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Decided Aug. Rehearing Denied Sept. Herbert A. Bergson, Washington, D. Kelley, Donald L. Hardison, and Larry D.

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Decided Aug. Rehearing Denied Sept. Herbert A. Bergson, Washington, D. Kelley, Donald L. Hardison, and Larry D.

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Sharp, Washington, D. Jerold D. Cummins, Acting Asst. Counsel, F. Norton, Acting Gen. Gerald Harwood, Asst. Gilbert H. William W. Rogal, Washington, D. The For order further requires Warner-Lambert to disclose in future Listerine advertisements that: "Contrary to prior advertising, Listerine will not help prevent colds or sore throats or lessen their severity.

Its formula has never changed. Ever since its introduction it has been represented as being beneficial in certain respects for colds, cold symptoms, and sore throats. Direct advertising to the listener, including the cold claims as well as others, began in The hearings consumed over four months and produced an evidentiary record consisting of approximately 4, s of documentary exhibits and the testimony 38364 46 helps. In the ALJ issued an initial decision sustaining the allegations of the complaint.

Petitioner appealed this decision to the Commission. It concluded that petitioner had made the challenged representations that Listerine will ameliorate, prevent, and cure colds and sore throats, and that these representations were false. Therefore the Commission ordered petitioner to: 5 1 cease and desist from representing that Listerine will cure colds or sore throats, prevent colds or sore throats, or that users of Listerine will have fewer colds than non-users; 3 6 2 cease and desist from representing that Listerine is a treatment for, or will lessen the severity of, colds or sore throats; that it will have any ificant beneficial effect on the symptoms of sore throats or any beneficial effect on symptoms of colds; or that the ability of Listerine to kill germs is of looking ificance in the treatment of colds or sore throats or their symptoms; 7 3 cease and desist from disseminating any advertisement for Listerine unless it is clearly and conspicuously disclosed in each such advertisement, in the exact language below, that: "Contrary to prior advertising, Listerine will not help prevent colds or sore throats or lessen their severity.

The Commission's findings must be sustained if they are supported by substantial evidence on the record viewed as a whole. They gave full consideration to the studies submitted by petitioner. The ultimate conclusion that Listerine is not an effective cold remedy was based on six specific findings of fact.

This was the testimony of two leading pharmacologists called by Listene counsel. The Commission was justified in concluding that the testimony of Listerine's experts was not sufficiently persuasive to counter this testimony.

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The liquid is confined to the mouth chamber. Such vapors as might reach the nasal passage would not be in therapeutic concentration. Petitioner did not offer any evidence that vapors reached the affected areas in ificant concentration. Petitioner contends that in a four-year study schoolchildren who gargled with Listerine had fewer colds and cold symptoms than those who did not gargle with Listerine.

The Commission found that the de and execution of the "St. Barnabas study" made its unreliable. For the first two years of the four-year test no placebo was given lisrener the control group. For the last two years the placebo was inadequate: the control group was given colored water which did not resemble Listerine in smell or taste. There was also evidence that the physician who examined the test subjects was not blinded 9 from knowing which children were using Listerine and which were not, that his evaluation of the cold symptoms of each child each day may have been imprecise, and that he necessarily relied on the non-blinded child's subjective reporting.

Barnabas study and the expert testimony about it in depth and were justified in concluding that its are unreliable. Expert testimony showed that bacteria in the oral cavity, the "germs" which Listerine purports to kill, do not cause colds and play no role in listenef symptoms.

Colds are caused by viruses. Further, hslp Listerine kills millions of bacteria in the mouth, it also leaves millions. It is impossible to sterilize any area of the mouth, let alone the entire mouth. The Commission recognized that gargling with Listerine could provide temporary relief 3834 a sore throat by removing accumulated debris irritating the throat. It was reasonable to conclude that "such temporary relief does not 'lessen the severity' of a sore throat any more than expectorating or blowing one's nose 'lessens the severity' of a cold.

We conclude that both of these arguments are without merit for the simple reason that the FDA study does not, to any ificant degree, contradict the Commission's findings. The FTC refused to reopen its proceedings to consider the listeener report.

In September the expert panel's report was published, but it has not yet been adopted by the Commissioner of the FDA. Barnabas study, and it appears that reference to it was included in the report only as an afterthought.

Barnabas study; the FDA report merely describes it and recounts the. Since the FDA did not consider the extensive record compiled in the FTC proceedings, its conclusion that there is insufficient data about the ingredients of Listerine to justify classifying it as effective or ineffective is not necessarily inconsistent with listenerr FTC's conclusion that Listerine's advertising claims are deceptive.

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The argument is based upon a literal reading of Section 5 of the Federal Trade Commission Act, which authorizes the Commission to issue "cease and desist" orders against violators and does not expressly mention any other remedies. But the threshold question is whether the Commission has the authority to issue such an order. In FTC v. Eastman Kodak Co. The Commission has not, the Court said, "been delegated the authority of a court of equity. In the Court ruled that the Civil Aeronautics Board has authority to order divestiture in addition to ordering cessation of unfair methods of competition by air carriers.

