dissenting.
I respectfully dissent. The issues are fairly presented in the majority opinion, but my view differs.
Britannica does not question on appeal the Commission’s underlying findings about prior sales techniques, but objects to the prescribed cures which go beyond a mere cease and desist order. First, the company objects to the requirement for the use of a warning card by sales representatives, and secondly, to the inclusion in all lead-producing advertisements as well as in any provided mail response forms of the “Notice to Consumer” warning.
*977The Commission has seen fit to dictate the exact size of the warning card, 3" x 5", the exact language to be printed on it and “none other,” and even the particular type to be used in its printing, 10-point bold face type. Further, with this card in hand a salesman is directed to immediately give it to a prospect and to “direct each such person to read it” before anything else is said or done. The Commission has similarly dictated the wording, size, and type to be used in the“Notice to Consumer” to be contained in the advertising and has specified where the warning is to be placed on return forms. Those measures have been ordered by the Commission without any apparent consideration of the adverse side effects upon Britannica likely to result from its prescription or the use of less onerous alternatives to accomplish its same purposes. I do not see in the record any implication, much less any clear implication as the majority does, that the remedies are the result of a reasoned determination or analysis.
Britannica has suggested acceptable alternative measures to accomplish the same purposes which the company views as not offending legal and constitutional standards. For example, it is suggested that instead of the dictated sales representative’s warning card that a fully identifying business card be used coupled with an oral disclosure of the purpose of the sales representative’s contact. Britannica suggests that its sales people would be trained to reveal their sales purposes and to avoid anything misleading. Britannica also argues that it should have a little more freedom in composing its own advertising. The company does not object to the elimination of anything which might suggest that a prospect will not be contacted by a sales representative. The company also would be willing to clearly disclose, but in its own words, that prospects who respond to advertising may likely be contacted by a sales representative.
In my view this is a case where an agency, though with good intentions, in its big brother role has unnecessarily intruded too far into the conduct of legitimate business. The Commission surely has more compelling responsibilities than to dictate the size, wording, and printer’s type to be used inflexibly by the company. Britannica was not given the opportunity to propose or to submit any less damaging forms of remedies to the Commission for prior review.
The remedies appear to me to go beyond any reasonable cure and are more akin to bureaucratic punishment imposed upon a company found by the Commission to be errant. Britannica makes plain the severe, adverse business impact which can be anticipated by its use of the prescribed stark warnings and procedures. It seems to me that to require a salesperson to use the warning card will suggest to many prospects that the sales representative and his company are afflicted with some strange marketplace malady. Even prospects who are predisposed to acquire for themselves and their families the wealth of information found in an encyclopaedia may be expected to turn to some competitor who does not exhibit such abnormal and strange commercial behavior. After all, to be disturbed by the unexpected call of a sales representative or even to suffer a change of mind after purchase of an encyclopedia ordinarily would not be viewed as injurious to a customer’s health. Those persons who show any interest in encyclopaedias may be expected to be those with enough intelligence not to be hopelessly at the mercy of sales representatives. I see no need for making all prospective customers wards of the government when something less may suffice.
When Justice Stevens was a member of this court, he wrote in Papercraft Corp. v. Federal Trade Commission, 472 F.2d 927, 933 (7th Cir. 1973):
“We are conscious of the deference to be accorded to the expertise of the administrative agency, particularly in the fashioning of remedies. But when it selects an untried and blunt instrument which will certainly cause some impairment of statutory objectives [competition], we require a more careful exposition of its justification before we will sanction it as *978a proper remedial tool. The Commission failed to make an adequate demonstration of the need for its exceptional remedy.”
That comment is not without some relevance to this case. We are not bound by our deference to the Commission’s expertise to sanction any remedy the Commission may impose without explanation, or analysis, or any other visible justification when there is the reasonable likelihood that something less harsh to a legitimate business would accomplish the same Commission objectives. As in Siegal Co. v. Federal Trade Commission, 327 U.S. 608, 613, 66 S.Ct. 758, 90 L.Ed. 888 (1940), we are left in the dark as to why some less drastic and damaging remedy would not suffice.
The Commission has brought to our attention the Supplemental Opinion on Petition for Rehearing in Warner-Lambert Co. v. Federal Trade Commission, 183 U.S.App.D.C. 230, 562 F.2d 749 (1977). That opinion explains why certain corrective advertising was considered justified to overcome 50 years of deceptive advertising in which Listerine had been proclaimed and purchased as a remedy for colds. However, even in those circumstances Judge Robb dissented on the basis that the corrective advertising was beyond the Commission’s statutory authority and that the Commission had no authority to punish or impose liability for past conduct. In any event, there is no lingering effect of prior advertising needed to be overcome in the present case.
I would prefer to deny enforcement of the Commission’s order and remand for reconsideration of a more appropriate remedy to be supported by a rational analysis.
There remains the additional issue involving certain materials sought by Britannica under the Freedom of Information Act which the company fears may have exerted some influence on the Commission outside the record. A separate appeal is pending which is an outgrowth of that issue. The majority presumes the regularity of the administrative action. Since the objectionable remedies imposed stand unsupported in the record, I would wait in the resolution of this case until we are'fully informed about the other appeal and its possible effect, if any, upon this case. That would consolidate related matters and avoid to some extent having to rely on implications and presumptions in resolving this case.