# Petition — National Commission on Egg Nutrition v. Federal Trade Commission > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0955%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1978 - **Citation:** 439 U.S. 821 ## Text - ~ Supreme Court, U. & FILED APR 28 1978 MICHAEL RODAK, JR., CL No. 7771551 3n the Supreme Court of the Anited States Octroser Term, 1977 NATIONAL COMMISSION ON EGG NUTRITION, Petitioner, vs. FEDERAL TRADE COMMISSION, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT James L. Fox Donatp P. CoLLeTon Counsel for Petitioner. Of Counsel: Moses, Grsnons, ABRAMSON & Fox One East Wacker Drive Chicago, Illinois 60601 (312) 644-8500 ann esis aletionteiaisieneieiinsiidaeteaniaieaadisaeaemiideaa ema The Scheffer Press, Inc.—(312) 263-6850 INDEX PAGE Citations of Opinion Below ............:.c.cccccscsscssssssssessssesseees 1 Fh Ge I ccerenectateseciteincitniibceciaisttiniinion 2 ED SINE - crcinisassccnnitnenerereestecrininintnacisdcseninntieginnes 2 Constitutional and Statutory Provisions Involved ...... 3 Ie WEE TUE CD cicercscesssinsinibnttoteidinsctnasetemeniionienns 3 Reasons for Granting the Wit .0...........:cccccccseesseeeeees 9 Be ID. cassnceseocensreeechsinesitcseniatidiiniotdnbiaenidicantnnbateas 10 ee nn eliaiedisiiadietieadiiaindaddadainids 21 UNNI. sseensaisnisshiciansstdesebbsceaiioceiteemeiehiadiailiibdadabasinlaneanadeiabiaienei 28 Appendix Opinion of the Federal Trade Commission, TE, Cts - NEY ‘eeiicapsicetcasdtenrserrieciastdethiiaiaicetdarcbiciaiataniliains la Opinion of the United States Court of Appeals for the Seventh Cireuit, As Amended December 6, 1977, Supplemental Opinion FTC’s Motion to Amend Judgment January 23, 1978 ............. 47a Chicago Sun Times publication SR Uk HIE chitdsdiisnseddiebsosteresucinienteinanitinibenbinceensse 7la Chicago Daily News SE TE SENUETT diideiniccissenneceesernicacininianasininedenes 72a Chicago Daily News SEE Tei EEE. ceneradceavsebdieaipatincenlindecbenbinidtensiebdinenintlicditi 74a Chicago Tribune SEITEN? TEL: TITIES sctestsieiceisicbniniepiiacliaisibitdsantenbicastiiaiamans 76a II TID accsiansetecesntsecninnermnnseiiinienintedatanossicnensies 78a ii PAGE Cases Crrep Bates vy. State Bar of Arizona, ........ Us” sdebitiens 53 s & F © * ff) 5 een 12,19 Beneficial Corp. and Beneficial Managements Corp. v. FTC, 542 F.2d 611, 619-620 (3rd Cir. 1976), cert. denied, 430 U.S. 983 (1977) ......cccsccsesseeeees 10, 11, 16, 18, 21 Board of Education v. Barnette, 319 U.S. 624, 633-634 CIUENUET dncscnscseshessemetniltsaddiddemasiipatedeeesninctaddbunsibsanbetidianiiiainaisidants 20 Chrysler Corp. v. FTC, 561 F.2d 357, 364 (D.C. Cir. ee oe eee ee ae 11,19 FTC vy. Colgate-Palmolwe Co., 380 U.S. 374, 392 STSTETEED: ssesitinhdeciipniiesceciiiieenanieie itemise dunniaieasaiakteamldtnaaiencdiaden 10, 22 FTC v. Henry Brach & Co., 368 U.S. 360, 364 (1962) 10 FTC v. National Commission on Egg Nutrition, 517 F.2d 485, 490 (7th Cir. 1975), cert. denied, 426 U.S. ST GUEIITTIED sctasesitcincinblccdbiiniencelanhaondasisteiealitamlackaiilaaiainiaisieedae 22 FTC y. Ruberoid Co., 343 U.S. 470, 473 (1952)... 10 FTC vy. Simeon Management Corp., 532 F.2d 708 EN TENG SITY Susciinaseaicticstbisenietiasdanigtihicusaeimesmedeeininiiains 15, 16 FTC v. Sperry & Hutchinson Co., 405 U.S. 233, 246- SOUT SEMI" ‘issnivicnnrebinasbetinndatiidialiiniekestubieiibiascegiet aaa, 17 Grove Laboratories vy. FTC, 418 F.2d 489, 496-497 RENEE Ae eT SA Rea Oe 11 ITT Continental Baking Co., Inc. v. FTC, 532 F.2d SS * Ff SS eee 11 Jacob Siegel Co. v. FTC, 327 U.S. 608, 613 (1946) ...... 10 Keytshian v. Board of Regents of New York, 385 U.S. I I NE ce 21 Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, NRO Ee Sea OLS SER INO 20 NAACP vy. Button, 371 U.S, 415, 432 (1963) vss 27 iii PAGE National Dairy Products Corp. v. FTC, 412 F.2d 605, GEB-GBE (Tt Chr. 19GB) ecececsscccveesscesecssssesseescvscsscscossssees 11 NLRB v. Pipefitters, 429 U.S. 507, 522 (1977) ........... 17 SEC v. Chenery Corp., 318 U.S. 80 (1943) .....cccccceees 17 Spiegel, Inc. v. FTC, 411 F.2d 481, 484-485 0.0... ccessees 11 U.S. v. National Society of Professional Engineers, (D.C. Cir.), cert. granted, ........ Wa aewess (1977) .... 20 Virginia State Board of Pharmacy v. Virginia Con- sumer Council, Inc., 425 U.S. 748 (1976)... eee I ld alii hadeleeiilidaaie 9, 10, 12, 16, 18, 19, 23 Warner-Lambert Co. v. FTC, 562 F.2d 749 (D.C. Cir. 1977), cert. denied, ........ - fe \ = 12 Wooley v. Maynard, 430 U.S. 705, 714-717 (1977) ........ 20 Young v. American Mini Theaters, 427 U.S. 50, 68 ERED + In THe SUPREME COURT OF THE UNITED STATES Ocroser Term, 1977 NATIONAL COMMISSION ON EGG NUTRITION, Petitioner, vs. FEDERAL TRADE COMMISSION, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT To Tae Hownoraste Crier Justice or THe Uwnirep Srates anp Tue Associate Justices or Tue Supreme Court or Tue Unirep Srates: Petitioner respectfully prays that a writ of certiorari issue to review the judgment and opinion of the United States Court of Appeals for the Seventh Circuit entered November 29, 1977 and supplemented on January 23, 1978. OPINIONS BELOW After filing its complaint in this matter, the Federal Trade Commission sought and was denied a temporary injunction in the District Court pending the completion — of the administrative proceeding. The Court of Appeals reversed. 517 F2d 485 (7th Cir. 1975), cert. denied, 426 U.S. 919 (1976). The opinion of the District Court has not been reported officially but appears unofficially at 1975-1 CCH Tradecases 960,246 (N.D. Ill. 1974). The decisions of the administrative law judge and the Federal Trade Commission on the merits are reported at 88 F.T.C. 84 (1976). The decision of the Seventh Cireuit on appeal and the supplement thereto — the subjects of this petition — are officially reported at 570 F2d 157 (7th Cir. 1978). JURISDICTION The Court of Appeals rendered its judgment and opin- ion on November 29, 1977 and issued its supplemental opinion on January 23, 1978. On February 18, 1978, Mr. Justice Stevens extended the time in which petitioner might file a writ for a petition of certiorari to and in- cluding April 28, 1978. This petition is filed within the time allowed. Jurisdiction of the Court is invoked under 28 U.S.C. §$1254(1). Jurisdiction of the Court of Appeals was based on §5(c) of the Federal Trade Commission Act, 15 U.S.C. $45(e). QUESTIONS PRESENTED (1) Whether the Court of Appeals abridged Petition- er’s First Amendment rights and exceeded the remedial powers under the Federal Trade Commission Act: a) in forbidding all truthful, nondeceptive utterance on the important public controversy about dietary cholesterol and its possible relation to heart disease unless accom- panied by judicially prescribed “corrective” statements: b) in mandating an additional statement which seeks — to present as true the government’s opinion on the un- settled diet-heart disease controversy when a more neutral form of statement would remedy the evil found by the Commission; and ¢) in mandating the use of additional statements for “corrective” purposes for an unlimited period of time. (2) Whether the Court of Appeals abridged Peti- tioner’s First Amendment rights in failing to delineate: a) what speech must be accompanied by the forms of additional statements it has mandated and b) what speech may be uttered without any additional statement. CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The First Amendment of the United States Constitu- tion provides in relevant part: “Congress shall make no law . . . abridging the free- dom of speech, or of the press. .. .” Sections 5(a)(1) and (ce) and 12 of the Federal Trade Commission Act, 15 USC §45(a)(1) and 52 are set forth in the Appendix. STATEMENT OF THE CASE Late in 1973 the National Commission on Egg Nutrition (NCEN),' a not-for-profit corporation formed by five members of the egg industry, published in the New York Times and the Wall Street Journal what the Federal Trade Commission (the Commission) found to be “the honestly-held views” of NCEN members, App. 5a, that ‘This petition is also filed on behalf of Richard Weiner, Ine., a co-respondent in the proceeding before the Com- mission. a “there is no scientific evidence that eating eggs increases the risk of heart disease.”** The Commission challenged this and several ancillary statements in these publications under the Federal Trade Commission Act (the Act). An administrative proceeding followed in which the evi- dence showed a division among reputable scientists on the truth of NCEN’s principal statement, NCEN’s experts testifying that the data offered against eggs would “not convince anybody” that egg consumption was harmful to health. App. 15a. On appeal, the Commission found that “medical experts disagree” as to the relationship of diet to heart disease. App. 20a. It “expressed no view as to the merits” of the question, App. 38a, and declined “to determine ... whose interpretation [of the research regarding eggs and heart disease] . . . is superior.” App. 12a. However, the Commission also found that NCEN’s principal statement, expressed without qualification, might * Hereafter referred to as NCEN’s principal statement. *Petitioner’s publications do not raise the difficult remedial questions surrounding long repeated misleading advertising themes. See Warner-Lambert Co. v. FTC, 562 F.2d 749 (D.C. Cir. 1977), cert. denied, ........ el. concen (1978). In this ease Petitioner’s principal statement appeared in three issues each of the Wall Street Journal and New York Times some four and one-half years ago and was repeated by others in a few local papers during the following six months. Aside from this, some point of purchase material, a booklet and a display board, used largely during the same period, the only repetition given Petitioner’s principal statement has been in the publications shown in the appendix published in Chicago newspapers on January 9 and April 13 and 14, 1975. The law judge found these publications “may warrant First Amendment protection.” App. 60a. ea la ly ll We do agree with respondents (RB 15) that the AL.! termed the “stark falsity” of their representations (1.D. p. 88) is not a relevant factor to be considered on the is- sue of jurisdiction, assuming arguendo that the ALJ con- sidered it so to be. = 7@ = most entirely funded by the egg industry, with the ob- vious expectation that it would help counteract econo- mically damaging publicity. It is staffed by egg industry executives, originally required to be from specified egg industry trade associations and, predictably enough, its publications, whether they represent the “industry” view- point or not, are of a sort which, if believed, would en- courage the consumption of eggs. While the assertion of particular viewpoints may not be a contractual prere- quisite to NCEN’s receipt of funds, it is reasonable to doubt that NCEN could continue to exist if its Commis- sioners were somehow to reach and publicize the conclu- sion that consumption of eggs in quantity may possibly increase the risk of heart disease, just as it is doubtful that any egg industry trade group would continue to exist if it ceased to promote the interests of those whose funds are its predominant source of support. We believe these considerations taken together warrant the conclu- sion that NCEN is a nonprofit corporation which exists in principal part for the benefit of the egg industry, and hence, is subject to Commission jurisdiction. Respondents contend that whatever may have been NCEN’s status at the time of the complaint, it has as of the present time amended its bylaws so as to state ex- plicitly that NCEN Commissioners shall “serve solely as individuals and shall not, with respect to NCEN activities directly or indirectly serve as agents for, or otherwise represent any trade association, business or commercial enterprise”. We find no reason in the record of this case to conclude that this change in the wording of the by- laws can in any significant respect alter the commercial character of NCEN, given its origin, the manner in which it has operated heretofore, and its continued do- mination by egg industry members, whether or not they are officially called egg industry “representatives” dur- ing that portion of the day they devote to the affairs of NCEN. [7] This is simply not the case respondents seek to make it in which an organization engaged primarily in — the noncommercial activity of disseminating for their own sake its members’ views on a subject of scientific importance incidentally performs a function valuable to commercial interects. On the contrary, the evidence most strongly suggests that NCEN is an organization created and operated to benefit the egg industry through the incidental medium of what is termed its Commissioners’ expression of their personal viewpoints. If respondents’ argument as to jurisdiction is to be accepted under these circumstances, there is no company or industry in the Nation which could not obtain a ready exemption from laws prohibiting deceptive advertising merely by agree- ing to fund the efforts of a group of its members or em- ployees who decide that they wish to establish their own “National Commission” to do research and _ publicize their honestly held beliefs in the virtues of the product they have spent a lifetime selling. We do not believe the arm of the law was meant to be avoided so easily as this. “To defend the place of the egg in the American diet by every legal means” —as NCEN on one occasion characterized its goal (RX 139)—is, in sum, not an en- deavor which entitles a group of egg industry executives funded by egg industry trade groups to a blanket exemp- tion from the scrutiny of a statute designed to prevent the deceptive promotion of products, including eggs. Hav- ing concluded that jurisdiction over respondents is pro- perly asserted, we shall proceed to review the allegedly deceptive representations challenged in this proceeding.