In the Matter of the Complaint Against KING OF ALL BERRIES Caroline Road at Philadelphia, PA 19176 P.S. Docket No. 6/184; 04/06/79 Cohen, James A. APPEARANCE FOR COMPLAINANT: SandraC. McFeeley, Esq. Consumer Protection Office Law Department U. S. Postal Service Washington, D.C. 20260 APPEARANCE FOR RESPONDENT: Charles B. Chernofsky, Esq. Weiss, Rothfarb & Chernofsky 6 East 43rd Street New York, New York 10017
The Consumer Protection Office, Law Department United States Postal Service (Complainant) has filed a petition for mail stop order based on breach of a Consent Agreement. The Consent Agreement was executed on behalf of American Consumer, Inc., by Marvin Mankin, Vice-President, on December 15, 1978. The petition alleges that American Consumer, Inc., doing business as Eden Valley Nursery Sales at Caroline Road, Philadelphia, PA 19176 (Respondent) is engaged in the conduct of an enterprise through the United States mails in violation of the terms of the Consent Agreement. According to the petition, Respondent continues to represent that its strawberry plants are natural climbing plants contrary to the terms of the Consent Agreement.
In its petition Complainant also sought the issuance of an interim order described in paragraph 5(b) of the Consent Agreement. Such an order was issued on February 26, 1979.
Respondent requested an opportunity to present oral argument on the issues raised by the petition. The oral argument was held on March 12, 1979.
1. The Consent Agreement alleged to have been breached provides that Respondent will permanently discontinue representing either directly or indirectly "that Fragaria Cultivar, Ft. Laramie strawberry plants are natural climbing plants; that 6 Fragaria Cultivar, Ft. Laramie strawberry plants will produce a bushel of ripe strawberries less than 60 days after planting; that Fragaria Cultivar, Ft. Laramie strawberry plants are disease and virus resistant; or that Fragaria Cultivar, Ft. Laramie strawberry plants have been specially bred for growing in either the Eastern or Western United States." American Consumer, Inc. agreed to discontinue these representations under the name of King of All Berries or any other name or names at Caroline Road, Philadelphia, PA 19176 or at any other address or addresses.
2. On February 4, 1979, identical full page color advertisements for "Giant Man-High Strawberries" appeared in a number of Sunday newspapers, including the Baltimore Sun and the Washington Post. A copy of the advertisement appearing in the Washington Post is attached to the petition as Exhibit 1.
3. On or about February 3, 1979, William Fang, an attorney in the Law Department of the United States Postal Service, received an unsolicited mailing from Eden Valley Nursery Sales at Caroline Road, Philadelphia, PA 19176. A copy of the mailing envelope and its contents are attached to Complainant's petition as Exhibits 2A-E. The originals of the mailing envelope and its contents were received at oral argument on the petition and marked as the originals of Exhibits 2A-E. Exhibit 2A is the mailing envelope; Exhibit 2B is a pamphlet in the form of a "Dear Friend" letter urging the reader to purchase "Sugar Tower" strawberry plants; Exhibit 2C is a full color advertising brochure for "Sugar Tower" strawberry plants; Exhibit 2D is an order coupon; and Exhibit 2E is a business reply envelope addressed to Eden Valley Nursery Sales at Caroline Road, Philadelphia, PA 19176.
4. Exhibit 1 identifies "Sugar Tower" as an American Consumer, Inc. "trade name for Fragaria Cultivar, Ft. Laramie" strawberry plants. Exhibit 2C identifies "Sugar Tower" as an "American Consumer, Inc. tradename for Ft. Laramie, everbearer" strawberry plants. It is not disputed that the strawberry plants advertised in Complainant's Exhibits 1 and 2A-E are the same variety as the strawberry plants subject to the terms of the Consent Agreement.
5. Exhibits 1 and 2A-E do not use the specific wording "natural climbing" to describe the strawberry plants. Exhibit 1, in the uppermost headline states: "It's a Skyrocketing Pillar of Fruit]" The large red headline which follows states "Now] Giant Man-High Strawberries". Redlettered headlines elsewhere in the advertisement include:
"Grows so fast - so tall...]"
"Zooms from child-size to man-size in just weeks]"
The text of the advertisement in black type contains such statements as:
"Spectacular super grower soars forth to a man-high column of fruit...."
"Super-soaring MAN-HIGH Wonderplants"
"Because, when in your life did you ever hear of strawberries so eager to grow...they'll actually drape your walls, trellises, fences, in cascading fountains of fruit...each man-high beauty a festival of strawberries...."
