Rodale Press, Inc. v. FTC

• Decision Date: 18 October 1968
• Docket Number: No. 21259.,21259.
• Citation: 407 F.2d 1252
• Parties: RODALE PRESS, INC., et al., Petitioners, v. FEDERAL TRADE COMMISSION, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

407 F.2d 1252 (1968)

RODALE PRESS, INC., et al., Petitioners, v. FEDERAL TRADE COMMISSION, Respondent.

No. 21259.

United States Court of Appeals District of Columbia Circuit.

Argued February 13, 1968.

Decided October 18, 1968.

Mr. Thurman W. Arnold, Washington, D. C., with whom Mr. Stuart J. Land, Washington, D. C., was on the brief, for petitioners.

Mr. Richard C. Foster, Atty., Federal Trade Commission, with whom Messrs. James McI. Henderson, General Counsel, and Daniel H. Hanscom, Atty., Federal Trade Commission, were on the brief, for respondent.

Messrs. Wm. Warfield Ross and Lawrence Speiser, Washington, D. C., filed a brief on behalf of the American Civil Liberties Union, as amicus curiae. Mr. Joel E. Hoffman, Washington, D. C., also entered an appearance for the American Civil Liberties Union as amicus curiae.

Before McGOWAN, TAMM and ROBINSON, Circuit Judges.

TAMM, Circuit Judge:

This case arises on a petition to review and set aside an order of the Federal Trade Commission requiring petitioners to cease and desist from making certain representations in advertisements promoting the sale of some of their publications. Petitioners, Rodale Press, Inc. and Rodale Books, Inc., are publishers of a variety of books and pamphlets authored and edited by the individual petitioners, Jerome I. Rodale and Robert Rodale,¹ on the corporations' staffs. In 1954 petitioners published a hard-backed book, "The Health Finder" and a soft-backed pamphlet containing two articles, "How to Eat for a Healthy Heart" and "This Pace is Not Killing Us," by J. I. Rodale. Advertising relating to these two publications is the subject of the Commission's order.

As regards "The Health Finder," the challenged advertising consists of two brochures used to promote its sale. The first was used from 1956 until 1960 and the second, from 1960 until 1963. After the second "Health Finder" ceased to be distributed in April 1963, the only continued promotion of either work was a listing of the titles in petitioners' catalogues and an occasional reference to them in "Prevention" magazine, another of petitioners' publications. In addition, the Commission challenged various mailing pieces advertising "How to Eat for a Healthy Heart" and "This Pace is Not Killing Us," used from 1956 through 1960.

Petitioners' advertising was initially investigated in October 1959, in response to a complaint made to the Commission, but no action was taken. The investigation was renewed in October of 1962 and led to the issuance of a complaint on April 3, 1964, alleging that false representations contained in advertisements for the described publications constituted "unfair and deceptive acts and practices and unfair methods of competition * * *" in violation of 15 U.S.C. § 45(a) (1) (1964) (see text thereof as set out in appendix).

The complaint contains allegations of nineteen misrepresentations in petitioners' advertising:

That readers of "The Health Finder" who follow the ideas therein will:

1. Add years to their lives

2. Gain more energy

3. Effectuate savings on medical and dental expenditures

4. Feel better than ever before

5. Gain and maintain health

6. That readers of "the Health Finder" will find therein the answer to any health problem (emphasis added) including but not limited to:

7. How to free oneself of common colds

8. How to prevent and cure all types of constipation

9. How to prevent ulcers

10. How to prevent fatigue

11. How to prevent goiter

12. How to prevent high blood pressure

That the ideas and suggestions contained in "The Health Finder" are effective in prevention, treatment and relief of:

13. Cancer

14. Tuberculosis

15. Infantile paralysis

16. Heart disease

17. Arthritis

18. Mental illness

19. That the ideas and suggestions in "How to Eat for a Healthy Heart" and "This Pace is Not Killing Us" will be beneficial in the prevention, treatment and cure of heart disease.

A hearing was held before a hearing examiner and he sustained the allegations in the complaint as to ten of the representations: Nos. 7-12, 13, 15, 16 and 19. He found that the alleged representations had not been made and dismissed the complaint as to the remaining nine: Nos. 1-6, 14, 17 and 18.

