dissenting in part:
I agree with the majority that there is substantial evidence in the record to support an order requiring Warner-Lambert to cease and desist from advertising Listerine as a remedy for colds and sore throats. I therefore agree that Parts I, II, IV and V of the Commission’s order must be affirmed.
I dissent from the affirmance of Section III of the order which (1) forbids Warner-Lambert to disseminate any advertisement for Listerine unless accompanied by a corrective statement relating to past advertising, and (2) provides that this “duty to disclose the corrective statement shall continue until respondent has expended on Listerine advertising a sum equal to the average annual Listerine advertising budget for the period of April 1962 to March 1972.” — a sum of approximately ten million dollars.1 In my judgment this requirement of corrective advertising is beyond the statutory authority of the Federal Trade Commission. The Commission’s authority to enter cease and desist orders is prospective in nature; the purpose of cease and desist orders is “to prevent illegal practices in the future”, FTC v. Ruberoid Co., 343 U.S. 470, 473, 72 S.Ct. 800, 803, 96 L.Ed. 1081 (1952), not “to punish or to fasten liability on respondents for past conduct”. FTC v. Cement Institute, 333 U.S. 683, 706, 68 S.Ct. 793, 806, 92 L.Ed. 1010 (1948). The cases that have construed the Commission’s remedial power, e. g., FTC v. Sperry & Hutchinson Co., 405 U.S. 233, 244, 92 S.Ct. 898, 31 L.Ed.2d 170 (1972); FTC v. Mandel Brothers, Inc., 359 U.S. 385, 392-93, 79 S.Ct. 818, 3 L.Ed.2d 893 (1959); FTC v. Ruberoid Co., *765supra; FTC v. National Lead Co., 352 U.S. 419, 428-29, 77 S.Ct. 502, 1 L.Ed.2d 438 (1957); Jacob Siegel Co. v. FTC, 327 U.S. 608, 610-12, 66 S.Ct. 758, 90 L.Ed. 888 (1946), stand only for the proposition that the Commission has broad discretion in determining what conduct of a respondent shall be forbidden prospectively. I think this authority does not encompass the power to employ the retrospective remedy of corrective advertising; and I find no other basis for that asserted power.
As the majority recognizes, Congress by amendment of the Federal Trade Commission Act in 1975 authorized the Commission to commence civil actions in federal district courts, to remedy unfair or deceptive acts or practices “with respect to which the Commission has issued a final cease and desist order”. As part of the relief granted in such an action the court was given the power to order “public notification respecting the . . unfair or deceptive acts or practices”. So far as pertinent the amendment reads as follows:
(2) If any person, partnership, or corporation engages in any unfair or deceptive act or practice (within the meaning of section 45(a) of this title) with respect to which the Commission has issued a final cease and desist order which is applicable to such person, partnership, or corporation, then the Commission may commence a civil action against such person, partnership, or corporation in a United States district court or in any court of competent jurisdiction of a State. If the Commission satisfies the court that the act or practice to which the cease and desist order relates is one which a reasonable man would have known under the circumstances was dishonest or fraudulent, the court may grant relief under subsection (b) of this section.
(b) The court in an action under subsection (a) of this section shall have jurisdiction to grant such relief as the court finds necessary to redress injury to consumers or other persons, partnerships, and corporations resulting from the rule violation or the unfair or deceptive act or practice, as the case may be. Such relief may include, but shall not be limited to, recission or reformation of contracts, the refund of money or return of property, the payment of damages, and public notification respecting the rule violation or the unfair or deceptive act or practice, as the case may be; except that nothing in this subsection is intended to authorize the imposition of any exemplary or punitive damages.
15 U.S.C. § 57b(a)(2) and 57b(b). [Emphasis supplied]
The majority comments briefly that the 1975 Amendment “cannot be said to remove corrective advertising from the class of permissible remedies”; the expressed “congressional intent”, says the majority, is to the contrary. I think the 1975 legislation cannot be so lightly dismissed. The amendment indicates to me that at least in the judgment of the Congress the Commission does not have, and is not intended to have, the power to order “public notification” by way of corrective advertising. If the Commission already had that power, why was the amendment necessary? Moreover, the majority fails to note that under the amendment a district court can order public notification only on a showing that the respondent acted in bad faith. Yet the theory of the Commission, accepted by the majority, is that the Commission may enter a corrective advertising order even though a false advertisement was published in good faith. To me it is strange that the Congress would require a court to find bad faith, while authorizing the Commission to act in the absence of bad faith.
