“rationally and systematically." That no Federal agency has the authority to act precisely as the Commission proposes to act is no answer. Congress, in recognition of the complexities of environmental regulation, has directed that study and full consideration precede action. In so doing, however, it has just as effectively pre-empted this area of regulation, as if it had decreed a ban on all products that have any adverse environmental consequences.

III. THE LEGALITY OF THE COMMISSION'S ACTION CAN AND SHOULD BE ADJUDICATED NOW

If, as we have shown, the promulgation of this proposed Trade Regulation Rule would exceed the Commission's authority, the only question remaining is whether the Commission may, nonetheless, avoid or postpone judicial review. Although courts have in the past hesitated to intercede until the administrative process has exhausted itself and all others concerned, compare Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41 (1938), that attitude has now significantly altered. Two lines of authority control here. First, it has repeatedly been held that, whatever the more general standards of ripeness, courts can and should intervene whenever an administrative proceeding is "void and so irrevocably tainted that any final determination which might flow from such proceedings will be invalid." Amos Treat & Co. v. SEC, 306 F.2d 260, 263 (D.C. Cir. 1962). See also Elmo Div. of Drive-X Co. v. Dixon, 348 F.2d 342 (D.C. Cir. 1965); Knoll Associates, Inc. v. Dixon, 232 F. Supp. 283, 285 (S.D.N.Y. 1964). Here, as in Amos Treat, the "asserted infirmity is fundamental," supra at 265, and the Commission's proposed proceeding is "void" and "irrevocably tainted." Courts should intervene where, in Professor Jaffe's phrase, there is a "fundamental question of law" that cuts "sharply to the heart of the whole procedural regulation." L. Jaffe, Judicial Control of Administrative Action 442 (1965). In these circumstances, it is proper, indeed imperative, that courts act to prevent the costs and injuries of unlawful proceedings.1

Second, recent Supreme Court decisions require a more realistic and pragmatic standard with respect to questions of ripeness. See Abbott Laboratories v. Gardner, 387 U.S. 136 (1967); Frozen Food Express v. United States, 351 U.S. 40 (1956); United States v. Storer Broadcasting Co., 351 U.S. 192 (1956); Bantam Books v. Sullivan, 372 U.S. 58 (1963). The controlling question is now viewed as whether the issues presented involve administrative action that has had a "direct and immediate" impact, felt "in a concrete way" by the challenging party. Abbott Laboratories v. Gardner, supra at 148, 152.

What is required is a "pragmatic approach,” Upjohn Co. v. Finch, 303 F. Supp. 241, 255 (W.D. Mich. 1969), involving a "realistic appraisal of the consequences" of the challenged administrative action. Istbrandtsen Co. v. United States, 211 F.2d 51, 55 (D.C. Cir. 1954). The assertion of authority that is challenged here is not a press release or a request for "cooperation" (Bantam Books v. Sullivan, supra). It is considered Commission action, formalized not only in the Federal Register but in the Commission's permanent Regulations, that stands as a threat that the Commission will, at a time and with respect to a subject matter of its own choosing, exercise authority beyond that delegated to it by Congress.

There can be no doubt that the Commission's proposed proceeding will have a “direct,” “immediate,” and “concrete" impact upon Procter. Procter would be compelled to suffer the costs and prejudices of informal and possibly lengthy hearings, in which any and all persons would be permitted to utter such claims or allegations as they may think proper. Under the Commission's Procedures and Rules of Practice, Procter would not be accorded those procedural rights that would be imperative for a full and fair assessment of those claims and allegations. 16 C.F.R. §§ 1.11 et seq. In substance and effect, the manufacturers

14 The opinion of the Court of Appeals for the District of Columbia in Bristol-Myers Co. v. FTC, 424 F. 2d 935 (D.C. Cir. 1970), should not be read to require_differently. The Court there was confronted principally by issues arising under the Freedom of Information Act. It is submitted that the brief reference in the Court's opinion to ripeness does not reflect the state of the law on this question and overlooks significant decisions by that very court. Compare Elmo Div. of Drive-X Co. v. Dixon, supra; B. F. Goodrich Co. v. FTC. 208 F. 2d 829, 834 (D.C. Cir. 1953).

