570 F.2d 157 (7th Cir. 1977), 76-1969, National Com'n on Egg Nutrition v. F. T. C.

Docket Nº:76-1969 and 76-1975.
Citation:570 F.2d 157
Party Name:1978-1 Trade Cases NATIONAL COMMISSION ON EGG NUTRITION and Richard Weiner, Inc., Petitioners- Appellants, v. FEDERAL TRADE COMMISSION, Respondent-Appellee.
Case Date:November 29, 1977
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 157

570 F.2d 157 (7th Cir. 1977)

1978-1 Trade Cases

NATIONAL COMMISSION ON EGG NUTRITION and Richard Weiner,

Inc., Petitioners- Appellants,

v.

FEDERAL TRADE COMMISSION, Respondent-Appellee.

Nos. 76-1969 and 76-1975.

United States Court of Appeals, Seventh Circuit

November 29, 1977

Argued June 17, 1977.

As Amended Dec. 6, 1977.

Supplemental Opinion on FTC's Motion to Amend Judgment Jan. 23, 1978.

Page 158

James L. Fox, Donald P. Colleton, Chicago, Ill., for petitioners-appellants.

John T. Fischbach, Atty., F. T. C., Washington, D. C., for respondent-appellee.

Before SPRECHER and TONE, Circuit Judges, and CAMPBELL, Senior District Judge. [*]

TONE, Circuit Judge.

The subject of this appeal is commercial speech under the First Amendment. Acting pursuant to its power to prohibit false and misleading advertising, the Federal Trade Commission has entered a final order directing petitioners to cease and desist from disseminating advertisements containing statements to the effect that there is no scientific evidence that eating eggs increases the risk of heart and circulatory disease. 1 Certain statements ancillary to the one just described are also prohibited, and the right to make still others is limited and conditioned

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by the order. We sustain the order, except for a provision which we hold to be overbroad.

Petitioners are a trade association that calls itself the National Commission on Egg Nutrition (NCEN), and its advertising agency, Richard Weiner, Inc. Despite its official-sounding title, NCEN was formed by members of the egg industry, to counteract what the FTC described as "anti-cholesterol attacks on eggs which had resulted in steadily declining per capita egg consumption." To carry out this mission, NCEN, with Weiner's assistance, mounted an advertising and public relations campaign to convey the message that eggs are harmless and are needed in human nutrition. In 1974 the FTC filed a complaint charging petitioners with having violated §§ 5 and 12 of the Federal Trade Commission Act, 15 U.S.C. §§ 45, 52, by placing newspaper advertisements containing various false and misleading statements with respect to the relationship between eating eggs and heart and circulatory disease. In its answer, NCEN admitted that it had made representations in its advertising concerning the absence of scientific evidence that eating eggs increases the risk of heart and circulatory disease and also had represented that eating eggs does not increase the blood cholesterol level in a normal person, but stated that it was no longer making such representations in its advertising. NCEN did not contest that other representations charged were misleading but denied having made them.

After filing its complaint, the FTC sought a temporary injunction in the District Court under § 13(a) of the Federal Trade Commission Act, 15 U.S.C. § 53(a), to prohibit NCEN from continuing its allegedly false advertising while the administrative proceeding was pending. The District Court denied the relief sought by the FTC. We reversed and directed the entry of an injunction forbidding the misrepresentations complained of but allowing NCEN to make "a fair presentation of its side of the controversy." FTC v. National Commission on Egg Nutrition, 517 F.2d 485, 489 (7th Cir. 1975), cert. denied, 426 U.S. 919, 96 S.Ct. 2623, 49 L.Ed.2d 372 (1976).

After hearing the evidence, an administrative law judge sustained the allegations of the complaint and recommended a cease and desist order. On appeal to the FTC, the ALJ's findings were sustained and the recommended order was adopted with some modifications. NCEN and Weiner have filed petitions for review of that order by this court. Only NCEN has filed a brief.

