The opinion of the court was delivered by: JONES
Plaintiffs brought this action for a declaratory judgment, injunctive relief, compensatory and punitive damages. They allege that defendant's advertisement of its product Excedrin has been and is false as a result of which they, and all other persons similarly situated, have been injured and are continuing to be injured.
The false advertising plaintiffs assert is defendant's statements that Excedrin is more than twice as effective an analgesic as aspirin and that this has been demonstrated by a study of pain among patients in a hospital. According to plaintiffs these statements have been and are being published in newspapers and magazines, displayed in buses and broadcast by radio and television stations in the District of Columbia and throughout the nation.
Plaintiff Holloway alleges that she was induced in 1970 by such advertising to purchase six bottles of Excedrin. She sues on her own behalf and on behalf of all other persons who similarly relied on defendant's advertisements.
Plaintiff Adams reads newspapers and magazines; listens to radio broadcasts and views television. She also rides buses. She reads, listens to and views defendant's advertisements of Excedrin. She asserts that she does not wish to be subjected to false, misleading and deceptive advertising. She sues on her own behalf and on behalf of all other newspaper and magazine readers, radio listeners and television viewers who do not want to be subjected to false, misleading and deceptive advertisements.
Plaintiff Consumer Association of the District of Columbia (Association) is composed of 200 consumer members, most of them housewives. It alleges that members have been induced by defendant's advertising to purchase Excedrin and may in the future be induced to buy that product.
Plaintiffs Association and Federation claim to represent the class consisting of all consumers and purchasers of analgesics who are being and will be deceived and misled by defendant's advertising of Excedrin if its dissemination is not restrained.
Plaintiffs base their right to relief (1) on a statutory cause of action under sections 5, 12 and 14 of the Federal Trade Commission Act, 15 U.S.C. §§ 45, 52, 54, (2) an equitable cause of action for fraud and nuisance, and (3) a common law cause of action for deceit. Defendant has moved to dismiss the complaint for lack of jurisdiction and for failure to state any cause of action.
1. Statutory cause of action. Section 5 of the Federal Trade Commission Act (15 U.S.C. § 45) declares unlawful "unfair or deceptive acts or practices in commerce."
Section 12 of the Act (15 U.S.C. § 52) declares it to be unlawful for a corporation to disseminate, or cause to be disseminated, any false advertisment in commerce by any means for the purpose of inducing, or which is likely to induce, the purchase of drugs. Such advertising "shall be an unfair or deceptive act or practice in commerce" within the meaning of section 5 of the Act (15 U.S.C. § 45).
Section 14 of the Act (15 U.S.C. § 54) makes a violation of section 12 (15 U.S.C. § 52) a misdemeanor punishable by fine or imprisonment, or both, if the false advertising was with the intent to defraud or mislead.
Plaintiffs argue that those sections of the Act have as their purpose the protection of the consumers of the country. Since, as they assert, they are consumers who have been injured because of defendant's false advertising they come within the class Congress sought to protect. Therefore, they reason, they have a right to bring this action under the Act to rectify the wrongs that have been worked upon them.
The difficulty in accepting plaintiffs' argument is found in the authorities which hold that the Federal Trade Commission Act creates no private right of action. In 1926, the Supreme Court in Moore v. N.Y. Cotton Exchange, 270 U.S. 593, 603, 46 S. Ct. 367, 368, 70 L. Ed. 750, asserted that relief in cases asserting unfair methods of competition under section 5 of the Act (15 U.S.C. § 45) "must be afforded in the first instance by the commission."
Since that decision other courts have held that no private action may be maintained because of acts declared unlawful by section 5. LaSalle Street Press, Inc. v. McCormick and Henderson, Inc., 293 F. Supp. 1004, 1006 (N.D.Ill.1968); Carlson et al. v. Coca-Cola Co. and Glendinning Companies, Inc., 318 F. Supp. 785, N.D.Cal.1970; Marquette Cement Mfg. Co. v. Federal Trade Commission, 147 F.2d 589, 594 (7 Cir. 1945). Samson Crane Co. v. Union Nat. Sales, Inc., et al., 87 F. Supp. 218, 221 (D.Mass.1949), while dealing only with section 5 of the Act, cited Moore v. N.Y. Cotton Exchange, 270 U.S. 593, 603, 46 S. Ct. 367, 70 L. Ed. 750, as authority for the proposition that private litigants have no right of action to enforce the Act against any of the acts and practices declared unlawful by the Act.
As recently as 1965, the Supreme Court, in an unfair competition action, held that this Commission "in the first instance [is] to determine whether a method of competition or the act or practice complained of is unfair." Atlantic Refining Co. v. Federal Trade ...