The majority attempts to distinguish “public notification” from corrective advertising. First, says the majority, “public notification is a much broader term” than corrective advertising. It is clear to me however that the term public notification includes corrective advertising of the type ordered in this case. Indeed, the examples of public notification given by the majority (n.36) are simply variations of corrective *766advertisements.2 Second, the majority says “the ‘public notification’ contemplated by the amendment is directed at past consumers of the product . . . whereas the type of corrective advertising currently before us is directed at future consumers.” [Emphasis in original] I think the term “public notification” must not be construed so narrowly that future consumers are ignored.
My view of the significance of the amendment is buttressed by the statement of Senator Moss, a co-sponsor of the bill, 120 Cong.Rec. 40712 (1974): “The Federal Trade Commission’s improvements specified in the bill will afford, in my opinion, long-term improvement in the fairness of the American marketplace. No longer will the Federal Trade Commission be confined to slapping the wrists of persons who engage in unfair or deceptive practices and telling them not to do it again.”
The majority relies upon the statement in the Conference Committee’s report and the provision in the amendment to the effect that it does not affect any “existing power” of the Commission. S.Rep. No. 93-1408, 93d Cong., 2d Sess. 1974, reprinted in [1974] U.S.Code Cong. & Ad.News 7774; 15 U.S.C. § 57b(e). The majority seems to think these statements indicate a congressional intent to give the Commission authority to order corrective advertising. I am unable to understand this reasoning. The question before us is what is the “existing power” of the Commission, and that question is not answered by either the amendment or the Committee’s report.
I find nothing in the cases that justifies the Commission’s corrective advertising order. In particular, I am not persuaded by the majority’s quotations from the opinions of the Supreme Court in Pan American World Airways, Inc. v. United States, 371 U.S. 296, 83 S.Ct. 476, 9 L.Ed.2d 325 (1963), and FTC v. Dean Foods Co., 384 U.S. 597, 86 S.Ct. 1738, 16 L.Ed.2d 802 (1966). Taken in the context of the facts of those cases the quoted language does not support the majority’s conclusion.
In the Pan American case the Court considered the power of the Civil Aeronautics Board under section 411 of the Civil Aeronautics Act of 1958, 49 U.S.C. § 1381, to order an air carrier to cease and desist from “unfair . . practices or unfair methods of competition”. The Court held that the Board’s jurisdiction over unfair practices and unfair methods of competition, together with its power under the Act to regulate air carriers, and to deal with consolidations, mergers, interlocking relations, pooling arrangements, etc., 49 U.S.C. §§ 1378, 1379, and its authority to enforce the Clayton Act as it is applicable to air carriers, 15 U.S.C. § 21, empower the Board to order divestiture when a combination between carriers violates the antitrust laws and hinders the Board’s restructuring of routes. Considered in the light of the specific and extensive statutory underpinning upon which the Court based this decision it is a far cry from a holding that the power to order divestiture was derived only from the authority to issue cease and desist orders, as the majority opinion suggests.3 Certainly it does not follow from this case *767that the power of the Federal Trade Commission to order corrective advertising can be derived from its authority to issue cease and desist orders, standing alone.
For similar reasons the language quoted by the majority from the Dean Foods case is not persuasive. As stated by the Supreme Court the issue in that case was:
. the power of the Court of Appeals under the All Writs Act, 28 U.S.C. § 1651(a) (1964 ed.), to temporarily enjoin the consummation of a merger that is under attack before the Federal Trade Commission as violative of § 7 of the Clayton Act, as amended, 64 Stat. 1125, 15 U.S.C. § 18 (1964 ed.).
Id. at 599, 86 S.Ct. at 1740. The Court noted that the Clayton Act granted the Commission the power to determine the legality of a merger and to order divestiture if it proved to be appropriate, 15 U.S.C. § 21(b); and the Court therefore held that the Commission might apply to a court of appeals for a preliminary injunction to maintain the status quo until the Commission decided the matter and the court of appeals reviewed the Commission’s decision. The power to pray for an injunction was described by the Supreme Court as “incidental” to the Commission’s authority under the Clayton Act. Id. at 606, 86 S.Ct. 1738. To deny this plainly incidental power to preserve the Commission’s and the court’s jurisdiction, said the Supreme Court, “would stultify congressional purpose.” Here again I think this decision does not support the majority’s leap to the conclusion that the power to issue a cease and desist order, without more, authorizes the Commission to enter a corrective advertising order, nor does the decision justify a conclusion that the corrective order can be sustained under some general remedial power of the Commission.
