comm'n, 101 F.2d 718 (9th Cir. 1939)
- Garrison v. United States, 97 F.2d 563 (5th Cir. 1938)
- Kritzik v. Fed. Trade Comm'n, 125 F.2d 351 (7th Cir. 1942)
- Sweets Co. of Am., Inc. v. Fed. Trade Comm'n, 109 F.2d 296 (2d Cir. 1940)