Petitioners appealed to the Commission, which, after briefing and oral argument, issued a decision vacating the trial examiner's decision. The Commission (Commissioner Elman, dissenting) issued its own findings of fact, concluding that each of the nineteen alleged representations had been made by petitioners in their advertising and that those representations were false. Accordingly the advertising was adjudged to be in violation of 15 U.S.C. § 45(a) (1) (1964) and petitioners were ordered to cease and desist from making the condemned representations. Petitioners sought review of the order in this court under 15 U.S.C. § 45(c) and (d) (1964) (see text thereof as set out in appendix).

I

A crucial point in the case against petitioners lies in the Commission's conclusions that the nineteen representations set out in the complaint were made as alleged. The only evidence of record on the point is the advertising itself, which petitioners concededly used in selling their publications. By consent of the parties no testimonial evidence was taken. Accordingly, I examine the representations alleged and the evidence cited by the Commission in support of its conclusions.

THE RHETORICAL QUESTIONS

Petitioners' advertising circulars for "The Health Finder" contained five rhetorical questions:² "Which of the health ideas in this amazing book will * * * (1) add years to your life? (2) Give you more energy? (3) Cut down on your doctor and dentist bills? (4) Make you feel better than you ever felt before? (5) Help your family to achieve health and happiness?" The circulars also contained testimonials of various satisfied readers that because they read the book their "health improved;" that they were "sure the book has prolonged the lives of a vast number of people;" that they "felt like moving mountains." The questions and the testimonials, coupled with general claims in the advertising that readers would gain "radiant health and abundant energy," are relied upon by the Commission to support its finding that the advertising assures readers that reading the book will result in an affirmative answer to each of the questions, id est, that they will be guaranteed an increased life span, more energy, etc.

While I feel that the law of deceptive advertising practices must protect not only the shrewd, but the gullible as well, Aronberg v. FTC, 132 F.2d 165, 167 (7th Cir. 1942), I fail to see how even those easily duped would have interpreted the quoted material as an assurance of longer life, more energy, etc. Directly below the questions in the circulars is this statement:

This knowledge can help the average person remain comparatively free of many terrible diseases. * * * Mr. Rodale believes that by observing certain health rules, we can develop bodies, minds, nerves, muscles and tissues that are more resistant to disease than they otherwise would be. (Emphasis in original.)

I agree with the trial examiner who noted in dismissing the portion of the complaint based on these allegations (J.A. 116): the most that can be claimed to have been represented by the challenged statements, in the context of their use, is that the reader will find ideas in the book which, if followed, will be of value to the average person in maintaining his health and avoiding disease, and in this way help him to live longer, feel better, etc.

I would set aside the Commission's order insofar as it applies to representations 1 through 5.

THE GENERAL REPRESENTATION

The complaint included an allegation of a general representation that "The Health Finder" would answer "any health problem" (allegation No. 6). The Commission's conclusion that a general representation was made is based on statements in the ads such as "ANSWERS HEALTH PROBLEMS," "TELLS YOU HOW TO STAY HEALTHY," and a characterization of the book as an "encyclopedia." In view of the absence of absolute terms like "all" or "any" and the presence of the qualifying language quoted above, I think it unfair and unreasonable to interpret the advertisements as representing that the book contained a panacea. I would set aside the Commission's order insofar as it relates to this alleged representation.

THE SPECIFIC DISEASES

Without going into the portions of advertisements relied upon by the Commission in finding that representations of prevention, treatment and relief were made with respect to specific diseases, which I enumerated 7-19, I conclude that the findings are supported by substantial evidence. The advertising involved is frequently more specific than in the general representations; and unlike the general representations, there is no qualifying language. I think these findings are the kind which could reasonably have gone either way and I am of course bound, under those circumstances, by the agency's determination. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951); Lorain Journal Co. v. FCC, 122 U.S.App.D.C. 127, 131, 351 F.2d 824, 828 (1965), cert. denied WWIZ, Inc. v FCC, 383 U.S. 967, 86 S.Ct. 1272, 16 L.Ed.2d 308 (1966).

II

The theory under which the complaint was issued and under which the hearing before the examiner was held differed from the theory upon which the complaint was ultimately sustained by the Commission. The complaint was based upon the Witkower theory, sustained by the Commission in Witkower Press, Inc., 57 F.T.C. 145 (1960). The essence of the complaint is that the advertising represented, as did the publication, that the suggestions in the books were preventatives and/or curealls for the various ailments. Thus at the examiner's hearing petitioners and counsel for the Commission elicited testimony from numerous medical experts directed to an evaluation, id est, to establish the truth or falsity, of...