‘ * Respondents also argue that in addition to establish- ing jurisdiction generally over NCEN, the Commission must establish jurisdiction over each challenged publica- tion. We take this point to be a variant of respondents’ claim that their publications concerning the virtues of eggs are not commercial advertisements and are shielded from Commission scrutiny by the First Amendment, an argument we discuss in Part III of this opinion. Respon- dent Weiner does not challenge the ALJ’s finding of jurisdiction as to it. ee ee a ae ial II. CHaALLencep REPRESENTATIONS A. “There is no evidence? ? ? ?” The principal representation challenged in this proceed- ing is respondents’ claim, made with slight variations of wording in numerous instances, that there is absolutely no scientific evidence that eating eggs, even in quantity, increases the risk of heart attacks or heart disease. (I. D. 32) The administrative law judge concluded that this representation was false and misleading. (I.D. pp. 79-81) [8] An evaluation of the law judge’s determination re- quires some discussion of the state of medical opinion with respect to the relationship between “dietary cholesterol’”® and “coronary heart disease.” A matter of such consi- derable complexity does not lend itself readily to simple formulations, and the statements made herein must be quialified in light of the far more extensive discussion of the underlying issues contained in the initial decision and in the record as a whole. It is apparent from the record of this case that many well-qualified medical science experts subscribe, with varying degrees of conviction, to the view that ingestion of cholesterol and “saturated fats’’ in the human diet is positively related to the incidence or risk of coronary heart disease, in the sense that, for many people, increased consumption of dietary cholesterol and saturated fats * Cholesterol is a fat-like waxy aleohol, with a sturdy and durable ring chemical structure that cannot be bro- ken down. (1.D. 57) “Dietary cholesterol” is that choles- terol contained in food. Cholesterol is also produced by the body. * “Coronary heart disease” is generally defined as an affliction of the heart muscle and its functions due to in- adequate blood supply to the heart. See 1.D. 51-54. * Saturated fats are described in LD. 57. Fat is a nu- trient, and saturated fats occur in certain foods of plant origin as well as in many foods of animal origin. = will result in an increased risk of heart disease, and decreased consumption will lower that risk. For case of reference we shall, like the ALJ, refer to this view as the ‘‘diet/heart disease’? hypothesis, although this generic term obviously subsumes a wide variety of particular ap- proaches.° [9] Egg volks are the major source of readily assimi- lated cholesterol in the American diet, with one yolk pro- viding around one-third of average daily intake of ap- proximately 600-800 mg. Egg yolk has substantially more cholesterol than any other commonly eaten food (I.D. 55), and contains roughly four grams of saturated fat. (1.D. 56)° The diet/heart disease hypothesis proceeds from se- veral underlying propositions. These are, in outline, that (1) the amount of dietary cholesterol and saturated fat * For example, proponents of the diet/heart disease hypothesis differ among themselves with respect to the relative importance of reducing consumption of dietary cholesterol as opposed to saturated fat. Further, it should be observed that some experts believe that the presence or absence of various dietary constituents other than cho- lesterol and saturated fat may be related to the risk of heart disease. (Tr. 1378, 19-7) This proceeding does not deal with these views. Also, it is generally believed that coronary heart disease is multifactorial (I.D. 54), and those who advocate dietary modification as a means of lessening its likelihood of occurrence generally recom- mend other preventive measures as well, examples of which might include certain sorts of exercise and elimi- nation of cigarette smoking. * Average daily intake of fat in the American diet is over 100 grams. (Tr. 2039) While some who counsel a reduction in saturated fat intake would include limita- tion of egg consumption as a partial means of accomplish- ing this (e.g. Tr. 2157), eggs are primarily cited as a contributor to the risk of heart disease by virtue of their cholesterol content, which was the principal focus of the proceeding before the law judge. oe ae ant. © oP 0 fe eet | en et ne i Cte ala oe gt Ce i ee ee ee ee ee ee ee en a Outen ee ee —lla— in the diet directly affects the level of cholesterol in the bloodstream (“serum cholesterol” or “blood cholesterol”) of many people; (2) higher levels of cholesterol in the bloodstream are statistically associated with higher levels of risk of coronary heart disease in sample populations; and (3) serum cholesterol is “causally implicated” in the formation of the atherosclerotic lesions (I.D. 51) which precipitate heart disease.’ The initial decision reviews at great length the results of ‘a large body of clinical-pathological, experimental, and epidemiological studies upon which scientists have relied in formulating the propositions described in the preced- ing paragraph, and from there the diet/heart disease hypothesis itself. (1.D. 60-98) The ALJ concluded that: The studies discussed in Findings 60-98 supra, constitute competent and reliable scientific evidence. They were conducted using scientific methodologies, were performed by competent and highly regarded investigators, have been reported in “recognized scientific journals after peer review, and have been generally accepted by experts in the field and by the scientifie community. Moreover, reputable [10] governmental and private scientific organizations have reviewed the evidence and relied on it in making re- commendations to the medical profession and to the public for the treatment and prevention of [coronary heart disease]. Finally, complaint counsel’s own wit- nesses relied on the evidence to form expert opinions regarding the relationship of diet to [coronary heart disease] and as to the effect of adding an egg per * In the words of the “Report of Inter-Society Com- mission for Heart Disease Resources,” a causal relation- ship between serum cholesterol and heart disease is “bio- logically plausible in terms of reasonable pathogenetic mechanisms and concepts of multifactorial etiology re- lating apparent cause and disease. Alternative hypothes- es to account for the associations do not fit the majority of observations to date.” (CX 18-Z9) ; — 12a — day to the average American diet (Findings 100-105 infra). [1.D. 99] Respondents do not deny that well-qualified experts have relied upon competent and reliable scientific studies in hypothesizing a relationship between dietary cholester- ol and heart disease. Respondents argue, however, that these experts have improperly interpreted the existing studies, that such studies lend little or no support to the diet/heart disease hypothesis, and that the studies con- sequently do not rise to the level of “evidence that eat- ing eggs will increase the risk of heart disease.” In sup- port of their position respondents cite the testimony of certain of their own experts who, when asked at trial whether in their opinion there is any evidence that eat- ing eggs will cause or increase the risk of heart disease, responded in the negative. Respondents would have the Commission conclude from this that the question of whether there is evidence to incriminate eggs as a factor in the risk of heart disease is, like the question of whether eggs actually do increase the risk, a subject of heated controversy upon which the Commission can and should make no pronouncement. It is certainly not the Commission’s intention to deter- mine in this proceeding whose interpretation of a diffi- cult and incomplete body of scientific literature is supe- rior. It is, however, the Commission’s statutory duty to ensure that commercial advertisements intended to con- vince the public of the safety of a product are not de- ceptive, and that oversimplified expressions of opinion are not taken out of context and presented as fact in order to misrepresent the nature of a complex scientific issue and thereby promote misleadingly the consumption of eggs. It is manifest that “scientific evidence” as the term is commonly understood, may exist in support of a prop- osition whose truth is contested or, for that matter, in support of a theory which is ultimately determined by ee = et ein ally, a ee ee ee eee een isd bnbecttintnres. — sta nalbaten St ——— ee a — 13a — general agreement not to be true at all. “Scientific evi- dence for a proposition” as that phrase is reasonably understood, means precisely those competent and reli- able scientific studies of the sort summarized by the AI.J which, in the view of a body of well-qualified ex- perts would lend support to the proposition. To assert flatly and [11] without qualification that “there is no evidence for this hypothesis” if what one means is real- ly that “we, along with one segment of the relevant ex- pert community, do not believe that the existing evidence supports this hypothesis” is misleading in the extreme. We have reviewed with care the testimony of those experts and sources cited hy respondents. In rendering their testimony respondents’ witnesses did not dispute the fact that many experts, in the exercise of reasonable, albeit disputed, scientific judgment, have relied upon a large body of scientifie studies in formulating the diet /heart disease hypothesis. Respondents’ sources appear to believe, however, that such studies provide so little warrant for the hypothesis that they should not be de- scribed as “evidence” for it. Complaint counsel suggest that respondents’ experts merely used “no evidence” in the sense of “no conclusive evidence” or “no direct experimental evidence.” (For example, there appears to be no good study relating ac- tual limitation of cholesterol intake by a sample group to a decline in expected incidence of heart disease.) Dr. Stare, who testified for complaint counsel, may have used “evidence” in the foregoing senses when he initial- ly testified that he knew of no evidence “per se” that eggs increased the risk of heart disease. His testimony was subsequently qualified. (Tr. 1036ff) At least some of those witnesses who testified for respondents, how- ever, appear to have used “no evidence” in the somewhat stronger sense described in the preceding paragraph. (Tr. 2051, 2140, 2150, 1485-86) It seems fair to say, nevertheless, that the difference between the “evidence” and “no evidence” positions is — l4a — one of degree rather than of kind. As respondents’ wit- ness Dr. Oliver noted in prefacing his account of the “no evidence” statement of the British Advisory Panel”, ‘evidence in this context would be an aggregate of prob- ability * * *’? (Tr. 2136) In Dr. Oliver’s view, presum- ably, the existing research lends so little ( if any) weight to the view that inereased consumption of eggs will [12] inerease the risk of heart disease that he cannot con- sider such research as “evidence” for the proposition. However. Dr. Oliver did acknowledge that reduction of serum cholesterol was one part of a regimen which might in toto reduce the risk of heart disease (Tr. 2125), and he also noted that he recommended a reduction in egg consumption for his patients as part of a plan to reduce saturated fat intake and thereby help reduce the risk of heart disease. (Tr. 2157) In common with other wit- nesses, Dr. Oliver further noted that his conclusions as to the potential harm from dietary cholesterol and as to the existence of evidence with respect thereto did not apply to those suffering from gross abnormalities in the metabolism of lipids, a small fraction of the population but nonetheless a substantial number of people. (Tr. 2140 -2144) The testimony of Dr. Yudkin, like Dr. Oliver an emi- nently well-qualified medical expert, is similarly diffuse. 1 “Ty certain animal species a diet rich in cholesterol induces the appearance of arterial lesions which have some similarity to those seen in human subjects, and com- parative studies of different human populations show that those which have a diet rich in cholesterol have a higher death rate from [coronary heart disease]. How- ever, a diet rich in cholesterol is usually one which is rich also in saturated fatty acids. Most of the dietary cholesterol in western communities is derived from eggs, but we have found no evidence which relates the numbers of eggs consumed to a risk of [coronary heart disease. |” (RX 112: Report issues by Britain’s Department of Health and Social Securit, | — la — Asked his understanding of the “no evidence” statement in the British Panel report (which he and Dr. Oliver helped prepare), Dr. Judkin replied: My understanding of this sentence is that i not find that there was anything in the ARN either directly saying that a population’s experience of heart disease goes parallel with the number of eggs consumed in that population—that is, that there is no direct evidence, nor was there indirect evidence that would be convincing that the consumption of eggs raises the concentration of blood cholesterol and that this rise in blood cholesterol would increase the chances of getting a heart attack. (Tr. 1428) rece interpret the term “evidence” Dr. Yudkin re- I would say that I would interpret this w meaning that I could convince a Ag by y Ax ing them the same facts, to come to the same con- clusion, that is if it were positive evidence, that the facts would demonstrate that the number of eggs does increase, the number of eggs consumed does in- crease the number of ischemic (coronary) heart dis- ease. This I would consider evidence. Or conversely and this is how I meant the negative here, that the information, the data I could provide, would not convince anybody that the number of eggs consumed — the risk of ischemic heart disease. (Tr. [13] A later portion of Dr. Yudkin’s dir ul ; ect testimo similarly reflects the fine line between “no evidence” _ the evidence does not persuade me”: Question. * * * Based on the data, results of research as evidenced by those sapevte, based torte er upon your own personal expertise, results of your own experimentation and study, debate, based on your contacts with your fellow scientists, medical doctors throughout the world, I ask you, do you have an opinion, based upon a reasonable degree of med- = ical certainty, whether or not there is any evidence that eating eggs causes [coronary heart disease]? Answer. No. hs | Q. The answer to my question is yes or no, do you have an opinion? A. Yes, I have an opinion. Q. And what is that opinion? A. That all these studies were taken into considera- tion by me and my fellow members of this Panel when we wrote that report in which we said we did not have, there is not sufficient evidence to say that eating eggs causes heart disease. Q. And do you have an opinion as to whether or not based on that same factual presentation, whether or not there is scientific evidence that eating eggs increases the risk of [coronary heart disease]? You can answer that question yes or no, do you have an opinion? A. Yes. Q. And what is that opinion? A. My opinion is that this evidence does not de- monstrate that eating eggs increases the risk of heart disease. (Tr. 1444-45) A similar theme emerges in the following exchange on recross examination between Dr. Yudkin and coim- plaint counsel: [14] Q. Doctor, just to pick up again on the point raised by Mr. Fox on his redirect, the studies, the line of studies which we have been talking about which you assumed in your hypothetical when