The other cases cited by the majority do not justify the Commission’s order. In those cases an affirmative disclosure was required because failure to reveal material facts, in the light of the representations made in advertisements, made them misleading. Thus in the case of Ward Laboratories, Inc. v. FTC, 276 F.2d 952 (2d Cir.), cert. denied, 364 U.S. 827, 81 S.Ct. 65, 5 L.Ed.2d 55 (1960), cited by the majority, the court said:
Any requirement of an affirmative disclosure of a negative is always to be approached with caution. Merely because a remedy is useful for any one ailment is no reason to demand an accompanying statement of all the ills for which it is not beneficial. Even this principle, however, must yield where the advertisements are misleading because of failure to reveal facts material in the light of the representations made therein. In arriving at such a conclusion the advertisements (format and copy) and the potential customer they are intended to reach must be analyzed.
Id. at 954. [Emphasis supplied]
Similar reasoning may be found in Keele Hair & Scalp Specialists, Inc. v. FTC, 275 F.2d 18 (5th Cir. 1960); Feil v. FTC, 285 F.2d 879 (9th Cir. 1960); and J. B. Williams Co. v. FTC, 381 F.2d 884 (6th Cir. 1967).
In Royal Baking Powder Co. v. FTC, 281 F. 744 (2d Cir. 1922), relied upon by the majority, a manufacturer by employing false and misleading labeling and advertising represented that a phosphate baking powder which it was offering for sale was the same as the more expensive cream of tartar baking powder which it had manufactured for many years. The baking powder company was in the position a liquor dealer would be in today if he used Haig & Haig pinch bottles and labels when purveying moonshine whiskey. The court held that the Commission properly ordered the company, by correcting its false and misleading advertising, to cease and desist from this unfair method of competition. In Waltham Watch Co. v. FTC, 318 F.2d 28 (7th Cir.), cert. denied, 375 U.S. 944, 84 S.Ct. 349, 11 L.Ed.2d 274 (1963), an advertisement represented that clocks offered for sale were manufactured by a “famous 150-year-old company”, the original Waltham Watch Company of Massachusetts. The fact was that the original Waltham Company had nothing to do with the clocks of*768fered for sale, which were imported from Europe. The Commission ordered the advertisers to cease and desist from using the name Waltham in connection with the sale of clocks unless the public was warned that they were not manufactured by the Walt-ham Watch Company in Waltham, Massachusetts.
The majority finds “that the orders in Royal and Waltham were the same kind of remedy the Commission has ordered here”. I cannot agree. In those cases advertisements falsely represented that the products offered for sale were the same as the products, well-known to the public, which had been offered in the past. The Commission’s orders simply required these false representations to be corrected in future advertisements using the same or similar format or copy. In the present case, however, when Warner-Lambert has ceased and desisted from advertising Listerine as a remedy for colds and sore throats there will be nothing to correct in the text of the Listerine advertisements. Any “corrective statement” will relate solely to past advertising.
Finally, in considering the validity of the Commission’s order the majority fails to focus on all its terms. Section III of the order forbids any advertisements for Listerine without the corrective statement. Yet it is conceded that Listerine is effective as a mouth wash and breath freshener, and it appears that in recent years much the greater part of Warner-Lambert’s advertising budget for Listerine has been spent in promoting these uses of the preparation. Thus the Commission and the majority would forbid the publication of truthful advertisements of Listerine’s effectiveness unless coupled with a disclaimer relating to uses advertised in the past. I cannot believe that the statute contemplates such a remedy, which goes far beyond the prevention of “illegal practices in the future.”
The theory of the majority is that whenever “advertisements play a substantial role in creating or reinforcing in the public’s mind a false belief about [a] product” and “this belief [may] linger on after the false advertising ceases”, corrective advertising may be ordered. As the majority apparently concedes, this test would apply to almost any advertisement which is the subject of a cease and desist order. I cannot accept this concept. I reject the proposition that the after-effects of advertising which has been discontinued pursuant to a cease and desist order can thus expand the Commission’s statutory power to prevent future illegal practices. See Heater v. FTC, 503 F.2d 321, 323-25 (9th Cir. 1974). In my opinion such an expansion must be made by the Congress, not by this court.
