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National Commission on Egg Nutrition and Richard Weiner Inc. v. Federal Trade Commission

January 23, 1978

NATIONAL COMMISSION ON EGG NUTRITION AND RICHARD WEINER, INC., PETITIONERS-APPELLANTS,
v.
FEDERAL TRADE COMMISSION, RESPONDENT-APPELLEE



On Petition to Review an Order of the Federal Trade Commission. 570 F.2d 157.

Sprecher and Tone, Circuit Judges, and William J. Campbell, Senior District Judge.*fn*

Author: Tone

TONE, Circuit Judge.

The FTC has moved that we amend the above opinion "by performing the modification of the portion of the Commission's order requiring affirmative disclosure of certain facts directed [in Part IV] of that opinion." A proposed form of order is submitted with the motion.*fn5 In response, petitioners oppose the motion, and also ask, in effect, that we reconsider other portions of our opinion.

Petitioners having omitted to file a petition for rehearing within the time allowed by Rule 40(a), Fed. R. App. P., we decline to entertain their request for reconsideration. Insofar as their arguments relate to their interpretation of Part IV of the opinion, they are without merit. It is true, as we said there, that this record does not show effects of the deceptive advertising on the consumer mind comparable to those in the Warner-Lambert case, and therefore "we are concerned primarily with preventing future deception" (emphasis supplied). The past cannot be totally ignored, however. Concrete evidence of past effects is likely to be difficult and expensive, if not impossible, to obtain in most deceptive advertising cases.*fn6 Even though such evidence is not present, the FTC is entitled to draw reasonable inferences as to the effects deceptive statements are likely to have had upon consumers. Although the weight we can give to these effects in the present case is limited by the absence of any findings by the FTC on the subject, we are at least entitled to assume that many persons interested in the egg-cholesterol question have read NCEN's advertisements, as it was intended they should, and that therefore enough taint remains to justify the limited corrective advertising order we have approved.*fn7

The revised order the FTC now asks us to enter, which appears as an appendix hereto, carries out the directions contained in Part IV of our opinion. Inasmuch as that order is presumably the one that would be adopted by the FTC if the case were returned to it, there is no reason to delay the proceeding by a remand. Accordingly, the order entered by the FTC is modified to read as shown in the appendix and, as modified, is ordered enforced.

ENFORCED AS MODIFIED.

APPENDIX

The full text of the order of the Federal Trade Commission as modified, affirmed, and enforced by the Court is:

IT IS ORDERED that respondents National Commission on Egg Nutrition and Richard Weiner, Inc., corporations, their successors and assigns, either jointly or individually, and respondents' officers, agents, representatives, and employees, directly or through any corporation, subsidiary, division or other device, in connection with the advertising, offering for sale, sale or distribution of eggs for human consumption do forthwith cease and desist from:

A. Disseminating or causing the dissemination of any advertisement by means of the United States mails or by any means in or affecting commerce, as "commerce" is defined in the Federal Trade Commission Act, which directly or indirectly

1. Represents that there is no scientific evidence that eating eggs increases the risk of heart attacks, heart disease, atherosclerosis, arteriosclerosis, or any attendant condition;

2. Represents that there is scientific evidence that dietary cholesterol, including that in eggs, decreases the risk of heart attacks, heart disease, atherosclerosis, arteriosclerosis, or any attendant condition;

3. Represents that there is scientific evidence that avoiding dietary cholesterol, including that in eggs, increases the risk of heart attacks, heart disease, atherosclerosis, ...


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