you say that these studies are not evidence as to the cause of heart disease, do you mean that they do not conclusively establish the cause, or that they are not evidence in support of the hy- pothesis or theory that dietary cholesterol is related to and serum cholesterol and saturated fat is related to the increased risk of heart dis- ease? A. This is a little bit like asking me whether I have stopped beating my mother, because I wanted to say something slightly different. I think that the —lia— information as you asked me, by excluding other possibilities, gave me no opportunity than to say other than they are a part of the evidence. But I would say, for instance, that the seven countries study {“Coronary Heart Disease in Seven Coun- tries,” CX 76] can be used not only as evidence towards establishing the hypothesis that dietary fat or dietary cholesterol, as the case may be, may be involved in causing heart disease but equally could be used to support the hypothesis that dietary sucrose and several other factors between the seven countries and the level of cho- lesterol is just as great as with others. Q. Could a competent scientist, including yourself as a competent scientist * * * use those studies to say that these studies constitute evidence sup- porting the theory that the factor, in your case dietary sucrose, is related to or contributes to the development of heart disease? A. Yes. If it is understood that in order to establish the hypothesis one would need not only this but lots of other sorts of evidence. (Tr. 1488-89) [15] In the context of their testimony, subject as it was to extensive qualification of the sort described in the preceding pages, we do not dispute respondents’ ex- perts’ use of the term “no evidence” to characterize the evidence relied upon by proponents of the diet/heart disease hypothesis. It is an entirely different matter, however, for respondents to make the claim “no evidence” in a setting totally devoid of any mention of the sub- stantial scientific controversy, the extensive scientific literature, and the fact that many well-qualified scien- tists believe that such literature incriminates dietary cho- lesterol, including that in eggs, as a contributor to the risk of heart disease. Respondents argue, in essence, that the claim “there is no evidence” should be treated, and would be recog- nized by readers merely as a statement of opinion, i.e., “in our opinion and that of certain experts on whom we — rely, the existing scientific studies pertaining to dietary cholesterol, eggs and heart disease lend no support to the hypothesis that eating eggs increases the risk of heart disease.” Unfortunately, however, the phrase “there is no evidence” is also, and perhaps more reasonably subject to the interpretation that “there do not exist competent and reliable scientific studies from which weil-jualified experts could reasonably hypothesize that eating eggs increases the risk of heart disease.” This latter message is patently false and misleading. It is well established, and critical to the notion of preventing false advertising, that where an advertisement conveys more than one meaning, one of which is false, the advertiser is liable for the misleading variation. Murray Space Shoe Corp. v. FTC, 304 F. 2d 270, 272 (2d Cir. 1963): Rhodes Pharmacal Co. v. Federal Trade Com- mission, 208 F. 2d 383, 387 (7th Cir. 1953), modified by restating the Commission’s order, 348 U.S. 940 (1953). Nor does our application of that principle in this instance rest upon some mere semantic quibble or strained inter- pretation of words, since that meaning of respondents’ claim which deceives is one which is likely to be under- stood, and reasonably so, by many consumers. A more appropriate statement of the principle in this ease might thus be that an otherwise false advertisement is not rendered acceptable merely because one possible interpre- tation of it is not untrue. Respondents ask whether the ALJ (and presumably now the Commission) “take ncen or the public for fools in asking them to believe that it is the existence of evi- dence itself and not a particular interpretation thereof that NCEN has denied?” (RB 29) We take neither NCEN nor the public for fools, but quite clearly many members of the public are not so well acquainted with the diet/ heart disease controversy as is NCEN [16] or this Com- mission. Some consumers may indeed view the claim “No evidence” and realize, in light of their prior reading or consultation with a physician, that it is merely in- — 19a — tended to state respondents’ opinion as to the way in which the existing evidence should be interpreted. Others, however, without substantial knowledge of the subject area, may well conclude that the claim means that those who would identify eggs as a possible contributor to heart disease have not based their indictment on a massive body of competent and reliable scientific studies, because such evidence does not exist. After all, hardly a day passes on which one may not read in a newspaper or magazine of charges levelled by some self-appointed nutrition expert against the safety of some food product. How many substances remain that one can eat freely without, in the view of someone, increas- ing the risk of cancer or some other dread affliction? For certain of these charges the rejoinder “there is absolutely no evidence” may be an appropriate response. There is no scientific evidence. There are no competent and reliable scientific studies which could lead a body of well-qualified experts to subscribe to the charges. “No evidence,” is, however, in the eyes of many people, strong language, indeed the strongest possible means of dismissing another’s position. It may do literal and figurative justice when applied to the claims of quacks. It is not, however, standing by itself, an accurate way to characterize the position of those who hypothesize that consumption of dietary cholesterol, including that in eggs, increases the risk of heart disease. The harm in this representation is, moreover, readily apparent. No consumer who wishes to make well-informed dietary selections should ignore the existing literature (or a physician’s evaluation of it) with respect to the relationship between dietary cholesterol and heart dis- ease. To be sure, well-informed consumers, like well- qualified scientists, are likely to draw different conclu- sions from their studies. As the record shows, eggs are a “complete food,” with many nutritive virtues. (I.D. 56) A reasonable person might well decide that the current state of learning and opinion with respect to dietary = cholesterol does not warrant limitation of egg consumption to any degree. On the other hand, a reasonable person might equally well conclude that the existing evidence is sufficiently troublesome to [17] render some limitation or reduction in consumption of dietary cholesterol (in- eluding that in eggs) a prudent measure, as many experts now recommend. In either event, the decision is one which a consumer should make after a review of all available information. By representing that “there is no evidence that eating eggs will increase the risk of heart disease” respondents discourage that review and represent that there is no need for the consumer to go beyond their advertisement, because in this case there is simply “no evidence” to warrant further inquiry. For the foregoing reasons we conclude as did the ALJ that respondents’ principal representation is deceptive.” [18] * We also agree with the AI.J’s conclusion that sub- stitution of the word “proof” in certain publications (7.e., “There is absolutely no scientific proof that eating eggs, even in quantity, will increase the risk of heart disease” does not cure the misrepresentation, because some people will read “proof” in the sense of “evidence,” see @.g. Webster's Third New International Dictionary, p. 1817, ILD. 37). It should be apparent from the discussion herein that our finding in this matter cannot be taken in any measure as sanction for the representation that “The FTC has determined that there is evidence that dietary cholesterol may increase the risk of heart disease.” Such a statement standing unqualified may be no less misleading to some than respondents’ flat assertion that there is no evidence. What we have determined is simply that while medical experts disagree, many believe that the existing evidence indicates that increased consumption of dietary cholesterol may increase the risk of heart disease, i ln ne ie pe ee _ Pe | eee ee oe ee os ae — aoe TS — 2la—- B. Other Misrepresentations Respondents were also charged with making certain other deceptive representations to bolster their message that eating eggs, even in quantity, is not harmful, and in fact, positively desirable. Respondents do not contest that the alleged claims are misleading, but deny having made them. Our brief review of these issues follows: (1) There is competent and reliable scientific evidence that dietary cholesterol, including that in eggs, is needed by the body for building sex hormones, for transmitting nerve impulses, and for maintaining life in cells. 6 ® @ * e * ® Respondents did not make this claim in so few words, but it is clearly implied by advertisements such as CX 3 which states in relevant part: * * * there are those who misguidedly advocate cutting down on eggs because of their choleseterol content. So we thought we’d offer a few facts in evidence about what you’re being asked to give up “now.” 1. Cholesterol is the building block of sex hormones. 2. Cholesterol is needed for your nerves to transmit their impulses throughout your body. 3. Choleserol is essential for life for every cel! in your body se* The clear purport of the foregoing is that the consumer is being asked to “give up” a substance which is necessary for important bodily functions. In fact, as respondents acknowledge, dietary cholesterol, including that in eggs, is not needed for the foregoing functions (since the body produces its own), (I.D. 117) and the impression conveyed by their claim is thus deceptive. The deception is heightened by the context in which it appears, which is directed towards explaining why the cholesterol contained in eggs should not lead one to avoid [19] them. The fact that cholesterol made by the body is indispensable is obviously — 22a — of no relevance to whether one should or should not eat eggs. We affirm LD. 47 which discusses this issue at greater length. (2) there is competent and reliable scientific evidence that dietary cholesterol, including that in eggs, decreases the risk of heart disease; and that avoiding dietary choles- terol increases the risk of heart disease. e e * ° . * * CX 2 represented: There is absolutely no scientific evidence that eating eggs, even in quantity, will increase the risk of a heart attack. There is, in fact, preliminary evidence that the opposite is true, which has led Dr. Roger Williams to write, “Anyone who deliberately avoids cholesterol in his diet may inadvertently be courting heart disease.”* In one recent sudy, four hundred obese, mostly middle-aged policemen were placed on a diet that included two or more eggs each day, by Dr. Sam 8S. Berman, a Boston physician. After eight years, there has not been a single heart attack reported in the group. (The asterisk refers to a citation of the book “Nutrition Against Disease” by Dr. Roger J. Williams.) The manifest implication of the above-quoted repre- sentation is that there exists scientific evidence, albeit “preliminary,” that eating dietary cholesterol, including that in eggs, is helpful in preventing the risk of heart disease. None of the experts who appeared for either side in this proceeding was willing to offer any support for that proposition. (1.D. 113) The quotation by Dr. Williams cited in the advertisement is part of a larger selection from which it is clear that the author meant only that by avoiding dietary cholesterol, one might inadvertantly deprive himself or herself of other valuable nutrients, and the resulting state of malnutrition could increase the risk of heart disease. We affirm I.D. 42-44, 48, 113, and 114 which discuss these issues at greater length. [20] =~ Be ... (3) There is competent and reliable scientific evidence that eating eggs does not increase the blood cholesterol in a normal person. There is competent and reliable scientific evidence that a person’s blood cholesterol level is prevented from being raised or lowered by dietary cholesterol intake because (a) the human body increases its manufacture of choles- terol intake and (b) the human body eliminates the same amount of cholesterol as that eaten. Respondents do not deny making the first claim, (RB 46) since CX 1 states that “Eggs contain cholesterol—as do all foods of animal origin—but eating eggs does not increase the blood cholesterol in a norma! person.” The judge concluded that the foregoing assertion was unsupported, and that the evidence of record led to the opposite conclusion. (I.D. 115) It is clear that scientists do disagree as to the extent to which a reduction in cholesterol consumption will affect levels of blood choles- terol. Moreover, it appears that for some people, increases in dietary cholesterol do not necessarily translate into increases in serum cholesterol. However, for other people, it is equally apparent that increases in consumption of dietary cholesterol, including that in eggs, will have an impact on serum cholesterol. (I.D. 115) It is obviously misleading, therefore, for respondents to claim, without qualification, that eating eggs will not increase the blood cholesterol level in a normal person. With respect to the claims that the body’s mechanisms operate to compensate for increases and decreases in dietary cholesterol intake, respondents claim that they merely represented that the body would produce or excrete “just about” as much cholesterol as was deducted from or added to the diet. While the “just about” language does occur in some of the challenged advertisements, we agree with the ALJ’s conclusion in I.D. 46 that the implication of the claim in the context in which it is made is that the body’s mechanisms operate to prevent an increase or = lowering of serum cholesterol in response to dietary modi- fication. We affirm I.D. 45-46 and 115-116.