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Warner-Lambert Co. v. Federal Trade Commission

United States Court of Appeals for the District of Columbia Circuit
562 F.2d 749 (1977)


Facts

Warner-Lambert Co. (Warner) (defendant) sold Listerine brand mouthwash. Listerine was first sold in 1879, and, since then, Warner had claimed that Listerine prevented or cured colds and sore throats. In 1921, Warner began actively promoting Listerine’s purported cold and sore-throat benefits with direct advertising to consumers. The Federal Trade Commission (FTC) (plaintiff) filed a complaint, arguing that Warner violated § 5 of the Federal Trade Commission Act (FTC Act) by misrepresenting that Listerine helped cure common colds and sore throats. The FTC presented survey evidence indicating that 70 percent of the public believed Listerine to be effective for treating colds and sore throats. Finding Warner’s claims about Listerine to be false, the administrative-law judge issued a cease and desist order, requiring Warner to stop advertising Listerine’s efficacy with respect to colds and sore throats. The order also required Warner to run advertisements with the following language: “Contrary to prior advertising, Listerine will not help prevent colds or sore throats or lessen their severity.” The commission affirmed the judge’s order, and Warner appealed.

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Issue

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Holding and Reasoning (Wright, J.)

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Dissent (Robb, J.)

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