## Facts

- Sterling Drug, Inc. marketed nonprescription internal analgesics, including Bayer Aspirin, Bayer Children’s Aspirin, Vanquish, Cope, and Midol.
- The FTC brought an administrative complaint alleging deceptive advertising in violation of §§ 5 and 12 of the Federal Trade Commission Act.
- The challenged ads conveyed that certain Sterling products were therapeutically or pharmaceutically superior to competing brands and that the superiority was supported by science.
- Bayer Aspirin advertising conveyed “scientifically established” overall pharmaceutical superiority and superiority in purity, freshness, stability, and speed of disintegration.
- Cope advertisements used scientific imagery and references to studies, which the FTC found communicated a scientifically supported message of superior pain relief.
- Vanquish advertising represented superiority or unique qualities without adequate scientific support; the FTC treated the “scientifically established” implication as less direct than in other ads.
- Midol was promoted as having an “exclusive formula” without disclosing that aspirin was the pain-relieving ingredient, which the FTC found likely to mislead consumers about what they were ingesting.
- After joint hearings (partly consolidated with competitor proceedings), an ALJ found Sterling liable and issued a broad cease-and-desist order; the FTC affirmed as modified and imposed substantiation requirements, including, in certain circumstances, two clinical studies accepted by the scientific community.
- Sterling petitioned for review, challenging both the deception findings and the breadth of the remedial order.

## Issues

1. Whether substantial evidence supported the FTC’s finding that Sterling’s advertisements were deceptive because they conveyed unsubstantiated superiority claims and, in some instances, that such superiority was scientifically established.
2. Whether the FTC’s cease-and-desist order was reasonably tailored, including requirements for scientific substantiation (such as two clinical studies) and application to Sterling’s full line of nonprescription internal analgesics.

## Decision

- The Ninth Circuit upheld the FTC’s determinations that Sterling engaged in deceptive advertising.
- The court enforced the FTC’s cease-and-desist order, including the substantiation provisions and product-line coverage.
- The court deferred to the FTC’s evaluation of the net impression of the advertisements and the sufficiency of the scientific support for the claims.

## Legal Principles

- FTC findings of deception are sustained on judicial review if supported by substantial evidence in the record.
- Deceptiveness is evaluated by the overall net impression of an advertisement, including images, context, and omissions, not by parsing isolated phrases.
- When advertising conveys objective, health-related superiority claims—especially claims implying scientific establishment—the advertiser must possess a reasonable basis, which may require competent scientific substantiation.
- The FTC has discretion to impose prophylactic, forward-looking remedies, including specified evidentiary substantiation requirements, when justified by the nature and extent of the violations.
- A cease-and-desist order may extend beyond the specific ads and products proved at hearing when broader coverage is reasonably related to preventing future violations in closely related product lines.

## Conclusion

The Ninth Circuit sustained the FTC’s conclusion that Sterling’s superiority and “scientifically established” messages (and Midol’s nondisclosure of aspirin) were deceptive without adequate substantiation, and it approved a broad remedial order requiring rigorous scientific support—potentially including two clinical studies—for future therapeutic superiority claims across Sterling’s OTC analgesic products.


Sterling Drug, Inc. v. FTC, 741 F.2d 1146 (9th Cir. 1984)