The J. B. Williams Company, Inc

Text (OCR of the scan; may contain errors)

THE J. B. WILLIAMS COMPANY, INC., ET AL.

Docket 8547. Order and Opinion, Nov. , 1965 Order denying respondents' request for reconsideration of an order of Sept. 28 1965, for the purpose of deleting certain paragraphs which require affirmative disclosure in the advertising of Geritol.

OPINION OF THE COMMISSION

By DIXON Commissioner:

Respondents have filed a petition for reconsideration of the Commission's decision and order which issued in this matter on September 28, 1965 (68 F. C. 4811. Specifically, respondents request that five paragraphs of the order be deleted and that one paragraph be amended. In the alternative, respondents request that they be granted an additional period of forty-five days to fie supplemental briefs and that they be permitted to present oral argument in support of their request.

Procedurally, respondents base their request on 25 of the Commission's Rules of Practice which provides that after completion of service of a Commission decision, a party may file a petition for reconsideration, setting forth the relief desired and the grounds in support thereof. The rule further provides that "Any petition filed under this subsection must be confined to new questions raised by the decision or final order and upon which the petitioner had no opportunity to argue before the Commission. Respondents concede that the first three paragraphs of the order to which they object, paragraphs numbered l(a), l(b) and l(c), relate to the same alleged misrepresentations covered in paragraph numbered l(d). They do not dispute that the practice covered by paragraph numbered 1 (d) was properly before the Commission and was fully tried and argued. Rather, it is their contention that these first three paragraphs either add nothing or are inconsistent and are therefore unnecessary. This argument goes solely to the Commission's discretion in formulating a proper remedy to eliminate a practice which it has found to be unlawful. It is weU settled that the framing of an appropriate order is entirely a matter for the Commission's determination upon the facts of record. As stated by the Supreme Court in the Ruberoid case Congress placed the primary responsibility for fashioning such orders upon the Commission, and Congress expected the Commission to exercise a special competence in formulating remedies to deal with problems in the general sphere of competitive practices. "l A respondent may, of course, present argument as to the terms of an order to be entered in any matter 'Federal Trade Commission v. Ruberoid Ca.. 343 S. 470 (1952).

pending with the Commission for final decision. However, once the Commission has considered these arguments in the light of the facts of record, its judgment as to the proper remedy may not serve as grounds for reconsideration of the order under 25. Since we have before us respondents' argument as to the first three paragraphs, we have given consideration thereto and we conclude that the grounds they have advanced in support of their request for deletion are without substance. As we have stated, respondents recognize that these three paragraphs relate to the same unlawful practice leading to paragraph numbered 1 (d) of the order which requires an affirmative disclosure in Geritol advertising. However, they contend that because of inconsistency and ambiguity, they cannot determine the meaning of these three paragraphs, measure them against the record, or determine their legal propriety. Respondents negate their own argument by their reference to page 547 and footnote 9 of the Commission's opinion. Therein, the Commission's purpose in including the three paragraphs in question, and the meaning to be accorded them, are fully set forth. While respondents urge that this purpose could be accomplished by amendment of paragraph 1 (d), this is not grounds for setting aside the paragraphs to which they object. Respondents advance three arguments in support of their request that two other paragraphs of the order, paragraphs numbered 1(e) and 1 (I), be deleted. In substance, these paragraphs prohibit respondents from representing: 1 (e) that the tiredness symptoms are generally reliable indications of iron deficiency anemia, and 1 (I) that the presence of iron deficiency anemia can be self diagnosed or can generally be determined without a medical test conducted by a physician.

Respondents first contend that these paragraphs "stray far beyond the issues actually tried." However, this ignores the fact that one of the principal issues in this case is the interpretation to be accorded to respondents' advertising. This issue was fully litigated and was the subject of proposed findings submitted to the hearing examiner by both parties. That the case was tried on an interpretation which found the representations prohibited by paragraphs numbered 1 (e) and 1 (I) to be implicit in respondents' advertising is reflected in finding numbered 20 in the initial decision wherein the examiner sta ted:

20. We believe that the consumer upon hearing, viewing, or reading respondents' advertisements may reasonably he expected to conclude that his tiredness and run-down feeling wil respond to the taking of Geritol, and that he may reasonably conclude that his symptoms are the result of iron deficiency or vitamin deficiency, or both. He may further reasonably be expected to conclude that the heeding of the suggestion " check with your doctor " is unnecessary because there is a clear implication in the advertisement that the symptoms enumerated may well be those of iron deficiency. Respondents' argument that the two paragraphs deal with issues that were not tried is rejected.

