§ 55. In order to determine whether any advertisement is misleading "there shall be taken into account (among other things) not only representations made or suggested by statement, word, design, device, sound, or any combination thereof, but also the extent to which the advertisement fails to reveal facts material in the light of such representations or material with respect to consequences which may result from the use of the commodity to which the advertisement relates under the conditions prescribed in said advertisement, or under such conditions as are customary or usual." 15 U.S.C.A. § 55(a).
The dissemination of a "false advertisement" by a corporation otherwise than on the labels carried by its products is an unfair or deceptive act or practice which is declared unlawful and which the Federal Trade Commission is empowered and directed to prevent. "The term 'labeling' means all labels and other written, printed, or graphic matter (1) upon any article or any of its containers or wrappers, or (2) accompanying such article." 21 U.S.C.A. § 321(m).
It appears that the plaintiff does advertise its products otherwise than by labeling, as above defined, through a publication designated "Miles New Weather Almanac and Hand Book of Valuable Information" "and/or other publications." Paragraph Two, Exhibit B.
The complaint does not exhibit the Almanac or other publications containing its advertisements but, as we have seen, it alleges that the plaintiff's advertisements include one of the following statements: "Full Directions on Package -- Read Them" or "Read Full Directions on Bottle" or other similar cautionary directions. However, the "full directions" on the package or bottle do not clearly reveal the potential danger of the products when excessively used.
The Federal Trade Commission Act, 15 U.S.C.A. § 45(b), provides that "whenever the Commission shall have reason to believe that any * * * corporation has been or is using any unfair method of competition or unfair or deceptive act or practice in commerce, and if it shall appear to the Commission that a proceeding by it in respect thereof would be to the interest of the public, it shall issue and serve upon such * * * corporation a complaint stating its charges in that respect and containing a notice of a hearing upon a day and at a place therein fixed at least thirty days after the service of said complaint."
A proceeding under this section of the Federal Trade Commission Act is a special statutory proceeding which may only be brought by and before the Commission. There is no statutory provision authorizing such a proceeding to be brought in or reviewed by a District Court. No adversary proceeding between the Commission and the plaintiff could be brought in the District Court for the purpose of determining whether the practices referred to in the complaint and proposed stipulation constitute unfair methods of competition or unfair or deceptive acts or practices in commerce prohibited by the Federal Trade Commission Act. Therefore, unless such jurisdiction is conferred by the Declaratory Judgment Act, the District Court has no jurisdiction to determine issues, either of fact or of law, which would be presented by a proceeding upon complaint by the Commission.
It is well settled that the Declaratory Judgment Act is not, in itself, a source of federal jurisdiction and did not enlarge the pre-existing jurisdiction of the federal courts. Doehler Metal Co. v. Warren, 76 U.S.App.D.C., 60, 129 F.2d 43; Utah Fuel Co. v. National Bituminous Coal Commission, 69 App.D.C. 333, 101 F.2d 426; Aetna Casualty & Surety Co. v. Quarles, 4 Cir., 92 F.2d 321.
Furthermore, the action of the Commission in determining that it has "reason to believe" that plaintiff has been or is using unfair methods of competition or unfair or deceptive acts or practices in commerce is a judgment based upon an exercise of discretion, and is the first or preliminary step necessary in assuming jurisdiction. As is well said by Mr. Justice Miller in Utah Fuel Co. v. National Bituminous Coal Commission, supra [69 App. D.C. 333, 101 F.2d 432]:
"To permit judicial review, either by injunction or declaratory judgment, of every procedural, preliminary and interlocutory order or ruling by which a person may consider himself aggrieved, would afford opportunity for constant delays in the course of administrative proceedings and would render orderly administrative procedure impossible. Moreover, it would result in bringing to the courts such an avalanche of trivial procedural questions as largely to monopolize their time and energies. That some injury may result from appellants being forced to await the entry of a final order before securing judicial review is a regrettable but not controlling factor under such circumstances."
The question of the Commission's jurisdiction to proceed will be passed on by the Commission. The plaintiff may raise that question in the proceeding before the Commission and obtain a ruling. If the Commission erroneously assume jurisdiction and issues an order to cease and desist, such an order and the proceedings upon which it is based are subject to review by and only by a Circuit Court of Appeals of the United States. The jurisdiction of that court "to affirm, enforce, modify, or set aside orders of the Commission shall be exclusive." 15 U.S.C.A. § 45(d).
The plaintiff stresses the inconvenience and cost of requiring it to engage in the trial of a complaint before the Commission. Such an objection is not new and the courts have invariably held that inconvenience and expense of litigation is "part of the social burden of living under government." Petroleum Exploration, Inc. v. Public Service Comm., 304 U.S. 209, 58 S. Ct. 834, 841, 82 L. Ed. 1294; Bradley Lumber Co. v. National Labor Relations Board, 5 Cir., 84 F.2d 97, 100, certiorari denied 299 U.S. 559, 57 S. Ct. 21, 81 L. Ed. 411; Roche v. Evaporated Milk Ass'n, 63 S. Ct. 938, 87 L. Ed. , decided May 3rd, 1943.
The motion to dismiss must be sustained, and it is so ordered.
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