The opinion of the court was delivered by: PRATT
This matter is before the Court for consideration of defendants' motion for summary judgment. Upon consideration of the complaint, the motion of defendants for summary judgment, the opposition of plaintiff thereto, and it appearing to the Court that there is no genuine issue as to any material fact, the motion of defendants for summary judgment is granted, based upon the following:
The Federal Trade Commission (hereinafter referred to as "FTC") is an administrative agency of the United States established by the Federal Trade Commission Act, 15 U.S.C. § 41 et seq. for the purpose, inter alia, of preventing unfair methods of competition and unfair and deceptive acts and practices.
Individual defendants, Engman, Dixon, MacIntyre, Jones and Dennison are commissioners of the FTC.
Individual defendants Weinberger and Gardner (hereinafter referred to collectively as "FDA") are the Secretary of Health, Education and Welfare and the Acting Commissioner of Food and Drugs, respectively.
The Secretary and Commissioner are responsible, inter alia, for the enforcement of the Federal Food, Drug and Cosmetic Act. 21 U.S.C. § 301 et seq.
This action seeks to restrain the Federal Trade Commission from undertaking further proceedings in FTC Docket No. 8891, and to restrain the Secretary of Health, Education and Welfare and the Commissioner of Food and Drugs from further proceeding with its review of over-the-counter cold remedies, unless and until the two federal agencies take appropriate action to prevent the conduct of two simultaneous proceedings with regard to the cold and sore throat claims of Listerine Antiseptic. The action further seeks to restrain the Federal Trade Commission from undertaking further proceedings in FTC Docket No. 8891 with regard to the cold and sore throat labeling claims of Listerine Antiseptic.
Plaintiff is the respondent in an adjudicative proceeding presently pending before the FTC under FTC Docket 8891. The proceeding was initiated by issuance of an administrative complaint on June 27, 1972. A copy of the administrative complaint is attached to Warner-Lambert's complaint as Attachment A.
The complaint, in general, alleges Warner-Lambert, in its advertising, offering for sale, sale and distribution of the mouthwash preparation Listerine to retailers for resale to the public, has misrepresented by false, deceptive and misleading statements the effect of the product in the prevention, cure, treatment and mitigation of colds and sore throats. The false, deceptive and misleading statements ...