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TEMPEST IN A SOUP CAN BBDO EXEC RECALLS LANDMARK LEGAL BATTLE BETWEEN CAMPBELL, THE FTC AND 5 LAW STUDENTS (PART 3 OF 3)

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The petition went on to demand that Campbell be forced to include a statement in every ad and commercial that "in the past we used a certain photographic method in our advertising that gave viewers the impression there was more solid food than the can actually contains. What you see now is the way the soup will look on your dinner table, if prepared according to instructions."

What they were asking for was advertising to "correct" past advertising-unheard of!

Lest you think the SOUP group was comprised of a bunch of clean-cut young patriots with no philosophical nexus to the long-haired radicals on other American college campuses who were occupying college presidents' offices, here's a sample quotation from the petition:

"... this is a sick country. Our courts send men to prison for years for their acts of conscience in refusing to make war on other people, our courts bestow long sentences on young people for possessing a hallucinogen not much stronger than a couple of martinis, and the FTC requires large corporations to file one piece of paper for defrauding millions of people."

By a vote of 3 to 2, the commission decided to keep the matter open in response to the SOUP petition and ordered a hearing on the question of whether the students had a right to intervene.

SOUP filed two briefs in support of intervention and a hearing. One was that of SOUP Inc., the other was that of its treasurer, Gregory D. Ball, representing himself and identifying himself as "an aggrieved consumer." The SOUP brief offered the grandiose argument that "SOUP Inc. has established that it is a representative of the consumers of America who stand hurt by the practices of respondents."

The newly appointed commission chairman was Caspar Weinberger, a Harvard-educated lawyer who would go on to be U.S. Secretary of Defense from 1981 to 1987. On May 25, the commission issued an opinion accompanied by an order that the motion to withdraw acceptance of the consent order be denied, and yet ordering that Campbell and BBDO file "a report in writing setting forth in detail the manner and form in which they have complied with this order."

The last of the Weinberger opinion read as follows:

"We do have an order, obtained without an interminable trial and service of appeals, which is fully adequate to protect the public; we shall not hesitate to enforce this order if this deceptive practice is revived. There should now be an end to this matter."

Reading the hundreds of pages of FTC files obtained 20-plus years later, I was amused to note that several earlier drafts of the Weinberger opinion ended with the sentence: "There should now be an end to this tawdry matter."

Tawdry or not, this was not to be the end of the matter.

The play goes on

There followed two years and seven months of a litigious minuet wherein SOUP, bowing obsequiously, approached on tip-toe the U.S. Court of Appeals, asking it to rule the FTC had erred in refusing to withdraw its acceptance and requesting also that SOUP be allowed to proceed in forma pauperis.

The appeals court agreed to hear the case but denied pauperis, whereupon SOUP executed a graceful pirouette and came right back with yet another appeal to proceed in forma pauperis.

On March 30, 1971, the music stopped just long enough for SOUP to testify before the U.S. Senate subcommittee on administrative practice & procedure, which was holding hearings on "citizen participation."

After the hearings, Sen. Ted Kennedy (D., Mass.) wrote a letter of commendation to the FTC on its "responsiveness to and encouragement of this type of citizen involvement."

The minuet began anew, its rhythm even slower with filings before the U.S. Court of Appeals and, in February 1972, the U.S. Supreme Court, where it was bounced back to the lower court.

With the case back in its own hands, the U.S. Court of Appeals ordered the $25 docketing fee should be processed and the case should be scheduled for argument on the merits in due course. The case was scheduled for Dec. 15, 1972.

Three days before the trial date, SOUP threw in the spoon. SOUP and the FTC agreed to move for dismissal. They asked the U.S. Court of Appeals that the action be dismissed with prejudice, each party to bear its own costs. It was further agreed the action should not be refiled in any federal district court or courts of appeals.

On Dec. 18, 1972, the U.S. Court of Appeals ordered that the motion for dismissal be granted and the appeal dismissed.

One month short of four years after it began, what FTC Commissioner Caspar Weinberger had wanted to call "this tawdry matter" finally came to an end.

This silly tempest in a soup can had dragged a tiresome paper trail through the offices of three different FTC chairmen, fourteen federal judges, nine lawyers, uncounted bureaucrats and cost millions of dollars in sheer economic waste, all for a frivolous attempt by some people who didn't like our country's free enterprise system to bring two American corporations to their knees.

From the beginning, all of us involved at Campbell and BBDO had two questions we wanted answered: 1) What was the charge against us? and 2) Who were our accusers? It took a long bureaucratic while but we eventually learned-by accident.

In all the years of filing and counter filing, documents and petitions, we were never allowed to learn who it was that blew the whistle. But after plowing through files for weeks I had become used to three things: "Respondents" meant Campbell and BBDO and "Applicants" meant the people who charged us with violating the Federal Trade Commission Act.

That word Applicants was always followed in these papers by a black marker, making it impossible to read the Applicant's name.

One morning, I was reading an internal commission memo when suddenly a paragraph on the second page-and I could not believe my weary eyes!-had no black marker over the name of the Applicant. There in clear and clean and legible type following the word Applicant was a name, and the name was H.J. Heinz Co.!

Of course! Who else? For years, Heinz soups had been a poor second in market share behind Campbell's. I had missed seeing the name in that memo during three or four other readings.

The government censor with the black marker missed it only once but, finally, once was enough.

Editor's Note:

H.J. Heinz Co. later dropped out of the soup business and brought an antitrust suit against Campbell, charging monopolistic practices in the market. Campbell countersued Heinz, charging monopolistic practices in the ketchup and foodservice markets, and the suits were settled out-of-court in 1979. Though the students' requests in "marbles" were denied, FTC later held that corrective advertising could be required in cases of deceptive advertising, and it was.

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