American Home Products Corporation

Text (OCR of the scan at left; may contain errors)

IN THE MATTER OF AMERICAN HOME PRODUCTS CORPORATION, ET AL.

Docket 8918. Intertouto Order, March 1980 ORDER DENYING MOTION TO STAY Appeal Respondent American Home Products (AHP) has filed a motion requesting the Commission to stay AHP's appeal pending its consolidation with other cases involving advertising claims for analgesic products ! or, in the alternative, to stay consideration of a motion filed hy Sterling Drug Inc. in one of the other cases (Dkt. 8919).2 For the reasons stated below, AHP' s motion for a stay is denied. One of the grounds asserted by AHP as a basis for its motion is that Commission consideration of Sterling s proposed consent order in Dkt. 8919 would "prejudge" AHP' s appeal in this proceeding. AHP contends that this prejudgment would occur because the proposed consent order in Dkt. 8919 contains provisions applicable to Sterling s over-thecounter combination analgesics which are very similar to provisions contained in the order entered by the Administrative Law Judge against AHP in this proceeding. AHP's contention that Commission consideration or disposition of a proposed consent order in another factually-related proceeding would somehow disqualify the Commission from deciding this appeal is without merit, and AHP has cited no precedent for it. A tribunal which in the context of a prior proceeding has passed on factual issues is not precluded from passing upon identical issues in a subsequent adjudication even when the two proceedings derive from the same set of facts. See, Pangburn CAB 311 F.2d 349, 358 (1st Cir. 1962). Here, by contrast, Commission consideration of a proposed consent order in Docket No. 8919 requires no determination on the facts at issue in that proceeding; in addition the two proceedings derive from distinct, albeit overlapping, sets of facts. Moreover, if AHP's position were correct, the Commission might be prevented from giving any consideration to the other pending analgesics cases, a result which would frustrate the exercise of the Commission s adjudicative function. Cf. FTC v. Cement Institute, 333 S. 683, 70001 (1948).

AHP argues in addition that its appeal should be stayed pending its consolidation with any appeals from Sterling Dr and Bristol-Myers hecause of the "risk of unfairness inherent in deciding the pending analgesics cases on a piecemeal basis," This appears to be essentially Swrling Dr, lou. Dkt. 8919;Brnwl-Myers Co., Dkt. 8917. 2 Sterling s motion sought to withdraw from adjudication aU iMues relating to Sterlings over-the-unter combination internal analgcsiC-and to enter a CC and desist order applicable etothesprouets. Interlocutory Order 95 F. the same concern about the potential competitive impact of an order against AHP which it has expressed before and which we have found to be premature. As we indicated in our orders dated November 3, 1978 denying an earlier motion to stay, and November 8, 1979 denying a motion for reopening of proceedings, the Commission is capable of considering, during the course of its review on appeal, the possible competitive impact of any order that it might enter if liability is found. We see no need to stay our consideration of this appeal.' AHP' s alternative request to stay consideration of the motion filed by Sterling Drug in Dkt. 8919 to withdraw certain issues from adjudication is not properly raised in this proceeding. If there were any reason to provide relief to AHP for the concerns it raises-and we have explained above that our view is to the contrary such relief would be an order affecting the instant proceeding and not a separate proceeding to which AHP is not a party. Accordingly, It is ordered That the Motion of American Home Products Corporation for Stay of this Proceeding Pending Consolidation of all Three Pending Analgesics Cases on Appeal be, and the same hereby is denied.

Commissioner Pitofsky did not participate.

3 If the Commiaaion were to find liability, and if it were toentcr an order with term givingto II newrisequestion upon which rtpondent had no opportunity to argue ealier, AHP would have an opportunity to petition for rcr.naideration under Rule 3. , 16 C. 55. Under that proviaion, the Commi!lion may stay the effective date of its order.

), 383 Interlocutory Order