SUPPLEMENTAL OPINION ON PETITION FOR REHEARING
In its petition for rehearing petitioner has urged this court to reconsider its earlier decision affirming, with some modifications, the order of the Federal Trade Commission requiring Warner-Lambert Company to cease and desist from deceptively advertising its product Listerine as a cure for colds or sore throat and affirmatively to correct in its future advertisements the impression created by its prior deceptive advertising. The primary argument raised in the petition for rehearing is that the Commission is barred by the First Amendment from imposing a corrective advertising order in this case. Having considered this claim carefully, it is our conclusion that it must be rejected. Because of the importance of the issues raised, however, we think it desirable to set forth in some detail our reasons for so concluding.
I
In Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976), the Supreme Court rejected prior precedents holding that commercial speech is “wholly outside the protection of the First Amendment.” Id. at 761, 96 S.Ct. at 1825. In reaching this conclusion the Court emphasized the interest of consumers in the free flow of truthful information necessary for formulation of intelligent opinions and proper resource allocation. Id. at 764-765, 96 S.Ct. 1817. Consistent with this concern, *769the Court was careful to distinguish truthful commercial speech from that which is false, misleading, or deceptive: “Untruthful speech, commercial or otherwise, has never been protected for its own sake. * * * Obviously, much commercial speech is not provably false, or even wholly false, but only deceptive or misleading. We foresee no obstacle to a State’s dealing effectively with this problem.” Id. at 771, 96 S.Ct. at 1830 (citations and footnote omitted). Furthermore, the Court went on to suggest that, because of the “commonsense differences” between commercial speech and other varieties, even commercial speech subject to First Amendment protections may nonetheless enjoy a “different degree of protection” than that normally accorded under the First Amendment. Id. at 771-772 n.24, 96 S.Ct. 1817.
Applying these principles to the case at bar, there can be no question of the legitimacy of the FTC’s role in regulating and preventing false and deceptive advertising. In this case it has been found that Warner-Lambert has, over a long period of time, worked a substantial deception upon the public; it has advertised Listerine as a cure for colds, and consumers have purchased its product with that in mind. That the Commission has authority to prohibit Warner-Lambert from continuing to make such false and deceptive claims in its advertisements is not disputed, for it is only truthful claims which are protected under the First Amendment.1 Here, however, the FTC has determined on substantial evidence that the deception of the public occasioned by Warner-Lambert’s past advertisements will not be halted by merely requiring Warner-Lambert to cease making such claims in the future. To be sure, current and future advertising of Listerine, when viewed in isolation, may not contain any statements which are themselves false or deceptive. But reality counsels that such advertisements cannot be viewed in isolation; they must be seen against the background of over 50 years in which Listerine has been proclaimed — and purchased — as a remedy for colds. When viewed from this perspective, advertising which fails to rebut the prior claims as to Listerine’s efficacy inevitably builds upon those claims; continued advertising continues the deception, albeit implicitly rather than explicitly.2 It will induce people to continue to buy Listerine thinking it will cure colds. Thus the Commission found on substantial evidence that the corrective order was necessary to “dissipate the effects of respondent’s deceptive representations.” FTC op. at 41, JA 907.
Under this reasoning the First Amendment presents no direct obstacle. The Commission 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 themselves part of a continuing deception of the public. As the Supreme Court recognized in Virginia State Board, in some cases it may be “appropriate to require that a commercial message appear in such a form, or include such additional information, warnings, and disclaimers, as are necessary to prevent its being deceptive.” 425 U.S. at 772 n.24, 96 S.Ct. at 1830-31. We must conclude — as did the Commission — that this is such a case.
II
Admittedly, corrective advertising orders such as that imposed here may give *770rise to concern as to their chilling effect on protected truthful speech. The potential advertiser must consider not only the possibility that he will be forced, at some' future date, to abandon his advertising campaign, but also that he may be required to include specific disclaimers in future advertisements. But this danger seems more theoretical than real. As the Supreme Court pointed out in Virginia State Board, not only is the truth of commercial speech “more easily verifiable by its disseminator” than other forms of speech, but “[s]ince advertising is the sine qua non of commercial profits, there is little likelihood of its being chilled by proper regulation and forgone entirely.” 425 U.S. at 771-772 n.24, 96 S.Ct. at 1830.
