# Petition — Warner-Lambert Co. v. Federal Trade Commission > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0204%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1978 - **Citation:** 435 U.S. 950 ## Text | : } Supreme Court, U. S. ) FILED | o&C 181977 sae ICHAEL RODAK, JR., CLERK IN THE Supreme Court of the Baited States OcToBER TERM, 1977 No. 77 “855 one WaARNER-LAMBERT COMPANY, PETITIONER Vv. FEDERAL TRADE COMMISSION / PETITION (WITH APPENDIX) FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT LIONEL KESTENBAUM JaMES H. KELLEY DonaLp L. Harpison Larry D. SHARP Attorneys for Petitioner BErcson, BorRKLAND, Marcouis & ADLER 11 Dupont Circle, N.W. Washington, D.C. 20036 Passes or Braon S. Avams Paintine, Inc., Wasnineton, D.C. / J TABLE OF CONTENTS Page ee rn) na eeunbnesudasanantes i Taste or Cases & AUTHORITIES ...........0-cccccees ii oe eee ends wuesnieeeeaes 1 IE 5 0c on du dieendentdesuaueadndsedeecsune be 2 GGRUR TUINIIGED oon sc cccccccdscccccsscccccesces 2 CoNSTITUTIONAL Provision aND Statute INvotvep.... 3 i es eek as kesenndenesesenscetee 5 (a) The Federal Trade Commission Decision ..... 5 (b) The Concurrent Food and Drug Administration En on6.646 6c dua Nees bb ON ten ee nee 8 (c) The First Court of Appeals Opinion .......... 10 (d) The Supplemental Court of Appeals Opinion .. 13 Reasons FoR GRANTING THE WRIT ...........-...008. 14 ee ae hae ad ee a a ee 25 APPENDIX Opinion of the Federal Trade Commission (De- MD. ni oleae eae eebeneenseene la Order of the Federal Trade Commission (March cet deed pdahoewebens tutn cng eens 48a Order of the Court of Appeals (December 28, I Be A aes UL es ee clad. 50a Opinion of the Court of Appeals (August 2, 1977) 5la Supplemental Opinion on Petition for Rehearing Ferre er re 87a Order of the Court of Appeals (September 14, SEE. ctitkthaeyd dc0ks obs bdbnkeuensneenees 95a Order of the Court of Appeals (September 14, EE Nankndnecndsaksedcnsedakedsidensdees 96a Order of the Court of Appeals (September 14, BEE. cbkdéseuddncbsbeadenecdéasndedeonees 97a ii TABLE OF CASES AND AUTHORITIES CasEs: Page American Home Products Corp., FTC Docket No. SD cco ndlendsdeunseshoepaeseeseusdeenadeness 16 Banzhaf v. F.C.C., 405 F.2d 1082 (D.C. Cir. 1968), cert. denied, 396 U.S. 842 (1969) ...........-45- 19 Beneficial Corp. v. FTC, 542 F.2d 611 (3d Cir. 1976), cert. denied, 430 U.S. 983 (1977) ........-.0005- 19 Bristol-Myers Co., FTC Docket No. 8917 ........... 16 Campbell Soup Co., 77 F.T.C. 664 (1970) ........... 16 F.T.C. vy. National Commission on Egg Nutrition, 517 F.2d 485 (7th Cir. 1975), cert. denied, 426 U.S. 919 SED ok0%604 64546 040600064 00 OKs been needs prevent future advertisements from being misleading.’’ This con- trasts with ‘‘affirmative disclosure’ orders, which forbid ‘‘an ad- vertiser from making representations which are deceptive unless he discloses facts which remove the deception.’’ Cornfeld, A New Approach to an Old Remedy: Corrective Advertising and the Fed- eral Trade Commission, 61 Iowa L. Rev. 664, 706-07 (1976). 6 by the Commission, as modified by the court below,’ requires that all advertisements for Listerine, until approximately $10 million has been expended on such advertising, contain the following language: Listerine will not help prevent colds or sore throats or lessen their severity. The mandated language is required in all advertise- ments, even though the advertisements themselves are entirely truthful and wholly unrelated to colds and sore throats. (Pet. App. 46a) The Federal Trade Commission did not find that this language was necessary to prevent future adver- tisements from being deceptive. In rejecting Warner- Lambert’s First Amendment objections to the order’s “corrective advertising” requirements, the Commis- sion conceded that the order constituted “regulation of truthful commercial speech” (Pet. App. 33a, em- phasis supplied) ; but it nevertheless ordered that the language be included as an ‘‘affirmative action” (Pet. App. 24a) designed to eliminate any “lingering ef- fects” from the past advertisements it had found to he false (Pet. App. 24a, n.24). The complaint which led to the order described above was issued by the Commission in June 1972. Insofar as is pertinent to this petition, the complaint ‘The court of appeals modified the FTC’s order by directing the deletion of an introductory phrase (‘‘contrary to prior advertis- ing’), finding that this ‘‘confessional preamble’’ was neither necessary to attract attention nor appropriate in a ease such as this, where ‘‘the record compiled could support a finding of good faith.’’ (Pet. App. 74a-76a) The Federal Trade Commission made no findings and its opinion offered no reasons for the requirement of this phrase. el —— Se ee ee ee whee _—" ee ee ee ee oe 7 charged that Warner-Lambert had falsely represented that Listerine would “prevent colds and sore throats” and would ‘‘cause colds and sore throats to be less severe than they otherwise would be.” * (Pet. App. la n.29 at 32a) Warner-Lambert denied these and other substanti : " ntive allegations of the complaint. (Pet. App. The Commission concluded that the advertisements in issue made the claims alleged in the complaint. ( Pet. App. 3a) It also found by a preponderance of the evidence that the use of Listerine would be of no benefit in reducing the number or Severity of colds and would not provide any relief from cold symptoms. (Pet. App. 17a-18a) While virtually all witnesses stated that Listerine would provide temporary relief from sore throat due to cold, the Commission found that comparable relief could be obtained from salt water, and ‘‘that this temporary relief is not the ‘sig- nificant relief’ promised by respondent’ : ments.” (Pet. App. 8a)* po S advertise- *The complaint also contained an allegation that W bert had misrepresented the results of “ite most Pht mo = studies. This charge was dismissed, based upon a finding that War- ner-Lambert ‘cannot be said to have acted unreasonably’’ when it se upon studies which had been considered in detail by the ederal Trade Commission in connection with the dismissal of a prior complaint challenging essentially the same colds claims for Listerine as are in issue here. (J.A. 564; Pet. App. la, n.1) * The only claims related to ‘‘sore throat”? j in the ree i poe Prien which appear on Listerine labels: ‘‘For Bed Deeeth - 7 = Resultant Sore Throats,’’ which appeared prior to 1973, an or Relief of Cold Symptoms and Minor Sore Throats Due to Colds,’’ whi ea ~ which has appeared from 1973 to the present. (Pet. App. 8 (b) The Concurrent Food and Drug Administration Proceedings At about the time the complaint in this case was issued, the Food and Drug Administration adopted procedures for determining whether over-the-counter (OTC) drugs, including Listerine, are safe, effective, and correctly labeled.’ 21 C.F.R. § 330 (1977). While the Listerine case was pending before the full Commis- sion, the Federal Trade Commission announced a ‘Proposed [Industry] Rule Concerning Over-the- Counter Drugs,’’ 40 Red. Reg. 52631 (1975). Under the terms of this proposed industry regulation, the Com- mission will in effect adopt the findings of the FDA re- view program and proceed against advertising for OTC drugs which conflicts with the monographs issued under the FDA review program. Pursuant to the FDA’s OTC review procedures, a panel of experts was established to study ‘“Over-the- counter cold, cough, allergy, bronchodilator, and anti- asthmatic drug products.’’ 