[21] C. Corporate Name The ALJ concluded that the name “National Commis- sion on Egg Nutrition” has the tendency and capacity to mislead the public into believing that the corporation is an impartial, independent, quasi-governmental health commission, when in fact it is an association of persons engaged in the egg industry. (I.D. 49) The judge reasoned that the words “National Commission” in particular would tend to enhance, misleadingly, the authority of NCEN’s pronouncements in the eyes of the public, He therefore recommended that respondent NCEN be required to dis- close in close proximity to its name the fact that it is an organization composed of egg producers and others of, or relating to, the egg industry. While a few of NCEN’s advertisements did acknowledge that “We're egg people” or words to similar effect, none included this revelation in close proximity to the corporate name, and many ad- vertisements contain no disclosure of corporate composi- tion whatsoever. (1.D. 49) NCEN recognized the importance of “what’s in a name” when it chose its present title to replace the somewhat more accurate (perhaps too accurate) “Egg Industry Cholesterol Commssion.” (I.D. 50) The name “National Commission on Egg Nutrition,” unmodified, is likely to mislead readers as to the nature of the organization, given the number of “National Commissions” in the United States which are, in fact, independent, quasi-governmental bodies, see, e.g. Sullivan and Kruzas, Encyclopedia of Governmental Advisory Organizations, pp. 620-21, 619 (2d ed. 1975). The deception is, moreover, highly material. Some people will view with skepticism the claims of industry members as to the virtues of that industry’s products, especially if they are aware that the subject is a matter of some con- troversy. They are less likely to be mistrustful of the pronouncements of a “National Commission” which pub- — “a lishes lengthy excerpts from scientific studies “in the public interest” (CX 176) and assures its audience that it follows such matters very closely because “we're vitally concerned with health and good, natural nutrition.” (CX 5) While —— of a misleading corporate or trade name 1s at times an appropriate remedy, e.g. United States Naval Weekly, Inc. v. Federal Trade Raladen 207 F. 2d 17 (D.C. Cir. 1953); Federal Trade Commission v. Army and Navy Trading Co., 88 F. 2d 776 (D.C. Cir. 1937), we believe the. the clarifying disclosure proposed by the ALJ is an entirely suitable and less drastic means of curing the deception here, and we shall include such a requirement in our order.{ 22] D. Reasonable Basis Claims; *‘ There is (Overwhelming) Evidence that Eating Eggs Does Not Increase the Risk of Heart Disease’’ The order of the law judge would require that respon- dents desist from the following representations unless they possess ‘ta reasonable basis’’ for them. consisting of competent and reliable scientific evidence upon which they rely for making their claim: 1. eating eggs does not increase the risk of heart at- tacks, heart disease * * * or any attendant condition. * ¢@© @ @ @© @ & * * # » bd . ° 4. any representation concerning the relationship of dietary cholesterol, including that in eggs, to heart at- tacks * * * or any attendant condition.” ee _ Par. 1(B)(2) and (3) of the ALJ’s order would also prohibit respondents from representing without a reason- able basis that dietary cholesterol, including that in eggs decreases the risk of heart attacks, heart disease, or any attendant condition and that avoiding dietary cholesterol, including that in eggs, increases the risk of heart attacks * * or any attendant condition. Since Par. I(A) of the order contradictorily forbids outright the claim that there is scientifie evidence for these propositions, and. since respondents concede there is no scientifie evidence to sup- port the claims (and indeed deny having made them), we shall omit the ALJ’s paragraphs I(B)(2) and (3) from our order. — 26a — It is settled law that an advertiser in rendering an affir- mative claim for a product must have a ‘‘ reasonable basis’’ therefor, consisting of such evidence as is appropriate to provide substantiation for the type of claim being made. Pfizer Corp., 81 F.T.C. 23 (1972); National Dy- namics Corp., 82 F.T.C. 488 (1973), aff’d, 492 F. 2d 1333 (2d Cir. 1974), cert. denied, 419 U.S. 993 (1974); Fireston Tire & Rubber Co., 81 F.T.C. 398 (1973), aff’d, 481 F. 2d 246 (6th Cir. 1973), cert. denied, 414 U.S. 1112 (1973). The justification for such a requirement is apparent. Many consumers are likely to assume that when a product claim is advanced which is in theory subject to objective verifi- cation, the party making it possesses a reasonable basis for so doing, and that the assertion does not constitute mere surmise or wishful thinking on the advertiser’s part. As a result, the rendition of a claim based upon inadequate or nonexistent substantiation [23] violates Section 5 for failure to state a highly material fact, whose omission js deceptive." With respect to respondents’ representation that eat- ing eggs, even in quantity, does not increase the risk of heart attacks and heart disease, the ALJ concluded: Respondents had no reasonable basis for making the representation * * * at the time the representation was first made. [Citations omitted] The substantiation neces- sary to form a reasonable basis for the representation would be the existence of a consistent body of competent “Compare **Our product is safe’? with ‘* We think our product is safe, but we really have only the most incon- clusive evidence upon which to base this statement.’’ The latter formulation obviously cures the omission of fact but it is likely to induce considerably fewer consumers to buy the product. The Commission has also held that failure to possess a reasonable basis is unfair within the meaning of Section 5, Pfizer, Inc., supra. Under either theory, however, the source of illegality is the same—the abuse of legitimately held consumer expectations that ad- vertising claims couched in objective terms are not merely statements of unsubstantiated opinion. =. and reliable scientific evidence indicating that eating eggs does not increase the risk of cup [coronary heart disease }. Such evidence should come from each of the various dis- ciplines of medical science and be of the same caliber of design, analysis, and interpretation as the substantial existing body of evidence which supports the opposite conclusion—that eating eggs does increase the serum cholesterol level of most people and that the serum choles- terol level is related to an increase in risk of cup. The substantiating data would also have to offer some rational explanation for the discrepancy of results between the claimed substantiating evidence and the existing body of evidence, [Citations omitted] (I.D. 118) , It is not entirely clear from respondents’ brief on appeal whether or not they challenge this finding of the law judge. They do, in their brief, take exception to the ALJ’s {24} finding that they represented that there was ‘‘over- whelming evidence’’ that eating eggs does not increase the risk of heart disease," though they apparently do not object to the findings that they represented that there is *‘evidence’’ that eating eggs does not increase the risk of heart disease, and represented implicitly that they pos- — a reasonable basis for their statement. (1.D. p. r 6 ’ It is clear to us, however, that respondents di’ make the *‘overwhelming evidence’’ claim. CX 1 states, for in- stance, *‘there is absolutely no scientifie evidence that eating eggs in any way increases the risk of heart attack. Yet the cholesterol bugaboo persists. The mystery is why. Why, in the face of overwhelming evidence to the contrary, do some people fear eggs, cholesterol, heart attacks ?’’ See also 1.D. 39-41 which we aftirm. ‘* Note should be taken of the difference between denying the existence of evidence implicating eggs and aflirming the existence of evidence exonerating them. While respon- dents’ experts may conclude that the evidence cited against eggs does not warrant the hypothesis that their consump- tion increases the risk of heart disease, this does not neces- — 8a — Of course, a conclusion that there does not exist affirma- tive evidence to exonerate eggs does not mean that there cannot be a sensible basis for declining to limit one’s egg consumption. As noted before, it is obvious from the record that some experts believe the existing evidence is not sufficient to warrant a reduction in egg consumption. It is deceptive, however, to buttress this conclusion with the suggestion that it is supported by affirmative evidence of eggs’ harmlessness if such does not exist. [25] Respondents object strenuously, however, to that portion of the law judge’s proposed order [Par. 1(B)(1)] which requires that they possess a reasonable basis, con- sisting of competent and reliable scientific studies, for any claim that eating eggs will not increase the risk of heart disease. They contend that the difficulty of deter- mining what constitutes adequate substantiation for the claim will prevent them from making any assertions on this subject whatsoever. Respondents object similarly to proposed Par. 1(B)(4) [RB 48]. In an ordinary case we would have little sympthy for respondents’ contention. Parties making claims about the attributes of products—and particularly about the safety of products—owe to the public a high degree of precision and care. Where there is doubt, not merely as to the truth, but as to the substantiability of a claim, the public is seriously disserved by a presentation which implies that no doubt exists. Claims involving scientific judgments necessitate careful scientific evaluation before they may be made, and the difficulty and possible uncertainty involved ** (Continued ) sarily mean that such evidence supports the affirmative conclusion that eggs do not increase the risk. The evidence may in the view of these experts simply be supportive of no conclusion on the subject. — 9a — in making such judgments should normally be no bar to requiring them." In the instant case, however, we believe a different ap- proach is warranted. It is apparent that there is very little which respondents might claim or wish to claim in their publications that would not be construed by con- sumers as stating or implying that eating eggs, even in quantity, will [26] not increase the risk of heart disease. To insist upon a ‘‘reasonable basis’’ for such assertions in the face of an evolving body of scientific opinion would inevitably place the Commission in the position of having to resolve an issue as to which the record in this case warns that competent, well qualified experts are peculiarly likely to evince sharp disagreement. The foregoing does not mean, of course, that merely because a scientific question is the subject of intense con- troversy an advertiser thereby achieves the right to re- present unqualifiedly that truth resides on one particular side, with no warning to consumers whatsoever that a controversy exists and that substantial reputable authority takes the opposite view. Clearly it is deceptive for respon- dents to characterize the other side as armed with ‘‘no evidence’’ and themselves as in possession of ‘‘over- whelming evidence.’’ Similarly it is patently deceptive * As the Commission noted in its Pfizer decision, ‘(tlhe question of what constitutes a reasonable basis is essentially a factual issue which will be affected by the interplay of overlapping considera- tions such as (1) the type and specificity of the claim made—e.q. safety, efficacy, dietary, health, medical; (2) the type of product—e.g. food, drug, potentially hazardous consumer product, other consumer product; (3) the possible consequences of a false claim—e.g. personal injury, property damage; (4) the degree of reliance by consumers on the claims; (5) the type, and accessibility of evidence adequate to form a reason- able basis for making the particular claims.’’ (Pfizer, Inc., supra at p. 64) — 0a — for respondents to assert or imply unqualifiedly that egg consumption, even in quantity, will not increase the risk of heart disease and selectively cite authorities to this effect when, in fact, a substantial body of scientific opinion holds to the contrary. The simple solution to this deception, we believe, is for respondents to indicate clearly and conspicuously in their advertising that the claim they seek to make for eggs is sub- ject to substantial disagreement by qualified experts with- in the scientific community. This was basically the ap- proach adopted by the Seventh Circuit Court of Appeals in eranting an injunction against respondents’ advertising. Complaint counsel in their brief to the Commission suggest a similar approach, (CB 54) although they would also retain reasonable basis provisions. Once it is made clear that respondents’ claims are the subject of controversy, and that well-qualified reputable experts disagree, we think that the deception which may result from respon- dents’ assertions of eggs’ safety should be eliminated. Consumers, including those who lack extensive prior acquaintance with the cholesterol controversy, will recog- nize that respondents are merely stating their side of a complex, unresolved scientific debate, and treat such state- ments accordingly. We believe that this remedial approach to the problem presented here is preferable from both the standpoint of respondents and consumers. On the one hand, were the Commission [27] to maintain a narrow view of what con- stitutes a ‘‘reasonable basis’’ for respondents’ position and require that as a condition for its expression, it might indeed come at the expense of respondents’ ability to pub- licize new developments in the field. On the other hand, were the Commission to adopt a more expansive view of ‘*reasonable basis,’’ it would be granting carte blanche to respondents to assure consumers directly or by implication that egg consumption is safe, without mention of the sub- stantial contrary opinion. A similar right to deceive could, under the circumstances, hardly be denied those seeking to promote various low-cholesterol food products with the —3la— unqualified claim that eating eggs or other high cholesterol foods will increase one’s risk of heart disease. _Respondents argue that a requirement of affirmative disclosure is inappropriate because it forces them to make a statement with which they disagree [RRB 17], namely (in the case of the Seventh Circuit’s proposed disclosure and that of complaint counsel) the statement that there is evidence that eating eggs may increase the risk of heart disease. While we do not agree that respondents raise a valid objection, we believe it is possible to accom- modate their concern by requiring merely that they indi- cate in their advertisements that many medical experts believe that existing evidence indicates that consumption of dietary cholesterol, including that in eggs, may increase the risk of heart disease. It appears from the ‘record of this ease that respondents would not disagree with the foregoing formulation, nor need it oceupy an inordinately large share of the extensive prose which respondents have of necessity been devoting to this very complex issue. For the foregoing reasons we have omitted Sections I(B) (1) and I(B)(4) of the ALJ’s proposed order. Para- graph