Moreover, whatever incremental chill is caused by a corrective advertising order beyond that which would result from a cease and desist order may well be necessary if the interest of consumers in truthful information is to be served at all. Otherwise, advertisers remain free to misrepresent their products to the public through false and deceptive claims, knowing full well that even if the FTC chooses to prosecute they will be required only to cease an advertising campaign which by that point will, in all likelihood, have served its purpose by deceiving the public and already been replaced. See panel majority op. at - n.60, 562 F.2d at 761 n.60; Pitofsky, Beyond Nader: Consumer Protection and the Regulation of Advertising, 90 Harv. L.Rev. 661, 692-693 & nn.129-130 (1976) (emphasizing the relatively small number of complaints issued by the FTC each year and the lengthy time period between complaints and orders); Note, “Corrective Advertising” Orders of the Federal Trade Commission, 85 Harv.L.Rev. 477, 482-483 (1973).
III
A more serious First Amendment problem which may be raised by corrective advertising orders involves the burden thereby imposed upon the constitutional right recognized in Virginia State Board to advertise truthfully: the party subject to a corrective advertising order may be precluded from exercising his right to advertise unless he also includes specified statements undermining his prior deceptive claims. On the facts of this case, no burden is imposed upon truthful, protected advertising since, as the Commission makes clear, Listerine’s current advertising, if not accompanied by a corrective message, would itself continue to mislead the public. Even if, in the circumstances of this case, the current and future advertising of Listerine is considered constitutionally protected speech, however, we think the corrective advertising order in this case remains appropriate.
The Supreme Court, in invalidating the state ban on advertising of prescription drug prices in Virginia State Board, considered the scope of the restriction on First Amendment rights, the governmental purposes and public interests affected by the ban, and the availability of alternative means to accomplish the legitimate governmental objectives. See 425 U.S. at 764-770, 96 S.Ct. 1817. See also Bates v. State Bar of Arizona,-U.S.-,---, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977). As we have indicated, it is not at all clear, even after Virginia State Board, that commercial speech protected by the First Amendment is, apart from “commonsense differences,” entitled to the same degree of protection as other forms.3 Indeed, the opposite conclusion seems the more appropriate one.4 But in any event, it does seem clear that the corrective advertising order in this case is the least restrictive means of achieving a *771substantial and important governmental objective and that, on balance, it must be upheld.5 Cf. Buckley v. Valeo, 424 U.S. 1, 25-29, 65-68, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976); Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976); United States v. O’Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). The governmental interest here, of course, is in protecting citizens against deception — with its attendant waste and misallocation by consumers to the benefit of the wrongdoers — by ensuring that advertising conveys truthful information to the public. As we noted earlier, it is this very interest which was invoked by the Virginia State Board Court as support for its conclusion that commercial speech is protected by the First Amendment. See 425 U.S. at 764-765, 96 S.Ct. 1817. See also Bates v. State Bar of Arizona, supra, - U.S. at -, 97 S.Ct. 2691.
And the facts of this case make it eminently clear that this interest will not be substantially served by the less restrictive remedy — a cease and desist order. Whatever one may conclude as to the effect of Warner-Lambert’s long history of deception on the protected status of its current advertising, we see no basis — and none has been offered — for questioning the Commission’s conclusion that, absent a corrective remedy, consumers will continue to purchase Listerine as a cure for colds. See FTC op. at 38, JA 904. Indeed, at least one advocate of corrective advertising has urged that such orders not be confined to obvious cases such as Warner-Lambert where the proof presented to the Commission of the success of a deceptive campaign is so striking. Noting the long history of a deceptive claim uniquely asserted for Listerine, the absence of consumer confusion as to which mouthwash was effective against colds, and the persuasive evidence that this claim was believed by consumers after the false advertising had ceased, Professor Pitofsky has argued that “[cjomparable proof of deception-perception-memory influence would be virtually impossible in most advertising cases. * * * If the Commission is to do an effective job in regulating deceptive advertising, corrective advertising must apply to more than the one-in-a-million type of ad campaign present in Warner-Lambert.” See Pitofsky, supra, 90 Harv.L.Rev. at 698.
Finally, the corrective advertising order in this case, by tying the quantity of correction required to the investment in deception, is tailored to serve the legitimate governmental interest in correcting public misimpressions as to the value of Listerine— and no more.6 Taking all these factors into account, we think it beyond doubt that the FTC order is a valid one.
Petition for rehearing denied.
. Section III of the FTC Order contains the corrective advertising requirement. It states in full:
IT IS FURTHER ORDERED that respondent Warner-Lambert Company, a corporation, its successors and assigns, and respondent’s officers, agents, representatives and employees, directly or through any corporation, subsidiary, division or other device, do forthwith cease and desist from disseminating or causing the dissemination of any advertisements for the product Listerine Antiseptic unless it is clearly and conspicuously disclosed in each such advertisement in the exact language below that: Contrary to prior advertising, Listerine will not help prevent colds or sore throats or lessen their severity.