15 Indeed, to a degree not subject to quantification, Procter's interests may already have been irreparably injured. The announcement and pre-hearing press reporting of the Commission's unlawful proceeding have undoubtedly led some consumers, as well as many state and local officials, to conclude that phosphate detergents are pollutants and should be banned and that safe and effective alternatives are available, factual assumptions which in both cases are erroneous

It is the profors that a enn 1ght att rentire the Commision to permit a shalenge of the seria of 217 Trade Reguatia Bie benet as 1 MESE quenes of raja rv'amazing preseding. The Commission & TATS TRESer with The Terms of ennemers and of ware and be sära vi na sudcast degree are seen waged and tartetes of the Thathi gressding it a pare Betion that fals rulemaking pressing may be erased from the Commission's memory, or from the memories of eszenters or fate and Joel cücius Ang alatie apprx.22. "Airont" and

demanda the esprimeion that Procter is safering medlare inor, we, within the mandard of Abbott Laboratories and Bantam Booka. Moreover, even if the Court should hold that standard angatafled rage it meat snder the eu esteem the review of tainted or whants, proesetinga, deny defendants' motion and grant Procter's MORE TOOtion. As the foregoing wertions of this memorandum clearly demonthe promugation of this proposed Trade Regulation Rule is beyond the Commission's present authority. If Procter's Cross-motion is granted, it will impede neither the Commission's exercise of its lawful authority nor appropriate action by other agencies with respect to the nation's environmental problems. The objection here goes instead to "the process by which [the Commission] has chosen" to act. Eimo Dir. of Deine X Co. v. Dizon, supra at 344. The Commission has selected a method patently beyond its legal authority, in hopes of achieving environmental purposes outside the area of its statutory responsibilities. In this situation, courts should not, as Judge McGowan has emphasized, "rebuff at the courthouse door those affected by the rule who seek an appropriate, albeit early, test of its validity." National Motor Freight Ass'n v. United States, 268 F. Supp. 90, 94 (D.C. 1967). See also B. F. Goodrich Co. v. FTC, 208 F. 2d 829, 834 (D.C. Cir. 1953).

CONCLUSIONS

Defendants' motion to dismiss or for summary judgment should be denied, and Procter's cross motion for summary judgment should be granted. Respectfully submitted.

ROGER A. PUTNAM,

Verrill Dana Philbrick Putnam & Williamson, 57 Exchange Street, Portland, Maine, Attorney for Intervenor, The Proter & Gamble Co.

Of Counsel;

DANIEL M. GRIBBON, JOHN S. KOCH, CHARLES LISTER,

Covington & Burling,

888 Mixteenth Street NW,

Washington, D.O.

APRIL 15, 1971.

Appendices, Consisting of Certain Statutory Materials and Related Authorities

List of Appendices

Appendix A Sections 5 and 6 of the Federal Trade Commission Act, 15 U.S.C. § 45, 46 (6 pages).

Appendix B The Legislative History of the Federal Trade Commission Act Insofar as It Bears on the Question Whether Congress Conferred on the Commission Substantive or Legislative type Rulemaking Authority (20 pages).

Appendix C The Commission's Own Past Interpretations of Its Powers (12 pages).

APPENDIX A

Section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45

$ 48. Unfair methods of competition unlawful; prevention by Commission— Declaration of unlawfulness; power to prohibit unfair practices

(a) (1) Unfair methods of competition in commerce, and unfair or deceptive nets or practices in commerce, are declared unlawful.

(2) Nothing contained in this section or in any of the Antitrust Acts shall render unlawful any contracts or agreements prescribing minimum or stipulated

prices, or requiring a vendee to enter into contracts or agreements prescribing minimum or stipulated prices, for the resale of a commodity which bears, or the label or container of which bears, the trade-mark, brand, or name of the producer or distributor of such commodity and which is in free and open competition with commodities of the same general class produced or distributed by others, when contracts or agreements of that description are lawful as applied to intrastate transactions under any statute, law, or public policy now or hereafter in effect in any State, Territory, or the District of Columbia in which such resale is to be made, or to which the commodity is to be transported for such resale.

(3) Nothing contained in this section or in any of the Antitrust Acts shall render unlawful the exercise or the enforcement of any right or right of action created by any statute, law, or public policy now or hereafter in effect in any State, Territory, or the District of Columbia, which in substance provides that willfully and knowingly advertising, offering for sale, or selling any commodity at less than the price or prices prescribed in such contracts or agreements whether the person so advertising, offering for sale, or selling is or is not a party to such a contract or agreement, is unfair competition and is actionable at the suit of any person damaged thereby.