"SO FAST-growing you'll see it surge into a man-high 'berry factory.'"
"Simply plant them next to fence, trellis, wall or even a pole...follow the easy instructions...tie for support...."
"easiest-to-train man-high strawberry"
"so heavily clustered right up the entire plant - you actually have to tie the plants to your walls, trellis, or fence to support the overwhelming weight of the plant and the fruit."
6. Accompanying the headlined text is a color illustration of a child picking red fruit, presumably strawberries, from a vine on a trellis.
7. Exhibit 2B contains several textual references to a "man-high" column of fruit. It also includes a black and white illustration identical, except for color, to the illustration in Exhibit 1. In Exhibit 2B Respondent, in addition, includes pictures of six ways to grow its Super Tower strawberries, one of which shows the vines on a trellis. The other five pictures show the vines growing along the ground. Exhibit 2B contains the following language:
"You can actually train them to soar forth to a man-high column of fruit"
"Plant them next to a fence, trellis, wall or even a pole...tie for support...follow the easy growing instructions"
8. Exhibit 2C contains in large red headlines: "Giant Man-High Strawberries" and in somewhat smaller but very prominent black lettering "An Amazing SUPER GROWER THAT's EASY TO TRAIN]" In smaller redlettered headlines it states:
"Sugar Tower grows so fast - grows so big, zooms from child-size to man-size in just weeks"
In the black lettered text Exhibit 2C reads:
"Sugar Tower Strawberries can be trained to soar forth as tall as a man..."
"You'll see each single plant start to surge into a man-high 'berry factory' this very season"
"Plant them next to a fence, trellis, wall, or even a pole...follow the easy instructions...tie for support"
"Each one all set to grow high as a man"
9. Exhibit 2C contains several photographs. One photograph is of a man standing next to a pole with a "column" of plants with red fruit. The caption of the photograph reads in bold green type:
"Flavor-Packed Strawberries So Easy-To-Train They Grow As Tall As A Man]"
In somewhat smaller black type the caption continues:
"Plant your Sugar Tower Strawberries next to a fence, trellis, wall or even just a pole for a man-high column of fruit from top to bottom] Here's Sugar Tower growing right along with climbing ivy."
Another photograph is of a woman standing next to a pole with a "column" of plants with red fruit. The caption of the photograph reads in part: "Look at this super crop we photographed in Fall -- produced by just five plants, growing up a telephone pole with climbing ivy,..." and in comparable type further down the caption: "can be grown in a variety of ways; trained to grow man-high; cascading from a window box; and as a conventional strawberry bed." Both photographs show ropes or ties of some sort circling the strawberries and the pole around which they are growing.
The only issue for disposition in this proceeding is whether Respondent, by its Exhibits 1 and 2A-E, continues to advertise that its product is a natural climbing strawberry plant. If it does it violates the terms of the Consent Agreement and it has agreed that an order conforming with 39 USC § 3005 should issue.
Both parties agree that Respondent's advertisements no longer use the words "natural climbing" to describe its strawberry plants. However, Complainant argues that the text, the illustrations, the juxtaposition of words and pictures, the association of climbing ivy with the strawberry plants and the choice of verbs and nouns all create the impression in the mind of the ordinary reader that Respondent's plants are naturally climbing strawberry plants. Respondent on the other hand points to the various references in the advertisements which state the need to train the plants to grow vertically and the specific instruction to tie the plants. Respondent also relies on the illustrations to show that the plants are not being advertised as naturally climbing strawberry plants.
The meaning to be ascribed to Respondent's advertisements is based on their totality and their probable effect on the ordinary mind. See Donaldson v. Read Magazine, 333 U.S. 178 (1948). In judging the meaning of an advertisement, that which is implied must be considered as well as that which is expressly stated. See Aronberg v. F.T.C., 132 F.2d 165 (7th Cir. 1943); Cates v. Haderlin, 189 F.2d 367 (7th Cir. 1951). Applying these principles to the advertisements involved in this proceeding I conclude that Respondent does not represent that its strawberry plants are "natural climbing" plants. There are a sufficient number of reasonably prominent statements in Respondent's advertisements which would lead an ordinary DANCO.131 the conclusion that the plants are not "natural climbing" plants but must have some support in order to grow vertically.
Accordingly, there has been no breach of the Consent Agreement. Contemporaneously with the issuance of this decision the Postmaster at Philadelphia, PA 19104 is being notified that the interim detention order of February 26, 1979, is vacated and that mail addressed to Respondent is to be released to Respondent.