In print advertisements, the disclosure shall be displayed in type size which is at least the same size as that in which the principal portion of the text of the advertisement appears and shall be separated from the text so that it can be readily noticed. In television advertisements, the disclosure shall be presented simultaneously in both the audio and visual portions. During the audio portion of the disclosure in television and radio advertisements, no other sounds, including music, shall occur. Each such disclosure shall be presented in the language, e. g., English, Spanish, principally employed in the advertisement.
The aforesaid duty to disclose the corrective statement shall continue until respondent has expended on Listerine advertising a sum equal to the average annual Listerine advertising budget for the period of April 1962 to March 1972.
86 F.T.C. 1398, 1485-86 (1975).
. As one example of “public notification” the majority says in n.36 “it might encompass requiring the defendant to run special advertisements reporting the FTC finding . . 1 note however that according to the FTC such advertisements are “corrective advertising”. In its opinion in the case before us, 86 F.T.C. 1398, 1498 (1975) the Commission states that it “has accepted numerous consent orders which require corrective advertising.” In support of this statement the Commission cites several cases as examples of cases in which corrective advertising was ordered. (Id., pp. 1498-99, n.22) In at least three of those cases the Commission required the respondent to publish advertisements advising the public of the FTC finding and retracting prior deceptive statements. Pay Less Drug Stores Northwest, Inc., 82 F.T.C. 1473 (1973); Boise Tire Co., 83 F.T.C. 21 (1973); Wasem’s, Inc., 84 F.T.C. 209 (1974).
. Compulsory licensing of an illegally obtained patent, referred to in the majority’s n.60, is an aspect of divestiture. A legally obtained patent permits a valid monopoly for the period of the patent; an illegally obtained patent shelters an invalid monopoly which can be “broken up” by requiring the patent holder to license its patent to competitors.
. Cease and desist orders aimed at false or deceptive speech may, in theory, have a chilling effect on truthful speech, and be subject to First Amendment scrutiny on that account. In practice, however, this should rarely if ever be necessary. See Part II infra.
. In this connection it is worth noting that Warner-Lambert currently advertises Listerine’s ability to kill germs that cause bad breath. While we have no reason to doubt the truth of this claim, the emphasis on Listerine’s germ-killing ability does seem to tie in closely with prior false advertising as to its capacity to alleviate health problems. See FTC op. at 38 n.28, JA 904.
. See Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 779-781, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976) (Stewart, J., concurring); Young v. American Mini Theatres, Inc., 427 U.S. 50, 69 n.32, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976); Note, First Amendment Protection for Commercial Advertising: The New Constitutional Doctrine, 44 U.Chi.L.Rev. 205, 225 n.121 (1976).
. Cf. Banzhaf v. FCC, 405 F.2d 1082, 1101-1103 (D.C.Cir. 1968), cert. denied, sub nom. Tobacco Institute, Inc. v. FCC, 396 U.S. 842, 90 S.Ct. 50, 24 L.Ed.2d 93 (1969).
. We do not here consider whether the Commission, under principles of administrative exhaustion, should be required initially to decide this constitutional issue in light of the decision in Virginia State Board. The extent to which administrative exhaustion of constitutional claims is required presents difficult and unsettled questions of law, and since this point has been neither raised nor briefed by petitioner, we decline to address it in this decision. See Mathews v. Eldridge, 424 U.S. 319, 327-330, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); Weinberger v. Salfi, 422 U.S. 749, 764-767, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975); K. Davis, Administrative Law of the Seventies §§ 20.00 to 20.00-3 (1977 Supp.); Note, The Authority of Administrative Agencies to Consider the Constitutionality of Statutes, 90 Harv.L.Rev. 1682 (1977).
. As the Commission itself noted, it may well be impossible to “determine in advance with computer-like precision the minimum amount of corrective advertising which will dispel the otherwise continuing beliefs at issue.” FTC op. at 39, JA 905. Even so, considering the 50 years of deceptive Listerine advertising, continuing inflation with attendant increased advertising costs leaves no doubt that the Commission is requiring a significantly smaller quantity of corrective advertising than prior deceptive advertising. As a result, any imprecision in the order’s scope would seem likely to inure to Warner-Lambert’s benefit.