Cengage Advantage Books: Foundations of the Legal Environment of Business 3rd Edition by Marianne Jennings

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Warner-Lambert Co. v. FTC 562 F.2d 749 (D.C. Cir. 1977); cert. denied , 435 U.S. 950 (1978)
Does Listerine Prevent Colds?
Facts
Listerine, a product of Warner-Lambert Company (petitioner), 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 and then ordered Warner-Lambert to run the following language in its ads, "Contrary to prior advertising, 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 significant 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 gargling 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. The Commission'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 erroneous consumer belief that would persist, unless corrected, 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 traveled; it must be allowed effectively to close all roads to the prohibited goal, so that its order may not be bypassed with impunity.
[W]e believe the preamble "Contrary to prior advertising" is not necessary. It can serve only two purposes: either to attract attention that a correction follows or to humiliate the advertiser. The Commission claims only the first purpose for it, and this we think is obviated by other terms of the order. The second purpose, if it were intended, might be called for in an egregious case of deliberate deception, but this is not one. While we do not decide whether petitioner 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 advertising as a tool.
3. What is the relationship between the preamble "contrary to prior advertising" and good faith?