ADVERTISING: INTERPRETATION AND ENFORCEMENT POLICY

Remarks by

Mary L. Azcuenaga

Commissioner
Federal Trade Commission

before the

AMERICAN ADVERTISING FEDERATION
1994 National Government Affairs Conference
Washington, D.C

The views expressed are those of the commissioner and do not necessarily reflect those of the Commission or the other commissioners.

Good morning. I am delighted to be here today to talk about the Federal Trade Commission's current efforts to enforce Section 5 of the FTC Act(1) in the area of advertising. I would like to describe some of our enforcement initiatives and to address a few of the interesting issues that have arisen in the past year. Let me begin with a clear and prominent disclosure: The views I offer today are my own and do not necessarily represent the views of the Commission or of any other commissioner.

Advertising has always had its detractors and proponents. George Orwell once described advertising as "the rattling of a stick inside a swill bucket," while Thomas Jefferson said that "[a]dvertisements contain the only truths to be relied on in a newspaper." Marshall McLuhan characterized advertising as the "greatest art form of the 20th century," whereas Alexander Solzhenitsyn wrote "Freedom! to spit in the eye and in the soul of the passerby with advertising." These disparate views of advertising aside, our legal system has recognized that advertising has an important role in ensuring that consumers receive the information they need to make informed choices when they purchase goods and services.(2)

The Commission recognizes the importance of advertising in providing consumers with information and of the role of advertising in promoting competition. The Commission's mandate under Section 5 is twofold: to prevent unlawful restraints on advertising and to prevent unfair or deceptive advertising. Although the Commission occasionally uses its unfairness authority in connection with advertising, the vast majority of our advertising cases involve deception, which may well be unintentional, and its more sinister cousin, advertising fraud, which usually involves knowledge of the falsity of a claim.(3) In all of our activities, we look to a common goal: protecting the free flow of truthful information in the market. The Commission's unique blend of responsibility for both competition and consumer protection makes the agency ideally suited to perform this role.

Although most of these remarks will address the consumer protection side of our responsibilities, those of you less familiar with our efforts to prevent unlawful restraints on competition may be interested in a brief aside. In its landmark case against the American Medical Association,(4) the Commission challenged the AMA's private restraints on advertising, which included broad prohibitions on all forms of solicitation of patients and proscribed almost all forms of advertising and promotion by its members.(5) The Commission concluded that advertising performed an indispensable function in the economy, that advertising bans made it more difficult for consumers to find low cost suppliers, here, physicians, and that bans tended to isolate suppliers from competition and its incentives to price competitively. The Commission also observed that advertising often makes it less costly for new competitors to penetrate the market -- in AMA, for physicians to offer new services or to offer their current services in new geographic areas.(6)

Since AMA, the Commission has continued to challenge private restraints on advertising. Most recently, we filed a complaint against the California Dental Association for its enforcement of restrictions on claims regarding quality and other attributes of a dental professional that the consumers might find important.(7) In AMA and its progeny, the Commission always has included one exception to the antitrust prohibition against private restrictions on advertising. The AMA order and others permit the association to prohibit advertising that is false and deceptive within the meaning of Section 5.(8)

RECENT DEVELOPMENTS

Turning now to the consumer protection side of the Commission's activities, let me give you an update on current events. One new development this past year was that, for the first time, the National Advertising Review Board referred a matter to the Commission after an advertiser refused to modify a commercial in accordance with an NARB decision. In its 22 year history, the NARB has adjudicated 71 cases, yet never before has the Board found it necessary to refer a matter to the Commission.(9) Although it was unfortunate that such a referral was necessary, the very novelty of the referral underscores the important contribution of NARB and other industry self-regulatory groups in addressing questions of deceptive advertising. Although the Commission must determine independently whether an advertisement is deceptive under Section 5,(10) I always welcome input from industry self-regulatory groups concerning what they believe is false, deceptive or unsubstantiated advertising.(11) Many of you may be aware that on February 10, 1994, the Commission announced for public comment a consent order with the company that was the subject of the NARB decision. A comparison of our complaint and order with the proposed NARB action indicates a substantial similarity of concerns.

