agency engaged for such purpose by respondent or by any such division or subsidiary, which claim concerns the performance characteristics (including but not limited to air cooling, heating, cleaning, circulation, dehumidification or humidification, efficiency and quietness of operation) of, or the uniqueness of any feature of, any of respondent's air conditioners; (b) which provided the basis upon which respondent relied as of the time the claim was made; and (c) which shall be maintained by respondent for a period of three years from the date such advertising or sales promotional material was last disseminated by respondent or any division or subsidiary of respondent. The provisions of Paragraph 3 hereof shall be in effect for a period of ten (10) years from the date this order becomes final. It is further ordered, That respondent corporation shall forthwith distribute a copy of this order to each of its operating divisions and to each of its officers, agents, representatives or employees who are engaged in the preparation or placement of advertisements. It is further ordered, That respondent notify the Commission at least thirty (30) days prior to the effective date of any proposed change in the corporate respondent such as dissolution, assignment or sale, resulting in the emergence of a successor corporation, the creation or dissolution of any subsidiaries engaged in the manufacture and/or sale in commerce of air conditioning products or systems, or any other changes in the corporation which may materially affect compliance obligations arising out of the order. It is further ordered, That respondent shall, within sixty (60) days after the effective date of the order, file with the Commission a report, in writing, setting forth in detail the manner and form of its compliance with this order. FINAL ORDER JANUARY 14, 1975 This matter having been heard by the Commission upon the appeal of respondent's counsel from the initial decision, and upon briefs and oral argument in support thereof and opposition thereto, and the Commission, for the reasons stated in the accompanying opinion, having denied the appeal: It is ordered, That the initial decision of the administrative law judge, pages 1-30 [pp. 42-65 herein], is adopted as the Findings of Fact and Conclusions of Law of the Commission, except insofar as certain comments on pages 29-30 [pp. 63-65 herein] are inconsistent with the conclusions on pages 5-6 [pp. 73-74 herein] of the accompanying opinion, and subject to the following changes: P. 2, line 4, [p. 43, line 2 herein] omit "that" P. 3, line 9, [p. 43, fifth paragraph herein] word 4 "asserting" P. 15, [p. 53 herein] substitute 6.5 percent for 7.8 percent P. 18, line 36, [Finding No. 27, pp. 55-56 herein] substitute 6.5 percent for 7.8 percent Other Findings of Fact and Conclusions of Law of the Commission are contained in the accompanying opinion. It is further ordered, That the following order be entered: ORDER It is ordered, That respondent Fedders Corporation, its successors and assigns, officers, agents, representatives and employees, directly or through any corporation, subsidiary, division or other device, in connection with the advertising, offering for sale, sale or distribution in commerce as "commerce" is defined in the Federal Trade Commission Act, of air conditioners, do forthwith cease and desist from: 1. Representing, directly or by implication, that any air conditioner, on the basis of a comparison thereof with the air conditioners of other manufacturers then being marketed in the United States in commercial quantities, is unique in any material respect, unless such is the fact; 2. Making, directly or indirectly, any statement or representation in any advertising or sales promotional material as to the air cooling, dehumidification, or circulation characteristics, capacity or capabilities of any air conditioner, unless at the time of such representation respondent has a reasonable basis for such statement or representation, which shall consist of competent scientific, engineering or other similar objective material or industry-wide standards based on such material; 3. Failing to maintain accurate records which may be inspected by Commission staff members upon reasonable notice: (a) which consist of documentation in support of any claim included in advertising or sales promotional material disseminated by respondent, insofar as the text of such claim is prepared, or is authorized and approved, by any person, who is an officer or employee of respondent, or of any division or subdivision of respondent, or by any advertising agency engaged for such purpose by respondent or by any such division or subsidiary, which claim concerns the air cooling, dehumidification, or circulation characteristics, capacity, or capability of, or the uniqueness of any feature of, any of respondent's air conditioners; (b) which provided the basis upon which respondent relied as of the time the claim was made; and (c) which shall be maintained by respondent for a period of three years from the date such advertising or sales promotional material was last disseminated by respondent or any division or subsidiary of respondent. The provisions of paragraph 3 hereof shall be in effect for a period of ten (10) years from the date this order becomes final. It is further ordered, That respondent corporation shall forthwith distribute a copy of this order to each of its operating divisions and to each of its officers, agents, representatives or employees who are engaged in the preparation or placement of advertisements. It is further ordered, That respondent notify the Commission at least thirty (30) days prior to the effective date of any proposed change in the corporate respondent such as dissolution, assignment or sale, resulting in the emergence of a successor corporation, the creation or dissolution of any subsidiaries engaged in the manufacture and/or sale in commerce of air conditioning products or systems, or any other changes in the corporation which may materially affect compliance obligations arising out of the order. It is further ordered, That respondent shall, within sixty (60) days after the effective date of the order, file with the Commission a report, in writing, setting forth in detail the manner and form of its compliance with this order. OPINION OF THE COMMISSION JANUARY 14, 1975 BY DIXON, Commissioner: The complaint in this matter was issued on June 11, 1973, and charged respondent with dissemination of false and misleading advertisements in violation of Section 5 of the Federal Trade Commission Act, as amended (15 U.S.C. 45). In particular the complaint alleged that respondent had represented through advertisements in newspapers of interstate circulation that (1) "reserve cooling power"1 is a unique feature of its room air conditioners, not found in other room air conditioners; (2) Fedders' room air conditioners compared with all other room air conditioners have a significantly increased cooling capacity at high loading conditions under customary conditions of use; and (3) Fedders had a reasonable basis for concluding that its product 'Hereinafter sometimes "RCP," stipulated by the parties to mean "ability to function satisfactorily under conditions of extreme heat and humidity." (I.D. 8) The following abbreviations are used herein: I.D.