(4) Neither the making of contracts or agreements as described in paragraph (2) of this subsection, nor the exercise or enforcement of any right or right of action as described in paragraph (3) of this subsection shall constitute an unlawful burden or restraint upon, or interference with, commerce.

(5) Nothing contained in paragraph (2) of this subsection shall make lawful contracts or agreements providing for the establishment or maintenance of minimum or stipulated resale prices on any commodity referred to in paragraph (2) of this subsection, between manufacturers, or between producers, or between wholesalers, or between brokers, or between factors, or between retailers, or between persons, firms, or corporations in competition with each other.

(6) The Commission is empowered and directed to prevent persons, partnerships, or corporations, except banks, common carriers subject to the Acts to regulate commerce, air carriers and foreign air carriers subject to the Federal Aviation Act of 1958, and persons, partnerships, or corporations insofar as they are subject to the Packers and Stockyards Act, 1921, as amended, except as provided in section 227(a) of Title 7, from using unfair methods of competition in commerce and unfair or deceptive acts or practices in commerce.

Proceeding by Commission; modifying and setting aside orders

(b) Whenever the Commission shall have reason to believe that any such person, partnership, or corporation has been or is using any unfair method of competition or unfair or deceptive act or practice in commerce, and if it shall appear to the Commission that a proceeding by it in respect thereof would be to the interest of the public, it shall issue and serve upon such person, partnership, or corporation, a complaint stating its charges in that respect and containing a notice of a hearing upon a day and at a place therein fixed at least thirty days after the service of said complaint. The person, partnership, or corporation so complained of shall have the right to appear at the place and time so fixed and show cause why an order should not be entered by the Commission requiring such person, partnership, or corporation to cease and desist from the violation of the law so charged in said complaint. Any person, partnership, or corporation may make application, and upon good cause shown may be allowed by the Commission to intervene and appear in said proceeding by counsel or in person. The testimony in any such proceeding shall be reduced to writing and filed in the office of the Commission. If upon such hearing the Commission shall be of the opinion that the method of competition or the act or practice in question is prohibited by sections 41-46 and 47-58 of this title, it shall make a report in writing in which it shall state its findings as to the facts and shall issue and cause to be served on such person, partnership, or corporation an order requiring such person, partnership, or corporation to cease and desist fom using such method of competition or such act or practice. Until the expiration of the time allowed for filing a petition for review, if no such petition has been duly filed within such time, or, if a petition for review has been filed within such time then until the record in the

proceeding has been filed in a court of appeals of the United States, as hereinafter provided, the Commission may at any time, upon such notice and in such manner as it shall deem proper, modify or set aside, in whole or in part, any report or any order made or issued by it under this section. After the expiration of the time allowed for filing a petition for review, if no such petition has been duly filed within such time, the Commission may at any time, after notice and opportunity for hearing, reopen and alter, modify, or set aside, in whole or in part, any report or order made or issued by it under this section, whenever in the opinion of the Commission conditions of fact or of law have so changed as to require such action or if the public interest shall so require: Provided, however, That the said person, partnership, or corporation may, within sixty days after service upon him or it of said report or order entered after such a reopening, obtain a review thereof in the appropriate court of appeals of the United States, in the manner provided in subsection (c) of this section. Review of order: rehearing

(c) Any person, partnership, or corporation required by an order of the Commission to cease and desist from using any method of competition or act or practice may obtain a review of such order in the court of appeals of the United States, within any circuit where the method of competition or the act or practice in question was used or where such person, partnership, or corporation resides or carries on business, by filing in the court, within sixty days from the date of the service of such order, a written petition praying that the order of the Commission be set aside. A copy of such petition shall be forthwith transmitted by the clerk of the court to the Commission, and thereupon the Commission shall file in the court the records in the proceeding, as provided in section 2112 of Title 28. Upon such filing of the petition the court shall have jurisdiction of the proceeding and of the question determined therein concurrently with the Commission until the filing of the record and shall have power to make and enter a decree affirming, modifying, or setting aside the order of the Commission, and enforcing the same to the extent that such, order is affirmed and to issue such writs as are ancillary to its jurisdiction or are necessary in its judgment to prevent injury to the public or to competitors pendente lite. The findings of the Commission as to the facts, if supported by evidence, shall be conclusive. To the extent that the order of the Commission is affirmed, the court shall thereupon issue its own order commanding obedience to the terms of such order of the Commission. If either party shall apply to the court for leave to adduce additional evidence and shall show to the satisfaction of the court that such additional evidence is material and that there were reasonable grounds for the failure to adduce such evidence in the proceeding before the Commission, the court may order such additional evidence to be taken before the Commission and to be adduced upon the hearing in such manner and upon such terms and conditions as to the court may seem proper. The Commission may modify its findings as to the facts, or make new findings, by reason of the additional evidence so taken, and it shall file such modified or new findings, which, if supported by evidence, shall be conclusive, and its recommendation, if any, for the modification or setting aside of its original order, with the return of such additional evidence. The judgment and deeree of the court shall be final, except that the same shall be subject to review by the Supreme Court upon certiorari, as provided in section 347 of Title 28.