Another important development of the past year is the Commission's regulation of advertising practices in the pay-per-call industry, which uses 900 numbers to provide consumers with information on everything from dial-a-porn to dial-a prayer. In 1992, Congress enacted the Telephone Disclosure and Dispute Resolution Act(12) to address problems in the pay-per-call industry. The Act mandated that the Commission issue rules regarding practices for the pay-per-call industry, including its advertising.

The Commission promulgated its Pay-Per-Call Rule last August(13) in compliance with the Act. The Rule requires that the cost of the call be disclosed in all advertising and mandates that some advertisements include additional disclosures, depending on the nature of the pay-per-call service, such as whether it offers a sweepstakes or information on federal programs.

The Rule also contains special provisions concerning advertising for pay-per-call programs directed to children.

The Rule requires that advertisers include a parental permission disclosure in any pay-per-call advertisement directed to persons under the age of 18. The statute and Rule also prohibit directing advertisements for pay-per-call services to children under the age of 12,(14) unless the service advertised is a bona fide educational service. This last restriction is really an example of the Congress looking at concerns that had been raised in a series of FTC orders and doing us one better by banning the advertising altogether. The Pay-Per-Call Rule became effective on November 1, 1993, and the Commission is already beginning to investigate compliance with the Rule.

The Commission also has continued to maintain a strong enforcement program against deceptive or unsubstantiated advertising claims. I am happy to say that this is not news but business as usual. Because our recent cases address a number of significant issues, let me take a few minutes to review some of the most important ones. First, during the past year, the Commission has brought a number of cases alleging deceptive advertising by the diet industry. The Commission has accepted six consent agreements from very low calorie diet companies(15) as well as three consent agreements with low calorie diet companies(16) settling charges that they had made deceptive representations about weight loss and maintenance of weight loss. Two more low calorie diet companies are contesting similar deception allegations in administrative litigation.(17)

Second, environmental or green marketing claims have continued to be a focus of a number of Commission actions or investigations.(18) The cases have involved a variety of environmental claims, such as claims that products are good for the ozone layer, biodegradable or recyclable. Although I believe that overall we have seen a positive response to the Commission's Guides for Environmental Marketing Claims, this is an area in which we will likely continue to see cases that both implement the principles of the guides and clarify their application.

CURRENT ISSUES

During the remainder of my time, I would like to address a few current issues. As I hope you realize, the Commission's decision to challenge an advertisement as deceptive often involves a great deal more than viewing the ad and following what might delicately be referred to as our gut reactions. Let me suggest to you some of the potential complexity of our analysis, beginning with how we determine the meaning of an advertisement and how we decide whether an ad conveys a deceptive message. Assessing the True Meaning of Advertisements: In deciding whether an advertisement conveys a claim to reasonable consumers, the starting point is always the advertisement itself: Does it convey the claim with sufficient clarity that the Commission can make that determination without the need for extrinsic evidence of actual consumer interpretation of the ad? In addressing this issue, the Commission does not have the type of unfettered discretion that some of the recent commentary might lead you to believe.

For instance, one advertising journal recently carried a review of the opinion of the Court of Appeals for the Seventh Circuit in the Kraft case that was headlined, "Advertisers Beware: The Seventh Circuit Gives FTC Free Rein in Deciding Whether Advertising is Deceptive."(19) This sounds like Jurassic Park after the power went off, doesn't it? In fact, the Seventh Circuit ruled that the Commission could use its own "reasoned analysis" to determine what claims are conveyed, but only so long as the claims "are reasonably clear from the face of the advertisement."(20) This standard is consistent with the test the Commission laid out in the Thompson Medical case.(21) In that case, the Commission said that it could rely on its own facial analysis if the ad is clear enough to permit the Commission to "conclude with confidence" that the claim is conveyed to reasonable consumers.(22) And even for advertising that meets these standards, we have always made clear that we welcome any extrinsic evidence that others bring to our attention.(23)

A careful approach to advertising interpretation is one of our important responsibilities, and my fellow commissioners and I take that responsibility very seriously. You may not always agree with us in all of our decisions, but I can assure you that it is not a task we take lightly.

