## Facts

- Warner-Lambert manufactured and marketed Listerine antiseptic mouthwash.
- Since the late 1800s, and in direct consumer advertising since 1921, Warner-Lambert promoted Listerine as beneficial for colds, cold symptoms, and sore throats, including claims that it could prevent or cure colds or lessen their severity.
- The FTC alleged these health-related efficacy claims were false and that Listerine users did not have fewer colds than nonusers.
- In administrative proceedings, the FTC introduced evidence (including consumer surveys) indicating that roughly 70% of the public believed Listerine was effective for treating colds and sore throats.
- The ALJ, after extensive hearings and scientific evidence, found no reliable support that Listerine prevented, cured, or materially alleviated colds or sore throats and concluded the advertising was deceptive under § 5(a)(1) of the FTC Act.
- The ALJ issued a cease-and-desist order and required corrective advertising stating that Listerine would not help prevent colds or sore throats or lessen their severity, prefaced by “Contrary to prior advertising.”
- The FTC largely affirmed the ALJ’s order; Warner-Lambert petitioned for judicial review, focusing on both liability and the corrective-advertising remedy.

## Issues

1. Whether substantial evidence supported the FTC’s finding that Warner-Lambert’s cold- and sore-throat efficacy claims for Listerine were false and deceptive under § 5(a)(1) of the FTC Act.
2. Whether the FTC had authority to require corrective advertising, and whether the specific compelled disclosure (including the phrase “Contrary to prior advertising”) was reasonably related to the violation rather than punitive.

## Decision

- The court affirmed the FTC’s determination that Warner-Lambert’s advertising conveyed materially false health-efficacy claims and violated § 5(a)(1).
- The court upheld the FTC’s authority to order corrective advertising as a remedy designed to eliminate lingering deceptive effects from long-running campaigns.
- The court modified the order by deleting the introductory phrase “Contrary to prior advertising” from the mandated disclosure and otherwise enforced the order as modified.

## Legal Principles

- Advertising is deceptive under § 5(a)(1) when it conveys a false belief to a substantial portion of consumers, particularly where the claim concerns health-related efficacy and is material to purchasing decisions.
- The FTC may rely on the overall message communicated to consumers, including evidence of consumer takeaways and scientific substantiation (or the lack of it), in finding deception.
- Under § 5(b), the FTC has broad remedial discretion; remedies may require affirmative corrective statements when necessary to dispel residual consumer misimpressions created by longstanding deceptive advertising.
- Corrective advertising must be reasonably related to the violation and aimed at preventing future deception, not imposing reputational punishment; compelled language that functions as an unnecessary “confession” may be trimmed while preserving the corrective message.

## Conclusion

The D.C. Circuit sustained the FTC’s finding that Warner-Lambert deceptively advertised Listerine as effective against colds and sore throats and approved corrective advertising to counteract entrenched consumer misconceptions, but required the order to omit wording that needlessly implied self-condemnation.


Warner-Lambert Co. v. Federal Trade Comm’n, 562 F.2d 749 (D.C. Cir. 1977)