The order directs NCEN and Weiner to cease and desist from disseminating, by mail or means in or affecting commerce, advertising which directly or indirectly makes certain specified representations. The one which is of principal concern here is "that there is no scientific evidence that eating eggs increases the risk of . . . heart (and circulatory) disease . . . ." Other specifically prohibited statements, which the FTC found petitioners had made in the past, are variations on the same general theme. 2 In addition, any representation concerning the relationship of eating eggs, or of dietary cholesterol, including

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that in eggs, to heart and circulatory disease, is permissible only if

it is clearly and conspicuously disclosed in immediate conjunction therewith that many medical experts believe that existing evidence indicates that increased consumption of dietary cholesterol, including that in eggs, may increase the risk of heart disease.

Also forbidden is any statement which

(r)epresents as insignificant the available scientific evidence that the consumption of dietary cholesterol, including that in eggs, may increase the risk of . . . heart disease, . . . or represents that there is overwhelming scientific evidence or otherwise misrepresents the amount of scientific evidence that eating eggs does not increase the risk of . . . heart disease . . . (or) (m)isrepresents in any other manner the physiological effects of consuming dietary cholesterol or eggs.

The order also prohibits NCEN from using its name ". . . unless it is clearly and conspicuously disclosed in immediate conjunction with the name that the National Commission on Egg Nutrition is composed of egg producers and other individuals and organizations of, or relating to, the egg industry."

NCEN does not challenge the requirement that it identify itself as a trade association if it wishes to continue using its current title. Nor does it specifically challenge the findings that the various statements found to have been made, other than the "no scientific evidence" statement, were false and misleading. The debate before us is focused on that statement, i. e., that there is no scientific evidence linking the eating of eggs to an increased risk of heart and circulatory disease. NCEN argues, first, that the statement is true; second, that even if it is misleading, the FTC's prohibition infringes upon NCEN's First Amendment rights; and, finally, that even if the FTC's holding of a violation is upheld, its order is unconstitutionally vague and overbroad, going beyond what is necessary to remedy that violation. 3

I. Falsity

What the FTC describes as the "diet/heart disease" hypothesis, subscribed to by "many well-qualified medical science experts . . ., with varying degrees of conviction," is as follows: For many people, the amounts of cholesterol and saturated fats which are ingested affect the risk of heart and circulatory disease; increasing the amounts increases the risk, and decreasing the amounts decreases the risk.

Egg yokes contain substantially more cholesterol than any other commonly eaten food and are a major contributor of cholesterol in the American diet. The yoke of one egg provides cholesterol in an amount equal to about one-third of the average daily per capita consumption of cholesterol. (Although the yoke also contains saturated fat, the amount per egg is equal to less than four percent of the average per capita intake of that substance.)

The diet/heart disease hypothesis is based on several propositions: First, in many people the cholesterol level in the blood stream (serum cholesterol) is affected by the amount of cholesterol and saturated fat in the diet. Second, relatively high levels of serum cholesterol have been associated with relatively high incidence of coronary heart disease in sample populations. Third, relatively high levels of serum cholesterol contribute to the formation of atherosclerotic lesions, which precipitate heart disease. These propositions have been formulated by scientists based upon, in the FTC's words, "the results of a large body of clinical-pathological, experimental, and epidemiological studies." After describing these studies, the ALJ had found that they

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were conducted using scientific methodologies, were performed by competent and highly regarded investigators, have been reported in recognized scientific journals after peer review, and have been generally accepted by experts in the field and by the scientific community.

These administrative findings of fact are not challenged by NCEN. Instead, it relies upon testimony of its own expert witnesses that some scientists and doctors are not persuaded by the studies, and that in the opinion of the witnesses the studies are not "evidence" and, in the words of one witness, "would not convince anybody that the number of eggs consumed does increase the risk of ischemic heart disease."

The FTC concluded that, impossible though it may be to determine whether consuming eggs in fact increases the risk of heart and circulatory disease, it is possible to determine the existence and amount of evidence on that issue. Referring to the testimony of NCEN's experts that, in their opinion, there was no evidence of a connection between eggs and heart and circulatory disease, the FTC said that

in rendering their testimony respondents' witnesses did not...

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