A number of the policy issues this process entails are not clearly settled and may still be the source of some disagreement. Rather than offering definitive observations, let me give you a few examples and pose a few questions.

There is little need, especially before this audience, for me to comment on express claims in advertising. The law is very clear: objective claims must be true and adequately substantiated. Implied claims pose a more difficult issue, since the meaning of an advertisement is often hard to determine. The Commission is permitted by law to rely on its own expertise in analyzing what implied messages, if any, are conveyed by particular advertisements.(24) Because implied claims may be difficult to identify and assess, the Commission often seeks and reviews extrinsic evidence bearing on the issue. Extrinsic evidence comes in many forms, all of which are potentially useful. But some types of extrinsic evidence are more reliable and useful than others.

In an ideal world, when the Commission evaluates a particular advertisement, it will have available the results of well controlled copy tests bearing directly on consumers' understanding of that ad and on whether the particular deceptive interpretation we are concerned about is taken by a significant number of consumers.(25) Short of this, however, other extrinsic evidence may still be of value: focus group or open ended tests of the advertisements in question, general measures of consumer knowledge or background beliefs about the issues raised in the advertisement, tests of similar advertising material, or tests of generic issues of advertising interpretation in other contexts all may be useful to the Commission in its consideration of the meaning of particular advertisements.

Let me give you three examples of the generic issues that may arise in interpreting advertisements. First, what is the relationship between claims made in headlines versus claims or qualifications made in the text of an ad? Second, how do consumers interpret a general statement that is later followed by more specific information? Are they likely to view the specific information as qualifying information that limits the claim, or as supporting material that strengthens or broadens the general statement? Third, how are consumers likely to interpret vague statements that are never qualified explicitly in an ad?

Headline vs. text: The Commission has ruled that an advertisement with a deceptive headline can be deceptive even if qualifications are made in the text that, if read and understood, would cure the deception.(26) The principle is sound. Surely it would not be good policy to condone advertisements that make strong false or misleading claims in a headline, only to disclaim them in what we sometimes refer to as "mouse print."

Yet, like many principles in deception law, it must be applied with discretion. By its very nature, a headline, often with only a single phrase of text, is unlikely to provide much in the way of nuance in meaning. If the truth is complicated, any headline that effectively draws the reader's attention to the subject of the intended truthful claim is likely to suggest a variety of possible deceptive meanings as well. If this occurs, advertisers should take care that the text of the advertisement clearly and prominently steers the consumer to the truthful claim and away from any deceptive ones. The more effectively this is done, the less likely it is that the headline considered alone will be deceptive. Of course, here, as elsewhere, credible extrinsic evidence could lead to a different conclusion.

In evaluating the impact of a headline, another principle of advertising interpretation comes into play: the meaning of an advertisement should be construed in the context of the advertisement as a whole, not by individual elements of the ad taken out of context. The Commission will consider the "net impression" created by an advertisement.

In deciding whether to challenge an advertisement containing a possibly deceptive headline, that is adequately qualified in the accompanying text, it may be appropriate to consider the following questions: (1) How likely is it that consumers would take a deceptive meaning rather than a truthful meaning from the headline, taken alone? (2) How well does the language of the text steer consumers toward the truthful meaning and away from the deceptive meaning? and (3) How clear and prominent is the qualifying text?(27)

Generalities and detail: A second and closely related issue that frequently arises is how consumers are likely to interpret general statements in an advertisement when the general statements are followed by more specific, related information? For example, suppose an advertiser wants to highlight changes that have been made in a product to make it better for the environment and, understandably, wants to draw attention to this change? For example, perhaps the advertisement would say: "Environmentally friendly -- by modernizing our production facilities we have reduced emissions of air pollutants by 90%."

At first glance, such a claim might seem unobjectionable. Nearly every product, however, has some undesirable effect on the environment. Perhaps the product in our example contributes to water pollution in its intended end use. Perhaps it is a bulky product that when disposed, takes up a substantial amount of landfill space. Or perhaps the product's manufacturing process is energy-intensive, and, despite its improved environmental attributes as a product, a life cycle analysis would reveal that its manufacture contributes heavily to air pollution. On balance, instead of being a friend of the environment, perhaps the product is more in the nature of an acquaintance.