37 Fed. Reg. 9464 (1972). In February 1976, two months after the order was entered in the present case, the panel issued its draft report. (J.A. 3090) ’ Under the procedures established by the Food and Drug Admin- istration, independent expert panels were appointed to review all available medical and scientifie data concerning the safety and effi- cacy of ingredients used in over-the-counter products, and to deter- mine the safety and efficacy of the ingredients and the claims which could be made for them. The panel’s report is subject to public comment prior to final action by the Commissioner of Food and Drugs. 21 C.F.R. § 330.10(a) (6) (1977) The Food and Drug Administration has jurisdiction over the labeling of drug products, including Listerine. The Wheeler-Lea Amendments to the Federal Trade Commission Act defined the Commission’s jurisdiction over drug advertising to exclude labeling. 52 Stat. 116 (1938), 15 U.S.C. § 55(a)(1). a meni, nl eT A) ae ee OS 9 In its draft report, the panel of experts recom- mended that Listerine be classified in ‘‘Category III” (J.A. 3018, 3213), a category which it defined as ap- propriate for drugs “which in their judgment are likely to be safe and effective, but for which more data are needed”’ (J.A. 3143). The Commissioner of Food and Drugs has formally declared that ‘‘[c]lassi- fication of an ingredient or claim in Category III represents a preliminary determination that general recognition of safety and effectiveness can be shown with further testing.’”’ 42 Fed. Reg. 19137, 19139 (1977).° The panel evaluated a wide variety of evi- dence concerning the pharmacological properties of Listerine’s ingredients, including a clinical study which was part of petiticner’s proof before the FTC which the panel described as showing ‘‘milder nasal symptoms and [cough] symptoms”’ for Listerine users as compared to a control group which did not use Lis- terine. On the basis of these evaluations, the panel recommended further study to determine the necessity for and contribution of each ingredient claimed to be active.” (J.A. 3018, 3045-46, 3213) Warner-Lambert petitioned the Commission to re- open the record to consider the FDA panel report’s findings relating to the efficacy of Listerine. (J.A. * Drugs deemed not safe and effective are placed in Category II. Category I drugs are those deemed safe and effective without need for further testing, 21 C.F.R. § 330.10(a) (6) (1977). * Under the FDA rules governing the OTC review rogram, Li terine could continue to be labeled for the relief of ‘oi ~-cnon a pending the outcome of this future testing. E.g. 41 Fed. Reg. 38312, 38314 (1976). The FTC's proposed rule would prohibit advertising of Category i claims. 40 Fed. Reg. 52631 (1975). Continued ad- vertising of claims accorded Category III status in the FDA review program was contemplated by the FTC. (J.A. 972-73) 10 . 922) On March 26, 1976, the Commission denied the petition to reconsider on the ground that the con- clusion of the FDA’s expert panel with respect to Listerine was in a draft report and thus did not prop- erly constitute a “finding”. (Pet. App. 49a) After the record of the FTC proceeding had been filed with the court of appeals, thereby depriving the Commission of further jurisdiction, the advisory panel to the Food and Drug Administration issued its final report. 41 Fed. Reg. 38312 (1976).” This report re- peated the pertinent conclusions reached in the draft report. 41 Fed. Reg. 38348, 38351, 38353, 38409, 38411, 38413 (1976). Pursuant to 15 U.S.C. § 45(c), Warner- Lambert applied to the court of appeals for leave to ad- duce additional evidence before the Commission. This application was denied without opinion. (Pet. App. 90a ) (c) The First Court of Appeals Opinion On August 2, 1977, the court of appeals affirmed, with one modification, the order issued by the Federal Trade Commission. (Pet. App. 51a) The court of ap- peals held that “the Commission’s conclusion that Lis- terine is not beneficial! for colds or sore throats’’ was “supported by substantial evidence on the Tecord viewed as a whole,’”’ and sustained the Commission’s finding of a violation of §5 of the Federal Trade Commission Act. (Pet. App. 54a) The court did, how- ever, state that “the record compiled could support a finding of good faith” by the company in making claims for Listerine of symptomatic relief of colds. 10 The panel report recommended a monograph, which the Com- missioner issued for public comment, after which he is to issue a final monograph, 41 Fed. Reg. 38312-14 (1976). a oll tnt Bn Se ee Ee © ee ee spel kind of remedy the Commission has ordered here. Like Royal and Waltham, Listerine has built up over a period of many years a widespread reputation. When it was ascertained that that reputation no longer 998 F.2d at 92. Accord, Ward Laboratories, Inc, v, FTC, supra note 49. The dissent incorrectly staves that the Royal and be > way ads and labels were falae on their face (just as selling —— be Haig & Haig bottles would be) and that the courts simply o — the misrepresentations removed, To the contrary, the Royal an Waltham ads and labela were strictly truthful, but they ~~~ misleading when considered in light of past advertisements, See O81 F. at 748-749 and 318 F.2d at 30-31, “In Royal and Waltham the advertising claims that had given rine to the peodaste’ reputations were concededly true when made, but because the products themselves had changed that a was no longer deserved, Consumers would have been deceived, in the future, if they had continued to make purchases in reliance upon this reputation, Here, of course, the Commission has deter- mined that Listerine's cold claima were never true, and that \. reputation as a cold remedy was thus never deserved, —— changed in this ease is not the product itself, but the extent o =” knowledge of the evidence underlying the advertising claims, But the result here is the same as in the earlier cases—like Royal baking powder or Waltham watches, Listerine continues to enjoy a ~~ tation it does not deserve, and consumers would therefore be ceived if they were to make purchases in relianee upon that repu- tation. Tla applied to the product, it was necessary to take action to correct it.“ Here, as in Royal and Waltham, it is the ac- cumulated impact of past advertising that necessitates dis- closure in future advertising.” To allow consumers to con- tinue to buy the product on the strength of the impression built up by prior advertising—an impression which is now known to be false—would be unfair and deceptive.” *° We thus find unpersuasive petitioner’s contention that the corrective advertising ordered here is unprecedented in that it seeks ‘‘to eliminate perceived future effects of past violations that are wholly unrelated to future conduct * * *.’’ Petitioner’s br. at 26. We all agree with the Commission that the ‘‘common thread’ linking earlier corrective advertising cases extends to the present case as well, See JA 894. The distinctions petitioner seeks to draw between the present ease and earlier corrective advertising cases are essentially seman- tie. It argues that, unlike Royal, Waltham, and similar cases, here the Commission made no specific finding that even truthful future Listerine ads would themselves be deceptive without a corrective statement. Petitioner’s br. at 38. Similarly, while petitioner appears to concede that continued sales of a product under false pretenses may constitute violation of the FTC Act justifying imposition of corrective advertising, it argues that the Commission offered no ‘ evidence to support a finding of such a violation here. Petitioner’s br. at 26. It seems clear to us that these various different ‘‘theories”’ are in fact simply different ways of describing the same thing. The nature of the violation, and the nature of the remedy required, are no different whether one says that future truthful ads will be ‘‘deceptive’’ when viewed against the backdrop of earlier adver- tising, or that future sales to customers who have been misled by earlier advertising will constitute the deceptive practice, or, as the Commission said here, that ‘‘there is clear and continuing injury to competition and to the consuming publie as consumers continue to make purchasing decisions based on the false belief [that arose from prior deceptive advertisements].’’ JA 894. The Commission’s authority to impose corrective advertising obviously should not turn upon the particular verbal formula chosen in a particular case. ** There is also precedent in other contexts for Commission action to dissipate future effects of a company’s past wrongful conduct. In American Cyanamid Co. v. FTC, 363 F.2d 757 (6th Cir. 1966), 72a IV. Tue Remepy Having established that the Commission does have the power to order corrective advertising in appropriate cases, it remains to consider whether use of the remedy against Listerine is warranted and equitable. We have concluded after remand, 401 \.2d 574 (6th Cir. 1968), cert. denied, 394 US. 920 (1969), the court approved an order requiring the petitioner to grant patent licenses where he had obtained the patent by illegal conduct. The court said his retention of the fruits of his unlawful conduct would itself be an unfair practice and the Com- mission had the power to prevent it. In Lorain Journal Co. v. l/nited States, 342 U.S, 143 (1951), the Supreme Court affirmed a judgment that a newspaper publisher, in an effort to destroy a competing radio station, had unlawfully refused to accept advertising from anyone who advertised on the radio station. The Court approved a District Court order requiring the newspaper to publish each week for 25 weeks a conspicuous notice apprising the public of the terms of the judgment. The order was necessary to prevent the newspaper from continuing to reap the benefits of its wrongful conduct. While we do not know and do not decide whether our petitioner made its false cold claims in good faith or bad, we do observe that for an advertiser who knowingly advertises falsely a simple cease and desist order provides no real deterrent. He has nothing to lose but attorneys’ fees. He gets to use the deceptive advertisements until he is eaught—more precisely, until Commission proceedings, which usually drag on for years, are completed against him. By the time the order has become final, the particular campaign has probably been squeezed dry, if not already discarded. In the meantime the seller has increased his market share and reaped handsome profits. The order to cease making the false claims takes none of this away from him. In short, ‘‘[a] cease and desist order which commands the respondent only to ‘go, and sin no more’ simply allows every violator a free bite at the apple.’’ Note, ‘‘Cor- rective Advertising’’ Orders of the Federal Trade Commission, 85 Harv. lL. Rev. 477, 482-483 (1971). See also Pitofsky, Beyond Nader: Consumer Protection and the Regulation of Advertising, 90 Harv. L. Rev. 661, 693-694 (1977) ; Note, Corrective Advertis- ing and the FTC: No, Virginia, Wonder Bread Doesn’t Build Strong Bodies Twelve Ways, 70 Micu. L. Rev. 374 (1971). 73a that part 3 of the order should be modified to delete the phrase ‘‘Contrary to prior advertising.’’** With that mod- ification, we approve the order. Our role in reviewing the remedy is limited. The Su- preme Court has set forth the standard: The Commission is the expert body to determine what remedy is necessary to eliminate the unfair or decep- tive trade practices which have been disclosed. It has wide latitude for judgment and the courts will not interfere except where the remedy selected has no reasonable relation to the unlawful practices found to exist, '*! The Commission has adopted the following standard for the imposition of corrective advertising: [I]f a deceptive advertisement has played a substan- tial role in creating or reinforcing in the public’s mind a faise and material belief which lives on after the false advertising ceases, there is clear and continuing injury to competition and to the consuming public as consumers continue to make purchasing decisions based on the false belief. Since this injury cannot be averted by merely requiring respondent to cease disseminating the advertisement, we may appropriately order re- spondent to take affirmative action designed to termi- * The Federal Trade Commission Act gives the reviewing court the power to ‘‘enter a decree affirming, modifying, or setting aside the order of the Commissiun * * *.’’ 15 U.S.C. § 45(¢) (1970). ** Jacob Siegel Co. v. FTC, 327 U.S. 608, 612-613 (1946). See also FTC v. Ruberoid Co., supra note 53; Carter Products, Inc. v. ma, F.2d 461, 498 (9th Cir.), cert. denied, 361 U.S. 884 T4a nate the otherwise continuing ill effects of the adver- tisement.'**! We think this standard is entirely reasonable. It dictates two factual inquiries: (1) did Listerine’s advertisements play a substantial role in creating or reinforcing in the public’s mind a false belief about the product? and (2) would this belief linger on after the false advertising ceases? It strikes us that if the answer to both questions is not yes, companies everywhere may be wasting their massive advertising budgets. Indeed, it is more than a little peculiar to hear petitioner assert that its commercials really have no effect on consumer belief. For these reasons it might be appropriate in some cases to presume the existence of the two factual predicates for corrective advertising.“ But we need not decide that ques- tion, or rely on presumptions here, because the Commis- sion adduced survey evidence to support both propositions. We find that the ‘‘Product Q’’ survey data and the expert testimony interpreting them“ constitute substantial evi- dence in support of the need for corrective advertising in this case. We turn next to the specific disclosure required: ‘‘Con- trary to prior advertising, Listerine will not help prevent colds or sore throats or lessen their severity.’’ Petitioner is ordered to include this statement in every future adver- * JA 894. ** See Pitofsky, supra note 60, 90 Harv. L. Rev. at 696-700. ** The Commission used the results of a series of market surveys known as ‘‘Product Q’’ reports on the ‘‘Mouthwash Market.’’ The surveys were conducted by petitioner for its own purposes from 1963 to 1971. According to petitioner’s own advertising agency, ‘*Product Q is ideally suited to provide guidance in such vital areas as * * ® [h]ow successful are the current advertising cam- paigns of different brands on awareness, recall, attitudes and sales?’’ JA 2785-2786. The surveys showed that about 70% of the 75a tisement for Listerine for a defined period.” In printed ad- vertisements it must be displayed in type size at least as large as that in which the principal portion of the text of the advertisement appears and it must be separated from the text so that it can be readily noticed. In television com- mercials the disclosure must be presented simultaneously in both audio and visual portions. During the audio portion of the disclosure in television and radio advertisements, no other sounds, including music, may occur.” These specifications are well calculated to assure that the disclosure will reach the public. It will necessarily at- tract the notice of readers, viewers, and listeners, and be plainly conveyed. Given these safeguards, we believe the preamble ‘‘Contrary to prior advertising”’ is not necessary. It can serve only two purposes: either to attract attention that a correction follows or to humiliate the advertiser. The Commission claims only the first purpose for it, and this we think is obviated by the other terms of the order.” consumers questioned recalled ‘‘effective for colds and sore throats’’ as a main theme of Listerine advertising. During the summer, when no cold claims had teen broadcast for about six months, the percentage fell to only 64% ; i.e., the recall of cold claims after six months of silence was very substantial. The surveys also showed that about 60% of consumers questioned believed Listerine was “‘one of the best’’ mouthwashes for the quality ‘‘effective against colds and sore throats.’’ JA 568-580. The Commission also relied on the testimony of two experts in the field of consumer marketing surveys. Dr. Bass testified that cold efficacy belief levels would continue at about 60% for two years after colds advertising ceased and would remain high after five years, JA 1591-1592, 1617. Dr. Rossi testified that cold efficacy beliefs would decline at no greater a rate than 5% per year. JA 1522, 1556-1559. ** See note 1 supra. * JA 865. “Cf. United States v. Nat’l Society of Professional Engineers, supra note 40, —_— F.2d at ——, slip op. at 12-13 (order should not be more intrusive than necessary to achieve fulfillment of the governmental interest); Beneficial Corp. v. FTC, supra note 40, 542 F.2d at 618-620 (same). 76a The second purpose, if it were intended, might be called for in an egregious case of deliberate deception,” but this is not one. While we do not decide whether petitioner proferred its cold claims in good faith or bad, the record compiled could support a finding of good faith.” On these facts, the confessional preamble to the disclosure is not warranted. Finally, petitioner challenges the duration of the dis- closure requirement. By its terms it continues until re- spondent has expended on Listerine advertising a sum equal to the average annual Listerine advertising budget for the period April 1962 to March 1972. That is approxi- matejy ten million dollars." Thus if petitioner continues to advertise normally the corrective advertising will be required for about one year. We cannot say that is an un- *° We express no view on the question whether an order intended to humiliate the wrongdoer would be so punitive as to be outside the Commission’s proper authority. * Petitioner strenuously urges its good faith and offers in sup- port thereof its reliance on the St. Barnabas study which allegedly supported Listerine’s claims, see text at notes 8-10 supra, and on previous ‘‘acquittals’’ by the Commission. The Commission reviewed Listerine’s cold claims in 1932, 1940, 1951, 1958, and 1962, and took no action against them. JA 2738-2740. While good faith may be relevant to the fairness of a confession- al preamble, it is irrelevant to the need for corrective advertising in general. Innocence of motive is not a defense if an advertisement is prejudicial to the public interest. As the Supreme Court stated in FTC v. Algoma Lumber Co., 291 U.S. 67, 81 (1934) : Indeed there is a kind of fraud * * * in clinging to a benefit which is the product of misrepresentation, however innocently made. * * * That is the respondents’ plight today, no matter what their motives may have been when they began. They must extricate themselves from it by purging their business methods of a capacity to deceive. (Citations omitted. ) ™ Petitioner’s br. at 56. 77a reasonably long time in which to correct a hundred years of cold claims. But, to petitioner’s distress, the requirement will not expire by mere passage of time. If petitioner cuts back its Listerine advertising, or ceases it altogether, it can only postpone the duty to disclose. The Commission concluded that correction was required and that a duration of a fixed period of time might not accomplish that task, since petitioner could evade the order by choosing not to advertise at all. The formula settled upon by the Commis- sion is reasonably related to the violation it found. Accordingly, the order, as modified, is Affirmed. ™ The ALJ had set the duration of the requirement at two years, but conceded that ‘‘[o]ne variable that will have an effect upon what is accomplished is the amount of Listerine advertising respond- ent may see fit to engage in.’’ JA 585, The Commission’s formula takes that variable into account. 78a Ronn, Circuit Judge, dissenting in part; I agree with the majority that there is substantial evidence in the record to support an order requiring Warner-Lambert to cease and desist from advertising Listerine as a remedy for colds and sore throats, I therefore agree that Parts I, II, IV and V of the Commission's order must be affirmed, I dissent from the affirmance of Section III of the order which (1) forbids Warner-Lambert to disseminate any ad- vertisement for Listerine unless accompanied by a correc- tive statement relating to past advertising, and (2) pro- vides that this ‘‘duty to disclose the corrective etatement shall continue until respondent has expended on Listerine advertising a sum equal to the average annual Listerine advertising budget for the period of April 1962 to March 1972,’"—-a sum of approximately ten million dollars,’ In ‘Section ITI of the FTC Order contains the corrective adver- tising requirement, It states in full; . Ir Ie Furtwer Onperep that respondént Warner-Lambert Company, & corporation, itg suctessors and Assigns, and re- apondent's officers, agents, representatives and employees, di- rectly or through any corporation, subsidiary, division or other device, do forthwith cease and desist from disseminating or causing the dissemination of any advertisements for the product Listerine Antiseptic unless it is clearly and conspicu- ously disclosed in each such advertisement in the exact lan. guage below that; Contrary to prior advertising, Listerine will not help prevent colds or sore throats or leasen their severity, In print advertisements, the disclosure shall be displayed in type size which is at least the same size as that in which the principal portion of the text of the advertisement appears and shall be separated from the text so that it can be readily noticed, In television advertisements, the disclosure shall be presented simultaneously in both the audio and visual por- tions, During the audio portion of the disclosure in tele- vision and radio advertisements, no other sounds, including music, shall occur, Bach such disclosure shall be presented in the language, ¢.g., English, Spanish, principally employed in the advertisement. 79a my judgment this requirement of corrective advertising is beyond the statutory authority of the Federal Trade Com- mission, The Commission's authority to enter cease and desist orders is prospective in nature; the purpose of cease and desist orders is ‘‘to prevent illegal practices in the future’’, FTC v, Ruberoid Co,, 348 U.S, 470, 473 (1952), not ‘‘to punish or to fasten liability on respondents for past conduct’, FTC v, Cement Institute, 3383 U.S, 683, 706 (1948). The cases that have construed the Commission's remedial power, ¢.g., FTC v, Sperry & Hutchinson Co,, 405 U.S, 233, 244 (1972); FTC v. Mandel Brothers, Ine., 359 U.S, 385, 392-93 (1959); FTC v, Ruberoid Co,, supra; FTC v. National Lead Co,, 352 U.S, 419, 428-29 (1957); Jacod Siegel Co, v, FTC, 327 U.S, 608, 610-12 (1946), stand only for the proposition that the Commission has broad discre- tion in determining what conduct of a respondent shall be forbidden prospectively, I think this authority does not encompass the power to employ the retrospective remedy of corrective advertising; and I find no other basis for that asserted power, As the majority recognizes, Congress by amendment of the Federal Trade Commission Act in 1975 authorized the Commission to commence civil actions in federal district courts, to remedy unfair or deceptive acts or practices ‘‘with reapect to which the Commission has issued a final cease and desist order’’, As part of the relief granted in such an action the court was given the power to order ‘public notification respecting the . . . unfair or deceptive acts or practices’’, So far as pertinent the amendment reads as follows: The aforesaid duty to disclose the corrective statement shall continue until respondent has expended on Listerine adver- tising & sum equal to the average annual Listerine advertising budget for the period of April 1962 to March 1972. 