I(B) of the order we have entered will permit respondents to make representations concerning the exist- ence of scientific evidence or expert opinion supporting the view that eating eggs does not increase the risk of heart disease, or to deseribe such evidence, provided that respondents also disclose clearly and conspicuously in conjunction therewith the fact that many medical experts believe that existing evidence indicates [28] that increased consumption of dietary cholesterol, including that in eggs, may increase the risk of heart disease. * The Commission’s authority to require affirmative dis- closure in advertising is well-established, e.g. J. B. Wil- liams Company v. C, 381 F.2d 884 (6th Cir. 1967); Keele Hair ¢ S Specialists, Inc. v. FTC, 275 F.2d 18 (5th Cir., 1960); Ward Laboratories, Inc. v. FTC, 276 F. 2d 952 (2d Cir. 1960), cert. denied, 364 U.S. 827 (1960) ; Waltham Precision Instrument Co. v. FTC, 327 F. 2d 427 (7th Cir., 1964), cert. denied, 377 U.S. 992 (1964). = Respondents also object to Paragraph I(C)(1) of the order proposed by the administrative law judge, which would prohibit misrepresentations of the existence, ab- sence, or quantum of scientific evidence or proof concern- ing the relationship between eggs and heart disease. Re- spondents contend that the provision is unduly vague, and will thus prevent them from advertising. Whether or not this claim is valid, the Commission has determined to modify Paragraph I(C)(1) in slight measure in order to clarify its purpose, without diminishing the necessary protections against deception which it is designed to provide. Paragraph I(C)(1) entered herein parallels both Paragraph I(A)(2) of the notice order and the second operative paragraph of the injunction entered by the Seventh Cirenit, prohibiting representations that the evi- dence that consumption of eggs will not increase the risk of heart disease is insignificant, and misrepresentations of the amount of evidence that consumption of eggs will not increase the risk, or that such evidence is “over- whelming.” We respect respondents’ desire to discuss what they view as the deficient character of the scientifie case here- tofore made against eggs. Tt would be misleading for the reasons discussed earlier, however, for them to do so by claiming that “no evidence” exists against eggs. The same effect would be achieved were respondents able to dismiss the quantum of existing evidence (and by impli- eation the extent of existing contrary authority) as insig- nificant, and hence not worth considering. Paragraph T(()(1). like the injunctive provision on which it is mod- eled, will prevent this, without foreclosing respondents from expressing their views as to the nature and quality of the scientific case against eggs.[29] Ill, FIRST AMENDMENT DEFENSE Respondents contend that even if the Commission has jurisdiction over NCEN, its pronouncements on the sub- ject of eggs and cholesterol are protected from regulation by the First Amendment. Respondents aver that they do — 33a — not claim a right to make false statements on matters of health (RRB 1) but they appear to maintain that the controversial nature of their subject matter and its status as a subject of public debate render their speech immune from regulation except perhaps insofar as it contains provable falschoods.” In its recent opinion in Virginia State Board of Phar- macy v. Virginia Citizens Consumer Council, Inc., No. 74-895, 44 U.S.L.W. 4686 (May 24, 1976) [96 S.Ct. 1817] the Supreme Court dispelled what doubts may have lin- gered that speech does not lose all constitutional protec- tion merely because it is designed to offer something for sale or convince the public of a product’s virtues. At the same time, the Court reiterated that commercial speech is not “wholly undifferentiable” from other forms, and that the indulgence of deception which may be necessary for certain forms of expression to flourish is not essential in the commercial arena. As the court noted, “Obviously, much commercial speech is not provably false, or even wholly false, but only deceptive or misleading. We foresee no obstacle to a state’s dealing effectively with this prob- lem.” (44 U.S.L.W. 4693, n. 24) Similarly, the Court recognized that the nature of commercial speech may make it “appropriate to require that a commercial mes- * Of course, whether or not a statement is “provably false’’ depends in the first instance on what it means. Respondents themselves do not deny the falsity of the claims discussed at pp. 18-20, for example, but deny that their statements conveyed such claims. Similarly, respond- ents would presumably not deny the falsity of the message which we believe is clearly conveyed by their ‘‘no evi- dence” advertisements, althongh they would deny that such message is actually conveyed by their words. For these reasons we take respondents’ First Amendment argu- ment to be, in some measure, that the nature of their speech is such that the Commission must refrain entirely from evaluating it pursuant to the standards of Section Five, even if such evaluation would lead the Commission to conclude that it is false. — 34a — sage appear in such a form, or include such additional information, warnings and disclaimer, as are necessary to prevent its being deceptive.” (/d.) [30] There is, to be sure, enormous public interest in the vigorous dissemination of accurate product informa- tion to consumers by commercial organizations. That in- terest, which the Supreme Court perceived in the First Amendment, is no less at the heart of Section Five, whose goal of promoting competition is advanced in a climate of useful consumer information. Neither the objectives of the First Amendment, nor of the FTC Act are well-served, however, by commercial speech which is deceptive—which relies upon outright falsehoods or misleadingly oversim- plified statements of complex issues to induce consumer beliefs and behavior that might differ considerably if greater precision were employed. As Justice Stewart noted in concurring with the majority in Virginia Pharmacy Board, “* * * the elimination of false and deceptive claims serves to promote the one facet of commercial price and product advertising that warrants First Amendment pro- tection—its contribution to the flow of accurate and reli- able information relevay. to public and private decision- making.” (44 U.S.L.W. 4695-96) Although Virginia State Board of Pharmacy had not been decided at the time this matter was argued before the Commission, we think it evident from respondents’ briefs that they do not view their representations as properly subject to the requirement of non-deceptiveness which the Court emphasized could appropriately be im- posed upon commercial speech. Respondents argue in their briefs that their speech, far from being commercial, is rather akin to social or political advocacy, and that the Commission, therefore, may not interfere ‘to any degree in their expression of “viewpoint.” Alternatively they seem to suggest that the Supreme Court’s decision in Bigelow v. Virgima, 421 U.S. 809 (1975) requires a “hal- ancing” of interests before even misleading commercial — speech may be regulated, and that such balancing weighs here in favor of regulatory abstinence, We cannot agree.” [31] While there are no doubt aspects of the cholesterol controversy which impinge upon politics and governmental policy, those are not the focus of respondents’ publica- tions, all of which are directed toward conveying, by varving techniques, the message that eggs are entirely safe to eat, even in quantity, because consumption of dietary cholesterol will not increase the risk of heart disease, or at least has not been implicated by scientific evidence, Respondents’ early publications (CX 1ff.) con- vey the message in a conventionally commercial format (e.q., “The Sexy Egg’’). Later publications make the same point by means of excerpts from a small and not particularly representative sample of the scientific litera- ture, accompanied by appropriate commentary and pro- fessions of charitable intent, e.g. ‘‘the public has the right to know.’”’ There are significant differences, we believe, between scientific health claims made about a product by a com- mercial organization and commentary on genuine political or social issues, differences which warrant their well-recog- nized disparity in legal treatment. Arguments directed to social and political issues, where made by individuals or cor- porations, are likely to be recognized by the public as ex- pressions of opinion, by their very nature subject to con- troversy and substantial reputable disagreement. Even interspersed ‘‘factual’’ statements are likely to be viewed 2? We do not wish to mischaracterize respondents’ posi- tion. They do maintain, of course, that their represente- tions are neither false nor misleading. On the other hand they are apparently unwilling to concede that resolution of this lawsuit depends solely on whether or not the de- ciding tribunal agrees on that point. For this reason we understand them to be asserting as defense that the First Amendment does exempt their statements from liability, even if they are misleading by the standards customarily applied by the Commission in analyzing product claim. — 36a — with the skepticism reserved for an advocate’s expression of a disputed point of view. We do not think that con- sumers, or at least a substantial segment of consumers, necessarily reserve the same skepticism in viewing what puport to he largely or entirely factual scientific recita- tions of the health and nutritive virtues of a food product by a party presumptively in possession of all information relevant thereto, ef. Virginia State Board of Pharmacy, supra, p. 4693, n. 24. While few might still agree that ‘‘advertisements contain the only truths io be relied on in a newspaper’? (Thomas Jefferson, ‘Letter to Nathaniel Macon’’), they are clearly an important source of deci- sion-guiding data for consumers. Perhaps this is not the way it should be. Perhaps when consumers read that ‘‘there is absolutely no scientific evi- dence that eating eggs, even in quantity, will increase the risk of heart disease’’ they should all recognize this as merely the advertiser’s interpretation of a controversial body of evidence, and view it with the appropriate skep- ticism. But would respondents also desire, and would it truly be in the public interest, if consumers were to ac- cord the same intense degree of skepticism to statements which oecur a few sentences earlier in their advertisement: ‘“* * * eges have fewer calories per gram of protein than any other natural food * * *. Eggs are an important source of vitamins A,B,D, and E and are a preferred source of iron.’? (CX 2) [32] To the contrary, we believe that some consumers do, and have a right to place substantial faith in nutrition and health claims made by commercial organizations. If an advertiser assures them that the product being touted contains plentiful quantities of a vitamin, or abundant amounts of protein, they have a right to assume that these statements would compel the assent of all or nearly all experts within the relevant scientific community. Similarly, when an advertiser, (or a ‘‘National Commission on Egg Nutrition’’) which presumably knows everything there is to know about the product being discussed, assures the lit — 37a — public that product is safe, or that there is ‘‘No evidence”’ that it is unsafe, the public will, and we think has a right to, assume that the advertiser is doing more than express- ing an opinion that would at best obtain the qualified as- sent of a mere fraction of those professionally competent to evaluate it. For the foregoing reasons we must reject respondents’ contention that their publications are, like true political commentary, constitutionally immunized from the neces- sity to adhere to the standards of Section Five of the Federal Trade Commission Act. Similarly, we doubt that the Bigelow case compels the application of a balancing of interests test in each particular case before any regulation whatsoever may be applied to misleading commercial speech. That balance has already been struck on a categorical basis, a fact recognized by the Supreme Court in Virginia Board of Pharmacy if not in Bigelow itself. Assuming, however, arguendo that such balancing is ap- propriate, we conclude that it weighs heavily here in favor of regulation for the following reasons: There is scant public benefit and considerable actual and potential publie harm (1.D. 109-110, 127) in adver- tising which assures all members of the public that there is no reason to doubt that they may eat as many eggs as they wish without any increase in the risk of heart disease, without a mention that a major segment, perhaps a substantial majority, of the relevant expert community strongly disagrees. Respondents claim that their advertising serves the worthy purpose of firing debate in an area marked bv misinformation and misconception. To be sure, the ex- hibits introduced by respondents demonstrate that they have no monopoly on the dissemination of misinformation concerning the relationship [33] between dietary choles- terol and heart disease, although their advertisements are probably more likely to catch the ey. than the nutrition articles to which they object. Nevertheless, assuming arguendo that respondents’ publications may indeed pro- = voke valuable consumer debate, there is no reason to con- clude that such debate could not and will not be equally well encouraged, without deleterious side effects, by ad- vertising that is not misleading. As the Supreme Court noted in Virginia Board of Pharmacy, **|s]lince adver- tising is the sine qua non of commercial profits, there is little likelihood of its being chilled by proper regulation and foregone entirely.’’ 44 U.S.L.W. 4693, n. 24. In addition to the public debate, respondents suggest that regulation of their publications will chill ‘‘independent thought and variance from government orthodoxy by those who can contribute to the science of the matter.’’ (RB 36) We agree, of course, that the First Amendment exists to foster the search for truth as well as the ex- pression of opinion, and that search may entail societal sufferance of many deceptions, real and imagined, along the way. This consideration weighs overwhelmingly in favor of the right of scientists to disseminate their views free of scrutiny, or of journalists and publishers te report upon or promote scientifie works, despite an incideniai commercial effect, e.g. Scientific Manufacturing Co. v. FTC, 124 F. 2d 640 (3rd Cir. 1944). The foregoing consideration is far less compelling, how- ever, in the case of those who would simply use, or misuse, the works of scientists for the purpose of convincing the public of a scientific proposition in order to promote the sale of a commercial product, e.g. Perma-Maid Co. v. FTC, 121 F. 2d 282 (6th Cir. 1941); Koch, et al. v. FTC, 206 F. 2d 311 (6th Cir. 1953). It should be apparent that the Commission in its decision has expressed no view as to the merits of the diet/ heart disease hypothesis, and the Commission’s opinion, like that the ALJ, simply cannot be taken as an endorsement of anyone’s orthodoxy except perhaps by those scientists who, in most unscientific fashion, choose to draw conclusions about a document with- out reading it. For these reasons we cannot take seriously respondents’ suggestion that those who would do research in this area will in any way be deterred by a Commission — 39a — decision adverse to NCEN, and we must similarly conclude that no reason exists in this case to warrant the Com- mission’s departure from its statutory duty to proscribe false and misleading advertising. [34] The foregoing is not to say, as should by now be clear, that we view the issues raised by respondent and the peculiar nature of this case to be wholly irrelevant to our decision and particularly the question of appro- priate relief herein. As noted in the preceding discussion of ‘‘reasonable basis,’’ [Part II(D)] we do believe that the nature of the dispute here in issue warrants a some- what different order from that which might ordinarily be appropriate. We believe that the order we have entered herein should adequately accommodate those interests which respondents claim warrant complete regulatory exemption. Paragraph I(A) of the order will prohibit cer- tain precisely defined and demonstrated falsehoods which may be used to convince people of eggs’ safety and nutri- tive virtue. It will also require respondents to disclose that NCEN is an organization of egg industry people. At the same time, the order will not prevent respondents from presenting to consumers their point of view regarding the safety of eggs, provided they make it clear that their assertions are subject to substantial expert disagreement. Substitution of affirmative disclosure for the requirement of ‘‘reasonable basis’’ is intended to maximize the cer- tainty with which respondents may advertise, since inclu- sion of the disclosure in conjunction with a representation described in Par. I1(B) will suffice to immunize the re- presentation from liability under the order. Respondents also object to the order on grounds that while it purports to be applicable only to ‘‘advertise- ments’’ it gives inadequate guidance as to what publica- tions fall under that term. Complaint counsel suggest a two-part test: (1) is the publication used in connection with the sale or promotion of a product, and (2) does it have a tendency or capacity to induce the sale of, or to affect any other commercial behavior toward, the product? —_ Cf. Koch, et al. v. FTC, swpra, at 318 (6th Cir. 1953). In view of the nature of respondent NCEN, described in part I of this opinion, it is obvious that any publication dis- seminated by it in mass media to the lay public, and satis- fying the second criterion, also satisfies the first. We think the traditional standard of whether or not a publica- tion has the tendency or capacity to induce the sale of a product is also not unduly vague. Publications designed to convey the point that consumption of a particular pro- duet, will not increase the risk of heart disease, are clearly likely to induce the purchase of that [35] product. The fact that the message is conveyed by means of selected quotations from the works of scientists and popular writers does not alter the commercial character of the pub- lication. Nor is it altered by self-serving professions of eleemosynary intent, e.g. ‘‘Brought to you in the public interest.’’ If anything the misleading effect of respon- dents’ advertisements is enhanced by casting them in the guise of a ‘‘public service message’’ presented by an un- identified ** National Commission’’.*' The term ‘‘advertisement’’ is one which has generally heen thought sufficiently clear by courts applying it in Section Five orders, including the Seventh Cireuit which used the term in issuing an injunction in this matter. (517 F. 2d 485, 491.) We think it is sufficiently clear in this ease. We do not doubt that if respondents wish, after entry of an order, to continue the misrepresentations pro- hibited therein, their ingenious efforts to create a ‘‘non- advertisement” in which to do so may raise close ques- tions of interpretation. That, however, can be no reason in this, or in any other case, for withholding entry of an order to prohibit the recurrence of what are clearly mis- leading advertisements. *' In this regard we must reject the suggestion attributed to the ALJ (RB 21ff.) that CX 171-173 and 175-176 are necessarily not commercial publications, although they do not form the basis for our finding of liability in this matter. i oS ee eS a ee ee — 4la — For the foregoing reasons the initial decision of the administrative law judge is affirmed, except to the extent modified herein.*? An appropriate order is appended.** [36 | APPENDIX The findings of fact and conclusions of Law set forth in the initial decision of the administrative law judge are adopted by the Commission, except to the extent they are qualified in the Commission’s opinion and in this appendix: LD 14, p. 9, Add to the end of line 3, ‘*in at least certain docu- mented instances’’ delete ‘‘(Smith, 1635-36)’’ [Although the conclusion of the aus for which cita- tion is given in sup- port is correct and ap- parent from the face of the advertisements, the citation is inapposite. delete ‘‘and most authora- tative [sic]’’ LD. 21, p. 12, LD 59, p. 32, *21n addition to modifications described in the text, we have reviewed the initial decision and respondents’ ob- jections to it at RB la-Ga, and have made certain changes in the initial decision findings adopted by the Commission. These are recited in the Appendix to this opinion. ** We have modified a paragraph proposed by the ALJ which would have required NCEN to require its members to sign an agreement to abide by terms of the order as a condition of membership. The order entered will simply require that NCEN members be provided with copies of the order. To the extent that NCEN acts through its mem- bers, or that its members act on its behalf the corpora- tion will be liable. While the signature provision is clearly a necessary remedy in certain cases, we can perceive no need for it here. — 42a — LD. 106, p. 57, change ‘‘The qualifications as experts on CHD are un- challenged’’ to ‘* They are well-qualified as experts on CHD’’ ILD. 110, p. 59, add at end of finding, ‘‘Of course, Dr. Blackburn’s estimate must be qualified in light of his acknowl- edgment that he cannot be certain that increases in serum cholesterol levels would in fact re- sult in increases in the rate of cup. Tr. 377-79"’ I.D. 120, p. 65, amend final sentence on this page to read: **Rather, the proper con- clusion with respect to the viewpoint of those experts quoted herein- above is approximated by this statement by the In- ter-Society Commission for Heart Disease Re- sources (Finding 102 supra) :’’ LD. 120, p. 66, delete sentence beginning ‘‘The testimony relied upon * * *’’ [This sub- ject is more fully dis- cussed in Part I of this opinion. ] Finat OrpeER [1] This matter having been heard by the Commission upon the appeal of respondent from the initial decision, and upon briefs and oral argument in support thereof and — 43a — opposition thereto, and the Commission for the reasons stated in the accompanying opinion having determined to sustain the initial decision with certain modifications: It is ordered, That the initial decision of the administra- tive law judge, pages 1-95, be adopted as the Findings of Fact and Conclusions of Law of the Commission, ex- cept to the extent indicated in the accompanying opinion. 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 to cease and desist be, and it hereby is ,entered: ORDER 1 It is ordered, That respondents National Commission on Egg Nutrition and Richard Weiner, Inc., corporations, their successors and assigns, either jointly or individually, and [2] respondents’ 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 of eggs for human consumption do forthwith cease and desist from: A. Disseminating or causing the dissemination of any advertisement by .eans of the United States mail or by any means in or affecting commerce, as ‘‘commerce’’ is defined in the Federal Trade Commission Act, which directly or indirectly 1. Represents that there is no scientific evidence that eating eggs increases the risk of heart attacks, heart disease, atherosclerosis, arteriosclerosis, or any attendant condition ; 2. Represents that there is scientific evidence that (lietary cholesterol, including that in eggs, decreases the risk of heart attacks, heart disease, atherosclerosis, ar- teriosclerosis, or any attending condition; enoliiininn 3. Represents that there is scientific evidence that avoid- ing dietary cholesterol, including that in eggs, increases the risk of heart attacks, heart disease, atherosclerosis, arteriosclerosis, or any attendant condition; 4. Represents that eating eggs does not increase the blood cholesterol level in a normal person; 5. Represents that the blood cholesterol level is pre- vented from being raised or lowered by dietary choles- terol intake; 6. Represents that the human body increases its manu- facture of cholesterol in an amount equal to a decrease in dietary cholesterol intake; 7. Represents that the average human body eliminates the same amount of cholesterol as that eaten; [3] 8. Represents that dietary cholesterol, including that in eggs, ix needed by the body for building sex hormones, for transmitting nerve impulses and for main- taining life in cells; or 9. Utilizes the name ‘‘National Commission on Egg Nutrition’’ unless it is clearly and conspicuously disclosed in immediate conjunction with the name that the National Commission on Egg Nutrition is composed of egg prod- ucers and other individuals and organizations of, or re- lating to, the egg industry. B. Disseminating, or causing the dissemination of any advertisement by means of the United States mail or by any means in or affecting commerce, as ‘‘commerce’’ +s defined in the Federal Trade Commission Act which directly or indirectly 1. Represents that eating eggs does not increase the risk of heart attacks, heart disease, atherosclerosis, ar- teriosclerosis, or any attendant condition or represents that there exists, or describes scientific evidence which supports the theory that consumption of dietary choles- terol, including that in eggs, does not increase the risk 3 aw (oe .. of heart attacks, heart disease, atherosclerosis, arterios- clerosis, or any attendant condition or 2. Makes any representation concerning the relation- ship of dietary cholesterol, including that in eges, to heart attacks, heart disease, atherosclerosis, arteriosclerosis, or any attendant condition unless it is clearly and conspicu- ously disclosed in immediate conjunction therewith that many medical experts believe that existing evidence in- dieates that increased consumption of dietary cholesterol, including that in eggs, may increase the risk of heart disease. [4] C. Disseminating, or causing the dissemination of, any advertisement by means of the United States mail or by anv means in or affecting commerce, as ‘‘commerce’’ is defined in the Federal Trade Commission Act, which directly or indirectly 1. Represents as insignificant the available scientific evidence that the consumption of dietary cholesterol, in- eluding that in eggs, may increase the risk of heart at- tacks, heart disease, atherosclerosis, arteriosclerosis, or any attendant condition, or represents that there is over- whelming scientific evidence or otherwise misrepresents the amount of scientifie evidence that eating eggs does not inerease the risk of heart attacks, heart disease, atheros- clerosis. arteriosclerosis, or any attendant condition. 2. Misrepresents in any manner the physiological effects of consuming dietary cholesterol or eggs. II It ts further ordered, That respondents shall forthwith distribute a copy of this order to each of their operating divisions, and to all current and future members of respon- deut National Commission on Egg Nutrition. It is further ordered, That each respondent notify the Commission at least thirty (30) days prior to any pro- posed change in its corporate structure such as dissolu- — r sale resulting in the ee of _ i dissolution of sub- successor corporation, the creation or = sidiaries or any other change in the corporation ee may affect compliance cbligations arising out oO e order. -: further ordered, That each respondent shall, within Ps by? days after this order becomes final, file — beg Commission a report, in writing. signed by aig setting forth in detail the manner and form of its plance with the order to cease and desist. tion, assignment 0 — 47a — NATIONAL COMMISSION ON EGG NUTRITION and Richard Weiner, Inc., Petitioners-Appellants, vs. FEDERAL TRADE COMMISSION, Respondent-Appellee. Nos. 76-1969 and 76-1975. United States Court of Appeals, Seventh Circuit. Argued June 17, 1977. Decided No. 29, 1977. As Amended Dec. 6, 1977. Supplemental Opinion on FTC’s Motion to Amend Judgment Jan. 23, 1978. Following remand, 517 F.2d 485, Federal Trade Com- mission entered order prohibiting false and misleading advertising by egg industry trade association concerning the relationship between cholesterol, eggs, and heart disease. The Court of Appeals, Tone, Cireuit Judge, held that: (1) evidence sustained determination that represen- tations made by the industry and various advertisements had been false; (2) the statements complained of were not immune under the First Amendment from FTC action; (3) order was not unconstitutionally vague, but (4) industry should not have heen required to include, in any future statements concerning the relationship between eggs and heart disease, information that many medical experts be- lieve that increased consumption of cholesterol may in- crease the risk of heart disease. Enforced in part. 1. Amicus —1 Argument which was not made before the Federal Trade Commission or by the parties themselves in the Court of Appeals was not properly before the Court of Appeals when presented in brief filed by amicus curiae. — 9. Trade Regulation — 802 Evidence sustained determination of Federal Trade Com- mission that advertising statements made by trade as- sociation of the egg industry concerning lack of relation- ship between cholesterol, eggs, and heart disease were false. 3. Constitutional Law — 90(1) First Amendment embraces the interests of both the speaker and the prospective audience, U.S.C.A.Const. Amend. 1. 