The question arises whether consumers might interpret the "environmentally friendly" claim broadly and strongly and, therefore, be deceived. Or would the specific information about reducing emissions of air pollutants by 90% be interpreted to apply to air pollution in the production process? Consumers might view the specific information not as limiting, but as supporting, the general claim that the product is environmentally friendly. Indeed, they might find the environmentally friendly claim more credible than it would have been had the specific information not been added. One consumer might view the environmental friendly claim as applying to the entire life cycle effects of the product on the environment. Another might view the specific information as a qualification, explaining in what specific, limited sense the product is friendly to the environment. In short, it is not immediately obvious whether the overall claim conveys a primarily truthful or a deceptive message.

As usual, the interpretation of such claims -- those involving a general statement followed by more specific information -- may vary greatly depending on the precise wording of the claims and the context in which they appear. Reliable copy test evidence can help the advertiser as well as the Commission understand what meanings are conveyed to consumers by particular advertisements. I would not want to suggest that advertisers copy test each and every advertisement they propose to run. Such a requirement would surely be "overkill," and its cost, in any event, would likely be prohibitive.

My environmentally friendly example raises a host of questions that illustrate some of the difficulties the Commission faces in the area of advertising. Surely it would be important to consider one final factor: that is, whether the advertisements in question would be likely to influence consumers to switch from competitive products that were clearly worse or clearly better for the environment. We should be cautious about discouraging firms from publicizing changes that do have significant benefits for the environment as compared to products that consumers otherwise would buy. Not allowing firms to capitalize on their improvements might discourage them from making improvements in the first place. Like the advertiser developing an advertising theme, the Commission should consider any enforcement action in a wider context.

Vague Generalities: A third, related generic issue arises when an advertisement makes a vague claim. For example, suppose a firm makes a claim about a branded product without specifically saying whether it applies to its entire product line or just some products in the line. Examples abound: "our clothes are made in the USA." "Our cars are fuel-efficient." "Our frozen desserts are low in fat." Should we assume that these claims apply to every individual item in the product line? To most or nearly of the products in the line? Or is the message that, on average, the products have the characteristic? Suppose, for instance, that a car manufacturer's entire line of vehicles on average is highly fuel-efficient, and its advertisements give examples of vehicles that are more efficient than those of the competition. Suppose also, however, that other models of the same manufacturer are less fuel-efficient than the average car in the same class? Does this kind of claim mean that the products have the characteristic in an absolute or a comparative sense? What if examples are provided for which the claim is true? As I asked earlier in discussing the combination of general and specific claims, do examples qualify the claim thereby reducing its strength or do examples strengthen the claim?

Now, perhaps you would like some answers to all these questions I have posed. Many of the questions, however, need to be worked out, often in the context of particular advertisements. We will continue to seek input from the advertising industry and from experts in consumer perceptions and marketing concerning multiple interpretations or messages. Even without answers, a cautious advertiser may find it useful to keep the questions in mind.

Now that I have succeeded, no doubt, in confusing you with this catalog of general questions about what advertisements really mean, let me turn back to something more specific.

Food Advertising Issues -- Antioxidant Claims: As most of you know, one of the most important advertising issues the Commission hopes to address this year is its policy toward nutrition and health claims in food advertising. We are committed to communicating to industry and consumers how our advertising enforcement policy can be harmonized with the new labeling regulations for foods and dietary supplements that were issued by FDA to implement the Nutrition Labeling and Education Act of 1990. This is a priority issue for the Commission and I very much support the effort to address the issue expeditiously and with appropriate care. I believe that federal advertising policy and federal labeling policy should work together to ensure that producer claims are accurate and not misleading for consumers and that together labels and advertising provide information that consumers can use to make informed choices about the foods they eat. We are committed to pursuing deceptive claims in food advertising and have been active in this arena.(28)

Many of the issues raised by the new labeling rules can be addressed readily under the Commission's deception authority, which enables the agency to challenge advertisements that make untrue, misleading or unsubstantiated claims. Other aspects, however, are not founded on a concept of eliminating deception. Instead, they seem designed, as the name of the statute (the Nutrition Labeling and Education Act of 1990) affirms, to educate consumers about better eating choices, a task not encompassed by the Federal Trade Commission's statutory mandate. As a result, it may be impossible under its existing statutory authority for the Commission to apply wholesale some of the standards for label claims adopted by the FDA. In addressing harmonization, the Commission will have to grapple with a number of very difficult questions. Let me give you just one example.

