My “FTC moment” came at 9:00 am on July 18, 1972 with the “immediate release” that morning of a press release announcing the Commission’s “Pfizer” decision – holding that it is unlawful for an advertiser to make an affirmative product claim unless there is a reasonable basis for making such a claim. As an attorney-advisor to Chairman Miles Kirkpatrick who wrote the majority opinion, I had the traditional “hand” in drafting that opinion.
The opinion was unique in several respects – it was based on the Commission’s unique and largely under utilized “unfairness” jurisdiction; it relied equally on competitive and consumer protection concepts for its result; and it utilized an economic cost/benefit analysis which set forth a sliding scale of criteria for analyzing the level of substantiation for required for consumer advertising. For the Commission, the decision shifted—in a major and lasting way—the burden of proof in false advertising cases; and for advertisers, the decision provided a pragmatic analytical tool for evaluating their advertising copy to benefit their consumers and to avoid FTC challenges to their ads.
While I had an abundance of wonderful “moments” in my years with the FTC, 9:00 am on July 18, 1972 topped them all!