86 F.T.C, 1398, 1485.86 (1975), 80a (2) If any person, partnership, or corporation en- gages in any unfair or deceptive act or practice (with- in the meaning or section 45(a) of this title) with respect to which the Commission has issued a final cease and desist order which is applicable to such per- son, partnership, or corporation, then the Commission may commence a civil action against such person, partnership, or corporation in a United States district court or in any court of competent jurisdiction of a State, Jf the Commission satisfies the court that the act or practice to which the cease and desist order re- lates is one which a reasonable man would have known under the circumstances was dishonest or fraudulent, the court may grant relief under subsection (b) of this section, (b) The court in an action under subsection (a) of this section shall have jurisdiction to grant such relief as the court finds necessary to redress injury to con- sumersa or other persons, partnerships, and corpora- tions resulting from the rule violation or the unfair or deceptive act or practice, as the case may be, Such re- lief may include, but shall not be limited to, recission or reformation of contracts, the refund of money or return of property, the payment of damages, and pub- lic notification respecting the rule violation or the un- fair or deceptive act or practice, as the case may be; except that nothing in this subsection is intended to authorize the imposition of any exemplary or punitive damages. 15 U.S.C. §57b(b) (2) and 57b(b). [Emphasis supplied) The majority comments briefly that the 1975 Amendment ‘‘eannot be said to remove corrective advertising from the class of permissible remedies’’; the expressed ‘‘congres- sional intent’’, says the majority, is to the contrary. I think the 1975 legislation cannot be so lightly dismissed, The amendment indicates to me that at least in the judgment Sla of the Congress the Commission does not have, and is not intended to have, the power to order ‘public notification’’ by way of corrective advertising, If the Commission already had that power, why was the amendment necessary? More- over, the majority fails to note that under the amendment a district court can order public notification only on a showing that the respondent acted in bad faith, Yet the theory of the Commission, accepted by the majority, is that the Commission may enter a corrective advertising order even though a false advertisement was published in good faith, To me it is strange that the Congress would require a court to find bad faith, while authorizing the Commission to act in the absence of bad faith, The majority attempts to distinguish ‘‘publiec notifica- tion’’ from corrective advertising, First, says the majority, ‘*public notification is a much broader term’’ than correc- tive advertising. It is clear to me however that the term public notification includes corrective advertising of the type ordered in this case, Indeed, the examples of public notification given by the majority (n.36) are simply varia- tions of corrective advertisements,’ Second, the majority » says ‘the ‘public notification’ contemplated by the amend- ment is directed at past consumers of the product. . . * As one example of ‘‘public notification’’ the majority says in n.36 ‘it might encompass requiring the defendant to run special advertisements reporting the FTC finding... .'' I note however that according to the FTC such advertisements are ‘‘corrective ad- vertising’’, In its opinion in the case before us, 86 F.T.C, 1398, 1498 (1975) the Commission states that it ‘‘has accepted nu- merous consent orders which require corrective advertising.’’ In support of this statement the Commission cites several cases as examples of cases in which corrective advertising was ordered, (/d., pp. 1498-99, n.22) In at least three of those cases the Commission required the dent to publish advertisements advising the public of the finding and retracting prior deceptive state- ments, Pay Less Drug Stores Northwest, Inc, 82 F.T.C, 1473 (1973); Boise Tire Co, 83 F.T.C, 21 (1978); Wasem's, Inc, 84 F.T.C, 209 (1974). 82a whereas the type of corrective advertising currently before us is directed at future consumers,’’ [Emphasis in origi- nal] I think the term ‘‘public notification’? must not be construed so narrowly that future consumers are ignored, My view of the significance of the amendment is buttres- sed by the statement of Senator Moss, a co-sponsor of the bill, 120 Cowo, Ree, 40712 (1974); ‘*The Federal Trade Commission's improvements specified in the bill will afford, in my opinion, long-term improvement in the fairness of the American marketplace, No longer will the Federal Trade Commission be confined to slapping the wrists of persons who engage in unfair or deceptive practices and telling them not to do it again,’’ The majority relies upon the statement in the Conference Committee's report and the provision in the amendment to the effect that it does not affect any ‘‘existing power’’ of the Commission, 8. Rer, No, 93-1408, °3d Cong,, 2d Sess, 1974, reprinted in [1974] U.S, Cone Cono, & An, News 7774: 15 U.S.C. 457b(e), The majority seems to think these statements indicate a congressional intent to give the Commission authority to order corrective adver- tising. I am unable to understand this reasoning, The question before us is what is the ‘existing power’’ of the Commission, and that question is not answered by either the amendment or the Committee's report. I find nothing in the cases that justifies the Commis- sion’s corrective advertising order. In particular, I am not persuaded by the majority's quotations fron the opinions of the Supreme Court in Pan American World Airways, Inc. v. United States, 371 U.S, 296 (1963), and FTC »v, Dean Foods Co., 384 U.S. 597 (1966), Taken in the context of the facts of those cases the quoted language does not support the majority's conclusion, In the Pan American case the Court considered the power of the Civil Aeronautics Board under section 411 of the Civil Aeronautics Act of 1958, 49 U.S.C, § 1381, to order 83a an air carrier to cease and desist from ‘unfair , , . prac- tices or unfair methods of competition’’, The Court held that the Board's jurisdiction over unfair practices and un- fair methods of competition, together with its power under the Act to regulate air carriers, and to deal with consolida- tions, mergers, interlocking relations, pooling arrange- ments, ete,, 49 U.S.C, §§ 1378, 1379, and its authority to en- force the Clayton Act as it is applicable to air carriers, 15 U.S.C, §21, empower the Board to order divestiture when a combination between carriers violates the antitrust laws and hinders the Board's restructuring of routes, Con- sidered in the light of the specific and extensive statutory underpinning upon which the Court based this decision it is a far cry from a holding that the power to order divesti- ture was derived only from the authority to issue cease and desist orders, as the majority opinion suggests.’ Certainly it does not follow from this case that the power of the Fed- eral Trade Commission to order corrective advertising can be derived from its authority to issue cease and desist or- ders, standing alone, For similar reasons the language quoted by the majority . from the Dean Foods case is not persuasive, As stated by the Supreme Court the issue in that case was: . ++ the power of the Court of Appeals under the All Writs Act, 28 U.S.C, § 1651(a) (1964 ed.), to tempo- rarily enjoin the consummation of a merger that is under attack before the Federal Trade Commission as violative of §7 of the Clayton Act, as amended, 64 Stat. 1125, 15 U.S.C, § 18 (1964 ed.), Id, at 599, The Court noted that the Clayton Act granted the Commission the power to determine the legality of a * Compulsory licensing of an illegally obtained patent, referred to in the majority's n.60, ia an aspect of divestiture, A legally obtained patent permits a valid monopoly for the period of the patent; an illegally obtained patent shelters an invalid monopoly which can be ‘‘broken up'’ by requiring the patent holder to license ite patent to competitors. 84a merger and to order divestiture if it proved to be appro- priate, 15 U.S.C, §21(b); and the Court therefore held that the Commission might apply to a court of appeals for a preliminary injunction to maintain the status quo until the Commission decided the matter and the court of appeals reviewed the Commission's decision, The power to pray for an injunction was deseribed by the Supreme Court as ‘incidental’? to the Commission's authority under the Clayton Act, Jd, at 606, To deny this plainly incidental power to preserve the Commission's and the court's juris- diction, said the Supreme Court, ‘would stultify congres- sional purpose.’’ Here again I think this decision does not support the majority's leap to the conclusion that the power to issue a cease and desist order, without more, au- thorizes the Commission to enter a corrective advertising order, nor does the decision justify a conclusion that the corrective order can be sustained under some general re- medial power of the Commission, The other cases cited by the majority do not justify the Commission's order, In those cases an affirmative disclo- sure was required because failure to reveal material facts, in the light of the representations made in advertisements, made them misleading. Thus in the case of Ward Labora- tories, Inc. v. FTC, 276 F.2d 952 (2d Cir.), cert. denied, 364 U.S, 827 (1960), cited by the majority, the court said; Any requirement of an affirmative disclosure of a negative is always to be approached with caution, Merely because a remedy is useful for any one ailment is no reason to demand an accompanying statement of all the ills for which it is not beneficial, Pven this prin- ciple, however, must yield where the advertisements are misleading because of failure to reveal facts ma- terial in the light of the representations made therein, In arriving at such a conclusion the advertisements (format and copy) and the potential customer they are intended to reach must be analyzed. Id. at 954, [Emphasis supplied) 85a Similar reasoning may be found in Keele Hair & Scalp Specialists, Inc. v. FTC, 275 F.2d 18 (5th Cir. 1960) ; Feil v. FTC, 285 F.2d 879 (9th Cir. 1960); and J. B. Williams Co. v. FTC, 381 F.2d 884 (6th Cir. 1967). In Royal Baking Powder Co. v. FTC, 281 F. 774 (2d Cir. 1922), relied upon by the majority, a manufacturer by em- ploying false and misleading labeling and advertising rep- resented that a phosphate baking powder which it was offering for sale was the same as the more expensive cream of tartar baking powder which it had manufactured for many years. The baking powder company was in the posi- tion a liquor dealer would be in today if he used Haig & Haig pinch bottles and labels when purveying moonshine whiskey. The court held that the Commission properly or- dered the company, by correcting its false and misleading advertising, to cease and desist from this unfair method of competition. In Waltham Watch Co. v. FTC, 318 F.2d 28 (7th Cir.), cert. denied, 375 U.S. 944 (1963), an advertise- ment represented that clocks offered for sale were manu- factured by a ‘‘famous 150-year-old company’”’, the original Waltham Watch Company of Massachusetts. The fact was - that the original Waltham Company had nothing to do with the clocks offered for sale, which were imported from Europe. The Commission ordered the advertisers to cease and desist from using the name Waltham in connection with the sale of clocks unless the public was warned that they were not manufactured by the Waltham Watch Com- pany in Waltham, Massachusetts. The majority finds ‘‘that the orders in Royal and Wal- tham were the same kind of remedy the Commission has ordered here’’. I cannot agree. In those cases advertise- ments falsely represented that the products offered for sale were the same as the products, well-known to the pub- lic, which had been offered in the past. The Commission’s orders simply required these false representations to be 86a corrected in future advertisements using the same or simi- lar format or copy. In the present case, however, when Warner-Lambert has ceased and desisted from advertising Listerine as a remedy for colds and sore throats there will be nothing to correct in the text of the Listerine advertise- ments. Any ‘‘corrective statement’’ will relate solely to past advertising. Finally, in considering the validity of the Commission’s order the majority fails to focus on all its terms. Section III of the order forbids any advertisements for Listerine without the corrective statement. Yet it is conceded that Listerine is effective as a mouth wash and breath freshen- er, and it appears that in recent years much the greater part of Warner-Lambert’s advertising budget for Listerine has been spent in promoting these uses of the preparation. Thus the Commission and the majority would forbid the publication of truthful advertisements of Listerine’s effec- tiveness unless coupled with a disclaimer relating to uses advertised in the past. I cannot believe that the statute contemplates such a remedy, which goes far beyond the prevention of ‘‘illegal practices in the future.’’ The theory of the majority is that whenever ‘‘advertise- ments play a substantial role in creating or reinforcing in the public’s mind a false belief about [a] product’’ and ‘‘this belief [may] linger on after the false advertising ceases’’, corrective advertising may be ordered. As the ma- jority apparently concedes, this test would apply to almost any advertisement which is the subject of a cease and desist order. I cannot accept this concept. I reject the proposition that the after-effects of advertising which has been discontinued pursuant to a cease and desist order can thus expand the Commission’s statutory power to prevent future illegal practices. See Heater v. FTC, 503 F.2d 321, 323-25 (9th Cir. 1974). In my opinion such an expansion must be made by the Congress, not by this court. 87a UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 76-1138 Warner-LamBert Company, Petitioner Ve Fepera, Trave Commission, Respondent Supplemental Opinion on Petition for Rehearing Filed September 14, 1977 Before Bazeton, Chief Judge, and Wricut and Ross Circuit Judges. Opinion for the court filed by Circuit Judge Waicut. Dissenting opinion filed by Circuit Judge Ross. Wnricar, Circuit Judge: In its petition for rehearing petitioner has urged this court to reconsider its earlier decision affirming, with some modifications, the order of the Federal Trade Commission requiring Warner-Lambert Company to cease and desist from deceptively advertising its product Listerine as a cure for colds or sore throat and affirmatively to correct in its future advertisements the im- pression created by its prior deceptive advertising. The primary argument raised in the petition for rehearing is that the Commission is barred by the First Amendment from imposing a corrective advertising order in this case. Having considered this claim carefully, it is our conclusion that it must be rejected. Because of the importance of the issues raised, however, we think it desirable to set forth in some detail our reasons for so concluding. 