As many of you probably know, a growing body of evidence suggests that antioxidants, like vitamin C, vitamin E, and beta carotene, may play a role in protecting against some of the serious, chronic diseases, such as heart disease and some forms of cancer. Major studies on antioxidants from some of our best research institutions are appearing regularly in leading professional journals. For instance, recent large-scale epidemiologic studies join a growing body of science indicating that vitamin E supplements appear to reduce the risk of coronary heart disease.(29) Long term controlled clinical trials are underway or in the design stage on several of the antioxidant issues based on the evidence to date. Now, I am not a scientist and clearly if these issues came before the Commission we would, as we always do, seek the views of the scientific community. Assume for a moment, that we are at that stage in scientific research where there is evidence indicating that nutrients with few known risks may be associated with important health benefits, but we will have to wait for additional evidence to allow the experts to decide whether there is in fact such a relationship.

Would rational consumers react to this growing body of information if they understood it? For some, I suspect so: press reports indicate that a number of leading researchers in the field, and even some consumer activists, have begun taking vitamin E supplements based on the heart disease evidence.(30) For other consumers, I suspect not. Many may think it more prudent to wait for more conclusive evidence and for major public health authorities to endorse actions based on the findings. At this stage, the decision depends on how individuals balance the potential benefits against the potential costs involved ... issues on which individuals may have differing views.

Stepping away from the context of advertising for a moment, presumably a number of truthful statements that would have significant scientific support could be made describing the current scientific evidence on the potential health benefits of foods and supplements containing antioxidants. Such statements could provide useful information to consumers about the possible health reasons to add antioxidants to their diet.

Now, as you know, under the NLEA, claims cannot be made on a label unless they have been approved by the FDA. But what would happen if the scientific community reaches the point in its review that it believes these claims have a high likelihood of being true? Because the causal link has not been "proven," should the FTC ban the claims? Frankly, imposing such a blanket restriction on truthful claims in advertising in these circumstances makes me uncomfortable. Would I help consumers to make more informed decisions by denying them valid information if that information is based on good, albeit not yet conclusive, scientific evidence? Is there authority under the FTC Act to impose such a ban? Where is the deception? Might the public accuse us of enforcing something of a double standard when some of the best informed people think the information is substantial enough to act on, to deny that same information, assuming that it can be qualified appropriately, to the rest of the population?

I should emphasize that I am not reluctant, nor does past practice suggest that the Commission is reluctant, to prohibit advertising studies. FTC law and policy require advertisers "to possess and rely on a reasonable basis" for all objective claims made in their advertising. This "reasonable basis" is usually defined as "competent and reliable scientific evidence." That burden would likely not be met if experts who fully understand the relevant science believe the evidence is not sufficiently robust to support particular conclusions, or believe that the tests from which it is derived are flawed and cast doubt on their results.

Let me also emphasize that, even in the presence of competent and reliable scientific evidence, FTC law and policy would not allow an advertiser to overstate, expressly or impliedly, what the scientific evidence will support. For instance, in the case of antioxidants, a claim that did not accurately reflect the current uncertainly plainly would not be allowed. An express or implied "Science has proven" claim suggesting a causal link between antioxidant supplements and protection against serious disease clearly would not pass muster. For example, would the Commission permit a claim that "A supplement of 100 IU daily of Vitamin E helps prevent heart disease"? I think not. The Commission always has required advertisers to reflect accurately the current level of scientific uncertainty. Such a claim would implicitly suggest scientific proof and would not be allowed under Section 5 because, notwithstanding their optimism for the future, scientists generally agree that no causal relationship has been proven.

