The Court concludes that plaintiff probably will not succeed in showing its fiber is not within Sec. 303.7(d), and thus will examine the second question: is Sec. 303.7(d) unreasonable by virtue of its embracing plaintiff's fiber?
The Court starts with the admonition of Mr. Justice Brandeis:
'Where the regulation is within the scope of authority legally delegated, the presumption of the existence of facts justifying its specific exercise attaches alike to statutes, to municipal ordinances, and to orders of administrative bodies.' Pacific States Box & Basket Co. v. White, 1935, 296 U.S. 176, 186, 56 S. Ct. 159, 163, 80 L. Ed. 138.
And see Virginia Petroleum Jobbers Ass'n v. Federal Power Commission, 1958, 104 U.S.App.D.C. 106, 110, 259 F.2d 921, 925.
While it appears that plaintiff's fiber has capabilities which distinguish it from those of 'ordinary rayon' (regenerated cellulose), it is not clear from the legislative history of the Textile Act that performance characteristics-e. g., strength, durability, washability- were intended by Congress to be considered by the Federal Trade Commission in its 'establishment of generic names of manufactured fibers'.
Before it was enacted, the legislation was described as 'a disclosure bill, for the protection of the consumer'.
While it seems apparent that the most effective method of 'disclosure' would be in terms of performance characteristics- bearing in mind that we are concerned primarily with 'the protection of the consumer'- evidently this ideal method was not feasible.
Since categories based upon performance characteristics were not possible, chemical construction was the criterion chosen. This Court is not prepared to say such a criterion is an unreasonable one. Nor can it say, on the record before it, that the single category of rayon, as defined, is an unreasonable one. To the plaintiff's contention that the public will be deceived- rather than informed- by being told that 'Corval' is 'Corval rayon' must be weighed the proposition that categories, after all, had to be established. Too many categories could be just as deceptive as too few or none at all.
Congress realized this
and left to the experts in the Federal Trade Commission the resolution of the problem.
It is the Court's opinion, therefore, that the plaintiff has not shown that it will probably be able to prove the class an unreasonable one.
Furthermore, it does not appear that the plaintiff will suffer irreparable injury because it has to comply with the Commission's rules. There is no requirement that plaintiff cease calling its fiber by its trade name or that plaintiff cease advertising the performance capabilities of its fibers; the requirement is that the word 'rayon' be appended to whatever other words are used to describe the fiber. Plaintiff contends that qualifying adjectives are inadequate to dispel the unfavorable connotation created by 'rayon'; further, that once the public is told that 'Corval' is 'Corval rayon', plaintiff, in the future, will continue to suffer the public's prejudice against rayon even though plaintiff ultimately succeeds in this suit and thereafter deletes 'rayon' from its description.
Plaintiff's contention relies upon three premises: first, the public has a bias against rayon; second, plaintiff's advertising budget will remain constant; third, the advertising men will not be talented enough to re-educate the public.
The record is meager with regard to the first premise; the second lies within the control of the plaintiff; the third is dubious. The men of Madison Avenue have been able to implant in the mind of the public countless slogans-sensible and otherwise. They have sold shirts by depicting a man with an eye-patch; they have sold soap by advertising it to be '99 and 44/100 'this per cent pure' without bothering to add the noun; they have sold brassieres by displaying a sleepwalker. Can it reasonably be said that they are now unable to distinguish one fiber from another, particularly when the two fibers possess 'materially different physical and textile characteristics'?
This remote future inability does not rise to a showing of irreparable injury sufficient to enjoin an agency of the Government, acting in the public interest.
Plaintiff has also contended that procedural irregularities occurred in the promulgation of the Commission's rules. Specifically, it asserts that non-public information was utilized by the Commission and that the rules do not contain 'a concise general statement of their basis and purpose'.
The Court has carefully examined the record and concludes that these contentions are without merit. Van Curler Broadcasting Corp. v. United States, 1956, 98 U.S.App.D.C. 432, 236 F.2d 727, cf. Sangamon Valley Television Corp. v. United States, 1959, 106 U.S.App.D.C. 30, 269 F.2d 221.
Counsel for the defendant is requested to submit findings of fact, conclusions of law and an order in conformity with this opinion.
The motion for a preliminary injunction is denied.