4. Constitutional Law — 90.1(1) Advertising statements of egg industry which categor- ically and falsely denied the existence of evidence con- sidering relationship between cholesterol, eggs, and heart disease, which evidence in fact existed, were not immune under the First Amendment from FTC order prohibiting false advertising. U.S.C.A. Const. Amend. 1; Federal Trade Commission Act §§ 5, 12, 15 U.S.C.A. §§ 45, 52. 5. Trade Reculation — 816 Neither the use of the term ‘‘advertisement’” in FTC order prohibiting certain misleading statements in adver- tising nor statement of the Administrative Law Judge that he did not predicate a finding of violation on certain materials published by the respondent rendered the order uneonstitutionally vague. Federal Trade Commission Act, §§ 5, 12, 15 U.S.C.A. §§ 45, 52. 6. Trade Regulation — 816 Provision of Federal Trade Commission order pro- hibiting advertising which represented as insignificant the available scientific evidence that the consumption of dietary cholesterol, including that in eggs, may increase the risk of heart disease or which otherwise misrepresented the amount of scientifie evidence that eating eggs does not inerease the risk of heart attacks was not unconstitu- tionally vague. Federal Trade Commission Act, §§ 5, 12, 15 U.S.C.A. §§ 45, 52; U.S.C.A.Const. Amend. 1. — 49a — 7. Trade Regulation — 812 Federal Trade Commission, in barring false and mis- leading advertisements, was not limited to prohibiting the precise misrepresentations which had occurred in the past. Federal Trade Commission Act, §§ 5, 12, 15 U.S.C.A. §§ 45, 52. 8. Constitutional Law — 90.1(1) First Amendment does not permit Federal Trade Com- mission to impose a remedy for false and misleading ad- vertising which is broader than that necessary to prevent deception or correct the effects of past deception. U.S.C.A. Const. Amend. 1; Federal Trade Commission Act, 4§ 5, 12, 15 U.S.C.A. §§ 45, 52. 9 Trade Regulation — 812 In the absence of showing a long history of deception on the part of egg industry with respect to advertisements concerning relationship between cholesterol, eggs and heart disease, Federal Trade Commission requirement that the industry include in any future advertisements concerning the relationship between eggs and heart disease the state- ment that many medical experts believe the increased con- sumption of dietary cholesterol, including that in eggs, may increase the risk of heart attack; the egg industry should not have been required to argue the other side of the con- troversy; the requirement could be imposed only when the industry chose to make a representation as to the state of available evidence or information concerning the controversy. U.S.C.A.Const. Amend. 1; Federal Trade Commission Act, §§ 5, 12, 15 U.S.C.A. §§ 45, 52. James L. Fox, Donald P. Colleton, Chicago, Ill., for petitioners-appellants. John T. Fischbach, Atty., F T. C., Washington, D. C., for respondent-appellee. = Before Sprecuer and Tone, Cireuit Judges, and Camp- BELL, Senior District Judge.* Tone, Cireuit Judge. The subject of this appeal is commercial speech under the First Amendment. Acting pursuant to its power to prohibit false and misleading advertising, the Federal Trade Commission has entered a final order directing petitioners to cease and desist from disseminating adver- tisements containing statements to the effect that there is no scientific evidence that eating eggs increases the risk of heart and circulatory disease.’ Certain statements ancillary to the one just described are also prohibited, and the right to make still others is limited and conditioned by the order. We sustain the order, except for a provision which we hold to be overbroad Petitioners are a trade association that calls itself the National Commission on Egg Nutrition (NCEN), and its advertising agency, Richard Weiner, Inc. Despite its ofli- cial-sounding title, NCEN was formed by members of the egg industry, to counteract what the FTC described as ‘‘anti-cholesterol attacks on eggs which had resulted in steadily declining per capita egg consumption.’’ To carry out this mission, NCEN, with Weiner’s assistance, mounted an advertising and public relations campaign to convey the message that eggs are harmless and are needed in human nutrition. In 1974 the FTC filed a complaint charg- ing petitioners with having violated §§ 5 and 12 of the Federal Trade Commission Act, 15 U.S.C. §§ 45, 52, by placing newspaper advertisements containing various false "The Honorable William J. Campbell, Senior District Judge of the United States District Court for the Northern District of Illinois, is sitting by designation. ‘The term ‘‘heart and circulatory disease’’ is used in this opinion to include, in the Commission’s phrase, ‘‘heart attacks, heart disease, atherosclerosis, arteriosclerosis, or any attendant condition.’’ —5la — and misleading statements with respect to the relation- ship between eating eggs and heart and circulatory disease. In its answer, NCEN admitted that it had made represen- tations in its advertising concerning the absence of scien- tifie evidence that eating eggs increases the risk of heart and circulatory disease and also had represented that eat- ing eggs does not increase the blood cholesterol level in a normal person, but stated that it was no longer making such representations in its advertising. NCEN did not contest that other representations charged were misleading hut denied having made them. After filing its complaint, the FTC sought a temporary injunction in the District Court under § 13(a) of the Federal Trade Commission Act, 15 U.S.C § 53(a), to prohibit NCEN from continuing its allegedly false adver- tising while the administrative proceeding was pending. The District Court denied the relief sought by the FTC. We reversed and directed the entry of an injunction for- bidding the misrepresentations complained of but allowing NCEN to make ‘‘a fair presentation of its side of the controversy.’’ FTC vy. National Commission on Egg Nutri- tion, 517 F.2d 485, 489 (7th Cir. 1975), cert. denied, 426 U.S. 919, 96 S.Ct. 2623, 49 L.Ed.2d 372 (1976). After hearing the evidence, an administrative law judge sustained the allegations of the complaint and recom- mended a cease and desist order. On appeal to the FTC, the ALJ’s findings were sustained and the recommended order was adopted with some modifications. NCEN and Weiner have filed petitions for reveiew of that order by this court. Only NCEN has filed a brief. The order directs NCEN and Weiner to cease and desist from disseminating, by mail or means in or affect- ing commerce, advertising which directly or indirectly makes certain specified representations. The one wiiich is of principal concern here is ‘‘that there is no scientifie evi- dence that eating eggs increases the risk of . . . heart fand circulatory] disease... .”’ Other specifically pro- — 52a — hibited statements, which the FTC found petitioners had made in the past, are variations on the same general theme.* In addition, any representation concerning the re- lationship of eating eggs, or of dietary cholesterol, in- cluding that in eggs, to heart and circulatory disease, is permissible only if it is clearly and conspicuously disclosed in immediate conjunction therewith that many medical experts be- lieve that existing evidence indicates that increased consumption of dietary cholesterol, including that in eggs, may increase the risk of heart disease. Also forbidden is any statement hich [r]epresents as insignificant the :vailable scientific evi- dence that the consumption of dietary cholesterol, in- cluding that in eggs, may increase the risk of... heart disease, ... or represents that there is over- whelming scientific evidence or otherwise misrepresents * Petitioners are forbidden from making any statement which directly or indirectly represents ... that there is scientific evidence that dietary choles- terol, including that in eggs, decreases the risk of ... heart [and cireulatory] disease .. .; . that there is scientific evidence that avoiding dietary cholesterol, including that in eggs, increases the risk of .. . heart [and circulatory] disease . . .; ... that eating eggs does not increase the blood choles- terol level in a normal person; ... that the blood cholesterol level is prevented from being raised or lowered by dietary cholesterol intake; .. . that the human body increases its manufacture of cholesterol in an amount equal to a decrease in dietary cholesterol intake; . that the average human body eliminates the same amount of cholesterol as that eaten; . that dietary cholesterol, including that in eggs, is needed by the body for building sex hormones, for transmitting nerve impulses and for maintaining life in cells. .. — 53a — the amount of scientific evidence that eating eggs does not increase the risk of . .. heart disease ... [or] [mJisrepresents in any other manner the physiologi- eal effects of consuming dietary cholesterol or eggs. The order also prohibits NCEN from using its name “‘. . unless it is clearly and conspicuously disclosed in im- mediate conjunction with the name that iic National Com- mission on Egg Ntrition is composed of egg producers and other individuals and organizations of, or relating to, the egg industry.”’ {1} NCEN does not challenge the requirement that it identify itself as a trade association if its wishes to con- tinue using its current title. Nor does it specifically chal- lenge the findings that the various statements found to have been made, other than the ‘‘no scientific evidence’’ statement, were false and misleading. The debate before us is focused on that statement, i.e., that there is no scien- tifie evidence linking the eating of eggs to an increased risk of heart and circulatory disease. NCEN argues, first, that the statement is true; second, that even if it is mis- leading, the FTC’s prohibition infringes upon NCEN’s First Amendment rights; and, finally, that even if the FTC’s holding of a violation is upheld, its order is unconstitutionally vague and overbroad, going beyond what is necessary to remedy that violation.° *The Association of National Advertisers, Inc., in an amicus brief filed in support of NCEN, argues that the FTC’s hearing procedures violated the First Amendment standards set forth in Blount v. Rizzi, 400 U.S. 410, 417, 91 S.Ct. 428, 27 L.E.2d 498 (1971). As the FTC points out, however, this argument was not made before the FTC or even by the petitioners themselves in this court and is therefore not properly before us. See American Meat Institute v. Environmental Protection Agency, 526 F.2d 442, 449 (7th Cir. 1975). — §4e I. Falsity [2} What the FTC describes as the ‘‘diet/heart disease’’ hypothesis, subscribed to by ‘‘many well-qualified medical science experts .. ., with varying degrees of con- viction,”’ is as follows: For many people, the amounts of cholesterol and saturated fats which are ingested affect the risk of heart and circulatory disease; increasing the amounts increases the risk, and decreasing the amounts decreases the risk. Egg yolks contain substantially more cholesterol than any other commonly eaten food and are a major contribu- tor of cholesterol in the American diet. The yolk of one egg provides cholesterol in an amount equal to about one- third of the average daily per capita consumption of cholesterol. (Although the yolk also contains saturated fat, the amount per egg is equal to less than four percent of the average per capita intake of that substance.) The diet/heart disease hypothesis is based on several propositions: First, in many people the cholesterol level in the blood stream (serum cholesterol) is affected by the amount of cholesterol and saturated fat in the diet. Second, relatively high levels of serum cholesterol have been as- sociated with relatively high incidence of coronary heart disease in sample populations. Third, relatively high levels of serum cholesterol contribute to the formation of atherosclerotic lesions, which precipitate heart disease. These propositions have been formulated by scientists based upon, in the FTC’s words, ‘‘the results of a large body of clinical-pathological, experimental, and epidemio- logical studies.’’ After describing these studies, the ALJ had found that they were conducted using scientific methodologies, were performed by competent and highly regarded inves- tigators, have been reported in recognized scientific journals after peer review, and have been generally — 55a — accepted by experts in the field and by the scientific community. These administrative findings of fact are not challenged by NCEN. Instead, it relies upon testimony of its own expert witnesses that some scientists and doctors are not persuaded by the studies, and that in the opinion of the witnesses the sudies are not ‘‘evidence’’ and, in the words of one witness, ‘‘would not convince anybody that the number of eggs consumed does increase the risk of ischemic heart disease.’’ The FTC concluded that, impossible though it may be to determine whether consuming eggs in fact increases the risk of heart and circulatory disease, it is possible to determine the existence and amount of evidence on that issue. Referring to the testimony of NCEN’s experts that, in their opinion, there was no evidence of a connec- tion between eggs and heart and circulatory disease, the FTC said that in rendering their testimony respondents’ witnesses did not dispute the fact that many experts, in the exercise of reasonable, albeit disputed, scientific judg- ment, have relied upon a large body of scientific studies in formulating the diet/heart disease hy- pothesis. Responding to the argument that the ‘‘no evidence’”’ state- ment would be recognized by readers as merely an ex- pression of opinion, the FTC said, Unfortunately, however, the phrase ‘‘there is no evi- dence’’ is also, and perhaps more reasonably subject to the interpretation that ‘‘there do not exist com- petent and reliable scientific studies from which well- qualified experts could reasonably hypothesize that =_ eating eggs increases the risk of heart disease.’’ This latter message is patently false and imsleading.* As the Third Circuit observed in Beneficial Corp. v. FTC, 542 F.2d 611, 617 (1976), cert. denied, 430 U.S. 983, 97 S.Ct. 1679, 52 L.Ed.2d 377 (1977), ‘‘[w]hether particu- lar advertising has a tendency to deceive or mislead is obviously an impressionistic determination more closely akin to a finding of fact than to a conclusion of law.’’ Ap- plying the ‘‘substantial evidence’’ rule, and giving due regard to the FTC’s expertise, we cannot disturb the finding. Moreover, our own finding, if it were our province to make one, would be less charitable to petitioners than that of the FTC. The various scientific studies and that ex- pert opinions based on those studies constitute evidence, not merely in the legal sense, but in the commonly under- stood sense of that word. That a given expert is not persuaded by the studies does not remove them, or another expert’s contrary opinion, from the category of evidence. *The FTC went on to say, It is well established, and critical to the notion of preventing false advertising, that where an advertise- ment conveys more than one meaning, one of which is false, the advertiser is liable for the misleading varia- tion. Murray Space Shoe Corp. v. FTC, 304 F.2d 270, 272 (2d Cir. 1963); Rhodes Pharmacal Co. v. Federal Trade Commission, 208 F.2d 383, 387 (7th Cir. 1953), modified by restating the Commission’s order, 348 U.S. 940, 75 S.Ct. 361, 99 L.Ed 736 (1953). Nor does our application of that principle in this instance rest upon some mere semantic quibble or strained inter- pretation of words, since that meaning of respon- dents’ claim which deceives is one which is likely to be understood, and reasonably so, by consumers. A more appropriate statement of the principle in this case might thus be that an otherwise false advertise- ment is not rendered acceptable merely because one possible interpretation of it is not untrue. — 57a — After reviewing the record now before us, we find no reason to alter the conclusion stated in our opinion on the interlocutory appeal: NCEN has done more than espouse one side of a genuine controversy .... It has made statements denying the existence of scientific evidence which the record clearly shows does exist. These statements are, therefore, false and misleading. 517 F.2d at 489. Il. The First Amendment The argument most strongly pressed is that the FTC’s order impinges upon First Amendment guarantees, which, at least since Bigelow v. Virginia, 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975), extend to commercial speech. It is argued that the principles established in Virginiu State Board of Pharmacy vy. Virgina Citizens Consumer Council, Inc., 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976), prohibit the agency from considering the content of the statement without reference to the state of mind with which it was uttered, and require that a commer- cial misrepresentation on a controversial public issue be treated in the same manner as it would a libel of a public figure, see New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.E.2d 686 (1964), i. e., as actionable only if it is made deliberately or with reckless disregard for the truth. In the Virginia Pharmacy opinion, upon which NCEN relies, the Court expressly recognized that the First Amendment did not interfere with a ‘‘State’s dealing effec- tively’? with the problem of ‘‘deceptive or misleading’’ commercial speech, even when it is ‘‘not provably false, or even wholly false.’’ The state is not prohibited ‘‘from insuring that the stream of commercial information flow cleanly as well as freely.’’ 425 U.S. at 771-772, 96 S.Ct. “4 1831. This position was amplified by the Court in Bates . State Bar of Arizona, ........ ee — | S.Ct. 2691, 2708-2709, 53 L.Ed.2d 810 (1977) : = Advertising that is false, deceptive, or misleading of course is subject to restraint. See Virginia Phar- macy Board vy. Virginia Citizens Council, 425 U.S. at 771-772 [96 S.Ct. 1817] and n. 24... Since the ad- vertiser knows his product and has a commercial in- terest in its dissemination, we have little worry that regulation to assure truthfulness will discourage pro- tected speech. Id., n. 24... . And any concern that strict requirements for truthfulness will undesirably inhibit spontaneity seems inapplicable because com- mercial speech generally is calculated. Indeed, the public and private benefits from commercial speech derive from confidence in its accuracy and reliability. Thus, the leeway for untruthful or misleading expres- sion that has been allowed in other contexts has little force in the commercial arena. See also Mr. Justice Steven’s statement in Young v. Amer- ican Mini Theatres, 427 U.S. 50, 68-69, 96 S.Ct. 2440, 49 L.Ed 2d 310 (1976); and see Linmark Associates, Inc. v. Township of Willingboro, 431 U.S. 85, 97 S.Ct. 1614, 1618, 52 L.Ed.2d 155 (1977). [3] The Court’s recognition that the First Amendment does not preclude restraint of false, misleading, or decep- tive advertising is consistent with the principle that the protection afforded to speech of any kind is to be deter- mined by ‘‘assessing the First Amendment interest at stake and weighing it against the public interest allegedly served by the regulation.’’ Bigelow v. Virginia, supra, 421 U.S. at 826, 95 S.Ct. at 2235. The First Amendment interest is twofold: it embraces the interests of both the speaker and the prospective audience, which, in the case of commercial speech, consists of consumers. The con- sumers’ interest, which is in obtaining information on which to base the decision of whether to buy, see Linmark Associates, Inc. v. Township of Willingboro, supra, 97 S.Ct. at 1618, is served by insuring that the information is not false or deceptive, and, in fact, coincides with the public interest served by the regulation. The fact that — health is involved enhances the interests of both consumers and the public in being as*red ‘‘that the stream of com- mercial information flow cleanly as well as freely.’’ Vir- ginia State Board of Pharmacy v. Virginia Citizens Con- sumer Council, Inc., supra, 425 U.S. at 772, 96 S.Ct. at 1831. When these considerations, together with those ex- pressed by the Court in Bates relating to the hardiness of commercial speech, are balanced, the scale is tipped in favor of regulation. [4] NCEN argues that its advertisements do not fit the paradigm of commercial speech which the Court had in mind in Virginia Pharmacy, viz., ‘speech that does ‘no more than propose a commercial transaction,’ ’’ 425 U.S. at 771, 96 S.Ct. at 1830, n. 24, quoting from Pittsburgh Press Co. v. Human Relations Comm’n, 413 U.S. 376, 385, 93 S.Ct. 2553, 37 L.Ed.2d 669 (1973), but rather were ex- pressions of opinion on an important and controversial public issue. Thus, it is said, they are more like the paid political advertisements in New York Times Co. v. Sullivan, 376 U.S. 254, 84 8.Ct. 710, 11 L.Ed.2d 686 (1964). First, as to the nature and purpose of NCEN’s statements, they were not phrased as statements of opinion but categorically and falsely denied the existence of evidence that in fact exists and were made for the purpose of persuading the people who read them to buy eggs. Second, as to the nature of the issue, the right of government to restrain false adver- tising can hardly depend upon the view of an agency or court as to the relative importance of the issue to which the false advertising relates. Third, as to the intended scope of the Supreme Court’s expressions on the subject of commercial speech, we believe they were not intended to be narrowly limited to the mere proposal of a particu- lar commercial transaction but extend to false claims as to the harmlessness of the advertiser’s product asserted for the purpose of persuading members of the reading public to buy the product. The nature of the communica- tion is not changed when a group of sellers jcins in adver- tising their common product. See Note, Protection for Commercial Advertising, 44 U.ChiL.Rev. 205, 231 (1976). — The considerations the Court has viewed as distinguishing commercial speech from other speech, stated in the pas- sage from Bates quoted above, are present here. The order does not offend the First Amendment. Ill. Vagueness [5] NCEN’s argument that the order is unconstitu- tutionally vague is based on the ALJ’s statement of his reasons for not ‘‘predicat{ing]’’ a ‘‘finding of violation’’ on certain of the material published by NCEN. In the material in question were quotations from an advisory report of a committee of British experts published by the British Government and from an editorial in an American medical journal, and commentary by NCEN critical of governmental action, including that of the FTC in this case. The ALJ said these materials ‘‘may warrant First Amendment protecticn,’’ because they lacked the ‘‘strong promotional message’’ of the condemned material, were ‘basically true,’’ contained information which was ‘‘a matter of public concern,’’ and constituted ‘‘comment on government action.’’ The FTC, however, stated, {Wle must reject the suggestion attributed to the ALJ... that [the materials just described] are neces- sarily not commercial publications, although they do not form the basis for our finding of liability in this matter. In addition, after defining ‘‘advertising’’ to require a ‘*tendency or capacity to induce the sale of the product,”’ the FTC said, Publications designed to convey the point that con- sumption of a particular product, will not increase the risk of heart disease, are clearly likely to induce the purchase of that product. The fact that the mes- sage is conveyed by means of selected quotations from the works of scientists and popular writers does not alter the commercial character of the publication. Nor is it altered by self-serving professions of t —6la— eleemosynary intent, e.g. ‘‘Brought to you in the public interest’’.[*] if anything the misleading effect of respondents’ advertisements is enhanced by casting them in the guise of a ‘‘public service message’’ pre- sented by an unidentified ‘‘ National Commission’’. The FTC’s pronouncement eliminates any confusion the ALJ’s statement may have caused. Further clarification is available from the FTC upon request, if the need arises. 16 C.F.R. § 3.61(d). See FTC v. Colgate-Palmolive Co., 380 U.S. 374, 394, 85 S.Ct. 1035, 13 L.Ed.2d 904 (1965). Neither the use of the term ‘‘advertisement’’ nor the comments of the ALJ on which NCEN bases its argument render the order unconstitutionally vague. | (6, 7] The FTC’s order also prohibits (in paragraph I, C) advertising which represents as insignificant the available scientific evi- dence that the consumption of dietary cholesterol, in- cluding that in eggs, may increase the risk of heart attacks, heart disease, atherosclerosis, arteriosclerosis, or any attendant condition... . or which otherwise misrepresents the amount of scientific evi- dence that eating eggs does not increase the risk of heart attacks, heart disease, atherosclerosis, arterio- sclerosis, or any attendant condition. NCEN attacks this language as unconstitutionally vague. The FTC was of course not limited to prohibiting the pre- cise misrepresentations that had occurred in the past. Here, as in FTC v. Colgate-Palmolive Co., supra, 380 U.S. at 393, 85 S.Ct. at 1047, the challenged language is ‘‘as specific as the circumstances will permit.” In that case, the Court also stated, We think it reasonable for the Commission to frame its order broadly enough to prevent respondents from *Some of the idvertisements carried this legend. Cen ne a en ee ee — 62a — engaging in similarly illegal practices in future ad- vertisements. As we said in Federal Trade Comm'n y. Ruberoid Co., 343 U.S. 470, 473 [72 S.Ct. 800, 96 L.Ed. 1081]: **{T]he Commission is not limited to pro- hibiting the illegal practice in the precise form in which it is found to have existed in the past.’’ Having been caught violating the Act, respondents ‘‘must expect some fencing in.’’ Federal Trade Comm’n v. National Lead Co., 352 U.S. 419, 481 [77 S.Ct. 502, 1 L.E.d.2d 438. ] 380 U.S. at 395, 85 S.Ct. at 1048. The challenged pro- vision is not unconstitutionally vague. IV. The Required Additional Statement The order also directs NCEN to include in any future advertisements or public statement it makes concerning the relationship between eating eggs and heart and cir- culatory disease, the ‘further statement that many medical experts believe increased consumption of dietary choles- terol, including that in eggs, may inerease the risk of heart disease. (Paragraph I, B.) NCEN argues that, even if its advertisements contained misrepresentations, this provision of the order exceeds that which is necessary to prevent repetition of the violation. [8,9] The First Amendment does not permit a remedy broader than that which is necessary to prevent decep- tion, Beneficial Corp. v. FTC, supra, 542 F.2d at 619-620, or correct the effects of past deception, Warner-Lambert Co. v. FTC, 562 F.2d 749, 760 (D.C.Cir. 1977). In its present form, the challenged condition on the right to make an assertion that is not deceptive does not meet this test. Because the record here, unlike that in Warner- Lambert Co. v. FTC, supra, does not show a long history of deception which has so permeated the consumer mind that the ‘‘claim was believed by consumers after the false advertising had ceased” id., at 771, we are concerned pri- marily with preventing future deception. The condition in its present form would require NCEN to argue the other — side of the controversy, thus interfering unnecessarily with the effective presentation of the pro-egg position. The desired preventive effect can be achieved by requiring the disclosure that there is a controversy among the ex- perts and NCEN is presenting its side of that controversy. The additional statement in the form now ordered by the FTC should be required only when NCEN chooses to make a representation as to the state of the available evidence or information concerning the controversy. As thus modified, the challenged condition would not unnecessarily curtail NCEN’s right to present its position. If the provision requiring an additional st: t statement is so modified by the FTC, it will be enforced. The rest of the order will be enforced in its present form. lnrorcep In Parr. SUPPLEMENTAL OPINION ON FTC’S MOTION TO AMEND JUDGMENT NUNC PRO TUNC rr The FTC has moved that we amend the above opinion by performing the modification of the portion of the Commission’s order requiring affirmative disclosure of certain facts directed [in Part IV] of that opinion.’? A proposed form of order is submitted with the motion.’ In response, petitioners oppose the motion, and also ask. in effect, that we reconsider other portions of our opinion. Petitioners having omitted to file a petition for rehear- ing within the time allowed by Rule 40(a), Fed.R.App.P., we decline to entertain their request for reconsideration. Insofar as their arguments relate to their interpretation of Part IV of the opinion, they are without merit. It is true, as we said there, that this record does not show effects of the deceptive advertising on the consumer mind Ina footnote in its supporting memorandum, the FTC states that its motion is not a concession of the correctness of the modification and reserves the right to file a petition for certiorari on this question. — 64e— comparable to those in the Warner-Lambert case, and therefore ‘‘we are concerned primarily wit [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0955%3A1. Public record. Not legal advice.