Respondents next contend that paragraphs numbered 1(e) and 1 (f) must be deleted for failure of proof. Obviously, respondents rest this argument upon a conclusion that their first contention is valid. However, having established that the issues dealt with in the two paragraphs were fully tried, the adequacy of the proof in support of these issues is not a question which respondents did not have an opportunity to argue, as required by Ii 25 of the Rules. Moreover, we note that both parties proposed findings to the hearing examiner on the evidence in the record relating to both of these issues.

With reference to respondents' second argument, it appears that they have misconstrued the provisions of paragraph numbered 1 (e). To avoid any misunderstanding we wish to make it clear that the prohibition against representations that tiredness symptoms are generally reliable indications of iron deficiency anemia is based our finding that these symptoms are cornman to many more prevalent conditions than iron deficiency and therefore cannot be relied upon to indicate that condition.

Respondents' third argument is that paragraphs numbered 1 (e) and 1 (I) are ambiguous in that terms have been introduced which have not been defined. In substance, respondents would have us set aside these two paragraphs on the grounds that terms such as " se1! diagnosed" and "generally reliable indications" are too complex. We do not believe that these terms require specific definition, particularly when considered against the background of the highly technical terms used in the trial of this case. As the Supreme Court has stated: "We think that no one would find ambiguity in this language who concluded in good faith to abandon the old practices. In addition to requesting deletion of five paragraphs of the order respondents also request that paragraph numbered 1 (d) be modified. There can be no question that respondents were granted every op. portunity to, and did, argue the terms of this paragraph. In fact, they specifically objected to that language in the hearing examiner order which, as a result of its deletion by the Commission, leads to their present request. They were well aware of the extent of the order should the objectionable language be deleted. The fact that, For example, pages 42-52 of respondents' proposed findings and page 2:-1 uf cumplaint counsel's prupo ed reply findings relate to paragraph numbered 1 (f) of the order and pages ()J-53 of respondenb' pwrosed findings and rage .11 of complaint counsel's proposed findings relate to paragraph numbered 1(e).

Federal Trade Commission v. Cement ITistili,.Ite 333 e. S. 083 (1948). they did not avail themselves of the opportunity to advance their present argument on appeal from the initial decision is not grounds for reconsideration. Moreover, the modification proposed by respondents is designed to permit certain claims for Geritol without the affirmative disclosure requirements of paragraph numbered l(d) when the advertising is directed to certain subgroups of the general population. However, the evidence discloses that respondents have never directed their advertising exclusively to these subgroups nor have they demonstrated that it is practical, or their intention, to do so. If in the future, respondents desire to confine their advertisements within the bounds of their present request, they have recourse to the Commission under its established Rules of Practice for appropriate modification of the order.

As an alternative to their request for deletion and modification of the order, respondents request an additional period of forty-five days to file a supplemental brief, and ask leave to present oral argument. Specifically, respondents state that they desire the additional time in order to file a detailed brief summarizing the record on the specific points they have raised. The Commission has fuUy considered this request and is of the opinion that it is sufficiently informed as to the grounds relied upon by respondents so that further analysis of the record and oral argument on the request would serve no useful purpose.

For the reasons stated, the Commission concludes that respondents petition must be denied. An appropriate order will be entered.

ORDER DENYING PETITION FOR RECONSIDERATION

Respondents, by petition filed October 21, 1965, having requested the Commission to reconsider its decision and order issued herein on September 28, 1965 (68 F. C. 481J, and delete or modify certain paragraphs thereof or, in the alternative, grant leave for the filing of supplementary briefs and oral argument, and counsel supporting the complaint having filed an answer in opposition thereto; and The Commission having considered said petition and, for the reasons stated in the accompanying opinion, having determined that respondents' requests should be denied:

It is ordered That respondents' petitions for reconsideration and their alternative request for leave to file supplementary briefs and for oral argument be, and they hereby are, denied. Giant Food Y. Federal Trade Commi sion. 322 F. 2d 977 (D. C. Cir. 1963); Vanity Fair Paper Mils Federal Trade Commission 311 F . 2d 480 (2d Cir, 19(2).