The opinion of the court was delivered by: PARKER
The Court has considered the legal memoranda, affidavits, and oral argument of counsel and concludes that the FTC's application for a preliminary injunction should be granted. The reasons for that determination are set out in this Memorandum.
Pharmtech, a California corporation, manufactures Daily Greens, a dietary or food supplement in tablet form.
The label affixed to the Daily Greens bottle indicates that the tablets contain vitamins A, C, and E, the mineral selenium, beta-carotene and dehydrated vegetables. Each tablet provides 3 calories and, taken daily, is at most equivalent to 4.2 servings of fresh cabbage per month. Thus, each tablet provides approximately a one-seventh serving of cabbage. Plaintiff's Motion for a Preliminary Injunction ("FTC Motion"), Ex. 26, Report of William Vaughan.
Since March 1983 Pharmtech has placed advertisements for Daily Greens in various magazines and newspapers, and has disseminated similar television advertising since July 1983. A typical print advertisement states:
Cabbage, Brussels Sprouts, Carrots, Cauliflower, Spinach and Broccoli vs. Cancer * * *
According to the National Academy of Sciences, a regular diet of cruciferous (cabbage, brussels sprouts, broccoli, cauliflower) and carotene-rich (carrots and spinach) vegetables is associated with a reduction in the incidence of certain cancers.*
Of course you may not really like these vegetables. Or you may not cook them quite right. And even if you have all that worked out, you still have to contend with seasonal availability. That's why there are Daily Greens.
Daily Greens are concentrated servings of cruciferous and carotene-rich vegetables. Picked ripe. Carefully washed. And quickly dehydrated without cooking. Then they're fortified with vitamins A, C, E, betacarotene and selenium. . . . The National Academy of Sciences thinks a balanced diet may reduce your risk of cancer. Daily Greens were designed to be a part of that balanced diet . . . .
The photoboard of the television advertisements for Daily Greens states that:
The following message concerns a revolutionary new concept in diet and nutrition. According to this report, commissioned by the National Cancer Institute, a combination of chrysipherous, [sic] and carotene rich vegetables, have been proven to help our bodies build certain important biological defenses. Of course, to get the most benefit from any vegetable, you should eat them raw. But that's difficult to do everyday. So I'd like to introduce you to Daily Greens. Daily Greens are not just another vitamin pill. They're natural, fresh, chrysipherous [sic] and carotene rich vegetables, dehydrated and compressed, to give you the important nutritional supplements, that could be so vital to your future health. . . . So, if you're not getting enough raw vegetables, everyday, rely on Daily Greens . . . To help your body defend itself.
Radio T.V. Reports, FTC Reply, Attachment 1.
Although the challenged advertisements differ in minor respects, each makes the claim that the consumption of Daily Greens is associated with a reduction in the risk of certain cancers. The claim is also made that Daily Greens will contribute to certain biological defenses. The advertisements do not state that the use of Daily Greens will prevent cancer, nor does the FTC allege that Pharmtech makes this claim.
In making these claims, defendant relies solely on a report published by the National Academy of Sciences, entitled Diet, Nutrition and Cancer, Ex. 36. That publication ("the Report") presents the results of a comprehensive study conducted by a 13-member committee of the National Research Council, the Committee on Diet, Nutrition and Cancer ("Committee") on the relationship between eating habits and cancer. The Committee concluded that frequent consumption of certain fruits and vegetables is associated with a reduction in the incidence of cancer in human beings, and found that carotene-rich vegetables, such as carrots, and cruciferous vegetables, such as broccoli, cabbage ...