Association of National Advertisers, et al. v. Federal Trade Commission, 627 F.2d 1151 (D.C. Cir. 1979)
In this case, the D.C. Circuit considered the issue of whether the chairman of the Federal Trade Commission was prohibited from participating in pending rulemaking proceedings concerning children's advertising. The petitioners argued that the chairman was prohibited because he had prejudged the issues involved in the rulemaking. The U.S. District Court for the District of Columbia agreed and ordered the chairman disqualified. The D.C. Circuit Court of Appeals reversed this judgment, holding (1) that the chairman could not be disqualified from rulemaking proceedings for having prejudged the issue; and (2) that the chairman could have been disqualified if there was a clear and convincing showing that he had an unalterably closed mind on matters critical to the disposition of the rulemaking, but that the petitioners had failed to make such a showing.
In April 1978, the FTC issued a Notice of Proposed Rulemaking under Section 18 of the Federal Trade Commission Act (15 U.S.C. ยง 57a (1976)) concerning suggested restrictions regarding television advertising directed at children. The FTC stated that it had decided to commence rulemaking on this issue after a staff report concluded that advertising directed at children who were too young to understand the selling purpose of the commercials may be unfair and deceptive within the meaning of Section 5 of the FTC Act. 627 F. 2d at 1154-55.
Several advertising associations then petitioned FTC Chairman Michael Pertschuk to recuse himself from participating in the rulemaking proceedings because of his previous public statements critical of advertising directed at children. The advertising associations argued that these statements were evidence that the chairman had prejudged the issues and would therefore be unable to serve as an impartial arbiter. When the chairman refused to r...