In light of frequent attacks on bureaucratic writing, we offer the following excerpt from an FTC opinion as evidence that, when presented with proper issues, the bureaucracy rises to the occasion with stylish prose. The opinion, issued in a case challenging Coca Cola Bottling Company of New York's ownership of both Mogen David and Franzia wines, was written by FTC Commissioner Paul Rand Dixon, with the advice of staff assistant Ernest J. Isensadt and FTC chairman Michael Pertschuk .
IT IS CLAIMED Mogen David occupies its own "quiet corner of the alcoholic beverage business" in which it competes with Manischewitz and a few other berry wines for the patronage of people who "are not really wine drinkers."
On the surface, this proposition appears implausible. After all, Mogen David is called "wine"; is made from the crushed and fermented fruit of the vine; and if consumed in sufficient quantities will (we presume) produce a state of intoxication roughly equal to that induced by the best or worst offerings of California or France. Why, then, is this wine different from all other wines?
In respondent's view, the answer lies in Mogen David's high added sugar content. Respondent does not go quite so far as to suggest that the sophisticated dinner party (hostess) would sooner abandon his or her guests to an evening of unremittingly sober contemplation of each other's conversation than ply them with Mogen David, but it is certainly the thrust of respondent's argument that in the unlikely event that a Franzia drinker were to be confronted with that frightful possibility, he or she would as readily turn for relief to beer or whiskey as to Mogen David.
Several hardly disinterested fanciers of California table wines testified that neither they nor any true oenophilist would drink Mogen David if it were being given away or even (according to one witness) if he were paid $1 a glass to drink it.
Respondent's counsel have elicited fervent denunciations of Mogen David's claim to occupy the same market as California table wines. Thus, as one witness observed, "They make grape alcohol that has sugar and water added. We make wine." In the view of another, Mogen David's MD 20 20 is "a harsh, syrupy tasting, heavy alcohol, raspy, difficult to even smell, let alone get over your palate, type product." (MD 20 20, modestly subtitled "the wine of the century" and "targeted initially to the ethnic market," appears to have particular appeal to black consumers and to young consumers. By 1972 it accounted for 50 percent of Mogen David's sales.)
And, of course, there is the gentleman who, badgered by counsel for his evaluation of the taste of "eastern grapes," responded with that "rather earthy" characterization that [was] apparently considered too earthy even for the calloused sensibilities of the antitrust bar.
Although many of Mogen David's products are kosher and, therefore, suitable for celebrations of the Jewish religion, it is quite clear from the record that only a minority, and perhaps a small minority, of the purchasers of Mogen David (and Manischewitz) are Jewish.
Respondent contends, nevertheless, that those who drink Mogen David are an altogether different group from those who drink California table wines, and that the latter are unlikely to purchase Mogen David (unless perhaps, as one witness explained, "they are bringing it home to their old mother or aunt or somebody like that.").
Noting that, as their taste matures, wine drinkers typically develop a preference for drier, less sweet wines, respondent suggests that the disparity in sweetness between Mogen David and the products produced by Franzia is so great that at any particular point in an individual's drinking career, he or she is unlikely to alternate between wines of the two companies.
Mogen David, then, is at best for the youthful drinker, aged 18-21 or 10-15 (depending upon whether one reads the statute books or the newspapers), whose transition to the role of mature tippler is eased by the sugar in Mogen David but who, upon achieving that status, quickly renounces the medium that made it all possible.
Mogen David, it is suggested, is also of special appeal to lower-income minority groups as well as to older Americans of all races and creeds who have never "dried up." ("Drying up," not to be confused with its opposite, "drying out," is the process whereby wine drinkers gradually shift from sweet to dry wines.)
One large retailer described the non-Jewish purchasers of Mogen David as being "either black, poor black, poor Spanish or Puerto Rican or else they are older people. A lot of times old ladies will come in and say they have been at the doctor and have an artery problem and the doctor recommended drinking a little bit of wine every day and ordinarily, they don't drink wine, they want something...."
Other evidence, in particular marketing studies commissioned by Mogen David, suggests that (1) Mogen David is considered by those who use it to be suitable for consumption at mealtimes, and (2) some of those who consume Mogen David also enjoy and consume a variety of other sweet and dry wine products. The study revealed that when choosing an alternative to Mogen David, 11 percent of the Mogen David preferrers would turn to Italian Swiss Colony and 16 percent to Gallo, while 33 percent would turn to Manischewitz.
Thus, it may be that the three wine retailers who testified have rarely if ever seen a Mogen David buyer approach the cash register with anything but Mogen David in their cart, but the "testimony" of hundreds of consumers reflected in the survey does suggest that such occurrences, aberrant as they may seem, may not be uncommon. Similarly, though the wine industry executives who testified might find it an appalling breach of good taste, it nonetheless seems plain that large numbers of Mogen David drinkers consider the product to be a quite suitable accompaniment to a meal.
While the FTC found that Mogen David was not entirely different from all other wines, it also held that the merger would not hurt competition because of the small market shares of Franzia and Mogen David and other factors. The complaint was dismissed .