Does Listerine Prevent Colds?

Facts

Listerine, a product of Warner-Lambert Company (peti- tioner), has been on the market since 1879 and has been represented through advertising to be beneficial for colds, cold symptoms, and sore throats. After a 1972 complaint about Warner-Lambert advertising for Listerine, the FTC held four months of hearings on the ad issues and then ordered Warner-Lambert to run the following language in its ads, “Contrary to prior adver- tising, Listerine will not help prevent colds or sore throats or lessen their severity.”

Warner-Lambert appealed the order.

 

Judicial Opinion

WRIGHT, Circuit Judge

[T]he Commission found that Listerine has no signifi- cant beneficial effect on the symptoms of sore throat. The Commission recognized that gargling with Listerine could provide temporary relief from a sore throat by removing accumulated debris irritating the throat. But this type of relief can also be obtained by gar- gling with salt water or even warm water.

Petitioner contends that even if its advertising claims in the past were false, the portion of the Commission’s order requiring “corrective advertising” exceeds   the   Commission’s   statutory   power.    TheCommission’s position is that the affirmative disclosure that Listerine will not prevent colds or lessen their severity is absolutely necessary to give effect to the prospective cease and desist order; a hundred years of false cold claims have built up a large reservoir of erro- neous consumer belief that would persist, unless cor- rected, long after petitioner ceased making the claims. If the Commission is to attain the objectives Congress envisioned, it cannot be required to confine its road block to the narrow lane the transgressor has trav- eled; it must be allowed effectively to close all roads to the prohibited goal, so that its order may not be by-

passed with impunity.

[W]e believe the preamble “Contrary to prior adver- tising” is not necessary. It can serve only two purposes: either to attract attention that a correction follows or to humiliate the advertiser. The Commission claims only the first purpose for it, and this we think is obviated by other terms of the order. The second purpose, if it were intended, might be called for in an egregious case of de- liberate deception, but this is not one. While we do not decide whether petitioner proffered its cold claims in good faith or bad, the record compiled could support a finding of good faith. On these facts, the confessional preamble to the disclosure is not warranted.

Accordingly, the order, as modified, is affirmed.

 

Case Questions

1.  What is the difference between the FTC’s order for corrective advertising and the court’s decision?

2.  Explain why the FTC must have corrective adver- tising as a tool.

3.  What is the relationship between the preamble, “Contrary to prior advertising” and good faith?