The Supreme Court let stand yesterday a ruling that if the maker of Listerine wants to run ads for the mouthwash, it must admit in the same ads that "Listerine will not help prevent colds or sore throats or lessen their severity."
The court action was a victory for the Federal Trade Commission, which in the Listerine case used for the first time its claimed legal power to compel an advertiser to run so-called corrective ads.
The FTC has in the past required advertisers to change the wording of ads to avoid misrepresentation. The order upheld yesterday is the first to require an advertiser to run ads retracting past claims.
The FTC "will undoubtedly to using this type of remedy more frequently now that the legal issue has been resolved," a commission spokesman said.
Starting with a proposed complaint against Listerine's manufacturer the Warner-Lambart Co., the commission has been trying for 6 1/2 years to delete claims of effectiveness against colds and sore throats from ads for the mouthwash.
Since 1962, the FTC said, Warner-Lambert has spent about $10 million annually to promote Listerine, mainly as a product useful against "bad breath."
In a statement yesterday, the Morris Plains, N.J., firm said it will comply with the FTC order even though it retains "the strongest confidence in scientific evidence demonstrating the efficacy of Listerine's ingredients in alleviating cold symptoms."
The same evidence was reviewed and rejected by the FTC in lengthy proceedings down through the years that culminated in a December 1975 order to Warner-Lambert to concede - in up to $10 million of ads it may buy in the future - that Listerine isn't effective against cold and sore throats.
The order also required the corrective text to begin with what came to be known as a "confessional preamble" saying, "Contrary to prior advertising . . ."
The government contended the preamble would draw attention to the corrective portion of an ad, provide a settling for the correction and counteract the linguering effects of false and deceptive cold-symptom claims.
But the Court of Appeals for the District of Columbia, while upholding the FTC order for corrective ads, struck down the preamble as unnecessary and "not warranted."
The Supreme Court declined both a petition by Warner-Lambert for review of the main order and a government petition for review of the striking of the confessional preamble.
Particularly because the corrective materials about colds must be included in ads that promote Listerine only for what the manufacturer calls "general oral hygiene," Warner-Lambert complained that the FTC was violating its First Amendment rights of freedom of speech.
The commission, in contrast, said it always has had legal authority to order companies engaging in false advertising to conduct remedial advertising.
The Listerine order was the most far-reaching ad order in FTC history.
The appeals court held that the FTC "is not regulating truthful speech protected by the First Amendment, but is merely requiring certain statements which, if not present in current and future advertisements, would render those advertisements part of a continuing deception of the public."
In a brief in the Supreme Court, the government said the Constitution "does not give advertisers a license to reap the rewards of deceit."
Warner-Lambert, which has had about half of the $200 million-a-year annual mouthwash market, said it had made the cold-symptom claims "in good faith" and with the support of "a responsible body of independent export opinion."
The appeals court said the record "could support" a finding of good faith on the part of the company even in making claims ruled false by the commission.