Dean Foods Co. Our next inquiry must be whether a corrective advertising order is for any reason outside the range of permissible remedies. Petitioner and amici curiae argue that it is because 1 legislative history precludes it, 2 it impinges on the First Amendment, and 3 it has never been approved by any court.

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Legislative History 30 Petitioner relies on the legislative history of the Federal Trade Commission Act 31 and the Wheeler-Lea amendments to it in 32 for the proposition that corrective advertising was not contemplated. In and in Congress chose not to authorize such remedies as criminal penalties, treble damages, or lookong penalties, but that fact does not dispose of the question of corrective advertising. The amendments added a new Section 19 to the Act authorizing the Commission to bring suits in federal District Courts to redress injury to consumers resulting from a deceptive practice.

Third, petitioner's construction of the section runs directly contrary to the congressional intent as expressed in a later subsection: "Nothing lookig this section shall be construed to affect any authority of the Commission under any other provision of law. That issue is now before 3836 courts.

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It is not the intent of the Conferees to influence the outcome in any way. The First Amendment 37 Petitioner and amici further contend that corrective advertising is not a permissible remedy because it trenches on the First Amendment. Petitioner is correct that this triggers a special responsibility on the Commission to order corrective advertising only if the restriction inherent in its order is no greater than necessary to serve the interest involved.

Amici curiae go further, arguing that, since the Supreme Court has recently extended First Amendment protection to commercial advertising, 41 mandatory corrective advertising is unconstitutional. Virginia Citizens Consumer Council 42 compels rejection of this argument. For the Supreme Court expressly noted that the First Amendment presents "no obstacle" to government regulation of false or misleading advertising. The First Amendment, the Court said, 39 as we construe it today, does not prohibit the State from listsner that the stream of commercial information flow s cleanly as well as freely.

Precedents 43 According to petitioner, "The first reference to corrective advertising in Commission decisions occurred infog fifty years and untold s of false advertising cases after passage of the Act.

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This argument fails on two counts. First the fact that an agency has not asserted a power over a period of years is not proof that the agency lacks such power. The label may be newly coined, but the concept is well established. It is loo,ing that lookng certain circumstances an advertiser may be required to make affirmative disclosure of unfavorable facts. For example, the Commission has ordered the sellers lookihg treatments for baldness to disclose that the vast majority of cases of thinning hair and baldness are attributable to heredity, age, and endocrine balance so-called "male pattern baldness" and that their treatment would have no effect whatever on this type of baldness.

For example, for 60 years Royal Baking Powder Company had stressed in its advertising that its product was superior because it was made with cream of tartar, not phosphate. But, faced with rising costs of cream of tartar, the time came when it changed its ingredients and became a phosphate baking powder.

It carefully removed from all labels and advertisements any reference to cream of tartar and corrected the list of ingredients. But the new labels used the familiar arrangement of lettering, coloration, and de, so that they looked exactly like the old ones. A new advertising campaign stressed the new low cost of the product and dropped all reference to cream of tartar.

But the advertisements were also silent on the subject of phosphate and did not disclose the change in the product. The court held that it was proper to require the company to take affirmative steps to advise the public. Soon after it stopped manufacturing clocks in the 's, it transferred its trademarks, good will, and the trade name "Waltham" to a successor corporation, which began importing clocks from Europe for resale in the United States.

The imported clocks were advertised as "product of Waltham Watch Company since ," "a famous year-old company. To correct this impression the Commission ordered the company to disclose in all advertisements and on the product that the clock was not made by the old Waltham company and that it was imported. The Seventh Circuit affirmed, relying on "the well-established general principle that the Commission may require affirmative disclosure for the purpose of preventing future deception.

Like Royal and Waltham, Listerine has built up over a period of many years 388364 widespread reputation. When it was ascertained that that reputation no longer applied to the product, it was necessary to take action to correct it.

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THE REMEDY 53 Having established that the Commission does have the power to order corrective advertising in appropriate cases, it remains to consider whether use of the remedy against Listerine is warranted and equitable. We have concluded that part 3 of the order should be modified to delete the phrase "Contrary to prior advertising. The Supreme Court has set forth the standard: 55 The Commission is the expert body to determine what foor is necessary to eliminate the unfair or deceptive trade practices which have been disclosed.

It has wide latitude for judgment and the courts will not interfere except where the remedy selected 383364 no reasonable relation to the unlawful practices found to exist. Since this injury cannot hflp averted by merely requiring respondent to cease disseminating the advertisement, we may appropriately order respondent to take affirmative action deed to terminate the otherwise continuing ill effects of the advertisement.

Commentaries

It dictates lstener factual inquiries: 1 did Listerine's advertisements play a substantial role in creating or reinforcing in the public's mind a false belief about the product? It strikes us that if the answer to both questions is not yes, companies everywhere may be wasting their massive advertising budgets.

Indeed, it is more than a little peculiar to hear petitioner assert that its commercials really have no effect on consumer belief.

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