clear it does not apply to the proceedings in issue.
The Memorandum is an agreement between the two agencies promulgated primarily for the convenience of the agencies in carrying out their functions under two different statutes. The only parties to the agreement were the two agencies involved, and an individual private party, such as plaintiff, may not invoke the agreement in challenging these agency actions. Furthermore, in the Court's opinion, the agreement has not been breached. It is apparent from the affidavits of Messrs. Freer and Fine filed with the Court on May 1, 1973 that there was considerable liaison resulting in an express agreement between the two agencies sufficient to satisfy the requirements of the Memorandum of Understanding.
As far as the proceedings themselves are concerned, it is the Court's opinion they are quite different. As has been pointed out previously, the proceeding before the Federal Trade Commission is an adversary proceeding. It is an adjudicatory proceeding. It involves only Warner-Lambert.
The proceeding before the Food and Drug Administration is a rule-making proceeding. It involves thousands of manufacturers of over-the-counter products, including cold remedies. It is a proceeding which individual companies can participate in or decline to participate in, at their option, recognizing it may also be to their possible disadvantage.
If this Court were to require the Food and Drug Administration to exempt plaintiff from its proceeding, it seems such action would give plaintiff a discriminatory preference over the manufacturers of many products of a similar kind, namely, over-the-counter cold remedy products.
The joint proceedings which FDA and FTC agreed to limit were intended to be proceedings where the FTC would file a complaint seeking a cease-and-desist order on the basis of false and misleading claims, and where the FDA would institute a seizure proceeding seeking to condemn the product on the same grounds. It is certain that the present proceedings, i.e., the FDA review of all OTC drugs, and the FTC complaint against one OTC drug, are not within the provisions of the Memorandum of Understanding. For if this were the case, then the FTC would now be foreclosed from proceeding against any of the 100,000 to 500,000 OTC drugs currently on the market, no matter how false or how misleading the claims for such a product.
The Supreme Court has long held that the same issues and parties may be proceeded against simultaneously by more than one agency. FTC v. Cement Institute, 333 U.S. 683, 92 L. Ed. 1010, 68 S. Ct. 793 (1948); United States v. W.T. Grant Company, 345 U.S. 629, 631-632, 97 L. Ed. 1303, 73 S. Ct. 894 (1953); United States v. Radio Corporation of America, 358 U.S. 334, 343-344, 3 L. Ed. 2d 354, 79 S. Ct. 457 (1959); FTC v. Motion Picture Advertising Service Company, 344 U.S. 392, 97 L. Ed. 426, 73 S. Ct. 361 (1953); United States v. Borden Company, 347 U.S. 514, 98 L. Ed. 903, 74 S. Ct. 703 (1954). In FTC v. Cement Institute, supra, the defendant sought dismissal of the FTC proceedings on the basis that the Department of Justice had proceeded against them in District Court under the Sherman Act. The defendant, as plaintiffs do here, asserted that it was against the public interest to defend both the FTC proceeding and the Sherman Act proceeding which were based on the same alleged misconduct. The Supreme Court, in a holding that has been followed many times, stated that the Sherman Act and the Federal Trade Commission Act provide the Government with cumulative remedies which are not mutually exclusive.
These same principles apply to the concurrent actions of FDA and FTC which may involve the same parties or issues. The propriety of simultaneous FDA-FTC proceedings involving the same issues does not, as claimant would have this Court believe (Complaint, par. 17), present a novel legal issue. For in at least three cases, the courts, including this Court, have held that concurrent FDA-FTC proceedings involving the same or similar matters are proper, and that the statutory remedies of the two agencies are cumulative and not mutually exclusive. United States v. 1 Dozen Bottles, etc., 146 F.2d 361 (4 Cir. 1944); United States v. 5 Cases . . . Capon Springs Water, 156 F.2d 493 (2 Cir. 1946); United States v. ". . . Instant Alberty Food . . ..", 83 F. Supp. 882 (D.D.C. 1949).
In the present case, even if the disparate actions of the FTC and FDA could be construed as simultaneous duplicative proceedings against Listerine Antiseptic, it is clear that the action is neither unlawful nor arbitrary and capricious and therefore plaintiff has no basis upon which to maintain this action.
Plaintiff has available administrative remedies before each agency which have not been exhausted. Still to be completed before FTC is the administrative proceeding in which Warner-Lambert will have full opportunity to present evidence and argument in its behalf. If the adjudicative proceedings do terminate in an order against Warner-Lambert to cease and desist, Warner-Lambert has the right to appeal directly to a United States Court of Appeals. Section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45. The Act further provides that the jurisdiction of the courts of appeals "to affirm, enforce, modify or set aside orders of the Commission shall be exclusive." 15 U.S.C. § 45(d). The Act nowhere provides for a review in district courts of interlocutory rulings by the Commission, and 5 U.S.C. § 704 expressly provides: "A preliminary, procedural or intermediate agency action or ruling not directly reviewable is subject to review on the review of the final agency action." Similarly, if FDA issues a monograph at the conclusion of its proceedings, review of that action may be sought in the courts.
Having considered the foregoing, the Court concludes: there is a rational basis for the actions of each of the agencies in initiating and pursuing their individual proceedings; plaintiff does not have standing to challenge, in this action, the Memorandum of Understanding between the agencies; the two agencies complied with the provisions of the Memorandum of Understanding; the proceedings before the two agencies are not duplicative; plaintiff has not exhausted its administrative remedies; there is no evidence of record that plaintiff is required to respond to the proceeding before FDA, although its failure to respond may be at its peril; and there is no indication that it is in the public interest to enjoin the disparate agency proceedings at this stage.
In summary, plaintiff has not met the criteria for the granting of a preliminary injunction and its motion for a preliminary injunction is denied. Count II of the complaint seeking a permanent injunction against FTC maintaining the labeling charges against plaintiff is dismissed and defendants' motion for summary judgment is granted.
The foregoing shall constitute the Court's Findings of Fact, Conclusions of Law, and Order.