-Initial Decision (Finding No.) I.D. p.-Initial Decision (Page No.) RB-Respondent's Appeal Brief (Page No.) compared with all other room conditioners has said increased cooling capacity. Drawing on a brief record consisting of stipulations, joint exhibits, and a few respondent's exhibits,2 the administrative law judge sustained the complaint and recommended entry of an order. On appeal respondent has taken essentially the same position as it took before the administrative law judge, conceding the falsity of, and absence of reasonable basis for, the challenged representations but raising socalled affirmative defenses of "abandonment" and "insubstantiality," and arguing in the alternative that the order should be diminished in scope. We find the affirmative defenses to be patently without merit, as did the administrative law judge, but we believe that a slight modification of the order he has proposed is appropriate. I. Insubstantiality Respondent argues that it should be absolved from any liability in this matter because the number of offending advertisements constituted only a small percentage of respondent's total advertising expenditures. Evidence submitted by respondent indicated that in four sample areas, New York, Philadelphia, Washington, D.C., and Florida, during the sample two-year period ending Aug. 31, 1971, the number of untruthful advertisements totaled 173 or 5.8 percent of all advertisements for reserve cooling power, and expenditures on such advertisements were $18,269 or 6.5 percent of all expenditures for advertisements touting RCP. (I.D. 17, 18) Respondent asserts in its appeal brief that the sample area accounted for "at least 35 percent" of its total United States' sales and advertising expenditures for the sample period.3 Whatever the total number of offending advertisements may have been, it is clear to us that evidence from the sample area alone was quite sufficient to destroy whatever weight might be accorded respondent's defense of insubstantiality. The Commission has previously issued orders in cases involving no more than one or a few deceptive advertisements. [See Gimbel Bros., 60 F.T.C. 359, 368 (1962), appeal dismissed per stipulation, No. 14019 (3d Cir. Oct. 8, 1962) unreported; Gimbel Bros., Inc. v. FTC, 116 F.2d 578, 579 (2d Cir. 1941).] Here, in an area apparently accounting by * In describing the record in this case, the administrative law judge neglected to make reference to certain exhibits submitted by respondent separately (I.D. p. 5, third full paragraph (p. 45, fifth paragraph]). There is no indication, however, that the administrative law judge did not actually consider these exhibits in fashioning his decision, and in any event the Commission has fully considered said exhibits in its own review of the record. * RB 13. The administrative law judge, noting that advertisements for RCP had been run for several years prior to the sample period, concluded that the actual number of offending advertisements may have totaled in excess of 1,000. (I.D. p. 27 (p. 62 herein]) Respondent challenged this extrapolation, though it did agree to use a sampling procedure. The parties apparently disagree as to whether the sample may be taken as representative of Fedders' advertising during the entire period in which RCP advertisements were run, or simply as representative of Fedders' advertising throughout the country for the sample two-year period. Resolution of this disagreement is not necessary for our decision. respondent's estimate for far less than half of all its sales, 173 separate false advertisements were disseminated over a two-year period. This was 173 more than the law allows, and far more than warrant an appeal to the discretion of the Commission to omit an order in a litigated case. The fact that these advertisements constituted only a small percentage of respondent's total advertising program is wholly irrelevant. It merely demonstrates the truism that a larger advertiser inevitably has more opportunities than a smaller one to engage in deceptive practices. Similarly, we are entirely unimpressed with the fact that the offending advertisements appeared in non-urban newspapers with less circulation than metropolitan dailies. We are pleased to note, however, that respondent does not maintain that "deception is all right if practiced in moderation" nor that "deception is permissible if practiced in small town newspapers of limited circulation" (RB 13-14), though the learned administrative law judge may be excused for having received the contrary impression. (I.D. p. 27 [pp. 62-63 herein]) In all events the magnitude of the false advertising in this case cannot constitute an affirmative defense to the allegations of the complaint, nor does it give any reason to think that an order is not required to remedy the violation. II. Abandonment Respondent further argues that it abandoned the offending practice in late 1971. It was stipulated at trial that RCP advertising was discontinued at this time, following determination by respondent, in response to an advertising substantiation order served on it by the Commission, that claims for the uniqueness of RCP could not be substantiated. The Commission has been properly parsimonious, if not totally unyielding, in its adjudicative recognition of the defense of abandonment, and courts have been reluctant to vacate Commission orders on those grounds except in the most extreme circumstances not present here, such as where a corporate respondent had exited from the relevent line of business under circumstances in which reentry seemed improbable. National Lead Co. v. FTC, 227 F.2d 825, 839, et seq. (7th Cir. 1955), reversed in other respects, 352 U.S. 419 (1957). Certainly the mere discontinuance of an offending practice in the face of inquiry by a law enforcement agency can under no circumstances be argued to amount to a defense. It is undisputed that respondent did not discontinue the challenged advertising until it had received an Order to File Special Report, requesting substantiation for the false representation. The situation is in essence no different from that in Coro, Inc., 63 F.T.C. 1164 (1963), affd 338 F.2d 149 (1st Cir. 1964), cert. denied 380 U.S. 954 (1965), upon which the administrative law judge relied. While |