Despite this finding, the Commission's order, issued in 1953, runs against International as well as the other petitioners and Glidden. In Marlene's, Inc., v. F.T.C., 7 Cir., 216 F.2d 556, we had occasion to consider a similar situation. What we there said in reviewing decisions relative to the discretion lodged in the Commission to enter orders against discontinued practices is pertinent here; it need not be repeated.
Whether such an order should be entered in a case where the unlawful practice has been abandoned is a question which rests within the sound discretion of the Commission. See in this connection: Giant Foods, Inc. v. F.T.C., 116 U.S.App.D.C. 227, 322 F.2d 977; Marlene's Inc. v. F.T.C., 7 Cir., 216 F.2d 556; New Standard Publishing Co. v. F.T.C., 4 Cir., 194 F.2d 181; Oregon-Washington Plywood Co. v. F.T.C., 9 Cir., 194 F.2d 48; Deer v. F.T.C., 2 Cir., 152 F.2d 65; Eugene Dietzgen Co. v. F.T.C., 7 Cir., 142 F.2d 321. The Commission did not quarrel with the finding of the Examiner that the original deceptive practices relative to guarantees had been abandoned, and we think that the Commission might well have upheld the Examiner in dismissing the charge relating to the guarantees.
They cite our language in National Lead Co. v. Federal Trade Commission, supra, 227 F.2d at page 839, "* * * While the Commission is vested with a broad discretion to determine whether an order is needed to prevent the resumption of unlawful acts which have been discontinued, this `discretion must be confined * * * within the bounds of reasonableness.' [citing Marlene's Inc. v. F.T.C., 7 Cir., 216 F.2d 556, at page 559]. "This rule of reasonableness requires something more than a mere guess or suspicion contrary to the evidence and to the finding of the trial examiner that a resumption of discontinued practices may not reasonably be anticipated. * * *"
Nevertheless, the FTC may not issue a cease and desist order to restrain a practice long discontinued and where there is no reason to believe it will be renewed. Rodale Press, Inc. v. Federal TradeCommission, 407 F.2d 1252 (D.C. Cir. 1968); Marlene's Inc. v. Federal Trade Commission, 216 F.2d 556 (7th Cir. 1954). The result is different where the defendant claims the right to renew the practice.
B. The petitioners' third argument is that the cease and desist order should be dismissed against them because they have signed affidavits promising never to enter the lending business again. Courts properly leave to the Commission's non-abusive discretion the question whether the public interest requires the protection of an order in cases where unlawful practices have been discontinued. See Carter Products, Inc. v. FTC, 5 Cir. 1963, 323 F.2d 523, 531; Marlene's, Inc. v. FTC, 7 Cir. 1954, 216 F.2d 556, 559-560; Keasbey Mattison Co. v. FTC, 6 Cir. 1947, 159 F.2d 940, 951. In deciding whether the public interest required a cease and desist order, the Commission had before it all the facts concerning the petitioners' deceptive practices and concluded:
This compendium of false advertising claims in connection with weight-reduction provides additional support for the Commission's effort to induce complete truth in the advertising of products in that field. E. Griffiths Hughes, Inc. v. Federal Trade Commission, 2 Cir., 77 F.2d 886 (Bath salts claimed to help reducing); Alberty v. Federal Trade Commission, 9 Cir., 118 F.2d 669 (Cheno Tea claimed to cause loss of weight); Stanton v. Federal Trade Commission, 10 Cir., 131 F.2d 105 (Anti-Fat Tablets — a formula including extract of Pokeberries and Bladder Wrack); Federal Trade Comm'n v. Raladam Co., 316 U.S. 149, 62 S.Ct. 966, 86 L.Ed. 1336 (a thyroid compound potentially harmful to health); American Medicinal Products v. Federal Trade Commission, 136 F.2d 426, 9 Cir., (Re-Duce-Oids, a thyroid compound), Marlene's, Inc. v. Federal Trade Commission, 7 Cir., 216 F.2d 556; (Mynex — a drug sold in conjunction with a diet plan); Bakers Franchise Corporation v. F.T.C., 302 F.2d 258, 3 Cir., (Lite-Diet Bread — an allegedly low-calorie bread that in fact was only sliced thinner than other bread); Damar Products, Inc. v. United States, supra, 309 F.2d 323 (an oscillating machine sold in conjunction with a diet plan). The order of the Commission is affirmed.
Other than the mere discontinuance at an undisclosed time of their practice relating to the guarantee of their merchandise, petitioners have shown no facts before the Commission which would require that this portion of the order be set aside. Cf. Eugene Dietzgen Co. v. Federal Trade Commission, 7 Cir., 1944, 142 F.2d 321, 330, certiorari denied 323 U.S. 730, 65 S.Ct. 66, 89 L.Ed. 586; Galter v. Federal Trade Commission, 7 Cir., 1951, 186 F.2d 810, 813, certiorari denied 342 U.S. 818, 72 S.Ct. 34, 96 L.Ed. 619; Marlene's, Inc. v. Federal Trade Commission, 7 Cir., 1954, 216 F.2d 556, 559. The Commission has authority to bind Cogan and Magnus in their capacities as corporate officials through whom Clinton Watch Company must operate in the transaction of its practices.
In view of this situation and under all of the circumstances of this case we conclude, and therefore hold, that the Commission did not abuse its discretion in issuing this Order. See Marlene's Inc. v. Federal Trade Commission, 7 Cir., 216 F.2d 556, 559, 560. The petition of Carter to reverse and set aside the Cease and Desist Order of the Commission is denied.
This accords with the general attitude of the courts to respect the judgment of regulatory agencies as to the scope of an order if it appears that it could reasonably have concluded that the order was necessary. Marlene's v. Federal Trade Commission, 7 Cir., 1954, 216 F.2d 556, 559-560. May Dept. Stores Co. v. National Labor Relations Board, 1945, 326 U.S. 376, 390, 66 S.Ct. 203, 90 L.Ed. 145; and see, Federal Trade Commission v. National Lead Co., 1956, 352 U.S. 419, 77 S.Ct. 502, 1 L.Ed.2d 438.
Nevertheless, the FTC may not issue a cease and desist order to restrain a practice long discontinued and where there is no reason to believe it will be renewed. Rodale Press, Inc. v. Federal Trade Commission, 407 F.2d 1252 (D.C.Cir.1968); Marlene's Inc. v. Federal Trade Commission, 216 F.2d 556 (7th Cir.1954). The result is different where the defendant claims the right to renew the practice.