Jurisdiction of court

(d) Upon the filing of the record with it the jurisdiction of the court of appeals of the United States to affirm, enforce, modify, or set aside orders of the Commission shall be exclusive.

Precedence of proceedings; exemption from liability

(e) Such proceedings in the court of appeals shall be given precedence over other cases pending therein, and shall be in every way expedited. No order of the Commission or judgment of court to enforce the same shall in anywise relieve or absolve any person, partnership, or corporation from any liability under the Antitrust Acts.

Service of complaints, orders and other processes; return

(f) Complaints, orders, and other processes of the Commission under this section may be served by anyone duly authorized by the Commission, either (a) by delivering a copy thereof to the person to be served, or to a member of the partnership to be served, or the president, secretary, or other executive officer or a director of the corporation to be served; or (b) by leaving a copy thereof at the residence or the principal office or place of business of such person, partnership, or corporation; or (c) by mailing a copy thereof by registered mail or by certified mail addressed to such person, partnership, or corporation at his or its residence or principal office or place of business. The verified return by the person so serving said complaint, order, or other process setting forth the manner of said service shall be proof of the same, and the return post office receipt for said complaint, order, or other process mailed by registered mail or by certified mail as aforesaid shall be proof of the service of the same.

Finality of order

(g) An order of the Commission to cease and desist shall become final(1) Upon the expiration of the time allowed for filing a petition for review, if no such petition has been duly filed within such time; but the Commission may thereafter modify or set aside its order to the extent provided in the last sentence of subsection (b); or

(2) Upon the expiration of the time allowed for filing a petition for certiorari, if the order of the Commission has been affirmed, or the petition for review dismissed by the court of appeals, and no petition for certiorari has been duly filed; or

(3) Upon the denial of a petition for certiorari, if the order of the Commission has been affirmed or the petition for review dismissed by the court of appeals; or

(4) Upon the expiration of thirty days from the date of issuance of the mandate of the Supreme Court, if such Court directs that the order of the Commission be affirmed or the petition for review dismissed.

Same; order modified or set aside by Supreme Court

(h) If the Supreme Court directs that the order of the Commission be modified or set aside, the order of the Commission rendered in accordance with the mandate of the Supreme Court shall become final upon th expiration of thirty days from the time it was rendered, unless within such thirty days either party has instituted proceedings to have such order corrected to accord with the mandate, in which event the order of the Commission shall become final when so corrected.

Same; order modified or set aside by Court of Appeals

(i) If the order of the Commission is modified or set aside by the court of appeals, and if (1) the time allowed for filing a petition for certiorari has expired and no such petition has been duly filed, or (2) the petition for certiorari ras been denied, or (3) the decision of the court has been affirmed by the Supreme Court, then the order of the Commission rendered in accordance with the mandate of the court of appeals shall become final on the expiration of thirty days from the time such order of the Commission was rendered, unless within such thirty days either party has instituted proceedings to have such order corrected so that it will accord with the mandate, in which event the order of the Commission shall become final when so corrected.

Same; rehearing upon order or remand

(j) If the Supreme Court orders a rehearing; or if the case is remanded by the court of appeals to the Commission for a rehearing, and if (1) the time allowed for filing a petition for certiorari has expired, and no such petition has been duly filed, or (2) the petition for certiorari has been denied, or (3) the decision of the court has been affirmed by the Supreme Court, then the order of the Commission rendered upon such rehearing shall become final in the same manner as though no prior order of the Commission had been rendered.