88a I In Virginia State Board of Pharmacy v. Virginia Citi- zens Consumer Council, Inc., 425 U.S. 748 (1976), the Supreme Court rejected prior precedents holding that com- mercial speech is ‘‘wholly outside the protection of the First Amendment.’’ Jd. at 761. In reaching this conclusion the Court emphasized the interest of consumers in the free flow of truthful information necessary for formulation of intelligent opinions and proper resource allocation. Id. at 764-765. Consistent with this concern, the Court was careful to distinguish truthful commercial speech from that which is false, misleading, or deceptive: ‘‘ Untruthful speech, com- mercial or otherwise, has never been protected for its own sake. * * * Obviously, much commercial speech is not prov- ably false, or even wholly false, but only deceptive or mis- leading. We foresee no obstacle to a State’s dealing effec- tively with this problem.’’ Jd. at 771 (citations and foot- note omitted). Furthermore, the Court went on to suggest that, because of the ‘‘commonsense differences’’ between commercial speech and other varieties, even commercial speech subject to First Amendment protections may none- theless enjoy a ‘‘different degree of protection’’ than that normally accorded under the First Amendment. Id. at 771- 772 n.24. Applying these principles to the case at bar, there can be no question of the legitimacy of the FTC’s role in regu- lating and preventing false and deceptive advertising. In this case it has been found that Warner-Lambert has, over a long period of time, worked a substantial deception upon the public; it has advertised Listerine as a cure for colds, and consumers have purchased its product with that in mind. That the Commission has authority to prohibit Warner-Lambert from continuing te make such false and deceptive claims in its advertisements is not disputed, for it is only truthful claims which are protected under the 89a First Amendment.’ Here, however, the FTC has deter- mined on substantial evidence that the deception of the public occasioned by Warner-Lambert’s past advertise- ments will not be halted by merely requiring Warner- Lambert to cease making such claims in the future. To be sure, current and future advertising of Listerine, when viewed in isolation, may not contain any statements which are themselves false or deceptive. But reality counsels that such advertisements cannot be viewed in isolation; they must be seen against the background of over 50 years in which Listerine has been proclaimed—and purchased—as a remedy for colds. When viewed from this perspective, advertising which fails to rebut the prior claims as to Lis- terine’s efficacy inevitably builds upon those claims; con- tinued advertising continues the deception, albeit implicitly rather than explicitly.* It will induce people to continue to buy Listerine thinking it will cure colds. Thus the Com- mission found on substantial evidence that the corrective order was necessary to ‘‘dissipate the effects of respond- ent’s deceptive representations.’’ FTC op. at 41, JA 907. Under this reasoning the First Amendment presents no direct obstacle. The Commission is not regulating truthful speech protected by the First Amendment, but is merely requiring certain statements which, if not present in cur- rent and future advertisements, would render those ad- vertisements themselves part of a continuing deception of ; * Cease and desist orders aimed at false or deceptive speech may, in theory, have a chilling effect on truthful speech, and be subject to First Amendment scrutiny on that account. In practice, however, this should rarely if ever be necessary. See pp. 4-5 infra. *In this connection it is worth noting that Warner-Lambert currently advertises Listerine’s ability to kill germs that cause bad breath. While we have no reason to doubt the truth of this claim, the emphasis on Listerine’s germ-killing ability does seem to tie in closely with prior false advertising as to its capacity to alleviate health problems. See FTC op. at 38 n.28, JA 904. 90a the public. As the Supreme Court recognized in Virginia State Board, in some cases it may be ‘‘appropriate to re- quire that a commercial message appear in such a form, or include such additional information, warnings, and dis- claimers, as are necessary to prevent its being deceptive.”’ 425 U.S. at 772 n.24. We must conclude—as did the Com- mission—that this is such a case. II Admittedly, corrective advertising orders such as that imposed here may give rise to concern as to their chilling effect on protected truthful speech. The potential adver- tiser must consider not only the possibility that he will be forced, at some future date, to abandon his advertising campaign, but also that he may be required to include specific disclaimers in future advertisements. But this dan- ger seems more theoretical than real. As the Supreme Court pointed out in Virginia State Board, not only is the truth of commercial speech ‘‘more easily verifiable by its disseminator’’ than other forms of speech, but ‘‘[s]ince advertising is the sine qua non of commercial profits, there is little likelihood of its being chilled by proper regulation and forgone entirely.’’ 425 U.S. at 771-772 n.24. Moreover, whatever incremental chill is caused by a cor- rective advertising order beyond that which would result from a cease and desist order may well be necessary if the interest of consumers in truthful information is to be served at all. Otherwise, advertisers remain free to mis- represent their products to the public through false and deceptive claims, knowing full well that even if the FTC chooses to prosecute they will be required only to cease an advertising campaign which by that point will, in all likelihood, have served its purpose by deceiving tic public and already been replaced. See panel majority op. at 22-23 n.60; Pitofsky, Beyond Nader: Consumer Protection and the Regulation of Advertising, 90 Harv. L. Rev. 661, 692- 693 & nn.129-130 (1976) (emphasizing the relatively small 9la number of complaints issued by the FTC each year and the lengthy time period between complaints and orders) ; Note, ‘‘Corrective Advertising’? Orders of the Federal Trade Commission, 85 Harv. L. Rev. 477, 482-483 (1973). III A more serious First Amendment problem which may be raised by corrective advertising orders involves the burden thereby imposed upon the constitutional right recognized in Virginia State Board to advertise truthfully: the party subject to a corrective advertising order may be precluded from exercising his right to advertise unless he also in- cludes specified statements undermining his prior deceptive claims. On the facts of this case, no burden is imposed upon truthful, protected advertising since, as the Commission makes clear, Listerine’s current advertising, if not accom- panied by a corrective message, would itself continue to mislead the public. Even if, in the circumstances of this case, the current and future advertising of Listerine is con- sidered constitutionally protected speech, however, we think the corrective advertising order in this case remains ‘appropriate. The Supreme Court, in invalidating the state ban on ad- vertising of prescription drug prices in Virginia State Board, considered the scope of the restriction on First Amendment rights, the governmental purposes and public interests affected by the ban, and the availability of alter- native means to accomplish the legitimate governmental objectives. See 425 U.S. at 764-770. See also Bates v. State Bar of Arizona, —— U.S. . , 45 U.S. L. Weex 4895, 4899-4903 (June 27, 1977). As we have indicated, it is not at all clear, even after Virginia State Board, that commercial speech protected by the First Amendment is, apart from ‘‘commonsense differences,’’ entitled to the same degree of protection as other forms.’ Indeed, the op- *See Virginia State Board of Pharmacy v. Virginia Citizens 92a posite conclusion seems the more appropriate one." But in any event, it does seem clear that the corrective advertis- ing order in this case is the least restrictive means of achieving a substantial and important governmental objec- tive and that, on balance, it must be upheld.’ Cf, Buckley v. Valeo, 424 U.S, 1, 25-29, 65-68 (1976); Young v. Ameri- can Mini Theatres, Inc., 427 U.S. 50 (1976); United States v, O’Brien, 391 U.S, 367, 877 (1968), The governmental interest here, of course, is in protecting citizens against deception—with its attendant waste and misallocation by consumers to the benefit of the wrongdoers—by ensuring that advertising conveys truthful information to the pub- lic. As we noted earlier, it is this very interest which was invoked by the Virginia State Board Court as support for its conclusion that commercial speech is protected by the First Amendment. See 425 U.S, at 764-765, See also Bates v. State Bar of Arizona, supra, —— U.S, at —, 45 US. L, Week at 4899, Consumer Council, Inc., 425 U.S. 748, 779-781 (1976) (Stewart, J., concurring) ; Young v. American Mini Theatres, Inc,, 427 U.S, 50, 69 n.82 (1976); Note, First Amendment Protection for Com- mercial Advertising: The New Constitutional Doctrine, 44 U, Cutt, L. Rev, 205, 225 n.121 (1976). ‘Cf Banzhaf v. FCC, 405 F.2d 1082, 1101.1103 (D.C, Cir, 1968), cert. denied, sub nom. Tobacco Institute, Ince, v. FCC, 896 U.S. 842 (1969), * We do not here consider whether the Commission, under prin- ciples of administrative exhaustion, should be required initially to decide this constitutional issue in light of the decision in Virginia State Board. The extent to which administrative exhaustion of constitutional claims is required presenta difflcult and unsettled questions of law, and since this point has been neither raised nor briefed by petitioner, we decline to address it in this decision, See Mathews v, Eldridge, 424 U.S, 319, 327.330 (1976); Wein. berger v. Salf, 422 U.S, 749, 764.767 (1975); K. Davia, Apmunie- rrative Law or tie Seventies §§ 20.00 to 20.00.3 (1977 Supp.) ; Note, The Authority of Administrative Agencies to Consider the Constitutionality of Statutes, 90 Hany, L. Rev, 1682 (1977), 93a And the facts of this case make it eminently clear that this interest will not be substantially served by the less restrictive remedy—a cease and desist order. Whatever one may conclude as to the effect of Warner-Lambert's long history of deception on the protected status of its cur- rent advertising, we see no basis—and none has been of- fered—for questioning the Commission's conclusion that, absent a corrective remedy, consumers will continue to pur- chase Listerine as a cure for colds. See FTC op. at 38, JA 904. Indeed, at least one advocate of corrective advertising has urged that such orders not be confined to obvious cases such as Warner-Lambert where the proof presented to the Commission of the success of a deceptive campaign is so striking, Noting the long history of a deceptive claim uniquely asserted for Listerine, the absence of consumer confusion as to which mouthwash was effective against colds, and the persuasive evidence that this claim was be- lieved by consumers after the false advertising had ceased, Professor Pitofsky has argued that ‘‘{c)omparable proof of deception-perception-memory influence would be virtual- ly impossible in most advertising cases, * * * If the Com- mission is to do an effective job in regulating deceptive advertising, corrective advertising must apply to more than the one-in-a-million type of ad campaign present in —, See Pitofsky, supra, 90 Hany, L. Rev, n . Finally, the corrective advertising order in this case, by tying the quantity of correction required to the investment in deception, is tailored to serve the legitimate govern- mental interest in correcting public misimpressions as to the value of Listerine—and no more.’ Taking all these fac- tors into account, we think it beyond doubt that the FTC order is a valid one, Petition for rehearing denied. * As the Commission itself noted, it may well be impossible to ‘‘determine in advance with computer-like precision the minimum 940 Rosas, Circuit Judge, dissenting: I adhere to the view expressed in my dissent that the corrective advertising order imposed on Warner-Lambert goes beyond the statu- tory authority of the Federal Trade Commission. Accord- ingly, so far as that order is concerned I find it unnecessary to reach the constitutional question discussed by the ma- jority. I would set aside the corrective advertising portion of the Commission's order. amount of corrective advertising which will dispel the otherwise vontinuing beliefs at issue.'’ FTC op, at 39, JA 905, Even so, con- sidering the 50 years of deceptive Liaterine advertising, continuing inflation with attendant increased advertising coats leaves no doubt that the Commission is requiring a significantly smaller quantity of corrective advertising than prior deceptive advertising Aa a result, any imprecision in the order's scope would seem likely to inure to Warner-Lambert's benefit. 95a UNITED STATES COURT OF APPRALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 76-1138 September Term, 1977 Waanen-Lamaent Company, Petitioner v. Feoenat Trape Commission, Respondent Berone: Bazelon, Chief Judge; Wright and Robb, Circuit Judges (Frrap Serremper 14, 1977) Order On consideration of the petition for rehearing filed by petitioner Warner-Lambert Company, it is Onpersp by the Court that the petition of Warner-Lam- bert Company for rehearing is denied for the reasons set forth in the supplemental opinion for the Court filed this date. Per Curiam For the Court: /a/ GQronon A, Frenen George A. Fisher Clerk Supplemental opinion for the Court filed by Circuit Judge Wright. Dissenting opinion filed by Circuit Judge Robb. 96a UNITED STATES COURT OF APPRALA FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 76-1138 September Term, 1976 Wannen-Lamoent Company, Petitioner v. Feverna Traps Commission, Respondent Berone: Bazelon, Chief Judge; Wright, McGowan, Tamm, Leventhal, Robinson, MacKinnon, Robb and Wil- key, Circuit Judges (Fitep Serremper 14, 1977) Order On consideration of the suggestion for rehearing en bane filed by petitioner, and a majority of judges of the Court in regular active service not having voted in favor thereof, it is Onvenen, by the Court, en banc, that petitioner's sugges- tion for rehearing en banc is denied. Per Curiam For the Court: /a/ Gronon A, Frenen George A, Fisher Clerk Cireuit Judges Tamm, MacKinnon, and Robb would grant petitioner's suggestion for rehearing en banc. 97a UNITED STATES COURT OF APPRALS POR THE DISTRICT OF COLUMBIA CIRCUIT No. 76-1138 September Term, 1977 Wanven-Lamoeant Company, Petitioner v. Fepena, Trape Commission, Respondent Berone: Bazelon, Chief Judge; Wright and Robb, Circuit Judges (Frrep Serrempenr 14, 1977) Order On consideration of the petition for rehearing filed by _ respondvat Federal Trade Commission, it is Onpsrep by the Court that respondent's aforesaid peti- tion is denied. Per Curiam For the Court: /e/ Geonon A, Frenza George A. Fisher Clerk --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0204%3A1. Public record. Not legal advice.