been approved prior to the amendment of the above-described guidelines constitutes a concert of action or combination and conspiracy by the defendants in unreasonable restraint of interstate trade and commerce in violation of the antitrust laws, 15 U.S.C. § 1 et seq.*
15. On the other hand, the defendants deny any antitrust violation. They maintain that the antitrust laws do not prevent industry self regulation by a code to foster high standards, to mitigate evils in trade, and to promote competition upon a fair and sound basis where the code activities meet the test of reasonableness.** They assert that the cigarette advertising standards established by the Code of the National Association of Broadcasters and subscribed to by the defendant networks are reasonable, proper and lawful self regulation.
16. Necessarily the resolution of the foregoing conflicting contentions must await the trial of the instant case on its merits. However, the statement heretofore made of their nature indicates the setting in which plaintiff has moved for a preliminary injunction.
17. The Court now turns to a consideration of whether plaintiff has shown sufficient grounds warranting the exercise of the Court's power to grant the extraordinary relief requested in its motion.
18. Under the prevailing criteria in respect of injunctive relief the Court must consider whether plaintiff is likely to prevail on the merits. The Court is of the view that the plaintiff has not given a substantial indication of probable success.
19. To obtain the extraordinary relief of a preliminary injunction, the plaintiff must show that without such relief it is in danger of immediate irreparable loss or damage. And as the Court of Appeals for this Circuit has said "the key word in this consideration is irreparable." Virginia Petroleum Job. Ass'n v. Federal Power Com'n., 104 U.S. App. D.C. 106, 259 F.2d 921, 925 (1958). The loss and damage claims envisioned by plaintiff (should it modify its cigarette advertising copy to conform to the new guidelines) are grounded upon conjecture and speculation. In other words, plaintiff has not made the requisite showing. Certainly there is nothing before the Court to indicate that if loss and damage are sustained they would be irreparable. On the contrary, such loss and damage would be compensable in money.
20. For some time now studies have been made concerning the hazards of cigarette smoking. In 1964 an Advisory Committee to the Surgeon General of the Public Health Service made a report on smoking and health and concluded that "cigarette smoking is a health hazard of sufficient importance to warrant appropriate remedial action." Evidence of a persuasive character points to a causal relationship between cigarette smoking and lung cancer. Various government agencies have manifested a growing concern over the danger cigarettes pose to health. There is a substantial, if not compelling, public interest in having a meaningful, full, specific and adequate disclosure of the relevant facts in cigarette advertising which contains any claims relating to tar or nicotine content of the cigarettes advertised.
21. The standards and guidelines established and promulgated by the National Association of Broadcasters Code Authority and corporate defendants herein and as amended to become effective January 1, 1970, serve this public interest. Enjoining or preventing the effectuation and implementation of these standards and guidelines, and the amendments thereto which are to become effective January 1, 1970, would be contrary to the public interest.
22. The plaintiff's motion for a preliminary injunction does not seek to enjoin the Federal Trade Commission or the members of the Commission.
23. The plaintiff is not entitled to a preliminary injunction.
24. The motion of the plaintiff for a preliminary injunction will be denied.
25. This memorandum is to constitute the findings of fact and conclusions of law of the Court.
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