Nor, based on the information I have seen, would an advertiser be allowed to make a claim such as "Be sure you take 400 IU's daily of our vitamin E tablets -- no harmful side effects -- so good for you!" Many scientists are still concerned that the safety or absence of side effects of long term supplementation at very large doses remains to be proven.(31)

But what about a claim such as the following:

A growing body of scientific evidence suggests that antioxidants MAY help reduce the risk of cancer and heart disease. Scientists are studying these antioxidants further, and nothing has been proven about their efficacy, long term safety or side effects. In the meantime, should you choose to add a vitamin E supplement to your diet, we make it easy and delicious for you with our tasty, chewable Vitamin E tablets.

Might this type of claim stand up to scrutiny under Section 5 of the FTC Act? It might. Would allowing such a claim be in the public interest? I will leave you to ponder that question.

As I hope this example illustrates, some of the issues in the food advertising and labeling arena are not quite as simple as some would have you believe. The Commission is examining these issues, and it continues to be committed to addressing them in a constructive manner so that advertisers can make decisions with some confidence that they understand what is expected of them.

Advertising Agency Liability: A final issue that may be of particular interest to some of you here today is the Commission's position on when advertising agencies should be held liable for claims made in advertisements that they develop and place. Ordinarily, I would hardly need to remind this audience that under well established FTC law, an advertising agency can be held liable for advertising claims if the agency participated in creation of the advertising and knew or reasonably should have known that the advertising was deceptive. I have heard, however, that there are some concerns that recent actions by the Commission may have signalled an expansion of that liability. I see no reason to think that the Commission has changed its policy on advertising agency liability. Obviously, some cases will present more difficult issues than others, but the legal principles by which the cases are judged remain the same.

I hope that I have given you some food for thought about some of the issues of the day in the area of advertising and, perhaps, some insight into the complex questions the Commission faces in its continuing efforts to stop unfair or deceptive advertising.

Endnotes:

1. 15 U.S.C. § 45.

2. See Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 765 (1976).

3. See generally, FTC Policy Statement on Deception, appended to Cliffdale Associates, Inc., 103 F.T.C. 110, 174 (1984).

4. American Medical Association, 94 F.T.C. 710 (1979), enforced as modified, 638 F.2d 443 (2d Cir. 1980), aff'd per curiam by an equally divided court, 455 U.S. 676 (1982).

5. 94 F.T.C. at 1004.

6. 94 F.T.C. at 1005.

7. California Dental Ass'n, FTC Dkt. No. 9259 (issued July 9, 1993).

8. See, e.g., Structural Engineers Ass'n of N. Cal., 112 F.T.C. 530, 533 (1989); AMA, 94 F.T.C. at 1037.

9. "Paper tiger litmus test," Advertising Age (December 20, 1993).

10. FTC Policy Statement Regarding Advertising Substantiation, Thompson Medical Co., 104 F.T.C. 648 (1984), aff'd, 791 F.2d 189 (D.C. Cir. 1986), cert. denied, 479 U.S. 1086 (1987).

11. Eggland's Best, Inc., File No. 932 3000, Consent Agreement Subject to Final Approval (Feb. 10, 1994).

12. 15 U.S.C. §§ 5711 et seq.

13. Trade Regulation Rule Pursuant to the Telephone Disclosure and Dispute Resolution Act of 1992, 58 Fed. Reg. 42,364 (Aug. 9, 1993).

14. 15 U.S.C. 5711(a)(1)(D), 58 Fed. Reg. 42364 (Aug. 9, 1993).

15. Health Management Resources Corp., FTC Dkt. No. C-3455 (Aug. 19, 1993) (consent agreement approved); United Weight Control, FTC Dkt. No. C-3448 (July 9, 1993) (same); Abbott Laboratories, FTC Dkt. No. C-3455 (June 29, 1993) (same);

Sandoz Nutrition Corp., FTC Dkt. No. C-3394 (Sept. 18, 1992) (same); Jason Pharmaceuticals, Inc., FTC Dkt. No. C-3337 (Sept.18, 1992) (same); National Center for Nutrition, C-3393 (Sept.18, 1992) (same).

