Opinion
No. 9938.
May 25, 1942.
Petition to Review an Order of the Federal Trade Commission.
Petition by Lee Boyer's Candy to review an order of Federal Trade Commission requiring petitioner to cease and desist from certain practices.
Order modified and, as modified, affirmed.
Robert W. Gilley and F.M. Sercombe, both of Portland, Or., for petitioner.
W.T. Kelley, Chief Counsel, Fed. Trade Com., Joseph J. Smith, Jr., Asst. Chief Coun., and James W. Nichol and D.C. Daniel, Sp. Attys., Fed. Trade Com., all of Washington, D.C., for respondent.
Before GARRECHT, MATHEWS, and STEPHENS, Circuit Judges.
This is a petition to review an order of the Federal Trade Commission. Petitioner's brief specifies as error, 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."
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.
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; 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.
Overruling Federal Trade Commission v. A. McLean Son, supra.
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, we still believe our decision was correct.
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.
The order is modified by striking from paragraph (1) thereof the phrase "or may be made." As thus modified, the order is affirmed.