16. Diet Center, FTC Dkt. No. C-3475 (Dec. 28, 1993) (consent agreement approved); Physician Weight Loss Clinics, FTC Dkt. No. C-3476 (Dec. 28, 1993) (same); Nutri/System, Inc., FTC Dkt. No. C-3475 (Dec. 28, 1993) (same).

17. Weight Watchers International, Inc., FTC Dkt. No. 9261 (complaint issued Sept. 24, 1993); Jenny Craig, Inc., FTC Dkt. No. 9260 (same).

18. See, e.g., Redmond Products, Inc., FTC Dkt. No. C-3479 (Feb. 17, 1994) (consent agreement approved); White Castle Systems, Inc., FTC Dkt. No. C-3477 (Jan. 13, 1994) (same); Texwipe Company, FTC Dkt. Nos. C-3466 and 3467 (Oct. 14, 1993) (same); Nationwide Industries, Inc., FTC Dkt. No. C-3457

(Aug. 31, 1993) (same); Demert & Dougherty, Inc., FTC Dkt.

No. C-3456 (Aug. 17, 1993) (same); PerfectData Corp., FTC Dkt. No. C-3452 (Aug. 2, 1993) (same).

19. Marketing and the Law, Journal of the Academy of Marketing Science, Vol. 22, No. 1, p. 89 (1994).

20. Kraft, Inc. v. Federal Trade Commission, 970 F.2d 311 (7th Cir. 1992), cert. denied, 113 S. Ct. 1254 (1993) at 319.

21. Thompson Medical Co., 104 F.T.C. 648 (1984), aff'd, 791 F.2d 189 (D.C. Cir. 1986), cert. denied, 479 U.S. 1086 (1987).

22. Id. at 789.

23. See, e.g., Kraft, Inc. v. FTC, FTC Dkt. No. 9208 Slip op. at 7 (Jan. 30, 1991), aff'd, 970 F.2d 311, 318-21 (7th Cir. 1992), cert. denied, 113 S.Ct. 1254 (1993).

24. Kraft, Inc. v. FTC, 970 F.2d 311 (7th Cir. 1992), cert. denied, 113 S. Ct. 1254 (1993); FTC v. Colgate-Palmolive Co., 380 U.S. 374, 391 (1965).

25. Maronik, "Copy Tests in FTC Deception Cases: Guidelines for Researchers," JAR, 9 (Dec. 1991).

26. See, e.g., Litton Industries, 97 F.T.C. 1, 71 n.6 (1981), aff'd as modified, 676 F.2d 364 (9th Cir. 1982).

27. Cases discussing these and other types of issues include Crown Central, 84 F.T.C. 1493, 1543 n.14-14 (1974); D.L. Blair,

82 F.T.C. 234, 255-56 (1973).

28. See, e.g., Presto Foods, FTC Dkt. No. C-3480 (Feb. 25, 1994) (consent agreement accepted); Gracewood Fruit Co., FTC Dkt. No. C-3470 (Oct. 29, 1993) (same); Eggland's Best, Inc., FTC File No. 932-3000 (Feb. 10, 1994) (consent agreement accepted for public comment).

29. Rimm, E. B. et al., "Vitamin E consumption and the risk of coronary heart disease in men," New England J. of Medicine, 328, May 20, 1993, and Stampfer, M. J. et al., "Vitamin E consumption and the risk of coronary disease in women," New England J. of Medicine, 328, May 20, 1993.

30. See, for instance, Bonnie Liebman, "The Heart Health-E Vitamin?" Nutrition Action Healthletter, January/February 1994, Marian Burros, "Supplements? Even experts can't agree," The New York Times, April 14, 1993, David Stipp, "Studies Showing Benefits of Antioxidants Prove Potent Tonic for Sales of Vitamin E," The Wall Street Journal, April 13, 1993, B1, Geoffrey Cowley, "Vitamin E for a Healthy Heart," Newsweek, May 31, 1993, 62.

31. Editorial, "Antioxidant Vitamins and Coronary Heart Disease," Vol. 328. No. 20 New Eng. J. Of Medicine 1487, 1488 (May 20, 1993).